January 24, 2019
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The Court of Appeal, per Avril Lovelace-Johnson (J.A), dismissed an appeal by a borrower challenging an ex parte High Court warrant authorizing police assistance for the lender to take possession of property used as collateral under the Borrowers and Lenders Act, 2008 (Act 773). The borrower had defaulted after obtaining a loan secured by his four-bedroom house, and the lender followed statutory enforcement steps, including demand notices and a Memorandum of No Objection from the Collateral Registry. The court held that Act 773 does not require notice for an application under section 34(2), that the motion-on-notice requirement in C.I. 47 applies only to pending proceedings and cannot override an Act of Parliament, and that proceeding ex parte did not breach audi alteram partem given the borrower’s ongoing statutory and factual notice. The appeal was dismissed in its entirety.
JUDGEMENT
AVRIL LOVELACE-JOHNSON (J.A):
On 10th April 2017 the High Court granted the Respondent’s ex- parte application for a warrant to take possession pursuant to section 34(2) of The Borrowers and Lenders Act, 2008, Act 773.
The present Appellant’s application to set aside the said warrant was refused by the court on 30th October hence this appeal.
The Appellant filed six grounds of appeal as following
i. That the learned Judge erred in law when he came to the conclusion that the Respondent/Appellant was not entitled to notice of an originating process pursuant to Section 34 of the Borrowers and Lenders Act, 2008 (Act 773) when in fact the Applicant/Respondent was seeking to enforce a right of possession by Court action.
ii. That the learned judge committed an error of Law when he came to the conclusion that the court cannot confer right of notice based on common law principles and provisions of subsidiary legislation in making applications to court pursuant to section 34 of the Borrowers and Lenders Act 2008 (Act 773) notwithstanding the provisions of Order 19 Rule 3 of the High Court Civil Procedure Rules 2004 C.I 47.
i. That the learned judge committed an error of law in breach of the rules of natural justice, to wit, audi alteram partem when he concluded that the Respondent/Appellant was not entitled to notice of the application for warrant to possess H/No. GX7 Manet Cottage pursuant to section 34 of the Borrowers and Lenders Act 2008 (Act 773).
ii. That the learned judge committed an error of law and breached the rules of natural justice, to wit audi alteram partem when he maintained that the 10th April, 2017 Order of Police warrant granted ex-parte pursuant to section 34(2) of Act 733 is supported by law and rule of procedure.
iii. That the learned judge erred in law when he ruled that the default of notice has not occasioned any prejudice, loss or injustice when in fact the Ex Parte application for enforcement of right of possession pursuant to section 34 of the Borrowers and Lenders Act was in clear breach of the rules of natural justice.
iv. That the judged erred in law when he based his ruling on Order 19 Rule 4 of C.I. 47 and concluded that the Appellant was not entitled to notice of the application for warrant of posses.
Grounds (i),(ii) and (vi) will be considered together because they all essentially deal with the issue of whether by law, the Appellant was entitled to notice of the application in question. In the same vein grou