DAVID SAMUEL OFORI MANTE vs. CECILIA OFORI MANTE & ANOTHER [2012]DLCA6716

Date	2012-03-15
Suit No.	SUIT NO: H1/151/2011
Citation No.	[2012]DLCA6716

A. ASARE-KORANG JA (PRESIDING)

V. D. OFOE JA

A. M. DORDZIE JA

MR. RAY APPIAH AMPONSAH FOR PLAINTIFF / APPELLANT

MR. ADDO-ATUAH FOR DEFENDANTS / RESPONDENTS

[2012]DLCA6716
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													<main id="main" class="content" style="min-height: 60rem" >DAVID SAMUEL OFORI MANTE<o:p></o:p>vs.<o:p></o:p>CECILIA OFORI MANTE
&amp; ANOTHER<o:p></o:p>[COURT
OF APPEAL, ACCRA]<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">

SUIT NO: H1/151/2011&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: 15TH MARCH 2012<o:p></o:p>

MR.
ADDO-ATUAH FOR DEFENDANTS / RESPONDENTS<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
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solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>A. M. DORDZIE JA <o:p></o:p>FACTS <o:p></o:p>The
High Court Accra, presided over by Isaac Lartey — Young J on 28th of August
2006 entered a default judgment for the plaintiff David Samuel Ofori Mante and
ordered that house number 18 Osu Badu Street, Dzowulu be sold and the proceeds
shared according to PNDCL 111.&nbsp; (The
record of Appeal does not have the writ of summons filed by the plaintiff in
the High Court and therefore does not disclose the actual claim of the
plaintiff in the court below.) <o:p></o:p>Subsequent
to the judgment the plaintiff applied under Order 30 R 2 of the High Court
(Civil Procedure) Rules, 2004 (C.I. 47) for the High Court to give directions
for the sale of the property. <o:p></o:p>A
valuation report was exhibited with the said application and in the supporting
affidavit the applicant deposed to the fact that the open market value of the
property was GH¢205,350.00 and the forced sale value was Gh¢164,287.00 <o:p></o:p>Upon
hearing the application for direction of the sale of the property on the 28th
of April 2010, the court gave the following directions: <o:p></o:p>"The property shall be sold by
auction sale for the forced sale value of Gh¢164,287.00. the indicated cost of
the valuation shall be charged to the proceeds of the auction and be borne by
both parties." <o:p></o:p>The
defendants applied for variation of the above order.&nbsp; The reason for the application for variation
of the court's direction for the sale is contained in paragraph 6 of the
affidavit in support of the application. According to the defendants, (who are
a widow and a daughter of the deceased owner) the house in question is the
matrimonial home of the deceased and the only house he owned.&nbsp; The plaintiff a son of the deceased is a
beneficiary of the said house and the defendants are also beneficiaries.&nbsp; For sentimental reasons the other
beneficiaries have agreed to buy the plaintiff's interest in the property, i.e.
pay the plaintiff the value of his share of the property.&nbsp; The widow of the deceased who lives in the
property and other beneficiaries would keep the property. <o:p></o:p>The
court granted this prayer and further affirmed its earlier order in the
judgment which said the property should be sold at the forced sale value. <o:p></o:p>The
ruling dated 7th of July 2010 granting the defendants' prayer for variation is
the subject matter of this appeal. <o:p></o:p>GROUNDS OF APPEAL <o:p></o:p>1. "The honourable court had no
jurisdiction to make an order pegging the reserved price at the forced sale
value of GH¢164,287.00 thus stultifying the parties' right to obtain a much
higher sale value as they would have had at an auction sale" <o:p></o:p>The
records clearly have it that plaintiff who is the appellant herein, in his
application to the court for direction prayed the court below to fix the
purchase price of the property at the forced sale value of GH¢164, 287.00.&nbsp; His prayer was granted and later affirmed in
the subsequent order of the court.&nbsp; It
lies very foul in the mouth of the appellant to turn round to say the court had
no jurisdiction to peg the purchase price at the forced sale value demonstrated
in the valuation report exhibited with his application in the court below. <o:p></o:p>The
appellant's prayer to the court to adopt the forced sale value of the property
as the purchase price is contained in the submissions made by his counsel at
the hearing of the application for direction.&nbsp;
It can be seen at page 49 of the appeal record and I consider it
worthwhile to quote same.&nbsp; "From the
valuation report the open market value as at 26th day of February 2010 is
GH¢205, 359.00 while the forced sale value is GH¢164, 287.00.&nbsp; We pray that the court adopts the forced sale
value for the sale of the property." <o:p></o:p>There
is no legal or moral basis for this first ground of appeal.&nbsp; It lacks merit and it is hereby dismissed. <o:p></o:p>The
other grounds are as follows: <o:p></o:p>2.
The honourable court had become functus officio after granting the reserved
price. <o:p></o:p>3.
The honourable judge erred in law when on 7th July 2010 it heard the
application filed on 28th May 2010 for variation of the order dated 28th April
2010 which was meant for a review of such order. <o:p></o:p>4.
The learned judge had no jurisdiction to order the respondent to buy appellant
out of the </main>