December 17, 2015
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This appeal arises from enforcement of a default judgment obtained by Ghana Commercial Bank against Eastern Alloys Company Ltd and six individual directors after loan and overdraft defaults. The bank executed against the company’s factory premises, adjusting reserve prices when necessary, and the property was sold by public auction to World Prayer Centre, with a writ of possession subsequently issued. Eastern Alloys later moved to set aside the default judgment, execution, and sale, contending the levy on immovable property was illegal because sufficient movables existed and alleging auction irregularities. The trial court set aside the sale as illegal. On appeal, the Court of Appeal held that Order 44 rule 2(3)-(4) imposes obligations on both debtor and creditor, that non-compliance is an irregularity rather than illegality, that Eastern Alloys failed to act within 21 days under Order 45 rule 10(1), and that World Prayer Centre was a bona fide purchaser. The court restored the attachment, sale, and certificate of purchase, dismissed the cross-appeal, and affirmed the remainder.
F. G. KORBIEH, J. A. The brief facts of the case leading to this appeal are as follows.
The defendants/applicants/1st respondents (who shall hereinafter be referred to simply as the defendants) took a number of loan and over-draft facilities from the plaintiff/respondent/respondent (hereinafter referred to simply as the plaintiff). When the defendants failed to or could not pay back the totality of their indebtedness to the plaintiff, the latter sued the former in the Commercial Division of the High Court, Accra asking for the recovery of ¢3, 187, 518, 413. 00, ¢427, 709, 841. 52 jointly and severally from the six individual defendants mentioned in the writ; interest on the EDIF loan at the agreed rate of 15% from 31/12/2006 to the date of final payment; interest on the short-term loan at the agreed rate of 28% per annum from 31/12/2006 to the date of final payment and further or in the alternative an order for the judicial sale of the property mortgaged or charged to the plaintiff as security for the debt to satisfy the debt.
The defendants having failed to file a statement of defence, the plaintiff applied for and obtained a judgment in default of defence.
The learned trial judge entered judgment in the sum of ¢4, 055, 763, 059. 00 plus “interest on the said sum in accordance with C. I. 52” against the defendants.
The plaintiff filed an entry of judgment in the sum of ¢4, 252, 888, 145. 26. ; or in the alternative an order for the judicial sale of the 1st defendant’s factory premises.
The defendants then applied for stay of execution and to be allowed to pay by the judgment debt by installments.
Apparently while this application was pending the plaintiff filed a precipe to seal a writ of facierifacias (fi.
fa) directed at the deputy sheriff of the High Court to attach the following properties of the judgment debtors: the factory premises of the 1st defendant company, the plants and machinery of the 1st defendant company and the properties of the directors of the 1st defendant company.
In the result only the factory premises of the 1st defendant company was attached and an application made for an order of reserved price of that property.
The forced reserved price was given as GH¢2, 985, 701. 00. In the mean time the trial court granted the motion for stay of execution and payment by installment adding that the usual default clause applied.
On the 13/9/2013, the trial court ordered that “the Defendant’s property attached in execution of the judgm