IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2016
CHARLOTTE NYAMEKYE - (Plaintiff)
NOBLE DREAM MICRO FINANCE LIMITED AND FRANK FOSU GYAWU - (Defendant)
DATE: 19TH OCTOBER, 2016
SUIT NO: INT 34/2016
JUDGES: DR. RICHMOND OSEI-HWERE JUSTICE OF THE HIGH COURT
LAWYERS: NANA YAW FRIMPONG FOR APPLICANT/CLAIMANT
1. This is a double edge application for an order to set aside “the auction sale conducted by the auctioneer (Isaac Osei Ampadu) on 25-01-2016” and for an order releasing money paid into court by the said auctioneer.
2. Before going into the merits of the instant application, I shall go into the factual and the procedural history of the case.
The background to the application
The Plaintiff/Judgment-Creditor commenced an action against the Defendant/Judgment-Debtor for the following reliefs:
a. An order for the payment to the Plaintiff of the sum of NINE HUNDRED AND TWENTY-
FOUR THOUSAND, THREE HUNDRED AND TWENTY GHANA CEDIS (GHC 924,320.00) being total investment amount and agreed interest of 6% per tenure commencing 17th October, 2013 to be paid by the Defendant to the Plaintiff on investment amount lodged with the Defendant by the Plaintiff and agreed to be finally paid to the Plaintiff by the Defendant on or before the 17th October, 2013 which payment the Defendant has failed and/or refused to honour notwithstanding repeated demands.
b. Further payment of interest at the prevailing bank/ commercial rate on the aforementioned amount from 17th December 2013 till date of final payment.
c. Such further order(s) as the Honourable Court may deem fit.
On 2nd September, 2014 this Honourable Court gave judgment in favour of the Plaintiff/ Judgment-Creditor.
The Defendant/ Judgment-Debtor failed to satisfy the judgment debt and the Plaintiff/Judgment-Creditor set execution processes in motion to secure the judgment debt and consequently attached the following properties in a writ of fieri facias i.e.
a. Plot No. 9A, Santasi Anyinam, Kumasi
b. Plot No. 56 (Opposite Bible College), Afrancho, Kumasi
c. Plot Nos.37, 38 &39 Block J Nkontwima Busumuru, Kumasi
d. Plot Nos. 71, 72, 73, 74, 79 & 80 situate at Nkontwima Busumuru, Kumasi
After the attachment of the said properties, the Registrar of this Honourable Court appointed a valuer by name JEFFERY OWUSU BANAHENE who had the properties valued and submitted his report to the Registrar. Upon obtaining a copy of the said Valuation Report, the Plaintiff/Judgment-Creditor, caused her Lawyers to file an application before this Honourable Court for a reserve price to be fixed so that the attached properties could be sold by auction under the Actions Sales Law 1989 (PNDCL 230).
On the 12 June, 2015, this Honourable Court determined the application and fixed the Reserved Price as follows:
a. Plot No. 9A, Santasi Anyinam, Kumasi - GHC 90, 000
b. Plot No. 56 (Opposite Bible College), Afrancho, Kumasi - GHC 175,900
c. Plot Nos.37, 38 &39 Block J Nkontwima Busumuru, Kumasi – GHC 191,900
d. Plot Nos. 71, 72, 73, 74, 79 & 80 situate at Nkontwima Busumuru, Kumasi – GHC 220, 950
Subsequently, an auctioneer by name Isaac Osei Ampadu operating as Good Shepherd Mart was appointed by the Registrar to conduct the auction sale of the said properties. The auctioneer had same sold by auction in accordance with law and realised the sum of GHC 350,000.00. He filed a statement of account to that effect. In the statement, the auctioneer’s commission as well as the various tax elements were deducted leaving the balance of GHC 315,000.00 to be paid to court for the same to be advanced to the Plaintiff/Judgement creditor. The auctioneer, however, failed to pay the said amount into court. Aggrieved by this development, the Plaintiff/Judgement Creditor caused her lawyers to file a motion ex-parte for the said amount to be paid from the court’s coffers. The application was granted.
