IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2019
BOND SAVINGS AND LOANS LIMITED - (Applicant/Respondent)
MR. GEORGE KWAME AME MANFUL - (Respondent/Appellant)
DATE: 24TH JANUARY, 2019
SUIT NO: H1/169/2018
JUDGES: J. HONYENUGA (J.A) PRESIDING, AVRIL LOVELACE-JOHNSON (J.A), AGBEVOR (JA)
MR. FIIFI ABBAN FOR RESPONDENT
MR. FRANK ASAMOAH FOR APPELLANT
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.
i. 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).
ii. 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.
iii. 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.
iv. 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 vein grounds (iii), (iv) and (v) will also be considered together since they essentially deal with whether the failure to notify the Appellant about the application by bringing it ex parte was a breach of the audi alteram partem rule of natural justice. These two issues are the pith of the Appellant’s complaints.
A nutshell summary of the events leading to the present application will put it and arguments made by both parties in the proper perspective and context.
The Appellant took a loan facility from the Respondent. He used his four bedroom house as collateral for the facility. The loan facility was registered as required by The Borrowers and Lenders Act 2008 (Act 773) with the Collateral Registry. For certain reasons he was unable to repay the loan in the agreed terms in spite of several demand notices by the Respondents. Thereafter the Respondent took the following steps sanctioned by the Act. They served him with a final demand notice by which he was also informed of the intention to obtain a Memorandum of No Objection from the Collateral Registry in order to realize the charge in his collateral. The Appellant still failed to pay up. The Memorandum was served on the Appellant who it is said refused to peaceably hand over possession of the property. The Respondent thereafter applied for a warrant for Police assistance to evict the Appellant pursuant to section 34(2) of the Act.
It is my considered opinion that this appeal can be completely determined by resolving the two issues earlier stated by answering the question whether the Appellant was entitled at law to be served with notice of the application for a warrant for police assistance to evict him and if he was, whether failure to do was a breach of his right to a hearing or as the learned high court judge put it, whether or not the process of ex parte under the circumstances was irregular and thus void.
The learned Judge answered this in the negative by stating that;
“I find no legitimate need for respondent to have taken his application for grant of police warrant to possess the property on notice”
It is the position of the Appellant that he was entitled to be served with notice. In sum, the argument for this position is that the application, although brought pursuant to Act 773, and inspite of being an originating process should be governed by the provisions of C I 47 which by Order 19 rule 1(3) generally requires all applications to be brought on notice. Further, the purpose of the requirement of notice being to give a Respondent to an application an opportunity to be heard on such an application, failure to give the present Appellant the said notice was a breach of his right to be heard on the matter ie a breach of the audi alteram partem rule of natural justice. Counsel for the Appellant cites many authorities in support of the position that a party is always entitled to a hearing before a decision is taken against him and that failure to give him this hearing should result in the setting aside of such proceedings no matter the merits of the case.
The Respondent takes a contrary position. Counsel for the Respondent invites the court to consider the circumstances leading to the application in question. He states that the tenor and purpose of Act 773 makes it clear that a person in the Appellant’s position is not entitled to the notice in question taking into account the purpose of the Act and the fact that such an Appellant would have had and indeed this Appellant has had notice of all the steps the Respondent had taken under the Act. Further, Counsel emphasizes the fact that the application in question was just to seek assistance to take possession of the property used as collateral in a manner allowed by the Act. It is also the submission of counsel that, the Act being an Act of Parliament and the said Act not having made it mandatory for the application to be brought on notice, they could not be compelled by C I 47, a subsidiary legislation to do so. Counsel for the Respondent also cites authorities in support of his position.
Section 34(1) states that the Respondent is NOT obliged to initiate court proceedings in court in order to enforce the right of possession. 34(2) provides as follows
“Where a lender is unable to enforce a right of possession in a peaceable manner, the lender may use the services of the police to evict the borrower or other person in possession pursuant to a warrant issued by court”
It is clear from the above that the Act does not insist on an application for such a warrant being brought on notice. It has been argued that order 19 of C I 47 makes it imperative that the application should have been brought on notice and that failure to do so denied the Appellant an opportunity to be heard on the issue.
The import of order 1 rules I and 3 is that that every application in PENDING proceedings shall be brought by motion and unless provided elsewhere in the rules no motion shall be brought without notice to affected parties.
In the first place, the subject matter of the application for a warrant did not arise from pending proceedings before the Courts. It was an originating process. Secondly, the provisions of C I 47 cannot override the provisions of Act 773 which is an Act of Parliament notwithstanding the fact that the application although brought pursuant to the Act was granted by the High Court whose proceedings are governed by the provisions of C 1 47. It is not the place of the Courts to think for Parliament by importing provisions into Acts because we hold the opinion that such importation will result in a fairer outcome. Certainly not when the words of the statute are clear and the words are in line with its purpose. The situation arising from this case is not novel. Under Act 749, the Anti-Money Laundering Act, section 47(2) provides in part as follows
“The Chief Executive Officer shall apply to a court within seven days after freezing a transaction for confirmation of the action taken….”
