IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT(COMMERCIAL DIVISION)
ACCRA - A.D 2016
PRINCE OF PEACE ACADEMY MADAM ROSINA QUAYE - (Plaintiffs)
UNIBANK GHANA LTD, DELA AKPEY AND IDEAL COLLEGE - (Defendants)
DATE: 13TH APRIL 2016
SUIT NO: RPC/292/13
JUDGES: JUSTICE JENNIFER A. DODOO (MRS) JUSTICE OF THE HIGH COURT
ROBERTSON KPATSA FOR PLAINTIFF
NATHAN YARNEY FOR 1ST AND 2ND DEFENDANTS
EGBERT FAIBILLE JR. FOR 3RD DEFENDANT
The Plaintiffs in their amended writ of summons filed on 3rd March 2014 claimed against the
Defendants the following reliefs:
a. A declaration that the purported sale of 1st Plaintiff’s property is invalid and was done in bad faith.
b. An order setting aside the purported sale of the 1st Plaintiff’s property
c. An order of perpetual injunction restraining the Defendants, either by themselves, their agents, assigns, hirelings or otherwise howsoever described from unlawfully interfering with the Plaintiffs’ possession, use and enjoyment of the 1st Plaintiff’s property situate at Madina.
d. Any further orders as this Honourable Court may deem fit.
It was the Plaintiffs’ case as set out in their Statement of Claim that in March 2011, the 1st Defendant, a financial institution, issued a writ against the Plaintiffs, an educational institution and its Director for recovery of the sum of GH¢278,729.83 being an outstanding debt together with interest. Having obtained judgment, and pursuant to an order for reserved price granted by the court, the 1st Plaintiff’s property was said to have been published for sale in the Ghanaian Times newspaper.
According to the 2nd Plaintiff, she acted for and behalf of the 1st Plaintiff in the suit and contended that she had been led by the 1st Defendant to believe that the matter was being settled amicably and all court processes had been put on hold. She said on 3rd June 2013, she was on the premises of 1st Plaintiff where she had her home when the 2nd Defendant appeared and informed her that he was an auctioneer with a court order mandating him to sell 1st Plaintiff’s landed property. She averred that no notice of sale had been given to her prior to 2nd Defendant’s representation. According to her, in the ensuing confusion, the sale could not proceed.
On 8th July 2013 she received an auctioneer’s account purporting to have sold the 1st Plaintiff’s property to the 3rd Defendant.
The 1st Defendant stated that it was the Judgment Creditor in the suit whereby judgment was given against the Plaintiffs. The 1st Defendant contended further that notice of the sale of the Plaintiffs’ mortgaged property was advertised in the Ghanaian Times Newspapers of Tuesday May 7th, Wednesday May 15th, Thursday May 23rd and Monday June 3rd 2013. 1st Defendant contended that an auction sale of the said property did take place.
The 2nd Defendant who described himself as an auctioneer said the intended auction sale was advertised in the Ghanaian Times Newspapers of Tuesday May 7th, Wednesday May 15th, Thursday May 23rd and Monday June 3rd 2013. He also said he had met the2nd Plaintiff several times at her residence within the mortgaged premises to serve her with processes relating to the execution process.
He averred that he did succeed in conducting an auction sale of the premises. He re-iterated that he did discharge his duties as an auctioneer on that day in accordance with law.
The 3rd Defendant deposed that it had lawfully purchased the disputed property at an auction sale for GH¢1,150,000.00. The 3rd Defendant contended that it was a bona fide purchaser for value of the premises of 1st Plaintiff following the auction. It therefore made a counterclaim against the Plaintiffs for the following reliefs:
a. A declaration that the auction conducted by 2nd Defendant in respect of the immovable property known as Prince of Peace Academy on the 3rd day of June 2013 was regular and lawful.
b. A declaration that this Honourable Court in its ruling dated 15th Day of August 2013 in the suit entituled Unibank Ghana Ltd v. Prince of Peace Academy Ltd & Others (Suit No. BFS/92/11) declared that the auction sale of the 3rd day of June 2013 was regular.
c. An order directed at the Plaintiffs to yield vacant possession of the premises known as Prince of Peace Academy Limited which land is described in and covered by Land Title Certificate No.GA4605 to the 3rd Defendant.
d. General Damages
f. Any other relief(s) which this Honourable Court deems just and equitable.
