ELVISCO FARMS v. KENNEDY TWI & SONS LIMITED AND MR. KENNEDY TWI
2018
HIGH COURT
GHANA
CORAM
- ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
Areas of Law
- Civil Procedure
- Property and Real Estate Law
2018
HIGH COURT
GHANA
CORAM
AI Generated Summary
Justice Angelina Mensah-Homiah of the High Court ruled on an application to set aside enforcement orders arising from an auction sale. The property had been purchased and the sale was absolute, which generally entitles the purchaser to a writ of delivery rather than possession under the Civil Procedure Rules (C.I. 47). However, the court found serious doubts about proper service of the hearing notice, noting that service on a shop attendant is not valid for a limited liability company and that there was no document showing the business was an enterprise requiring service on the proprietor. The court emphasized that occupants must be notified and, upon issuance of a writ of delivery, attorn tenancy to the purchaser. In light of service deficiencies, the court set aside its 19 February 2018 order granting leave to issue writ of delivery and ejectment, made no consequential orders, and awarded no costs, directing counsel to regularize the process.
RULING
The submissions of both counsel in respect of the instant application to set aside the order of the court dated 21/12/2017 have been considered upon the examination of the bailiff, there is a real doubt as to the entity the hearing notice of the motion was served on. If the business is a limited liability company, then service on the shop attendant cannot be said to be good service. In any case, there is no document to proof that the business is also an enterprise in which case service ought to have been effected on the proprietor personally.
It is to be noted that the property in issue was purchased at an auction the sale has become absolute. This entitled the purchaser to apply for a writ of delivery under order 45 rule 12 (3) of C.I. 47, and not a writ of possession under order 43 rule 3 (1) of C.I. 47. After reading the affidavit in support of the previous application, the court considered the provisions of order 1 rule 2 of C.I. 47 and granted leave for a writ of delivery to issue instead of writ of possession.
In both situations, occupants of the premises which has been auctioned were to be notified. In the case of auction sale, after a writ of delivery has been issued, all that is required of the occupants is to attone tenancy to the purchaser. That said, the court cannot close its eyes to the present Applicant’s contention that no notice of the motion on notice filed by the purchaser was served on the company. But the question is, what good will the “Applicant/Occupant” achieve in the face of the fact that the auction sale has become absolute? I leave that to the Applicant’s judgment.
Upon a careful consideration of all the circumstances leading to the grant of the application complained of by the Applicant herein the court hereby sets aside its order dated 19/02/2018 granting leave to the Applicant thereon to issue a writ of Delivery and Ejection of occupants.
No other consequential order will be made at this time. In the light of this ruling, it is entirely up to counsel for the Applicant in the said motion to put her house in order.
No order is to cost.
(SGD.) ANGELINA MENSAH-HOMIAH (MRS)
JUSTICE OF THE HIGH COURT