THE REPUBLIC (PLAINTIFF/APPELLANT) vs. JOHN KWEKU AACHT AND AGNES AMA AACHT EX PARTE: CAL BANK LIMITED [2012]DLCA8664

THE REPUBLIC (PLAINTIFF/APPELLANT) vs. JOHN KWEKU AACHT AND AGNES AMA AACHT EX... [2012]DLCA8664

Date	2012-07-19
Suit No.	CIVIL APPEAL NO. HI/37/2012
Citation No.	[2012]DLCA8664

MARFUL-SAU J.A. (PRESIDING)

HONYENUGA J.A.

DENNIS ADJEI J.A

[2012]DLCA8664
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													<main id="main" class="content" style="min-height: 60rem" >THE REPUBLIC<o:p></o:p>(PLAINTIFF/APPELLANT)<o:p></o:p>vs.<o:p></o:p>JOHN KWEKU AACHT AND AGNES AMA AACHT<o:p></o:p>(RESPONDENTS/
APPELLANTS)<o:p></o:p>EX PARTE: CAL BANK LIMITED<o:p></o:p>(APPLICANT/ RESPONDENT)<o:p></o:p><o:p>&nbsp;</o:p>[COURT OF APPEAL, CAPE
COAST]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CIVIL APPEAL NO.&nbsp; HI/37/2012&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:
19TH JULY, 2012<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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MARFUL-SAU J.A.
(PRESIDING), HONYENUGA J.A., DENNIS ADJEI J.A.<o:p></o:p>

</div>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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JUDGMENT <o:p></o:p>

</div>HONYENUGA,
J.A.<o:p></o:p>This
is an appeal by the respondents/appellants against the decision of the High
Court, Sekondi dated the 6th day of February, 2012.&nbsp; The said Court convicted the
respondents/appellants of contempt, ordered them to pay the outstanding sum
owed to the applicant/respondent and later cautioned and discharged them.&nbsp; <o:p></o:p><o:p>&nbsp;</o:p>The
facts of this appeal are that the applicant/respondent whom I shall refer to as
the respondent as in this judgment, are the Judgment Creditors while the 1st
respondent/appellant and Jachfam Enterprises Ltd. are the Judgment Debtors
before the High Court, Sekondi in Suit No. E2/22/99.&nbsp; The 2nd respondent/appellant is a
Director of Jachfam Enterprises and the legal owner of House No. P.T.168, East
Tanokrom, Takoradi.&nbsp; The
respondents/appellants would be simply referred to as the appellants.&nbsp; The said High Court entered a consent
judgment based on the terms of settlement filed by the parties on the 24th
April 2008.&nbsp; The Court entered consent
judgment in the sum of GH¢169,780.49 inclusive of interest and less the payment
of GH¢34,116.90 leaving a total of GH¢135,663.78 against the appellants.&nbsp; The House No. P.T. 168, East Tanokrom,
Takoradi which was the Collateral used in securing the payment of the loan was
attached by a writ of Fifa filed by the respondent against the judgment debt of
GH¢135,663.78.&nbsp; Subsequently, the High
Court fixed the reserve price of the said house at GH¢310.000.00 for the
purpose of auctioning it but upon an application by the 1st
appellant, it was varied and fixed upwardly at GH¢420,000.00.&nbsp; All this while, the judgment debt which stood
at GH¢237,067.99 remained unpaid.&nbsp; The
appellants surreptitiously sold the property which had been attached to the
Takoradi Polytechnic for GH¢390.000.00 contrary to the fixed reserve
price.&nbsp; At the time of the said sale, the
outstanding balance on the judgment debt stood at GH¢253,000.00.&nbsp; Although the appellants were paid the full
amount for the sale, they paid only GH¢200,000.00 to the respondent leaving an
outstanding balance of GH¢88,000.00 as at October 2011.&nbsp; The judgment debt as at the time stood at
GH¢263,768.00.&nbsp; The respondent therefore
filed an application for an order of contempt of Court against the appellants
contending that the purported sale of the property to Takoradi Polytechnic was
below the reserved price fixed by the Court as a blatant disregard and
disobedience of the Court’s order.&nbsp;
Further, they contended that the failure of the appellants to discharge
the judgment debt despite the sale to Takoradi Polytechnic had worsened
matters.<o:p></o:p><o:p>&nbsp;</o:p>The
appellant also filed an affidavit in opposition to the respondent’s application
contending that they had discharged the judgment debt and had even over paid
the respondent in excess of GH¢92,000.00.&nbsp;
The appellants by their affidavit stated that the sale of the property
to Takoradi Polytechnic was with the consent of the respondent whose Branch Manager,
the Credit Officer and the Recovery Officer as well as their Lawyer were
present at a meeting where it was mutually agreed.&nbsp; After the sale, a cheque was issued in the
joint name of the appellants and the respondent as agreed for the payment of
the debt.&nbsp; This cheque was exhibited as
Exhibit ‘A’.&nbsp; The appellants also
contended that there was no writ of Fifa validly or legally made to provide the
basis for being cited for contempt.&nbsp; The
appellants denied that they were in contempt.<o:p></o:p><o:p>&nbsp;</o:p>Upon
hearing arguments put forth in favour and against the application, the
appellants were convicted of committing contempt and were cautioned and
discharged after they were ordered to pay the balance of the judgment debt to
purge the contempt.&nbsp; Aggrieved by the
judgment to the trial Court, the appellants filed the instant appeal based on
the following grounds:-<o:p></o:p>“i.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; There was/is no writ of fiery facias
legally or validly subsisting</main>