GHANA COMMERCIAL BANK vs. EASTERN ALLOYS CO. LTD & 5 OTHERS WORD PRAYER CENTRE DELA AKPEY [2015]DLCA8023

GHANA COMMERCIAL BANK vs. EASTERN ALLOYS CO. LTD & 5 OTHERS WORD PRAYER CENTRE... [2015]DLCA8023

Date	2015-12-17
Suit No.	CIVIL APPEAL NO. H1/226/2014
Citation No.	[2015]DLCA8023

S.E KANYOKE J.A. (PRESIDING)

F.G. KORBIEH J.A.

ADUAMA OSEI J.A.

MR. FRANK BOAKYE AGYEN FOR THE APPELLANT

MR. TETTEH JOSIAH FOR THE 1ST RESPONDENT/CROSS-APPELLANT

MR. ANKOMAH MENSAH FOR THE 2ND

DEFENDANT/APPLICANT/RESPONDENT

[2015]DLCA8023
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													<main id="main" class="content" style="min-height: 60rem" >GHANA COMMERCIAL BANK<o:p></o:p>(PLAINTIFF/RESPONDENT/APPELLANT)<span lang="EN-GB" style="font-size:10.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,serif;
mso-fareast-font-family:Calibri;mso-fareast-theme-font:minor-latin;mso-bidi-font-family:
&quot;Times New Roman&quot;;mso-bidi-theme-font:minor-bidi;color:#00B0F0;mso-ansi-language:
EN-GB"><o:p></o:p>vs.<o:p></o:p>EASTERN ALLOYS CO. LTD &amp; 5 OTHERS<o:p></o:p>(DEFENDANTS/APPLICANTS/1STRESPONDENTS)<o:p></o:p>WORD PRAYER CENTRE<o:p></o:p>(2ND RESPONDENT/RESPONDENT)<o:p></o:p>DELA AKPEY<o:p></o:p>(3RD RESPONDENT/RESPONDENT)<o:p></o:p><span lang="EN-GB" style="font-size:10.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,serif;
mso-fareast-font-family:Calibri;mso-fareast-theme-font:minor-latin;mso-bidi-font-family:
&quot;Times New Roman&quot;;mso-bidi-theme-font:minor-bidi;mso-ansi-language:EN-GB">[COURT
OF APPEAL, ACCRA]<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">

CIVIL APPEAL NO. H1/226/2014&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;DATE: 17TH DECEMBER, 2015<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MR.
FRANK BOAKYE AGYEN&nbsp; FOR THE APPELLANT <o:p></o:p>MR.
TETTEH JOSIAH FOR&nbsp; THE 1ST
RESPONDENT/CROSS-APPELLANT<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">

MR. ANKOMAH MENSAH FOR THE 2ND
DEFENDANT/APPLICANT/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;
padding:0cm 0cm 1.0pt 0cm">

S.E KANYOKE J.A. (PRESIDING), F.G.
KORBIEH J.A., ADUAMA OSEI J.A.<o:p></o:p>

</div><span lang="EN-GB" style="font-family:
&quot;Book Antiqua&quot;,serif;mso-fareast-font-family:Calibri;mso-fareast-theme-font:
minor-latin;mso-bidi-font-family:&quot;Times New Roman&quot;;mso-bidi-theme-font:minor-bidi;
mso-ansi-language:EN-GB">&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;
padding:0cm 0cm 1.0pt 0cm">

<span lang="EN-GB" style="font-family:&quot;Book Antiqua&quot;,serif;mso-fareast-font-family:
Calibri;mso-fareast-theme-font:minor-latin;mso-bidi-font-family:&quot;Times New Roman&quot;;
mso-bidi-theme-font:minor-bidi;mso-ansi-language:EN-GB">JUDGMENT<o:p></o:p>

</div>F.G. KORBIEH, J.A.<o:p></o:p>The brief facts of the case
leading to this appeal are as follows. The defendants/applicants/1st respondents
(who shall hereinafter be referred to simply as the defendants) took a number
of loan and over-draft facilities from the plaintiff/respondent/respondent
(hereinafter referred to simply as the plaintiff). When the defendants failed
to or could not pay back the totality of their indebtedness to the plaintiff,
the latter sued the former in the Commercial Division of the High Court, Accra
asking for the recovery of ¢3,187,518,413.00, ¢427,709,841.52 jointly and
severally from the six individual defendants mentioned in the writ; interest on
the EDIF loan at the agreed rate of 15% from 31/12/2006 to the date of final
payment; interest on the short-term loan at the agreed rate of 28% per annum
from 31/12/2006 to the date of final payment and further or in the alternative
an order for the judicial sale of the property mortgaged or charged to the
plaintiff as security for the debt to satisfy the debt. The defendants having
failed to file a statement of defence, the plaintiff applied for and obtained a
judgment in default of defence. The learned trial judge entered judgment in the
sum of ¢4,055, 763,059.00 plus “interest on the said sum in accordance with
C.I. 52” against the defendants. The plaintiff filed an entry of judgment in
the sum of ¢4,252,888,145.26.; or in the alternative an order for the judicial
sale of the 1st defendant’s factory premises. The defendants then
applied for stay of execution and to be allowed to pay by the judgment debt by
installments. Apparently while this application was pending the plaintiff filed
a precipe to seal a writ of facierifacias (fi. fa) directed at the deputy
sheriff of the High Court to attach the following properties of the judgment
debtors: the factory premises of the 1st defendant company, the
plants and machinery of the 1st defendant company and the properties
of the directors of the 1st defendant company. In the result only
the factory premises of the 1st defendant company was attached and
an application made for an order of reserved price of that property. The forced
reserved price was given as GH¢2,985,701.00. In the mean time the trial court
granted the motion for stay of execution and payment by installment adding that
the usual default clause applied. On the 13/9/2013, the trial court ordered
that “the Defendant’s property attached in execution of the judgment of this
court shall now be sold by public auction at a price not less than GH¢2,104,706.00.”
which had followed an earlier application to reduce the forced sale price since
the earlier forced sale priced failed to attract any buyer. After several
attempts by the defendants to stay further execution of the judgment had failed
the attached property was sold by public auction to the 2nd
respondent. On the15/2/2012, on the application of the plaintiff, the trial
court granted it a writ of possession. Then on the 20/3/2012, the defendants
filed a motion to set aside the default judgment, the writ of execution and the
sale of the 1st defendant’s property. Some of the grounds for the
prayer to set aside the judgment e.t.c. were the following: that even though
the plaintiff had asked for only ¢3,187,518,413.00, the trial court had given
it judgment in the sum of ¢4,055,763,059.00 and awarded interest on the
judgment in accordance with C.I. 52 and cost of GH¢40,000.00; that the judgment
exceeded the amount claimed by the plaintiff in its writ of summons which was
bad in law; that this entitled the defendants to have the judgment set aside ex debitojustitiae; that after the
judgment the plaintiff was paid several part-payments of the judgment debt but
failed to file a revised entry of judgment thus occasioning a grave miscarriage
of justice as it denied the defendants notice of what their true indebtedness
was to the plaintiff; that the 1st&nbsp;
defendant’s plants and machinery were valued at the forced sale of GH¢1,831,200.00
which was enough to satisfy the remaining judgment debt, post judgment debt
interest and cost; that in so far as the defendants had movable plant and
machinery which were charged as security for the loan and whose value was in
excess of the outstanding judgment debt, the sale of the defendants’ immovable
property was illegal and void; that the auction sale contravened the Auction
Sales Act, 1989 (PNDC Law 230) as no notice of the sale was given to the
general public As would b</main>