The following were set down as issues for trial:
1. Whether the purported auction of the Plaintiffs’ property was done in accordance with the rules and therefore valid and if not
2. Whether or not the 3rd Defendant was bona fide purchaser for value without notice?
3. Whether or not the Plaintiffs are entitled to their claim?
The main issue underpinning the instant suit is: Whether or not the purported auction of the Plaintiffs’ property was done in accordance with the rules and therefore valid?
It is provided in Order 45 rule 8 of the High Court Civil Procedure Rules, (2004) CI 47 as follows:
(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.
(2) Unless the Court authorises the sale to be made in any other manner, the sales shall be made by public auction.
(3) An order relating to sale may be made at the time of issuing a writ of fieri facias or afterwards.
The periods of notice of sale are stated in rule 9 as follows:
(1) Subject to subrule (3) of this rule no sale shall be made until after at least seven days' notice of the sale in the case of movable property, or in the case of immovable property until after at least twenty-one days public notice, unless the judgment debtor in writing consents otherwise.
(2) Whatever notices are made elsewhere, the notices shall be made in the town or place where the property to be sold is situated, and if the sale is to take place in any other town or place the notices shall also be made at the place of sale.
(3) The Court may for any sufficient reason extend or reduce the periods of notice in any case.
Section 16 of the Auction Sales Act (1989) Act 230 states also as follows:
(1) No sale by auction of any land shall take place unless the auctioneer has given at least twenty-one days' public notice of the sale at the major town of the district in which the land is situated, and also at the place of the intended sale.
(2) The notice which shall state the name and place of residence of the vendor shall be made in writing and where necessary by the beating of drum or gong-gong or such other method intelligible to the public as the District Secretary of the district where such sale is to take place may direct.
(3) Any auctioneer who sells any land by auction in contravention of the provisions of this section shall be guilty of an offence and liable on conviction before a court or Tribunal to a fine not exceeding ¢50,000.00 or to imprisonment not exceeding 12 months or to both.
The 2nd Defendant who auctioned the property told the court his organization, City Mart was nominated by the Sheriff of the Commercial Court to auction the Plaintiffs’ property. He said he then advertised the property in the Ghanaian Times for over 21 days. He said he had caused notices to be placed on the building itself and on the notice boards of the Institute of Professional Studies and the Madina District Court. He also gave notification to the Madina Police and the District Assembly. On the day of the auction, he said he displayed a large auction notice before beating his gavel against a metal bowl to announce the commencement of the auction. He refuted Plaintiffs’ Counsel’s contention that no auction took place on 3rd June 2013.
DW1 told the court he used to work with the 2nd Defendant at City Mart. He said he was given copies of notices which he proceeded to paste on the walls of the Plaintiffs’ property, Institute of Professional Studies, Ideal College, Madina Court and Rawlings Circle. Additionally, he said he delivered letters to the District Police Commander and to the Municipal Chief Executive informing them of the auction sale.
DW1 corroborated the 2nd Defendant’s evidence that the auction sale did take place on 3rd June 2013. The 3rd Defendant’s representative also told the court that on seeing the advert in the Ghanaian Times, he arranged with the 2nd Defendant to inspect the property. He saw the notice of sale posted on the walls of Prince of Peace Academy. He was however not present on the date of auction but sent agents to place a bid.
The 2nd Defendant pointed to remnants of a poster on one of the walls featured in Exhibit 4. This is what he said was the Notice of Sale. This Notice has been tendered in evidence as Exhibit 1.
From the evidence available to this court, the Plaintiffs took a facility from the 1st Defendant (ie. Unibank Ghana Ltd) and used the property, subject matter of this suit as collateral. The 1st Defendant as Plaintiff obtained judgment in a suit against the Prince of Peace Academy and 2 others. The victorious Plaintiff then went into execution of its judgment by attaching the current 1st Plaintiff’s property and by applying for a reserved price of the attached property. (See Exhibit L).
A search report on whether or not the application for reserved price had been served on the Defendants was answered in the affirmative and the date of service given as 3rd April 2013.
