IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
TRADEX RESOURCES FOUNDATION - (Defendant/Respondent/Appellant)
CAL BANK LIMITED AND SQ. LEADER EBO BARTELS - (Defendant/Respondent/Appellant)
DATE: 19 TH MARCH, 2018
CIVIL APPEAL NO: H1/18/2018
JUDGES: GYAESAYOR JA (PRESIDING), B. F. ACKAH-YENSU JA, SUURBAAREH JA
BABACAR BARRY FOR 2ND DEFENDANT/RESPONDENT
SERWAH BARBEL FOR 1ST DEFENDANT/RESPONDENT
PRINCE FREDERICK NEE ASHIE NEEQUAYE FOR PLAINTIFF/APPELLANT
BARBARA ACKAH-YENSU (Ms) JA
The fundamental issue raised in this appeal is; whether or not at the time of the auction sale the Plaintiff/Appellant was clothed with the requisite interest in the property auctioned, which is the subject matter of the dispute, to enable it have the sale set aside. The collateral issue that flows from the fundamental issue is; whether the property in dispute could have been properly seized and sold in execution of the judgment of the High Court?
These are the circumstances that have given rise to the instant appeal.
Plaintiff/Appellant filed a writ against the Defendants/Respondents seeking the following reliefs:
“i. Setting aside the purported sale of house (unnumbered) at Katamanso with Land Certificate No. TD 2386; as same has been encumbered by a Mortgage since 2008.
ii. Declaring that the said sale was fraudulent and hence void in both law and equity.
iii. Perpetual injunction to restrain Defendants especially 1st Defendant, whether by himself, his servants, agents, assigns or whomsoever deriving authority from him from trespassing or interfering with the said property”.
The Plaintiff/Appellant’s case is that it was approached, as a microfinance company, by one Gabriel Ofori-Attah for a loan facility in September 2006, which loan it granted. Gabriel Ofori-Attah used a property situate at Katamanso as security for the loan.
Upon becoming aware of an auction sale of the aforementioned property pursuant to an order for judicial sale by the High Court at the instance of the 1st Defendant/Respondent, the Plaintiff/Appellant filed an application in the High Court to set aside the auction sale, which was unsuccessful. The High Court, presided over by Justice Henry A. Kwofie, held that the Plaintiff/Appellant had failed to prove that he had sustained any substantial injury by reason of any irregularity. That, the auction sale was properly and regularly conducted. Plaintiff/Appellant then issued a fresh action against the Defendants/Respondents.
The case of the 1st Defendant/Respondent on the other hand was that it granted a loan facility to the said Gabriel Ofori-Attah (then trading as Gaforiah Enterprise) who in addition to securing the facility with a personal guarantee created a mortgage over a property situate at Labadi belonging to one Theresa Kai Oku. Upon the default of the said Gabriel Ofori-Attah, the 1st Defendant/Respondent instituted an action in the High Court and obtained judgment pursuant to which Gabriel Ofori-Attah’s property located at Nana Krom in Ashalley-Botwe in Accra was disposed of by judicial sale in satisfaction of the debt.
It was the further case of the 1st Defendant/Respondent that whatever interest the Plaintiff/Appellant claimed to have in the property in dispute was procured by fraud as the loan agreements were unsigned and undated, and, that the Land Tittle transfer of leasehold forms were uncompleted and unregistered at the time of the application. Also, the Plaintiff/Appellant and the said Gabriel Ofori-Attah never executed a surety mortgage in respect of the property in dispute.
The 2nd Defendant/Respondent’s case was that he purchased the property in dispute upon successfully bidding for it at a public auction organised under the auspices of the High Court. Subsequent to obtaining the Certificate of Purchase from the High Court and taking possession of the property however, he was confronted by the Plaintiff/Appellant who claimed that the property was its bona fide property. The 2nd Defendant/Respondent also counterclaimed for declaration in his favour as the bona fide purchaser of the property, amongst others.
At the end of the trial, the trial Judge gave judgment against the Plaintiff/Appellant and made the following orders:
i. The Plaintiff’s claim that the sale was unlawful and therefore void ab initio cannot be sustained.
ii. By being issued the certificate of purchase, the 2nd Defendant had purchased the right, title and interest that Gabriel Ofori-Attah possessed in the property.
iii. The certificate of purchase issued to the 2nd Defendant is a valid transfer of the right, title and interest of Gabriel Ofori-Attah in the property sold to the 2nd Defendant.
iv. A declaration that the 2nd Defendant is the owner of the property, the subject matter of the dispute.
v. An order of perpetual injunction against the Plaintiff as claimed by the 2nd Defendant.
vi. Costs of Gh¢7500.00 for the Defendants.
