KWABENA SARKODIE vs. INTERCONTINENTAL BANK LTD. AND TWO OTHERS [2010]DLHC8182

Date	2010-02-12
Suit No.	SUIT NO C12\|115\|10
Citation No.	[2010]DLHC8182

HIS LORDSHIP JUSTICE JACOB B. BOON

JAMES M. BELIEB FOR APPLICANTS

YAW BOAFO FOR RESPONDENT

[2010]DLHC8182
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													<main id="main" class="content" style="min-height: 60rem" >KWABENA SARKODIE<o:p></o:p>(PLAINTIFF / RESPONDENT)<o:p></o:p>vs.<o:p></o:p>INTERCONTINENTAL BANK LTD. AND TWO OTHERS<o:p></o:p>(DEFENDANTS /APPLICANTS)<o:p></o:p>[HIGH COURT,
KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

SUIT
NO C12|115|10&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 12TH FEBRUARY, 2010<o:p></o:p>

</div>COUNSEL:<o:p></o:p>JAMES
M. BELIEB FOR APPLICANTS<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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YAW
BOAFO FOR RESPONDENT <o:p></o:p>

</div>CORAM:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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HIS LORDSHIP JUSTICE JACOB B. BOON<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>On 18 January, 2010,
this Court granted an order based on an ex parte application by the plaintiff /
respondent, (hereinafter called the respondent), directed at the defendants /
applicants (to be referred to as applicants hereinafter) to return to the
respondent, some machinery that were seized from him because he defaulted in
paying back a loan facility granted him by the applicants. The applicants,
aggrieved by this order, have filed notice of appeal against it. To enable them
prosecute the appeal, they have brought the present application praying for
stay of execution of the ex parte order.<o:p></o:p><o:p>&nbsp;</o:p>In an affidavit in
support of the motion, the 2nd applicant deposed that the applicants
and the respondent had signed a deed of assignment of stock exhibited by the
applicants as “ICB1” which empowered them to possess the stock in trade of the
respondent, in case of default by the respondent, and to sell same to satisfy
any debt owed the applicants.<o:p></o:p><o:p>&nbsp;</o:p>According to the
affidavit, it was in furtherance of the terms of exhibit “ICB1”, and after the
failure of respondent to pay back the credit facility that his stock in trade
was seized. It was further deposed that the seizure of the machinery was
lawful, as it is supported by a recent decision of an Accra High Court
(Commercial Division).<o:p></o:p><o:p>&nbsp;</o:p>At the hearing,
their counsel argued that it was not proper for such an order to have been made
ex parte. He was of the opinion that the applicants should have been given
notice so as to be heard. He therefore urged the court to stay execution of the
order to enable them prosecute their appeal as they believe the order was
improper, and likely to be set aside on appeal. On the other hand, he argued
that this court could exercise its inherent jurisdiction to set aside its own
improper orders, by setting aside the ex parte order in contention.<o:p></o:p><o:p>&nbsp;</o:p>Now, the
respondent opposed the application for stay of execution of the order. It was
argued on his behalf by his counsel that the conduct of the applicants in
seizing his stock in trade was arbitrary, and thus unlawful, in so far as it
was not ordered by a court of competent jurisdiction.<o:p></o:p><o:p>&nbsp;</o:p>He contended that exhibit
“ICB1” did not take away the need for the applicants to commence legal action
for a conclusive determination of any default on the part of his client, and that
it was only after a court had gone into the matter that the right of seizure
under exhibit “ICB1” could accrue. He urged the</main>