KINGSLEY ABBEY & ORS v. IFS FINANCE & LEASING CO. LTD
2016
COURT OF APPEAL
GHANA
CORAM
- P. K. GYAESAYOR, JA (PRESIDING)
- A M. DORDZIE, JA
- L. L. MENSAH, JA
Areas of Law
- Civil Procedure
- Contract Law
- Property and Real Estate Law
2016
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This case involves an appeal against a High Court ruling that dismissed an application to set aside a writ of possession. The Court of Appeal examined the execution process following a judgment for the recovery of a loan. The court found that the execution process, which included a writ of fieri facias and an order for delivery of property, was completed on April 4, 2014. The subsequent application for a writ of possession was deemed unnecessary and improper. The court emphasized that once the execution process is completed, the purchaser has the right to take possession of the property without further legal action. The appeal was dismissed, with the court stating that issuing a writ of possession after the execution process was fully exhausted was an error and an exercise in futility. The case clarifies the proper procedures for enforcing judgments involving the payment of money and the sale of property, highlighting the finality of the execution process once completed.
A. M. DORDZIE JA:-
FACTS: IFS Finance & Leasing Company granted a loan facility to the 1st defendant Kingsley Abbey. The 2nd defendant was the guarantor of the said facility and the 3rd defendant provided his landed property as security for the loan. The 1st defendant defaulted in paying back the loan. The finance company therefore instituted an action against them, jointly and severally in the High Court, Accra (Commercial Division) to recover the loan and succeeded in obtaining judgment against the defendants. In the execution of the said judgment the 3rd defendant’s landed property which was used as collateral to secure the loan was auctioned; the respondent herein is a representative of the purchaser of the property at the auction.
I find it helpful in understanding the facts leading to this appeal to narrate, sequence by sequence the execution process followed by the plaintiff as disclosed by the record.
To start with, a writ of Fieri Facias was issued on 28th of May 2010 and the landed property situate at Alhaji, a suburb of Accra was attached and auctioned.
The purchaser brought a motion under Order 45 Rule 12 (3) of C. I. 47 praying for the delivery of the property sold to him. The court granted the application and ordered the occupants of the property to deliver vacant possession to the purchaser. The court further ordered that if need be the purchaser may remove the occupants with the assistance of the police.
A formal order to this effect was drawn up by the registrar of the High Court and issued on the 4th of April 2014.
Strangely the purchaser did not enforce this order but counsel for the purchaser came back to court and filed an application under Order 43 Rule 3 (1) (a) for writ of possession. This application was filed on the 9th of April 2014. The application was granted and a writ of possession was issued. (See page 154 of Record of Appeal)
The appellant herein applied for stay of execution and for the writ of possession to be set aside. This application was filed on the 11th of April 2014.
On the 6th of June 2014 the court gave a ruling dismissing the said application for stay of execution. (See page 210 of the record)
For reasons that the record does not explain the court presided over by the same judge heard the same application and delivered yet another ruling on the 12th of August 2014 dismissing the application.
The 12th August 2014 Ruling is the subject matter of this appeal
Grounds of Appeal:
The grounds upon which thi