IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION),
KUMASI - A.D 2019
ENDURANCE OTI BOATENG AND OTHERS - (Plaintiff)
NOBLE DREAM MICRO FINANCE CO. LTD AND EZEKIEL OWUSU AFRIYIE AND DANIEL OKYEM ABOAGYE - (Defendant)
DATE: 11 TH MAY, 2018
SUIT NO: INTS. 39/2016
JUDGES: DR. RICHMOND OSEI-HWERE JUSTICE OF THE HIGH COURT
BRIGHT OBENG MANU FOR THE APPLICANT
KWAKU YEBOAH APPIAH FOR THE RESPONDENT
On 9th March, 2018 the court upon an application by the respondent herein placed the respondent in possession of House No. Plot 8, 25th Street Atasomanso, Kumasi. This was after the respondent had purchased the property at an auction sanctioned by the court and a certificate of purchase had been issued by the court in favour of the respondent.
In this application, the applicant herein is praying the court to review and set aside the said orders of the court made on the 9th of March, 2018. The grounds of the application are contained in an affidavit in support of the motion and a supplementary affidavit filed on 9th March, 2018 and 20th March, 2018 respectively.
The respondent is opposed to the application and has demonstrated it in an application in opposition filed on 21st March, 2018.
Counsel for the applicant submitted that having become aware of the ex parte motion which was granted by the court on 9/03/2018 the applicant has brought this application to draw the court’s attention to certain facts which were not brought to the attention of the court when the application was made and to draw the court’s attention to certain principles of law which the court might not have adverted its mind to. Counsel referred to exhibits A and C which they had attached to their affidavit. Both exhibits are processes relating to suits on the property – the subject matter of the application. Exhibit A is an action initiated by the applicant against the defendant and other parties to set aside the sale of the property in dispute. Exhibit C is also an action initiated by the respondent for a declaration of title to the disputed property.
Counsel, however drew the court’s attention to the fact that the suit relating to exhibit A has been dismissed on 02/05/2018, a day before the hearing of the instant application by a court of coordinate jurisdiction. Counsel argued that insofar as 7 days had not elapsed since its dismissal the suit is still pending and that it is not for nothing that the automatic stay for 7 days has been incorporated in our law such that within the 7 days the party who wishes to exercise any right would not be taken advantage of. In sum, it is the contention of the applicant that notice ought to have been served on him when the application to place respondent in possession of the said property was brought to court and that failure to do so has occasioned a miscarriage of justice, as the court would have stayed proceedings if the pendency of the suits had been brought to its attention. More so, since the sale was conducted at the instance of the court any attempt to enforce the order emanating from the sale should have been on notice to the applicant herein. Counsel made reference to Order 19 rule 1(3), Order 43 rule 3 of the High Court (Civil Procedure) Rules, 2004 (CI 47) and the case of the Republic v High Court Koforidua ex parte (Akonnor Samuel Agyei interested party) 2005 SCGLR 573 in support of his claim. It is also the contention of the applicant that since the suits particularly Exhibit A is still pending, it is prudent for the court to set aside its order.
In his submission to the court, counsel for the respondent reiterated the latter’s opposition to the motion and emphasised that the suit relating to exhibit A which was dismissed the previous day cannot be said to be pending. Counsel submitted that the 7-day automatic stay of execution after judgment only affect judgment creditors and it also does not mean that the suit is still pending. Counsel also submitted that assuming exhibit A placed fetters on the respondent same has been removed by the dismissal of the action. Counsel argued that the suit relating to exhibit C has no effect on the orders made by this court placing the respondent in possession of the property. He prayed the court to dismiss the application.
Order 19 rule 1(3) of CI 47 provides that no motion shall be made without notice to the parties affected except where the rules otherwise provide. The court may, however, entertain an ex-parte motion under Order 19 rule 3(1) where it considers it proper to permit the application to be made.
Order 43 rule 3 of CI 47 deals specifically with enforcement of judgment for possession of immovable property by means including a writ of possession. A writ of possession to enforce judgment of the court shall only be issued with leave of the court except where the judgment or order was given or made in a mortgage action. Under Order 43 rule 3(3) it is provided that:
“The leave shall not be granted unless it is shown that every person in actual possession of the whole or any part of the immovable property has received such notice of the proceedings as appears to the Court sufficient to enable the person apply to the Court for any relief to which the person may been titled.”
Thus, for enforcement of judgment under Order 43 rule 3, notice shall be given to any person in actual possession of the property in the application to issue the writ of possession.
Order 45 rule 8 to 12 of CI 47 also regulate the sale of property in execution of judgments. After a sale has become absolute, a certificate of purchase is issued in favour of the purchaser and the purchaser reserves the right to be put in possession of the property.
Order 45 rule 12(3) provides:
“If the property sold consists of immovable property in the possession of the judgment debtor, or some person on the judgment debtor's behalf or some person claiming under a title created by the judgment debtor after the attachment of the property, the Court shall, on the application of the purchaser, order delivery to be made by putting the purchaser, or any person whom the purchasermay appoint to receive delivery on the purchaser's behalf, in possession of it, and, if need be, by removing any person who may refuse to vacate the property.”