On 16th April 2013, the High Court (Commercial Division) granted the order for reserved price thereby setting it at GH¢1,142,000.00. (See Exhibit 1A). The Plaintiffs seem to be aware of all these events as is to be found in their Statement of Claim at paragraphs 5, 6 and 7 thus:
6) Sometime in March 2011, the 1st Defendant issued a writ against the Plaintiffs and another for the recovery of the sum of GHC 278,729.83 being outstanding debt together with interest thereon and an order for the sale of the 1st Plaintiff’s property known as Prince of Peace Academy situate at Madina, Accra and covered by Land Title Certificate Number GA 4605.
7) The Plaintiffs say that pursuant to an order for reserved price granted to the 1st Defendant for the sale of the Plaintiffs’ property, the 1st Plaintiff’s property was purported to have been published for sale in the Ghanaian Times Newspaper.
8) The 2nd Plaintiff acting for an on behalf of the 1st Plaintiff says that these events were totally unknown to her because before the said publications, the 2nd Plaintiff had been in discussions with the 1st Defendant for the final settlement of the said debt.
Consequently, the 2nd Defendant was appointed by the Deputy Sheriff of the Commercial Court to auction the attached property. (See Exhibit 1B) Exhibits 2, 2A, 2B and 2C are newspaper publications of the auction sale. The dates for the publication are given as 7th May 2013, 15th May 2013, 23rd May 2013 and 3rd June 2013. If the date of 1st publication was 7th May 2013 and the day of the auction given as 3rd June 2013, the notice period of 21 days was fulfilled according to law.
Exhibit 3 is a picture of the 2nd Defendant with his gavel. He testified he hit the gavel against a metal object to advertise the sale. In the background is a large notice advertising the auction. Exhibit 4 is a picture of a large notice advertising the auction sale.
In the case of Kwabena v. Aninkora & Anor (1964) GLR 299 the 2nd Respondent obtained a default judgment against the Appellant. A formal decree was served on the Appellant but a copy of the decision was not served. The 2nd Respondent proceeded into execution and a writ of fifa was issued against the Appellant’s property which was eventually sold to the 1st Respondent. The Appellant refused to yield up vacant possession resulting in a suit. The Appellant applied to join 2nd Respondent to the suit. Judgment was entered for the 1st Respondent. The Appellant appealed stating that the sale of his house to the 1st Respondent was null and void and of no effect. The court held that it was mandatory for not only a formal decree but also the decision of the court to be served on the appellant who was not present in court before the 2nd Respondent could begin to levy execution. The ensuing sale was therefore illegal and the 1st Respondent acquired no title to land to which he could litigate.
In Sarpong v. Atta Yaw & Anor (1964) GLR 419 the court held that once an auction sale was illegal, the bona fides of a purchaser were of no consequence. Therefore, once a sale had been declared illegal, the purchaser would have purchased nothing.
The 2nd Plaintiff who gave evidence for herself and on behalf of 1st Plaintiff told the court in her evidence in chief of 4th May 2015 that she received a phone call from the 2nd Defendant informing her that her property was to be sold and he informed her that it had been advertised in the Ghanaian Times. She stated:
I received a phone call from one Dela Akpey asking whether I am Mrs. Quaye. I confirmed it. The said Dela Akpey informed me that he is an Auctioneer and that he had been tasked to sell my property. Upon getting the information, I indicated to the said Dela Akpey that I had some discussion with the 1st Defendant and that if they had instructed the Auctioneer to sell my property, what I know is that I should have been given prior notice and in addition there should be a notice displayed on the property but none of this took place and in addition there was no notice from where I live throughout the whole Madina Market to create awareness that there is an auction of my property.
She said she later got in contact with the 1st Defendant and was advised to file an application for stay of execution to stop the sale.
The Plaintiffs also in paragraphs 11 and 16 of their Statement of Claim had this to say:
11) On the 3rd day of June, 2013, the 2nd Plaintiff herein who has her residence within the premises of the 1st Plaintiff’s property was at home when one Mr. Dela Akpey, the 2nd Defendant herein and 4 others introducing themselves as auctioneers appeared at her residence with a mission to auction the 1st Plaintiff’s immovable property described herein pursuant to an order of the court.
16) The Plaintiffs say that due to the unfortunate turn of events, confusion erupted at the Plaintiffs’ premises or the place of sale between one Mr. Appiah and the 2nd Defendant and for that reason, the 2nd Defendant could not effect the sale.
It was the 2nd Defendant’s evidence on 23rd June 2015 that it was the 2nd Plaintiff who contacted him after he had advertised the Notice of Sale in the newspapers and also put up notices on the 1st Plaintiff’s premises. This is what transpired:
Q: After you posted the advert, did you receive any reaction from anyone?
