January 24, 2019
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This Court of Appeal judgment, authored by Justice Avril Lovelace-Johnson with Justices C. J. Honyenuga and N.C.A. Agbevor concurring, arises from a borrower’s default on a loan secured by his four-bedroom house, registered under Act 773 with the Collateral Registry. After multiple demand notices, a final demand, a Memorandum of No Objection, and public sale notices, the lender applied ex parte under section 34(2) for a court warrant authorizing police assistance to take possession. On appeal from the High Court’s grant of that warrant and refusal to set it aside, the borrower argued lack of notice and breach of natural justice, invoking Order 19 of C.I. 47. The court held that Act 773 does not require notice for such originating applications, that C.I. 47 cannot override an Act of Parliament, and that the borrower had ample notice through the statutory enforcement process. All grounds were dismissed and the appeal failed.
J U D G M E N T
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.
iii. 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).
iv. 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.
v. 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.
vi. 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 vei