The Plaintiff/Appellant dissatisfied with the decision of the High Court filed a Notice of
Appeal on the following grounds:
“a. The judgment is against the weight of evidence adduced at the trial.
b. The learned trial Judge erred in law when he made a finding that Plaintiff’s land document is unregistered.
c. The learned Judge erred in law when he overlooked the fact that the property that was attached by the Sheriff of the Commercial Court and located at Labadi was conspicuously different from what was deemed to have been auctioned by the 1st Defendant.
d. The Judge erred in law when he concluded that the auction sale of the disputed property located at Katamanso/Nmai Dzorn was lawful even though the property has never been attached and ceased by the Sheriff of the Commercial Court.”
Counsel for the Plaintiff/Appellant, in his written submissions, stated that they had abandoned ground (b) of their appeal. I will accordingly strike it out as abandoned.
Counsel also argued grounds (c) and (d) together. In my opinion however, with regard to grounds (c) and (d), although Counsel has set out complaints against specific findings as errors in law, I find that the said grounds actually complain about the evaluation of the evidence by the learned trial Judge which culminated in a judgment that was allegedly against the weight of the evidence. Hence even though the said grounds are couched in a way that may appear to be points of law, and the position of the law as enunciated by the Supreme Court in Brown vrs Quarshigah (2003-2004) SCGLR 930, is that a person whose ground of appeal is that the judgment is against the weight of evidence on record should not be permitted to argue points of law, the said grounds in the instant appeal are in actual fact not points of law. I will therefore determine this appeal on the sole ground that the judgment is against the weight of evidence; i.e. ground (a).
The law is trite that when an appeal is mounted on the ground that the judgment is against the weight of evidence adduced at the trial the appellate court is then empowered to re-examine the entire record to ascertain whether the trial court’s decision is supported by the evidence adduced or not. The appellate court is enjoined to ensure that the trial court arrived at its decision after a proper evaluation of evidence adduced at the trial. See Oppong Kofi & Others vrs Attibrukusu III  1 SCGLR 176. To aid the Court in this enterprise, the appellant has a duty to point out pieces of evidence which, had they been evaluated properly by the trial court, ought to have led the Court to a conclusion different from what was arrived at. See Tuakwa vrs. Bosom [2001-2002] SCGLR 61.
The Plaintiff/Appellant at the trial Court by his Statement of Claim, sought to rely on a mortgage to evidence his interest, which formed the basis of his locus to contest the validity of the auction sale. His position was simply that since the property in dispute had been mortgaged to it, the said property ought not to have been sold in satisfaction of the judgment obtained by the 1st Defendant/Respondent against Gabriel Ofori-Atta. Indeed, these were the words of Counsel in his written submissions:
“My Lords it is my view and submission that there is enough evidence on record to show that the Katamanso property formally belonging to Gabriel Ofori-Attah was mortgaged to the Appellant herein and should under no circumstances have been sold by the 1st Respondents at an auction sale and purchased by the 2nd Respondents for at no time was that property attached by the Commercial Court”.
So, what is the evidence on record?
There is no doubt whatsoever regarding the identity of the property in dispute. It is the property which Plaintiff/Appellant alleges was mortgaged to it, but which was sold in execution of a judgment obtained by the 1st Defendant/Respondent against Gabriel Ofori-Attah, owner of the said property. It is situate at katamanso, otherwise described as Nmai Dzorn in Accra. It is for this reason that the learned trial Judge made the following statement:
“From the cross-examination as appears from the record of this court, there is no doubt that the parties were ad idem as to the same property being litigated upon. It is the same property which hitherto belonged to one Gabriel Ofori-Attah”.
The Managing Director of the Plaintiff Company gave evidence that Gabriel Ofori-Attah had borrowed a total amount of Gh¢25,000 in two tranches from the Company on 22nd
August and 30th August, 2008 respectively by completing loan agreement forms. The documents covering the two loan facilities were tendered in evidence as Exhibits “A” and “A1”. It was his further evidence that the said Gabriel Ofori-Attah had used the property in dispute to secure the loan facilities. He tendered in evidence a photocopy of the land certificate (Exhibit “B”).
