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RULING
This ruling is in respect of an application by the defendants/judgment/
debtors “for an order for leave to set aside the purported sale of the mortgaged property, H/No. 107, 10th Avenue, Nungua also known as Fort Seyram situate at Nungua, Accra carried out on the 12th March, 2011”.
The application was filed on 9th December, 2011. Two main grounds canvassed in support of this application are:
a. that the plaintiff/judgment/creditor failed to attach and sell the movables of the defendants/judgment/debtors before levying execution on its immovable property;
b. that the processes leading to the sale of the immovable property did not follow due process.
On the first ground I think the applications are confusing themselves over execution of judgments generally on the one hand and execution of judgments specifically in respect of secured debts.
In respect of executions of judgments obtained generally it is the movables which have to be attached first and sold before going after immovables if the first execution could not satisfy the judgment debt.
On the other hand if a judgment is obtained over a secured debt like in the instant case, the judgment/creditor is to attach the security first in execution to defray the judgment debt. If the proceeds of the execution is in sufficient to defray the judgment debt then the judgment/creditor is entitled to proceed against non-secured properties in which case he has to proceed against movables before any immovables.
Thus the plaintiff/judgment/creditor in the instant case was entitled to proceed against the mortgaged property first to defray the judgment debt.
This brings one to the issue of whether in levying execution over the mortgaged property the plaintiff/judgment/creditor followed due process.
By section 16(2) of the Auction Sales Act, 1989 (P.N.D.C.L 230), an auction sale arising out of a judgment debt is subject to a reserved price which is determined by the court which gave the judgment. In this case the plaintiff/judgment/creditor/respondent on 3rd May, 2006 applied to this court for a reserved price. This application was served on the defendants/
Judgment/debtors/applicants herein on 23rd July, 2007. Attached to the application was the valuation report. The property was auctioned twice: first on 7th July 2010 and later on 18th March, 2011 after publication of several notices to that effect. The contention of the applicants that they had no notice of the application for the reserved price and the hear