A. Yes, indeed. I received many enquiries through telephone calls as contained in the paper including the lady whom I have come to know as Mrs. Rosina Quaye. She is one of those people who called me to enquire whether I was City Auction Mart as the owner or related to Prince of Peace.
The narration of events in the Plaintiffs’ pleadings is at variance with the 2nd Plaintiff’s evidence on oath. In her evidence on oath, it was the 2nd Defendant who phoned her to inform her of the impending sale of her property. In her pleadings however, 2nd Defendant and 4 others appeared at her premises on 3rd June and told her the property was to be sold. Which of the two rival versions is to be believed?
In Appiah v. Takyi (1982/83) GLR 1 the court held that where there is a departure from pleadings at trial by one party whereas the other's evidence accords with his pleadings the latter's is, as a rule, preferable. See also Hammond v. Odoi (1982/83) GLR 1215 where the court held as follows:
Pleadings are the nucleus around which the case - the whole case — revolves. Their very nature and character thus demonstrate their importance in actions, as for the benefit of the court as well as for the parties. A trial judge can only consider the evidence of the parties in the light of their pleadings. The pleadings form the basis of the respective case of each of the contestants. The pleadings bind and circumscribe the parties and place fetters on the evidence that they would lead.
From the 2 rival scenarios, it is more probable that it was the 2nd Plaintiff who called the 2nd Defendant and not the other way round. This is because the 2nd Defendant’s phone numbers were on the adverts (i.e. the Exhibit 2 series) and therefore the 2nd Plaintiff would have been more likely to know his numbers than he would have been to have had access to hers. The court has seen the notices in the Ghanaian Times. The auction sale was indeed advertised as the 2nd Defendant has pleaded.
The 3rd Defendant said it saw the advert, arranged with the 2nd Defendant to inspect the property and sent its agents to bid at the auction. It cannot therefore be true that the property was never advertised for sale.
The Plaintiff however did not lead any evidence to show that she went to court to apply for a stay of execution of the sale which had been ordered by the court before the property was put up for auction or for a setting aside of the Order for Reserved Price. 2nd Plaintiff has tendered in evidence, Exhibit G, a valuation report commissioned in May 2014. The Order for Reserved Price was however granted on 16th April 2013 almost a year before Exhibit G’s commissioning.
On 22nd April 2013, the 2nd Plaintiff wrote to the Debt Collection Department of 1st Defendant Bank.
(See Exhibit B). The contents of the letter were as follows:
TRANSFER OF DEBT REPAYMENT TO LISTER PROFESSIONAL INSTITUTE
I would like to inform your office that I have found a tertiary institute called Lister Professional Institute (LPI) which has agreed with the Bank to pay off the outstanding debt. Their Bank has however agreed to offer a total amount of GHS 350,000.00 as one off payment.
Lister Professional Institute (LPI) has indicated their interest in using the premises for a school hence the securing of the property.
I would however be grateful if such an arrangement be agreed upon to enable me secure the property since I do not want to lose it.
On 23rd April 2013, one Mr. Owusu Appiah wrote to the Debt Collection Department of the 1st
Defendant Bank. (See Exhibit A). He stated as follows:
TOTAL TAKE OVER AND IMMEDIATE REPAYMENT OF DEBT
I wish to bring to your notice that our bank has agreed a total take-over of the Prince of Peace Academy debt and are prepared to make one off payment of GHS 350,000.00.
This has become necessary due to our interest in using the property for a school. We would therefore like to ask for a grace period of not less than 3 weeks to pay off this debt as we need this period to furnish our bank with all the required documentations to aid them pay.
Additionally, we are also making the necessary arrangements for our Bank to contact you in due cause to arrange for the settlement.
We however hope our proposal would be given the needed attention.
On 6th June 2013, the 1st Defendant Bank responded to the 2nd Plaintiff stating:
RE: PAYMENT PROPOSAL
We refer to the above subject matter.
We wish to inform you that management have accepted your proposal to make a bullet payment of GHS 350,000.00 as full and final payment of your indebtedness to the Bank.
Please note that you have 21 days upon receipt of this letter to effect the said payment.