As aforementioned, the Plaintiff/Appellants case is that the property in dispute had been used to secure the loan facilities it granted to Gabriel Ofori-Attah. The Plaintiff/Appellant stated in its Statement of Claim and contended at the trial that it had a mortgage over the property in dispute. In support of this, its Managing Director tendered in evidence a Statutory Declaration (Exhibit “C”) purporting to transfer the property in dispute to the company.
A mortgage under the Mortgages Act, 1972 (NRCD 96) is a contract charging immovable property as security for the due payment of loan and the interest accrued thereon and other consideration for which it was given. A mortgage under Ghanaian law does not change the ownership, right of possession or other interest, whether present or future, in the property charged except as otherwise provided by law. This means that a mortgagor remains the owner and in possession of the property although it is mortgaged. Thus, it is possible for several mortgages to be created on one property. The key consideration amongst the mortgagees in this regard is to ensure that the value of the property is enough to cover their respective exposures.
A major requirement of law for the creation of a legal mortgage is that it must be in writing signed by the mortgagor or his agent authorised in writing to sign on his behalf. Since a mortgage is a transaction affecting land or an interest in land, it must also be registered to be effective. However, the doctrine of part performance in equity stipulates that if one party has in reliance upon the promise of the other party to perform his obligations under a contract partly carries out his obligations under the contract, equity will treat it as amounting to fraud on the part of the other side to refuse to perform his obligations under the contract only because of the absence of writing as required by statute.
As aforementioned, a mortgage is in essence a charge on immovable property in order to secure the payment of a debt and the interest accruing on it. The law looks at the substance and not the form in order to treat it as a mortgage. A mortgage which is created without the formalities required for a legal mortgage is considered an equitable mortgage. An equitable mortgage is thus a transaction that has the intent but not the form of a mortgage and that a Court of Equity will treat as a mortgage.
A manifestation of the doctrine of part performance as it relates to the creation of equitable mortgages is the situation where a borrower deposits title deeds with a lender as security for the loan without the execution of a formal document to that effect. The rule is that where title deeds to property are deposited by a borrower with a lender with a manifest intention of same being used as security for the loan granted, a mortgage, albeit equitable, is created (see Gwira vrs State Insurance Corporation  1 GLR 398. However, in Ayiah vrs Coleman [1982-83] GLR 322, it was held that the surrendering of title deed per se was not an unequivocal act of sale or equitable mortgage. One had to look at the evidence as a whole to determine whether the surrender of the title deed was to create an equitable mortgage.
In the instant case, the Managing Director of Plaintiff Company tendered in evidence a photocopy of a Land Title Certificate dated 25th March, 2011. When questioned under cross-examination as to where the original certificate was his answer was that the property in dispute was registered in 2009 but the original copy got missing when he moved offices. He was not able to give any satisfactory explanation as to why the certificate was dated in 2011 when the property was registered in 2009. It is also important to note that the Plaintiff/Appellant is claiming that it gave Gabriel Ofori-Attah loan facilities in August, September and October of 2008. That, Gabriel Ofori-Attah deposited his title deed to the disputed property as security for the loans granted to him. Clearly, it cannot be said that the Land Title Certificate dated March 2011 which was tendered in evidence was deposited by Gabriel Ofori-Attah to the Plaintiff/Appellant for the said loans, thus creating an equitable mortgage.
The aforementioned Statutory Declaration (Exhibit “C”) tendered in evidence (see page 303 of ROA), as the title depicts, is in form not a legal mortgage. However, as aforesaid, under the Mortgages Act, an equitable mortgage may be created by reason of the absence of due form required by law, including the requirements of writing and registration to create a legal mortgage (see Section 3 (1) (b) of the Mortgages Act. See also Gwira vrs State Insurance Corporation (supra)).
Nonetheless, as aforesaid a mortgage, be it legal or equitable, if it existed, would not confer any ownership or proprietary interest in the property to the Plaintiff/Appellant but merely a charge over the property. The mere existence of the mortgage does not operate as a fetter on the transfer of title and certainly would not operate to fetter the High Court’s power to order judicial sale of the property by a judgment creditor.
Having said all this however, a close examination of the document in question shows clearly that the intent was not to create a mortgage. The heading is as follows;
“IN THE MATTER OF DECLARATION BY GABRIEL OFORI-ATTAH TESTFYING WITH CONSENT TRANSFERING HIS WHOLE LANDED PROPERTY WITH LAND TITLE REGISTRATION CERTIFICATE NO. TD 5379, VOLUME 019, FOLIO 1020”.