On the 12th of June, 2015 lawyers for the Plaintiff/Judgement Creditor filed a motion ex-parte praying the Honourable Court for an Order appointing a new auctioneer to auction Plot Nos. 37, 38 & 39 Block J Nkontwima Busumuru, Kumasi. The application was granted as prayed. It is instructive to note that in a supplementary affidavit to the said motion, Plaintiff/Judgement Creditor’s attorney exhibited a formal complaint letter against the auctioneer, Osei Ampadu and addressed to the Supervising High Court Judge. The letter alleged that they were reliably informed that the same property has been auctioned for GHC 240,000.00.
On the 3rd of May, the applicant filed a Notice of Claim. The applicant claimed ownership of “ALL THAT property described as Plot Nos. 1 & 3 Acheampong Street 5 & 7 Agya Sarfo Street and Plot No. 15th Lane, Bremang which has been attached and taken in execution by the sheriff of the High Court’ Kumasi, under a writ of Attachment and Warrant of execution in the above stated action”. The action was entitled:
Charlotte Nyamekye ..... Plaintiff
Noble Dream Micro Finance Service ...... Defendant
Mr. Frank Fosu Gyawu ........Claimant
It was filed with suit No. BFS NO 409/2014 consistent with the pending case. The registry however gave it a new suit number i.e. INTS 34/16.
In an affidavit of interest, the claimant/applicant’s attorney deposed to the fact that the claimant had notice of the properties – he claimed to have purchased – through an old friend. The claimant was subsequently given an assurance that the properties had already been attached by the Deputy Sheriff of the High Court, Kumasi and valuation in respect of the properties had been done. That one Nana Debra who facilitated the sale mentioned the reserved price to the applicant and showed a letter signed by Oppong Mintah, Registrar of the High appointing and authorising Isaac Osei-Ampadu to auction the said properties. Interestingly, apart from the receipts evidencing the sale as well the two Fidelity Bank cheques and applicant’s bank accounts; vital documents such as the writ of fifa and the reserved price were not attached to the affidavit. After paying GHC240,000 to the said Isaac Osei Ampadu can no longer be traced. He however sneaked from his hideout (or through a third party) and managed to pay an amount of GHC 150,000.00 into court.
The Judgement Creditor filed an affidavit in response to the Applicant/Claimant’s affidavit of interest. Her attorney deposed that “the Execution Creditor has not attached any property with the description of PLOT Nos. 1 & 3 Acheampong Street, 5 & 7.Agya Sarfo Street and Plot No. 15th Lane Bremang Kumasi in execution before this Honourable Court”. It was further deposed that the “Execution Creditor obtained judgement against Noble Dream Financial Services and attached properties Plot No. 37, 38, and 39 Block J, Busumuru Nkontwiwa, Kumasi and Plot Nos. 71, 72, 73, 74, 79 and 80 Nkontwima, Busumuru, Kumasi in execution of the judgment debt”.
It appears applicant has abandoned his interpleader suit and has opted for fast track approach in pursuing his claim. Applicant filed a motion before the vacation court praying the honourable court for an Order to release money paid into court by the Auctioneer, Isaac Osei-Ampadu. The vacation judge did not hear the matter as there was no order setting aside the sale. Applicant has therefore filed the instant motion before this Honourable Court.
In moving the motion, counsel for the applicant prayed the court to set aside the sale of the properties and consequently order a release of GHC 150,000.00 paid into court by the auctioneer to the applicant. Counsel conceded that the properties which were sold to the applicant were not attached in a writ of fifa. He also conceded that there were no valuation and reserved price in respect of the properties bought by the applicants and as such title cannot be vested in the applicant. Counsel, however, submitted that the transaction that took place was based on a letter sent to the auctioneer by the registrar. Counsel, however, failed to exhibit the said letter but went ahead to invite the court to recognise the transaction as an auction sale sanctioned by the court and set same aside for irregularity.
Counsel for Plaintiff/Judgement Creditor who was present when the motion was moved, prayed the court to be heard. The court ruled that he can only respond to issues of law since it is an ex-parte motion.
Counsel for Plaintiff/Judgement Creditor submitted that the court should not have entertained the ex-parte motion since the matter in contention affects the rights of the Plaintiff/Judgement Creditor. He also invited the court not to grant the motion as there was no sale to be set aside.
Should the motion be heard Ex parte?