Please note that failure to make the said payment on or before the expiration of 21 days upon receipt of this letter will leave us with no option but to proceed with our legal proceedings against you for the recovery of the entire amount of money owed the bank together with accrued interest.
Please be informed.
There was no indication prior to the auction that the subject property was ever released from attachment. The Plaintiffs were aware by the court processes that judgment had been taken against them and that their property had been attached under writ of FIFA. At the time letters were being exchanged between the 2nd Plaintiff, Mr. Owusu Appiah and officials from the 1st Defendant, the subject property had been attached in execution of the judgment obtained by the 1st Defendant. Similarly, at the time the 1st Defendant responded to the Plaintiffs’ letters the property had already been auctioned by the 2nd Defendant.
The 2nd Defendant who had been given the mandate by the Deputy Sheriff to auction the property would not have known about the negotiations between the Plaintiffs and the 1st Defendant as same was never brought to the court’s attention. That being the position, the court could not have stopped the sale. In the case of Dadzie v. Amoako (Anokye, Claimant) 2003/2005 GLR 569, the Appellant who happened to be the Judgment Creditor obtained judgment against the Defendant/Judgment Debtor. The Judgment Debtor’s property was subsequently attached in execution of the said judgment. The Sheriff’s Official attached the property by serving a copy of the order on the Judgment Debtor. The Judgment Debtor in spite of these developments sold the property to the Claimant. The Claimant promptly filed a Notice of Claim to the property. His claim was upheld by the trial judge. On appeal, the Court of Appeal at page 576 referring to Order 43 r. 11 of LN 140 A said;
After any attachment shall have been made by actual seizure or by written order, after is shall have been duly intimated and made known in manner aforesaid, any alienation without leave of the court of the property attached, whether by sale or gift or otherwise and any payment of the debt, or debts or dividends or shares to the judgment debtor during the continuance of the attachment, shall be null and void, and the person making such alienation or payment shall be deemed to have committed a contempt of court.
The Court held further that according to the wording of Order 43 r. 11 it is immaterial whether or not a purchaser from the debtor had notice of that seizure, or even of the writ of execution. During the continuance of the attachment, the rule placed the attached property in the hands of the Court through the Sheriff. That would therefore render any alienation without leave of the Court null and void as well as a subject matter of sanction by the Court.
Similarly, once the property was in the hands of the court, the Plaintiffs should have brought in an application to stay the sale rather than continue in dialogue with the 1st Defendant in April 2013 when the property had been attached and in June 2013 when the property had already been sold. Once the reserved price for the property had been fixed, it meant that the property was to be sold by public auction unless the court had directed otherwise.
The Plaintifs also stated that due to the confusion between Mr. Appiah and the 2nd Defendant, the auction sale did not take place. The 2nd Defendant and DW1 denied this stating that the auction was over when Mr. Appiah arrived at the scene. Significantly, the said Mr. Appiah who was mentioned as being present and as causing the auction to be aborted was not called to give evidence to substantiate the Plaintiffs’ case. One would have thought that he would have been a material witness to give first hand information about what took place on 3rd June 2013. See the case of Owusu v. Tabiri (1987/88) GLR 287 where the Defendant claimed that the issue before the court was res judicata as it had been settled by a chief at a valid arbitration. The Plaintiff on the other hand argued that what took place before the chief was a negotiated settlement. The court held that since the onus of proof was on the Defendant who asserted that there was a valid arbitration, his failure to call the chief was fatal to his claim. In Total Ghana Ltd v. Thompson (2011) 1 SCGLR 458 the court referred to sections 11(4) and 14 of the Evidence Act, 1975 (NRCD 323) on the burden of proof in preferring the Plaintiff’s case to the Defendants.
In Ackah v. Pergah Transport Ltd (2010) SCGLR 728 @ 736 the court held:
It is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. The method of producing evidence is varied and includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things (often described as real evidence) without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as a jury. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more reasonable than its non-existence.
See also Section 12(1) of the Evidence Act which provides as follows:
Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities.
Preponderance of the probabilities’ means that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence
The rules of evidence required the parties to make out their claims on a balance of probabilities. In the case of Takoradi Flour Mills v. Samir Faris (2005/2006) SCGLR 882 at 900 the court said:
….in assessing the balance of probabilities, all the evidence, be it that of the Plaintiff or the Defendant must be considered and the party in whose favour the balance tilts is the person whose case is the more probable of the rival versions and is deserving of a favourable verdict.
