IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION),
KUMASI - A.D 2019
ELVISCO FARMS - (Plaintiff)
KENNEDY TWI & SONS LIMITED AND MR. KENNEDY TWI - (Defendant)
DATE: 15 TH MARCH, 2018
SUIT NO: RPC/29/17
JUDGES: ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
FOSTER AKWASI ASANTE FOR APPLICANT
EUNICE ADU GYAMFI FOR BEN ACOLATSE FOR RESPONDENT
The submissions of both counsel in respect of the instant application to set aside the order of the court dated 21/12/2017 have been considered upon the examination of the bailiff, there is a real doubt as to the entity the hearing notice of the motion was served on. If the business is a limited liability company, then service on the shop attendant cannot be said to be good service. In any case, there is no document to proof that the business is also an enterprise in which case service ought to have been effected on the proprietor personally.
It is to be noted that the property in issue was purchased at an auction the sale has become absolute. This entitled the purchaser to apply for a writ of delivery under order 45 rule 12 (3) of C.I. 47, and not a writ of possession under order 43 rule 3 (1) of C.I. 47. After reading the affidavit in support of the previous application, the court considered the provisions of order 1 rule 2 of C.I. 47 and granted leave for a writ of delivery to issue instead of writ of possession.
In both situations, occupants of the premises which has been auctioned were to be notified. In the case of auction sale, after a writ of delivery has been issued, all that is required of the occupants is to attone tenancy to the purchaser. That said, the court cannot close its eyes to the present Applicant’s contention that no notice of the motion on notice filed by the purchaser was served on the company. But the question is, what good will the “Applicant/Occupant” achieve in the face of the fact that the auction sale has become absolute? I leave that to the Applicant’s judgment.
Upon a careful consideration of all the circumstances leading to the grant of the application complained of by the Applicant herein the court hereby sets aside its order dated 19/02/2018 granting leave to the Applicant thereon to issue a writ of Delivery and Ejection of occupants.
No other consequential order will be made at this time. In the light of this ruling, it is entirely up to counsel for the Applicant in the said motion to put her house in order.
No order is to cost.
(SGD.) ANGELINA MENSAH-HOMIAH (MRS)
JUSTICE OF THE HIGH COURT