FIANKUMA vs. COBBINA AND ANOTHER [1987]DLHC2232

Date	1987-11-30
Suit No.
Citation No.	[1987]DLHC2232

KPEGAH J.

G. K. ACQUAH FOR THE PLAINTIFF-APPLICANT.

CAB-ADDAE FOR THE DEFENDANT-RESPONDENTS.

[1987]DLHC2232
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >FIANKUMA<o:p></o:p>vs.<o:p></o:p>COBBINA
AND ANOTHER<o:p></o:p>[HIGH
COURT, CAPE COAST]<o:p></o:p>[1991] 2
GLR 369<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

<p class="MsoNormal" align="right" style="margin-bottom:5.0pt;text-align:right;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">Date: 30 NOVEMBER 1987<o:p></o:p>

</div>COUNSEL:<o:p></o:p>G. K.
ACQUAH FOR THE PLAINTIFF-APPLICANT.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

CAB-ADDAE
FOR THE DEFENDANT-RESPONDENTS.<o:p></o:p>

</div>JUDGMENT
OF KPEGAH J.<o:p></o:p>I do not
know whether a judge ever owes an apology for the length of his judgment or
ruling; but if he does, I unreservedly offer it before I proceed and I hope it
will be accepted because the issues to be considered here are complex and they
cannot be treated otherwise than in some detail.<o:p></o:p>This
ruling concerns an application for summary judgment under Order 14, r.1 of the
High Court (Civil Procedure) Rules, 1954 (L.N.140A). On 21 August 1987 the
plaintiff issued a writ of summons against the defendants asking for an order
of this court setting aside the attachment and sale of the plaintiffs
uncompleted building at Agona Swedru in satisfaction of a judgment debt and
costs. The plaintiff also claimed damages for wrongful sale. The plaintiff was
a defendant in suit No. 50/86 entitled Aidoo v. Fiankuma in which judgment was
entered against him for the sum of ¢477,770. The judgment creditor later took
out a writ of fi-fa attaching the plaintiff’s uncompleted building for sale in
satisfaction of the judgment debt. The plaintiff then brought an application
for stay of execution and payment of the judgment debt by instalments. The
motion was not heard on its merits. Both counsel agreed on a compromise and
Dove J. made an order to effect a stay of execution and ordered the plaintiff to
liquidate the judgment debt by two instalment payments. He was to pay the first
instalment of ¢100,000 on or before 16 February 1987, and the balance by the
end of March 1987. The plaintiff dutifully complied with the first part of the
order and paid ¢100,000 on 16 February 1987; he however defaulted on the second
leg of the order and not until 19 May 1987 did he pay an amount of ¢200,000.
The plaintiff followed this up with two payments on 23 June 1987 to the total
of ¢31,000. This left a balance of ¢146,770. The solicitor of the judgment
creditor then wrote to the registrar of this court informing him that there had
been a default in the payment of the judgment debt and requested that the
registrar direct the deputy sheriff to go ahead with the sale. The registrar
obliged and a fresh auction notice was posted fixing the sale for 13 August
1987. The sale was in fact conducted on the said date. The plaintiff,
therefore, brought this action against the defendants — the first defendant
being the auctioneer and the second defendant being the purchaser.<o:p></o:p>These
facts are essentially not in dispute. The parties are agreed that there had
been an order for payment of the debt by instalments and that there had been a
default in the payment on the part of the plaintiff. The only disputed fact,
and this is of little or no consequence in this case, is the balance still
outstanding.<o:p></o:p>The
plaintiff anchors his claim on two legs. The first is that at the time of the
sale of his building, he had movable properties which could conveniently
accommodate the balance of the judgment debt still owing. To attach his
immovable property therefore was a material irregularity and violates Order 42,
r. 40 of L.N 140A which renders the sale void. The second leg of the
plaintiff’s claim is that there having been an order for the payment of the
judgment debt by instalments, the judgment creditor could not, in the event of
a default, go into execution without first seeking leave of the court; and that
failure to seek leave before going into execution renders the sale of the
property illegal and therefore void and the sale should be set aside.<o:p></o:p>On the
basis of these contentions, the plaintiff decided to move the court for summary
judgment under Order 14, r.1 of L.N. 140A. I see myself faced with the following
legal points for determination:<o:p></o:p><p class="MsoListParagraphCxSpFirst" style="margin-top:0in;margin-right:0in;
margin-bottom:5.0pt;margin-left:.25in;mso-add-space:auto;text-align:justify;
text-indent:-.25in;mso-pagination:none;mso-list:l0 level1 lfo1;border:none;
mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(a).
whether the attachment and sale of a judgment debtor’s
immovable property when there are enough movables to satisfy the debt renders
the attachment and subsequent sale of the immovable property void and liable to
be set aside;<o:p></o:p><p class="MsoListParagraphCxSpMiddle" style="margin-top:0in;margin-right:0in;
margin-bottom:5.0pt;margin-left:.25in;mso-add-space:auto;text-align:justify;
text-indent:-.25in;mso-pagination:none;mso-list:l0 level1 lfo1;border:none;
mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(b).
where an instalment payment of a judgment debt has been
ordered by the court and there is a default in the payment of the instalment,
can the judgment creditor proceed to go into execution without leave of the
court; and if not, the effect o</main>