AMALGAMATED BANK vs DANIEL MENSAH & ORS. [2015]DLHC16571

Date	2015-12-18
Suit No.	SUIT NO: BFS/324/2008
Citation No.	[2015]DLHC16571

HIS LORDSHIP SAMUEL K. A. ASIEDU J

MR. K. ACHIANU

MR. EKOW DADSON

DAVID AMETEPE

[2015]DLHC16571
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													<main id="main" class="content" style="min-height: 60rem" >AMALGAMATED BANK<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>DANIEL MENSAH &amp; ORS.<o:p></o:p>&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; (DEFENDANTS)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>&nbsp;<div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: black; padding: 0cm 0cm 1pt;">

<a name="_heading=h.gjdgxs"></a>SUIT
NO: BFS/324/2008&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 18TH DECEMBER, 2015<o:p></o:p>

MR. K. ACHIANU FOR
PLAINTIFF <o:p></o:p>

</div>CORAM<o:p></o:p>HIS LORDSHIP SAMUEL K. A. ASIEDU J. <o:p></o:p><div style="border-top-width: 1.5pt; border-top-color: black; border-left: none; border-bottom-width: 1.5pt; border-bottom-color: black; border-right: none; padding: 1pt 0cm;">

RULING<o:p></o:p>

</div>&nbsp;The
instant motion seeks an order of the court to set aside illegal execution. In
particular, the applicant seeks an order setting aside the sale of the
applicant’s house at Nii Boi Town/Nii Boiman Accra pursuant to the said execution.<o:p></o:p>On
the 24th day of July, 2014, the applicant successfully applied and
the court set aside the Entry of Judgment filed in this case by the Respondent
on the 22nd day of March, 2012. The reason for setting aside the
Entry of Judgment was that the Plaintiff had admitted that the said Entry of
Judgment had, stated thereon, sums of money in excess of what was in fact due
the plaintiff from the defendant/applicant.<o:p></o:p>The
sum total of the applicant’s argument herein
and its effect is that once the Entry of Judgment has been set aside, the sale
of the property must also be set aside, because, according to the applicant,
the sale was founded upon the said
Entry of Judgement. The Plaintiff/Respondent has expressed its opposition to
the instant application.<o:p></o:p>The
applicant says the sale was illegal and although the applicant had not clearly
stated in the affidavit what makes the sale illegal, it could be gleaned from the affidavit that the reason for so arguing
is that the Entry of Judgment, as already pointed out,
contained amounts in excess of what was due to the plaintiff.<o:p></o:p>&nbsp;In
the opinion of the court, for an act to be declared illegal, it must be shown
that the said act was in breach of either a provision of a Statute that is an Act of
Parliament other than the Rules
of Procedure or that it was in breach of an established rule of the Common Law
other than a rule of procedure.<o:p></o:p>It
cannot be reasonably denied that the sale which the applicant seeks to set
aside was conducted by auction and the property
in question was sold on the
12th day of November, 2014. The applicant has not shown that any
provision of the Auction Sales Act, 1989, PNDCL 230 which governs the sale of
property attached under execution of a judgment of a court as in the instant
matter has been breached. Neither has the applicant shown that the sale which
he seeks to set aside was conducted in breach of any rule of the Common Law.<o:p></o:p>What
the applicant seeks to set aside is the sale of the property attached in
execution of the judgement entered by consent of the parties. The applicant
does not, in the present motion, seek to set aside the Entry of Judgment.
Hence, it is the duty of the Applicant to prove to the satisfaction of the
court that the sale which he seeks to set aside was conducted illegally. The
sale which was done under the Auction Sales Act does not become illegal because of an error
on