GUARANTY TRUST BANK vs. STEEL & FORGING LTD. AND 4 OTHERS [2015]DLCA3140

Date	2015-02-26
Suit No.	CIVIL APPEAL NO. H1/171/2014
Citation No.	[2015]DLCA3140

MARFUL-SAU J. A (PRESIDING)

KORBIE J.A.

TORKORNOO J. A.

EDITH AKIWUMI FOR APPELLANT

ERIC OSEI-MENSAH FOR RESPONDENTS

[2015]DLCA3140
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GUARANTY TRUST BANK

&nbsp;[COURT OF APPEAL, ACCRA]

CIVIL
APPEAL NO. H1/171/2014&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: 26TH
FEBRUARY, 2015

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COUNSEL:&nbsp;&nbsp;

EDITH AKIWUMI FOR APPELLANT,

ERIC
OSEI-MENSAH FOR RESPONDENTS

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CORAM:

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&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;

JUDGEMENT

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TORKORNOO, J. A:

The
plaintiff/judgment creditor/respondent/appellant (hereinafter called appellant)
sued the defendant/judgment debtors/applicants/respondents (respondents) for
the due payments of both cedi and dollar denominated loans. Summary Judgment
was granted against the respondents for all reliefs sought on 19th
December 2012. This can be found on page 169 of the Record of Appeal (ROA). The
judgment hasn’t been appealed.

The
respondents thereafter applied to pay the judgment debt in installments. Their
proposals were accepted, and entered by the court. See pages 178 and 179 of the
ROA. By this order, the respondents were to pay the judgment debt at the rate
of &nbsp;1.5 million GHC and 300,000 US$ on or
before 15th February 2013 and the remainder of the debt in six equal
monthly installments.

Significantly,
the respondents abandoned this order they had obtained and did not honor the
payments as scheduled such that the appellant commenced execution of the
judgment debt. The appellant ensured that the entry of judgment was served on
the respondents, and commenced FiFA proceedings attaching three landed
properties and all movables of the judgment debtor. It also applied for
reserved price of the attached properties.&nbsp;&nbsp;

When
respondents opposed the valuation reports on the attached property, the court
ordered an independent valuation on 12th July 2013 for some of the properties
and ordered the continuation of execution of the remaining properties. See page
274 of the ROA. On 7th August, 2013, the respondents again abandoned
the re-valuation order they had obtained and the court entered the reserved
price for all the attached properties and ordered execution to continue for all
the attached properties. See pages 277 and 278 of the ROA.

The
appellant continued diligently with execution processes, all to the knowledge
of respondents. See pages 181 to 273 of the ROA.

The
auction which led to this appeal was duly advertised on 9th
September for 30th September (page 308 of the ROA) and conducted on
the advertised 30th September. During this period, the records show
that the respondents started to pay the judgment debt through post dated
cheques and each payment was accepted by the bank – as is their right. &nbsp;

On
Pages 320 -334 of the ROA, one finds the respondents’ first application to set
aside the auction sale. This was filed on 30th October 2013. It was
filed by one Randall Obeng Sakyi. &nbsp;It
would seem that this application was abandoned because there is no record of
its grant or refusal. A new lawyer, Henry Orraca Tetteh, &nbsp;filed another application for stay of
execution and an order setting aside the sale of properties and recovery of the
sold properties on 8th November 2013 found on pages 339 -357 of the
ROA. It is this application that was ruled on 5th February 2014 as
can be seen in the opening line of the high court judge’s ruling found on page 416
of the Record of Appeal. He wrote:

‘The instant application, filed on the 8th
November 2013 seeks….’

In
this 8th November application, the respondents argued that following
entry of judgment, ‘the parties
negotiated extensively to settle this matter.’ That ‘pursuant to the negotiations, the parties reached certain terms about
an agreement with regard to the schedule of payment of the judgment debt’.
The respondents attached the said terms of settlement they had presented to the
appellants which they respondents had alone executed. The said terms of
settlement set out payments of 450,000 GHC that the respondents had made in
June, July, and September of 2013 and payment they proposed to make on 16th
October 2013. According to the proposed Terms of settlement, subject to the
respondents’ adherence to these payments, the appellant as ‘First Party’ would
stay execution of the judgment to enable the respondent to retire the total
debt outstanding, commencing from 25th October 2013. It is worthy of
note that these proposed Terms of Settlement were supposed to have been signed
by the respondents on 3rd October 2013, after the auction in dispute
had already taken place.

In
the affidavit in support of the application to set aside the auction sale, the
respondents argued that the payments set out above were already agreed and so
they were utterly surprised when the appellants took possession of the attached
properties. They said that they did n</main>