It is worthy of note that the Plaintiff/Appellant’s Managing Director himself under cross-examination admitted that the said document was not a mortgage when he testified as follows:
“Q - You said you had a mortgage, so was that mortgage written?
A -My lord what I meant was that the mortgage was the transfer signed by the borrower and the statutory declaration made the borrower.
Q -Please have a look at the statutory declaration, what is the date on the statutory declaration?
A -2nd December 2008
Q -The 2nd day of December 2008 it comes after the auction sale which is in dispute here isn’t?
A -No my lord
Q -But it comes after the ruling of Justice Kwofie in the case of Cal Bank vrs Gabriel Ofori-Attah and the other Theresa Kai Oku it just come after that date isn’t it?
The ruling of the High Court given by Justice Henry K. Kwofie as he then was is dated 25th of September 2009. The statutory declaration is dated 2nd of December 2008, you agree?
A -That is so my Lord.”
It is also very clear from the record that the Statutory Declaration was executed after 1st Defendant/Respondent had obtained an order for judicial sale, the property had been attached and the auction sale had been conducted. Additionally, from the record, the said document was not mentioned anywhere in the application filed by the Plaintiff/Appellant to set aside the auction sale of the property in dispute. This supports the view that it is more likely than not that the document did not exist then.
Could this document nonetheless pass for a transfer of title?
Sections 1 through 3 of the Conveyancing Act, 1973 (Act 175) cover the obligations, rights and interests of a transferor and a transferee in a conveyance and a contract of sale. Section 1 of the Conveyancing Act deals with a conveyance or the transfer of an interest in land which in Ghana is usually in the form of a deed. Contracts of sale or agreements for the sale of land or other real property are covered by Section 2 of the Conveyancing Act.
A contract of sale normally precedes the main contract or the conveyance and it does not matter whether it is registered or not. A purchaser becomes an equitable owner of the land where the requirements of a contract of sale have been satisfied. The contract therefore becomes capable of specific performance. The vendor retains the legal ownership of land until the conveyance is duly executed. The vendor continues to hold the legal estate in the property from the time the contract of sale is signed until the conveyance is duly executed. However, in Ghana by virtue of section 24 of the Land Registry Act 1962 (Act 122), the vendor continues to hold the legal estate in trust for the purchaser until the instrument is registered.
The position of the law is settled: A transfer of an interest in land or transfer of land with or without consideration shall only become effective after registration unless it comes under section 3 of the Conveyancing Act.
Clearly, from all of the above the document in question, the said Statutory Declaration, cannot be said to have transferred title or ownership from the said Gabriel Ofori-Attah to the Plaintiff/Appellant and therefore the Plaintiff/Appellant cannot claim title to or ownership of the land in dispute. Title to land is the means by which a person establishes his right to land. A person’s title indicates by what means he claims to be owner of land. Title may take the form of possession or it may take the form of a document (s). The concept of ownership of land embraces possession of and title to land. Plaintiff/Appellant thus did not have the locus in this matter as a person with ownership or proprietary right to challenge the sale of the property in dispute.
It is also part of the Plaintiff/Appellant’s case that the 1st Defendant/Respondent sought at the High Court a relief for the judicial sale of an unnumbered property situate at Labadi, Accra. 1st Defendant/Respondent however sold Gabriel Ofori-Attah’s property at Nmai Dzorm, Accra. But, the fact of the matter is that Gabriel Ofori-Atah executed a Personal Guarantee in favour of the 1st Defendant/Respondent under which he undertook to “irrevocably and unconditionally guarantee payment of and agree to pay and satisfy to the Bank upon demand, all sums of money which …….. may become due to the Bank”. “(See page 309 of ROA). It is based on this Personal Guarantee that 1st Defendant/Respondent made a claim in its Statement of Claim for:
“a. The 1st Defendant pays the Plaintiff the amount of Gh¢48,872.85 being as at 30th November 2007, the outstanding balance of the short-term and medium, term facilities granted to the 1st Defendant.”
The 1st Defendant in that case was Gabriel Ofori-Attah.
In Halsbury’s Laws of England (5th Ed, 2008) para 1013 the definition of a guarantee is stated thus:
“A guarantee is an accessory contract by which the promisor undertakes to be answerable to the promise for the debt, default or miscarriage of another person, whose primary liability to the promise must exist or be contemplated.”