It is well established that the call for proof on the preponderance of probabilities does not require an inflexible proof either beyond reasonable doubt or with mathematical exactitude or precision as would fit a jigsaw puzzle. Preponderance of probability connoted an element of doubt or uncertainty and recognized that where there were two choices it was sufficient if the choice selected was more probable than the choice rejected. (See Bisi v. Tabiri alias Asare (1987/88) GLR 360)
The Plaintiffs’ evidence failed to measure up to the standard required in law suits. See sections 10, 11 and 12 of the Evidence Act. They failed to provide credible and relevant evidence in support of their contentions that there was neither an auction nor was the auction sale valid. They are therefore not entitled to relief from this court as there was insufficient evidence to uphold their claim. They are not entitled to a declaration that the purported sale of the 1st Plaintiff’s property is invalid and was done in bad faith.
They are also not entitled to an order setting aside the purported sale of the 1st Plaintiff’s property and the court consequently refuses to make same.
Their plea for an order of perpetual injunction restraining the Defendants, either by themselves, their agents, assigns, hirelings or otherwise howsoever described from unlawfully interfering with the Plaintiffs’ possession, use and enjoyment of the 1st Plaintiff’s property situate at Madina is refused.
The 3rd Defendant has made a counterclaim for the following reliefs:
a. A declaration that the auction conducted by 2nd Defendant in respect of the immovable property known as Prince of Peace Academy on the 3rd day of June 2013 was regular and lawful.
b. A declaration that this Honourable Court in its ruling dated the 15th day of August 2013 in the suit entitled Unibank Ghana Ltd v. Prince of Peace Academy & Others declared that the auction sale of the 3rd June 2013 was regular.
c. An order directed at Plaintiffs to yield vacant possession of the premises known as Prince of Peace Academy Ltd which land is described in and covered by Land Title Certificate NO. GA 4605 to 3rd Defendant.
d. General Damages
f. Any other relief(s) which this Honourable Court deems just and equitable.
The legal position with regards to the Defendant’s case was that once it had made a counterclaim, it assumed the same onus of proof as the Plaintiff did in making out its claim. See the cases of Malm v. Lutterodt (1963) 1 GLR 1 and Appiah v. Asamoah (2003/2004) SCGLR 226 and Section 11 of the Evidence Act.
As per Faibi v. State Hotels Ltd (1968) GLR 411, the onus in law lay on the party who would lose if no evidence were led in the case and where some evidence were led, it lay on the one who would lose if no further evidence were led.
In Manu v. Yeboah (1982/83) GLR 34, the Court held that the issue involved an investigation into the conduct of auction sale and the legal consequences flowing therefrom. These could be categorised as regular, irregular or illegal. Where the sale was regularly conducted, the purchaser's title to the property could not be impeached; but where the sale was irregularly conducted, it was voidable and could be set aside if a timeous application to avoid it or set it aside was made and a substantial injury was sustained. In the case of an illegal sale, however, the sale was void ab initio and no title whatsoever passed; time was also no bar in such a case.
In examining the evidence, the court does not see that the sale was void. From all intents and purposes, the sale was conducted pursuant to an Order for Reserved Price. Adverts were placed in the Ghanaian Times leading to an Auction Sale. The maxim omnia praesamuntur rite et solemniter essa acta (all things are presumed to be correctly and solemnly done) commes to mind. This has been codified by Section 37(1) of the Evidence Act as:
It is presumed that an official duty has been regularly performed.
The Auction Sales Account (Exhibit F) shows that the property was purchased by Ideal College for GH¢1,150,000.00. The Reserved Price was GH¢1,142,000.00.
The court has already found that there was a valid auction conducted on 3rd June 2013 where the subject property was sold to the 3rd Defendant. Having bid at a lawful auction sale, the 3rd Defendant is entitled to an order directed at Plaintiffs to yield vacant possession of the premises known as Prince of Peace Academy Ltd which land is described in and covered by Land Title Certificate NO. GA 4605 to 3rd Defendant. They are however not entitled to an order for general damages as the court does not see that there has been an infringement of an absolute right which would entitle them to damages.
Costs of GH¢10,000.00 each is awarded against Plaintiffs to each Defendant (i.e. GH¢30,000.00 in total).
JENNIFER A. DODOO (MRS)
JUSTICE OF THE HIGH COURT