A careful reading of Order 45 rule 12(3) shows that unlike Order 43 rule 3 an application under the rule can be made ex-parte. It however falls within the discretion of the court to direct that notice be given to parties affected by the application. As stated earlier on, the respondent was put in possession of the property after the sale had become absolute and the respondent had been issued with a certificate of purchase. These occurred following an unsuccessful attempt by the applicant to set aside the sale of the disputed property. On 18th January, 2017 this court in Suit No. INTS 39/2016 relating to the property in contention held as follows:
“In the light of the above, the court rightly dismissed the interpleader suit when the claimant applicant failed to appear in court on 19th July, 2016. In effect there was no interpleader suit when the court gave the order for sale of the house in contention. It therefore goes without saying that the court’s order for sale of the property complied with Order 45 of CI 47. In the result, I dismiss the application to set aside the order for sale as same is unmeritorious.”
Aggrieved by this ruling the applicant herein filed a notice of appeal against the decision but he subsequently withdrew the notice of appeal. Rather, the applicant initiated a fresh suit and endorsed fraud therein as evidenced by exhibit A. The said suit was dismissed on 2nd May, 2018. The applicant is inviting the court to set aside the order of the court placing the respondent in possession of the disputed property because he was not notified of the application. I recognize the fact that it would have been prudent for the respondent to notify the applicant herein in the face of the action relating to exhibit A. Be that as it may, it is my considered opinion that failure to do so has not in any way occasioned a miscarriage of justice. After all, the applicant had prior knowledge of the fact that the property had been attached per the writ of possession and in fact made an unsuccessful attempt to set aside the sale prior to respondent’s application. Indeed, the respondent acted within the dictates of the rules when it brought the application without putting the applicant on notice.
It is my considered opinion that exhibit A (albeit unknown to this court when the motion was moved) did not place any fetter on the court to hear the application without notice to the applicant herein. In view of the fact that the action has been dismissed, the question as to whether exhibit A is a fetter on the order of the court has become moot. Thus, setting aside the order based on exhibits A and C will lead to multiplicity of disputes, as the respondent may be compelled to take further steps to vindicate his right. Exhibit C which is seeking for a declaration of title by the respondent has no immediate effect on the validity of the order complained of. Also, there was no pending action relating to exhibit A at the time the instant motion was moved. Once a court delivers judgment it becomes functus officio unless a review application is placed before it. In the absence of such a process or a notice of appeal, the matter cannot be said to be pending. According to the Black’s Law Dictionary, 8th edition, an action or suit is said to be pending from its inception until the rendition of final judgment. See also Wentworth v Farmington 48 N. H. 210. In CFAO v. ZACCA  1 GLR 366-397(Holding 4) the court held that:
“… a cause is "pending" when you can take any proceeding on it and when there is not anything physically pending such as an appeal, it is the right of appeal which can be said to be pending. Awoonor Renner v. Thensu (1930) 1 W.A.C.A. 77 applied.”
In the instant case, the right of appeal can be said to be pending but not the appeal itself. I agree with learned counsel for the purchaser/respondent that the 7 days stay of execution period after judgment does not mean that the suit is still pending. The 7 days stay of execution is only directed at judgment creditors who must await the 7 days period before going into execution. See rule 27(3)(b) of the Court of Appeal Rules, 1997 (CI 19).
It must also be emphasized that Order 43 rule 3 can only be invoked by a judgment creditor to enforce his right under a judgment. In the instant case, the respondent herein is not a judgment creditor but a purchaser of the disputed property which was attached in execution of judgment under Order 43 rule 3. The respondent herein could not have enforced his right to be put in possession of the property by coming under Order 43 rule 3.For, it is trite learning that where the rules of procedure prescribe a mode of enforcing a right or seeking a relief same must be adhered to, as failure to do so in accordance with the prescribed mode is not only an irregularity but a nullity since it raises the fundamental issue of jurisdiction. See Ayikai v Okaidja III  1SCGLR 205, 208 per Gbadegbe JSC.
It therefore goes without saying that the respondent herein had no option than to come under Order 45 rule 12(3) and this rule does not require a mandatory notice to be served on affected parties.
It is the law that once a certificate of purchase is granted it amounts to a valid transfer of the right, title and interest of the judgment debtor in the property sold to the purchaser. See Order 45 rule 11(3) and (4). This explains why the judgement debtor or any one in possession of the property need not be notified in an application to put the purchaser in possession of the said property. In the instant application, it is apparent that the respondent herein is the purchaser of the property in issue. Therefore, so long as it has not been established that the judgment debtor had no attachable interest in the property, the sale remains valid and the property must be delivered to the purchaser/respondent herein without recourse to the claimant/applicant herein.
From the foregoing reasons, I am unable to set aside the orders of the court given on the 9th of March, 2018. The result is that the application fails and the said orders of the court still stand.
Costs of GHC2,000 awarded against the applicant.