The liability of the guarantor has been defined as a liability not only to perform himself if the principal fails to do so, but to procure (or “see to it”) that the principal performs his obligations. See Moschi vrs Lep Air Services Ltd  A.C. 31 per Lord Diplock at p.348-349. However, given that in practice the guarantor is rarely in a position to compel the principal to perform his obligations, it is probably more accurate to describe the guarantor’s promise as a promise that the obligation will be performed, in the sense that the guarantor will be personally liable for the debt, default or miscarriage of the principal.
From the evidence on record, Gabriel Ofori-Attah, the owner of the property in dispute, defaulted on the terms of the loan facility he was granted by the 1st Defendant/Respondent. The said facility was given to Gaforiah Enterprise, a registered business name. A business name, also known as a trading name, is simply a name or title under which a person or other legal entity trades. The security for the said facility was a surety mortgage over a three-bedroom building located at Labadi belonging to one Theresa Kai Oku and a personal guarantee by Gabriel Ofori-Attah. 1st Defendant/Respondent however contended in an affidavit sworn on its behalf in opposition to a motion to set aside the auction sale of the disputed property (page 208 of ROA), that it was compelled to attach the property at Katamanso because despite its best efforts, it could not locate the property used by the Judgment/Debtor as security for the loan facility.
As stated above, Gabriel Ofori-Attah gave a Personal Guarantee to 1st Defendant/Respondent to secure the loans granted to him. A personal guarantee almost by definition, is unsecured, which means it is an amount not tied to any specific asset. By making a guarantee, the guarantor is putting himself and his assets on the hook, by acting as the loan’s co-signer. Creditors will go after him in the event that the business fails to repay the loan.
It is common knowledge that for banks, loans to small businesses are on the risky side of the spectrum. The purpose of the personal guarantee is therefore to mitigate the bank’s risk. It is for a similar reasons that banks require that company directors sign a personal guarantee as a form of security when they are seeking business loans. Since the limited company structure is designed to keep the directors’ personal finances completely separate from that of the business via the limited liability status, signing a directors’ personal guarantee may be referred to as piercing the corporate veil.
Indeed, the record shows that the said Gabriel Ofori-Attah, having defaulted on the terms of the loan facility, complied with the terms of the Personal Guarantee he gave to the 1st Defendant/Respondent because at no point did he make any attempt to either restrain the 1st Defendant/Respondent from proceeding with the sale or even subsequently setting it aside.
The Plaintiff/Appellant has also sought to challenge the basis and manner in which the auction sale was carried out. In the opinion of Counsel, the learned trial Judge did not adequately consider the evidence placed before him and thus erred in concluding that the auction sale of the property in dispute was lawful. The only reason given for taken this stance is that the 1st Defendant/Respondent conducted a judicial sale of the property in dispute, even though the property offered as surety by Gabriel Ofori-Attah is situate at Labadi, and because of this they are contending that the property in dispute was never attached by the Sherriff of the Commercial Court.
The crux of Plaintiff/Appellants case per its Statement of Claim can be gleaned from its allegation of fraud which particulars it set out as follows:
“14. It is the Plaintiff’s case that the 1st and 2nd defendants have fraudulently tried to sell the Plaintiff’s bona fide property.
Particulars of Fraud
I. Attempting to dispose of by false sale, a property that the defendants knew or ought to have known by due diligence that same was encumbered by a mortgage as a charge over it.
II. Purportedly selling a property at a location which is conspicuously different from the description given in the Auction Sale Advertisement.
III. Purporting to occupy a property which belongs to neither of the above Defendants by the 2nd Defendant”.
The position of the law is too basic to even enunciate here but I will do so for purposes of making the point I want to. The law has no tolerance for fraud. The Latin maxim says it all: fraud omnia vitiate; fraud vitiates everything. Fraud manifests itself in conduct when one does something with the intention of inducing reliance or performance by another knowing very well that this action is without colour or right. Fraud must be specifically pleaded and strictly proven; see Kessie vrs Namih & Others  GLR 444. Indeed because of its criminal character, even in a civil case, fraud must be proven beyond reasonable doubt.
So what evidence did the Plaintiff/Appellant adduce at the trial to prove its allegation of fraud?
