GHANA COMMERCIAL BANK v. EASTERN ALLOYS COMPANY LTD
2016
SUPREME COURT
CORAM
- PWAMANG, J.S.C
Areas of Law
- Civil Procedure
- Constitutional Law
2016
SUPREME COURT
CORAM
AI Generated Summary
The Applicants sought a stay of proceedings of a Court of Appeal judgment pending the determination of their appeal, arguing that the auction of their factory violated procedural rules. The initial attempts to stay the enforcement were unsuccessful. The Supreme Court reaffirmed that stay of execution and stay of proceedings differ, with the latter under narrow jurisdiction. The Court found that there were no pending proceedings necessitated by the judgment of the Court of Appeal which had no executable orders. It thus held the motion for stay of proceedings was unsubstantiated and refused the application.
RULING
PWAMANG, JSC.
This is an application by the Defendants/Judgment Debtors/Appellants/Applicants, hereinafter referred to as “the Applicants” praying for an order of stay of proceedings under the judgment of the Court of Appeal dated 17th December, 2015 pending the determination of an appeal they have lodged in this court. The background to this application is that on 24th May, 2006 the Plaintiff/Judgment Creditor/ Respondent/ Respondent, to be referred to as “the Respondent”, obtained judgment in the High Court, Accra against the Applicants for payment of various sums of money owed in respect of a loan taken from the Respondent bank. Respondent went into execution, attached and sold the factory premises of the Applicant at an auction. The factory building was bought by the Word Prayer Centre. Applicant filed several motions to set aside the execution but failed. It would appear that the purchaser at the auction subsequently was able to recover possession of the premises and removed the plant and machinery of the Applicant therefrom. Then on 20/3/2012 Applicant filed yet another motion in the High Court seeking to set aside the auction and for its machinery to be placed back in the factory premises. That motion was based on a number of grounds alleging procedural breaches which the Applicants claimed were fundamental and had the effect of nullifying the auction. The main breach complained of by applicants was that by the provision of Order 44 Rules 2(3) and (4) of the Civil Procedure Rules 2004, C.I. 47 the Respondent ought to have first sold its moveable properties and if that was not sufficient to liquidate the judgment debt, it is only then that it could lawfully levy execution against its immoveable property. Applicant contented that that breach of made the auction illegal and void and same could be set aside at any time. Respondent resisted the motion but, in a 24-page ruling, the High Court granted the motion and set aside the auction.
Respondent being obviously aggrieved, appealed against that ruling and the Court of Appeal allowed the appeal, set aside the decision of the High Court and confirmed the Certificate of Purchase that had been issued to the purchaser. Applicants have appealed against the judgement of the Court of Appeal and is praying that the ruling of the High Court be restored. Applicants applied to the Court of Appeal for a stay of execution of its judgement and the application was granted by a Single Justice but his ruling wa