LT. COL. KUURE. K. MULLER v. HFC BANK (GHANA) LTD
December 16, 2010
COURT OF APPEAL
GHANA
CORAM
- Ms. Mariama Owusu J.A (Presiding)
- Mr. Isaac Duose J.A
- Mr. Senyo Dzamefe J.A
Areas of Law
- Contract Law
- Property and Real Estate Law
- Civil Procedure
December 16, 2010
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This Ghana Court of Appeal judgment, authored by Senyo Dzamefe J.A., arises from HFC’s public auction of a mortgaged four-bedroom house under PNDCL 329. The plaintiff, a military officer, was the successful bidder at US$40,000, paid into Merchant Bank as HFC directed. The mortgagor challenged the auction on the mortgages decree’s possession requirement, and the High Court set the sale aside as null and void. HFC proposed a refund with interest or a similar property at open market value; the plaintiff sued seeking delivery or the open market value, plus lost rent, legal costs, and damages. The trial court awarded current replacement value and modest damages and costs, later obtaining a valuation of US$160,000. On appeal, the Court, applying the appellate standards from Koglex and Gihoc and the re-hearing approach from Tuakwa, affirmed that restitutio in integrum justified awarding current open market value to restore the plaintiff’s position, dismissed the appeal, and additionally ordered refund of the cedi equivalent of US$40,000 at 2002 with prevailing commercial interest, plus GH10,000 punitive costs.
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