The Plaintiff/Appellant alleged that the Defendants/Respondents knew or ought to have known by due diligence that the property in dispute was encumbered by a mortgage as a charge over it. The evidence on record shows clearly that the Plaintiff/Appellant had no mortgage, whether legal or equitable over the property. The contention that the 2nd Defendant/Respondent had an obligation to investigate title to property before participating in a court ordered judicial sale is a wrong premise of the law. The principle is that acts of the Courts are to be regarded and relied upon as lawful unless and until quashed by the Court omnia praesumuntar rite esse acta. A party responding to an advertisement for judicial sale is fully entitled as the 2nd Defendant/Respondent did, to rely on the regularity of the court process leading to the auction. This is in fact what the 2nd Defendant/Respondent asserted and testified that he did under cross-examination, and this was not challenged in Court.
In my opinion therefore, by the 2nd Defendant/Respondent relying on the regularity of the Court’s processes in responding to the auction sale advertisement, his title is founded on good title culminating from a final judgment of the Court and the delivery to him of a Certificate of Purchase (Exhibit D2), which has been held by the Supreme Court in Donkor vrs Nkrumah  GLR 739 as prima facie evidence of title. The 2nd Defendant/Respondent is a bona fide purchaser without notice.
Regarding the alleged false sale and occupation of property which was not the property of the Defendants/Respondents, the Plaintiff/Appellant did not explain what he meant by the term “false sale”.
However, it is a fact the disputed property with 2nd Defendant/Respondent purchased at the auction sale was not the property used as security for the loan granted to Gabriel Ofori-Attah by the 1st Defendant/Respondent. The Plaintiff/Appellant contends that the property in dispute was never attached in execution and thus the auction sale was not valid because the Writ of fieri facias (fifa) states categorically that the property attached was the one situate at Labadi. The question to ask therefore is whether or not the property in dispute could have been properly seized and sold in execution of the judgment of the High Court?
It is interesting to note that the said writ of fi fa (Exhibit “G”) was tendered in evidence by the Managing Director of the Plaintiff Company. His claim was that he obtained it from the Commercial Court together with the copies of the Writ of Summons/Statement of Claim, and the Entry of Judgment in the case between the 1st Defendant/Respondent and Gabriel Ofori-Attah. In my opinion, this is not proof that the property in dispute was not properly attached in execution of the judgment obtained by the 1st Defendant/Respondent.
Suffice it to say that there are various modes of enforcing judgments for the payment of money; see Order 43 of the High Court (Civil Procedure) Rules, 2004 (C.I.47).
That singular matter without more is not sufficient for me to make the inference urged on the court by the Plaintiff/Appellant. In Jones vrs Great Western Railway Co.  144 LT 194 at 202; Lord Macmillan expatiated on the difference between conjecture and inference thus:
“The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible, but it is of no legal value for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have the validity of legal proof”.
I hold that I will be indulging in an exercise of conjecture should I make the finding being urged on the Court, and I am not entitled to do so.
At the trial Court, the Plaintiff/Appellant assumed the burden of proving his assertions. The Plaintiff/Appellant however failed to adduce sufficient evidence to avoid a ruling on that issue against it; see S.11(1) of the Evidence Act (NRCD 323).
From the evidence on record, what is clear is that 1st Defendant/Respondent had obtained judgment jointly and severally against Gabriel Ofori-Attah and Theresa Kai Oku, and the house in dispute belonging to Gabriel Ofori-Attah was attached to recover the judgment debt. Attachment is simply a legal process by which a court of law, at the request of a creditor designates specific property owned by the debtor to be sold for the benefit of the creditor. Plaintiff/Appellant should have done more to prove that the said property was not properly attached by the 1st Defendant/Respondent.
Evaluating the evidence on record in this appeal and applying the law, it is quite clear that the decision of the trial Judge’s conclusion was not in error. The learned trial Judge opined as follows:
“The sale in my view had been regularly conducted culminating in the 2ND Defendant being issued certificate of purchase.……………………………………………………………………………therefore I would dismiss the reliefs being sought by the plaintiff against the defendant herein as same is not borne out from the evidence”.
I find that the learned trial Judge’s reasoning was sound and supportable from the evidence. In the circumstances, the matters as they stood at the close of the evidence was that the sale of the property in dispute in execution of the judgment of the Court was lawful. Also the auction sale was regularly conducted.
In view of the compelling evidence, I find that the learned trial Judge’s conclusion was not erroneous. In the circumstances, the appeal fails and is hereby dismissed.
Costs of Gh¢5,000 to each Defendant/Respondent.
(JUSTICE OF APPEAL)
GYAESAYOR JA I AGREE P. K. GYAESAYOR
(JUSTICE OF APPEAL)
SUURBAAREH, JA, I ALSO AGREE G. S. SUURBAAREH
(JUSTICE OF APPEAL)