Ex-parte motions are said to be inconsistent with the common law principles of fair hearing. This explains why order 19 r 1(3) of Civil Procedures Rules 2004 (CI 47) provides that;
“except where the rules otherwise provide, no motion shall be made without previous notice to the parties”
The above rule should, however, be read together with order 19 rule 1(3) which states that;
“subject to rule 1 subrule 3, an application by motion may be made ex parte where any of these rules provides or where having regard to the circumstances, the court considers it proper to permit the application to be made.”
The court in its discretion may refuse to hear an application ex-parte and may direct that notice shall be given to all parties affected by the application. Thus the court may make orders on ex parte application where:
The rules expressly provide that the application should be made ex parte and
1. Having regard to the circumstances of the case, the court considers just and proper. [See Bates v Lord Hailsham of St. Marylebone  1 WLR 1373.]
2. There are two main circumstances which an application ex parte could be made. These are (i) when time is the essence of the application and (ii) when, from the nature of the application the interest of the adverse party will not be affected. [See Leedo v Bank of the North (1998) 7 SCNJ 328 at 353]
In the instant application the court did not order that the Plaintiff/Judgement Creditor be put on notice, as it is palpably clear that the latter has no interest in the subject matter of the application.
Plaintiff’s interest lies only in the properties which were attached in execution of her judgement i.e. Plot No. 9A, Santasi Anyinam, Kumasi, Plot No. 56 (Opposite Bible College), Afrancho, Kumasi, Plot Nos.37, 38 &39 Block J Nkontwima Busumuru, Kumasi and Plot Nos. 71, 72, 73, 74, 79 & 80 situate at Nkontwima Busumuru, Kumasi and NOT Plot Nos. 1 & 3 Acheampong Street, 5 & 7.Agya Sarfo Street and Plot No. 15th Lane Bremang Kumasi. The properties which were allegedly sold to the applicant were not the same properties which were attached by the plaintiff/judgement creditor.
In my view, it would amount to a waste of the judgement creditor’s time and indeed that of the court if notice is served on the former since her interest was not affected. It is on this basis that the court allowed the motion to be moved ex parte.
Now, the profound questions are: was there a court sanctioned sale? In other words, was the sale done in execution of a judgment of the court? If yes, should this sale be set aside for irregularity?
Is it a sale in execution of judgment?
There are conditions precedents to sales in execution of judgments. The property in question must have been attached in a writ of fieri facias. A notice of sale and a notice of attachment of the property must have been served on the judgement debtor prohibiting him from alienating the said property. The property must have been valued and a reserved price fixed by the court upon an application by the judgement creditor. Indeed, the registrar plays a vital role as he among other things appoints the auctioneer.
. These conditions are set out under Order 45 of CI 47. For example, Order 45 r 8 specifically provides:
R8(1)“Sales in execution of judgments shall be made under the direction of the Registrar, and shall be conducted according to such orders, if any, as the court may make on the application of any party concerned.
R8(2) Unless the court authorises the sale to be made in any other manner, the sales shall be by public auction.
R8(3) An order relaing to sale may be made at the time of issuing a writ of fieri facias or afterwards”.
In the instant application, the properties in question were not attached in a writ of fifa. No conditions of sale were settled by the court before the purported sale as required by the Auction Sales Act, 1989 (PNDCL 230), s 17 (1). It goes without saying that the alleged sale did not comply with the requirements of Order 45 of CI 47. Applicant cannot therefore find comfort in Order 45 r 10 of CI 47 to set aside any sale as there was no sale at all within the meaning of Order 45 of CI 47 and PNDCL 230.
Applicant might have been defrauded by the said Isaac Osei Ampadu but remedy does not lie in this application. The door of justice is not completely shut. Applicant can sue Osei Ampadu to recover his money including the amount deposited in court. It is also heartening to note that there is an ongoing police investigation in respect of the transaction. A possible criminal prosecution of the said Osei Ampadu is another way of vindicating the rights of the applicant.
In the light of the evidence before me and the submissions of counsel and for the reasons given in this ruling, I am unable to set aside the sale as prayed by counsel. Consequently, I am unable to order the release of money paid into court by the auctioneer, Isaac Osei Ampadu.
. I hereby dismiss the application in its entirety.