The Supreme Court in discussing this provision in the case of REPUBLIC V HIGH COURT EX PARTE AWUNI [2015-2016] 1 SCGLR 643 @ 652 had this to say per Benin JSC
“A close reading of the provisions in section 47 of the Anti-Money Laundering Act 2008……would indicate that the freezing order could be obtained before the person affected was notified. It implies that it could be obtained ex parte….. He is not required to notify a person before he goes to court for a confirmation.
The point I seek to make is that the fact that a procedure in an Act of Parliament does not fit within the provisions of C I 47 does not mean the latter provisions are to override it just because the application is brought before the High Court. Such Acts are enacted to cure a mischief or attain a particular purpose and their provisions are to be “…construed purposely according to the ordinary meaning of the words used including the context in which they are used, the subject matter under consideration, the scope of the words and, to some extent, the background” so that the said mischief will be cured or purpose achieved. See this court’s decision in the case of H3/521/17 Samuel Victor Koranteng v Disciplinary Committee/General Legal Council delivered on 16th January 2019.
Act 773 passed on 23rd December 2008 and entitled Borrower and Lenders Act states in its opening paragraph as follows
“An Act to provide the legal frame work for credit, to improve standards of disclosure of information by borrowers and lenders to prohibit certain credit practices, to promote a consistent enforcement framework related to credit, and to provide for related matters”
Insisting on the application in question being brought on notice when the Act does not so insist will not promote the achievement of the above purpose. I am of the considered opinion that the Respondent was by law at liberty to bring the motion in question as he did.
Grounds (i),(ii) and(vi) are dismissed as lacking merit.
In any case what is the purpose of bringing an application on notice? First it must be noted that by this Application the Respondent was seeking the help of a State institution to carry out an action or process which but the possibility of a breach of the peace they could have carried out by themselves. The discretion to be exercised by the court hearing the application was whether or not in the circumstances, the Respondents were worthy of such help from the State institution. Secondly, it is trite that the purpose of giving a party notice is to make him aware of what is going on so he can put forth his version of events. I have earlier found that the Respondents were not obliged by law to give notice of the application to the Respondent but the Record shows that the Appellant cannot feign lack of knowledge of the processes leading to the present application.
Sections 32 to 35 of the Act is entitled Enforcement of borrower’s obligations. Section 32 requires a defaulting borrower to be given notice of a default in payment in writing when he commits such a default.
The Appellant does not deny having made a default in payment or that he received several demand notices one of which dated 17th March 2015 informed him that Respondent would take all steps including realizing the property used as collateral through the Collateral Registry. Appellant does not deny receiving this letter or that he failed to pay up.
In line with the above notice and section 33(b) of the Act which gives the lender the option of realizing the security in the property charged on notice to whoever is in possession of the said property, the Respondent obtained a Memorandum of No Objection on 3rd November 2015 from the Collateral Registry to realize the charge.
From this time till the present application was brought exhibits on record show there was an advertisement of the property for sale, and some notice posted on the wall of the property about an intended auction which the Respondent resisted by way of a letter dated 8th February from his then Solicitors which claimed that the auction could only be conducted after a court order had been obtained.
The above narration shows that by following the process outlined in the Act, the Respondent gave the Appellant continuing notice of their intention to realise the security in the property charged. Clearly then, the Appellant had been given the notice he was entitled to be given by law. He cannot after all these notices claim that things have been done on his blind side and that the audi alteram partem rule has been breached.
I find it appropriate at this stage to quote a portion of the judgment of Ormrod LJ in the case of Norwest Holst Ltd v Department of Trade  3 All ER 280@ 294 where he states that
The phrase “the requirements of natural justice” seems to be mesmerizing people at the moment. This must, I think, be due to the apposition of the words “natural” with “justice”. It has been pointed out many times that the word “natural” adds nothing except perhaps a hint of nostalgia for the good old days when nasty things did not happen. If instead we omit it and put the question in the form stated in Fischer v Keane [(1878) 11 CH D 353]: Have the ordinary principles of justice been complied with? It at once becomes much more realistic and even mundane……Another source of confusion is the automatic identification of the phrase “natural justice” with giving the person concerned an opportunity of stating his side of the story and so on. In many cases, of course, the two are synonymous but not by any in all”
The Appellant had no story to be told in the application brought before the high court. Regarding the matter of realizing the security in the property he had used as collateral for the loan he took, the Appellant had had all the opportunity to tell his side of the story since he had been served with all the required notices.
With this conclusion comes a finding that grounds (iii),(iv) and (v) also lack merit and are hereby dismissed.
In conclusion this appeal is dismissed in its entirety.