OPTIMUM ENTERTAINMENT LTD & 2 OTHERS vs. HFC BANK (GHANA) LIMITED [2015]DLCA6559

Date	2015-07-16
Suit No.	SUIT NO.: H1/215/2014
Citation No.	[2015]DLCA6559

OWUSU (MS) J.A. (PRESIDING)

ACQUAYE J.A.

WELBOURNE (MRS) J.A.

KWAME NYAKEM TETTEH FOR THE DEFENDANTS/APPELLANTS

KWADWO AFRAM ASIEDU FOR THE PLAINTIFF/RESPONDENT

[2015]DLCA6559
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													<main id="main" class="content" style="min-height: 60rem" >OPTIMUM ENTERTAINMENT LTD &amp; 2 OTHERS<o:p></o:p>(DEFENDANTS/APPELLANTS)<o:p></o:p>vs.<o:p></o:p>HFC BANK (GHANA) LIMITED<o:p></o:p>(PLAINTIFF/RESPONDENT)<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.: H1/215/2014&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 16TH JULY 2015<o:p></o:p>

</div>COUNSEL: <o:p></o:p>KWAME NYAKEM TETTEH FOR THE DEFENDANTS/APPELLANTS <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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&nbsp;KWADWO AFRAM ASIEDU FOR THE
PLAINTIFF/RESPONDENT<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>OWUSU (MS) J.A. (PRESIDING), ACQUAYE J.A., WELBOURNE (MRS)
J.A.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="text-align:center;border:none;
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padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>ACQUAYE,
J. A. <o:p></o:p>The facts leading to this
appeal are not controverted. <o:p></o:p>The plaintiff/respondent
issued a writ of summons accompanied by a statement of claim against the
defendants/appellants for the following reliefs:—<o:p></o:p>&nbsp;1. Payment of the sum of GH¢708,089.22 being
principal and interest on a loan granted the 1st defendant/appellant and
guaranteed by the 2nd and 3rd defendants/appellants.<o:p></o:p>&nbsp;2. Interest on the above sum. <o:p></o:p>3. An order for the
judicial sale of house number 28 Block Section 093 situate at Martey Tsuru in
Accra used as security for the loan.<o:p></o:p>&nbsp;After entry of conditional appearance the
defendants failed to file a statement of defence so the plaintiff/respondent
filed a motion for final judgment in default of defence which was granted. The
plaintiff/respondent subsequently filed a motion on notice for the
determination of a reserved price for the sale of the judgment debtors
mortgaged property and attached thereto a valuation report which assessed the
forced sale value of the property at GH¢750,000.00. In their affidavit in opposition
the defendants/appellants disputed the value placed on the property by the
plaintiff/respondent’s valuers. The defendants/appellants attached their
valuer’s report which assessed the forced sale value of the same property at
GH¢920,000.00. At the hearing of the application the parties could not agree on
what value to place on the attached property so the trial judge on 14th June
2011 appointed the Land Valuation Board to independently value the property and
file its report before the next adjourned date of 14th July 2011. <o:p></o:p>Six months after the order
and after many adjournments the Land Valuation Board failed to present its
report to the court so at a latter sitting the plaintiff/respondent’s Counsel
orally informed the court that in view of the Land Valuation Board's delay in
submitting its report, the plaintiff was willing to accept the defendants
valuation of the property which assessed the forced sale value at
GH¢920,000.00. As a result the trial judge ruled that “To the extent that the Valuation Report on the property is still not
ready I hereby in the interest of justice suo motu vacate the order made by the
court on 14th June 2011 concerning the referral of the re-valuation of the
property to Land Valuation Board. Now to the extent that the Defendant has
provided this court with alternative or counter valuation of the property, now
that the plaintiff is prepared to adopt same this court rules that the property
in issue, shall be sold at the force[sic] sale value (at the value presented by
the defendant) of GH¢920,000.00 to avert further delays and unnecessary expense
to the parties before me".<o:p></o:p>&nbsp;Dissatisfied with the ruling the defendant
filed a notice of appeal setting forth the following grounds of appeal. <o:p></o:p>1. That the whole ruling
is against the weight of evidence.<o:p></o:p>&nbsp;2. That the learned trial judge erred in law
when he ruled that he had the power to vacate his own orders (i.e. valid orders
made previously) suo moto.<o:p></o:p>&nbsp;3. That the learned trial judge erred in law
when he ruled that the plaintiff judgment creditor respondent was not mandated
by the High Court (Civil Procedure) Rules to make a prayer and or application
by motion.<o:p></o:p>&nbsp;4. That the learned trial judge erred in law
when he ruled that Counsel for the plaintiff/respondent’s prayer that the
defendant judgment debtor appellant’s counter valuation be relied upon in the
stead of the neutral valuation by Land Valuation Board is not tantamount to a
prayer and or an application for review. <o:p></o:p>5. Further grounds shall
be filed upon the receipt of a copy of the ruling. <o:p></o:p>After receipt of the
record of proceedings Counsel for the defendants/appellants did not file
additional grounds of appeal nor amend the grounds of appeal so ground 5 of the
notice of appeal is deemed to have been abandoned. Counsel in his written
submissions also abandoned the first ground of appeal. Counsel begun his
submissions with the second ground of appeal that the trial judge did not have
the power suo moto to vacate his own orders previously made. Counsel referred
to the case of Omaboe vrs Kwame (1978) GLR 122 where it was held that the court
had an inherent jurisdiction to set aside or vary its own orders which it could
exercise on three broad bases, namely<o:p></o:p>&nbsp;(1) If there was some clerical mistake in the
judgment or order <o:p></o:p>(2) If there was some
error which arose from any accidental slip or omission and <o:p></o:p>(3) If the meaning a</main>