October 19, 2016
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The Court of Appeal (Justices A. M. Domakyaareh, E. K. Ayebi, and G. Torkornoo) dismissed an appeal by the 1st and 4th defendants arising from a High Court ruling that allowed a suit by Duadaso No. 1 Cooperative Credit Union to proceed to set aside an execution sale of its house following a Circuit Court judgment obtained by a member. The appellants argued that Order 45 Rule 10 of CI 47 mandated a motion in the executing court and that the High Court writ was incompetent and an abuse of process; they also contended that they had not waived irregularities and that the ruling was against the weight of evidence. The Court held that Order 45 Rule 10s use of may is permissive, not exclusive, and that after 21 days a party may invoke the High Courts jurisdiction by writ. It further found appellants unconditional appearances and procedural steps amounted to condonation and waiver of objections. Finding that the suit attacked the sale, not the underlying Circuit Court judgment, the Court affirmed the High Courts approach, dismissed all grounds, and remitted the case for trial on the merits before a different judge.
DOMAKYAAREH (MRS),J. A.
1. This is an appeal against the Ruling of the High Court, Sunyani dated 19th June 2012, which ruling was given in favour of the plaintiff/respondent herein. The brief facts of the case which culminated in this appeal are as follows:-
2. The plaintiff/respondent is a Cooperative Credit Union operating at Duadaso No. 1 in the Brong Ahafo Region.
The 1st Defendant/Appellant was a member of the plaintiff/respondent’s Credit Union.
The 1st defendant/appellant as at 24th May 2007 said he had a total savings of ¢29,438,668.00 old cedis in his account with the plaintiff/respondent.
At a certain point in time the plaintiff/respondent failed /refused to honour several requests for withdrawals made by the 1st defendant/appellant from his account with them with the excuse that there was no money for the Credit Union.
The 1st defendant/appellant therefore instituted an action against the plaintiff/respondent on 25th July 2007 at the Circuit Court in Sunyani for the recovery of the said amount of ¢29,438,668.00 (Gh¢2,943.81).
The 1st defendant/appellant obtained final judgment on 18th September 2007 for the sum of ¢31,040,933.00 inclusive of interest and costs.
Upon failure by the plaintiff/respondent to pay the said judgment debt, the 1st defendant/appellant set in motion the execution process and attached the plaintiff/respondent’s property, an unnumbered house at Duadaso No. 1 otherwise known as House No. 21 Block ‘K’ Duadaso No. 1. And the property was duly sold by public auction.
The 2nd defendant is the Registrar/Deputy Sheriff of the Circuit Court, Sunyani.
The 3rd defendant, a Licenced Auctioneer, was appointed by the 2nd defendant, the Registrar of the Sunyani Circuit Court to auction the property.
The 4th defendant/appellant purchased the property and a certificate of purchase dated 9th May 2011 was issued to him after the statutory waiting period had elapsed.
3. The plaintiff/respondent herein issued a writ at the High Court, Sunyani on 1st February 2012 claiming the following reliefs against the defendants/appellants:-
(a) An Order of the Honourable Court setting aside the sale of the plaintiff’s house No. 21, Block ‘K” storey building (at ground floor) situate at Duadaso No. 1 Jaman North District of Brong Ahafo Region and all that execution process as same is/was illegal and should be declared null and void.
(b) An Order of the Honourable Court that the Natural Justice Rule was not complied with and that the plaint