LT. COL. KUURE. K. MULLER v. HFC BANK (GHANA) LTD

SENYO DZAMEFE J.A:-.

This is an appeal from the judgment of Justice Ofoe dated 6th February,2008.FACTS The brief facts of the case before the learned trial judge was that, the defendant/appellant caused to be sold by public auction on or at September 12th 2003, a four (4) bedroom mortgaged property.

The subject matter property of this case was mortgaged under Home Montage Finance Law PNDCL 329 and the auction was carried out under the said law.Plaintiff/respondent herein showed interest in the property, participated in the auction sale, bidded and was the successful bidder with his offer of US$40,000.After the purchase, the plaintiff/respondent was unable to take possession of the property because he was confronted by a court action by the original owner of the house who sought to set aside the public auction on grounds that the defendant/appellant was not in physical possession as required by the mortgages decree and therefore could not auction the subject matter property.The court after hearing the matter decided to set aside the auction of the property by declaring the auction as null and void.Consequently, the defendant/appellant (mortgagee) invited plaintiff/respondent to take back his money paid for the property and any interest that may have accrued thereon or the plaintiff/respondent could be offered a similar property of same specification, newly constructed at its open market value.Plaintiff/respondent however declined and insisted that defendant/appellant should provide him with a comparable property similar to the four (4) bedroom house advertised.The above terms were not acceptable to defendant/appellant wherefore the plaintiff/respondent decided to sue defendant/appellant in the High court to pursue his claims.The plaintiffs reliefs before the High Court were;-1. Delivery of a five (5) bedroom house situated at Baatsona with the features set out in paragraph 4 of the statement of claim.Alternatively-the open market value of a comparable house at the same Baatsona 2. Loss of rent on the house from 12th September, 2002 to date of payment 3. order for payment of legal cost of plaintiff in the earlier suit 4. Damages for breach of contract.Issues set for trial are:-.

a. Whether the plaintiff is only entitled to USD 40,000 plus compensation or to the open market value of the house that was sold to him but undelivered b. Whether plaintiff is entitled to the reliefs claimed.At the end of the trial the court on 6th February, 2008 adjudged the plai