barclays bank of ghana ltd. v. raynolds enterprise ltd. and 2 ors
2013
COURT OF APPEAL
GHANA
CORAM
- mariama owusu, j.a. (presiding)
- danquah i., j.a.
- torkornoo g., j.a.
Areas of Law
- Contract Law
- Civil Procedure
- Property and Real Estate Law
2013
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This case is an appeal against a High Court ruling refusing to set aside an auction sale of the defendants' properties for non-compliance with mandatory notice requirements under the Auction Sales Act (PNDCL 230). The Court of Appeal held that the High Court erred by using procedural rules under CI 47 instead of adhering to the Auction Sales Act, thus making the auction sale void.
MARIAMA OWUSU, J.A: This is an appeal against the ruling of the High Court (Commercial Division) dated 13-7-2010, which refused to set aside an auction sale of the defendants’ properties.
Dissatisfied with the decision of the High Court, the defendants filed an appeal to this Court on the following grounds; 1. The learned trial judge erred in law in treating the application to set aside the sale under Order 45 R. 10 of the Civil Procedure Rules [C.I 47], a subsidiary Legislation, rather than under the Auction Sales Act [PNDCL 230], a substantive Legislation.
2. The learned trial judge erred in law in refusing to set aside the sale when it is apparently clear from the record that the plaintiff and the auctioneer failed to comply with the mandatory provisions of the Auction Sales Act [PNDCL 230] which requires a fixed period of at least 21 days notice before the public auction of the defendants properties on 17-12-2009.
3. Further grounds will be added on receipt of the records.
The reliefs sought from this court: That the ruling of the lower court dated the 13th of July, 2009 be set aside and the sale of the defendants’ properties on the 17th of December, 2009, be set aside for non compliance with PNDCL 230.
Before going into the arguments canvassed in support of this appeal, I will like to give a brief background of this case.
The plaintiff in this case issued a writ of summons against the defendants jointly and severally for the recovery of the following; 1. GH¢544,166.96 being outstanding balance on banking facilities granted to the 1st defendant by the plaintiff.
2. Interest on the said sum at the prevailing Bank Lending Rate from 31st day of March, 2008, up to and inclusive of the day of final payment or in the alternative: Judicial sale of all properties mortgaged to the plaintiff as follows: [a] All that piece or parcel of land with building or buildings thereon situate lying and being at North Patasi, Kumasi known as Plot No.6, Block ‘Q’ belonging to the 2nd defendant and same registered at Lands Registry, Kumasi bearing No.
LVB/ASR/272/99 [b] All that piece or parcel of land with building or buildings thereon situate lying and being at North Patasi, Kumasi known as Plot No.
16, Block ‘L’ belonging to the 3rd defendant and same registered at Lands Commission, Kumasi as No.
Ash.02/06/06 [c] All fixed and floating assets of the 1st defendant more particularly those contained in the Debenture Deed stamped as LVB1919/08 3. C