SDC FINANCE & LEASING (PLAINTIFF) vs. CONSTRUCTION FATHERS LTD AND JASPER YARTEY (DEFENDANTS) [2015]DLHC7271

SDC FINANCE & LEASING (PLAINTIFF) vs. CONSTRUCTION FATHERS LTD AND JASPER YARTEY... [2015]DLHC7271

Date	2015-12-22
Suit No.	SUIT NO. BFS/119/09
Citation No.	[2015]DLHC7271

HIS LORDSHIP GEORGE K. KOOMSON (J).

CLARA MENSAH AGBO FOR DELA BLAGAGGE FOR THE PURCHASER

S.R. SACKAH FOR DEFENDANTS

[2015]DLHC7271
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													<main id="main" class="content" style="min-height: 60rem" >SDC FINANCE
&amp; LEASING<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>CONSTRUCTION
FATHERS LTD AND JASPER YARTEY<o:p></o:p>(DEFENDANTS)<o:p></o:p>[HIGH COURT (COMMERCIAL
DIVISION), ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 2.0pt 0in">

SUIT
NO. BFS/119/09&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 22ND
DECEMBER, 2015<o:p></o:p>

</div>COUNSEL: <o:p></o:p>CLARA
MENSAH AGBO FOR DELA BLAGAGGE FOR THE PURCHASER<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">

S.R.
SACKAH FOR DEFENDANTS<o:p></o:p>

</div>CORAM:<o:p></o:p>HIS
LORDSHIP GEORGE K. KOOMSON (J).<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
border-left:none;border-bottom:solid windowtext 1.5pt;border-right:none;
padding:1.0pt 0in 1.0pt 0in">

<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;line-height:115%;border:none;mso-border-top-alt:solid windowtext 1.5pt;
mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">RULING<o:p></o:p>

</div>From time to time cases come before the courts that
try the patience of even the most phlegmatic of judges.&nbsp; This, I fear is one of them.&nbsp; On the one side there is a determined
litigant who suffers from an implacable belief that his case has not been dealt
with justly.&nbsp; On the other is a purchaser
for whom these proceedings have been dragging on for far too long.&nbsp; One may regret the situation in which the
purchaser finds themselves.<o:p></o:p>Our basic common law rule that a party is entitled
to a fair hearing applies not only to those whom the court finds it easy to
deal with, but to everyone.<o:p></o:p>In this application the defendants/applicants pray
the court to stay the execution of its ruling dated 5th November,
2015 pending appeal.<o:p></o:p>Let me briefly state the facts giving rise to the
present application.&nbsp; The plaintiff in
the substantive action obtained judgment against the defendants/applicants
(herein after called the defendants).&nbsp;
The 2nd defendant’s property situate at plot no. 595, Block
12, Section180, Kwabenya otherwise known as Kwabenya Villa, Accra was attached
in execution of the said judgment.&nbsp; The
said property was put up for sale at a public auction.&nbsp; The purchaser/respondents (herein after
called the purchasers) were adjudged the highest bidders to purchase the
property.<o:p></o:p>The defendants later brought an application under
Order 45 rule 10(1) of C.I.47 to set aside the said sale.<o:p></o:p>The said application was dismissed by the
court.&nbsp; Subsequent to this, the
defendants lodged an appeal against the court’s decision at the Court of
Appeal.&nbsp; The purchasers were the
interested party in the said matter.&nbsp; The
defendants further prayed for an injunction to restrain the Registrar of the
Commercial Court from issuing the certificate of purchase in connection with
the property sold to the purchasers; and for a further order restraining the
purchasers from interfering with the 2nd defendant’s possession of
the said property pending the determination of the defendants appeal.&nbsp; The said application was also dismissed.<o:p></o:p>First Capital Plus Bank Limited filed a Notice of
Claim on the 9th February, 2015 stating an interest in the property
sold to the purchasers at the auction.&nbsp;
The claim of First Capital Plus Bank Limited failed on the grounds that
the said mortgage transaction was not registered as required by law to make it
enforceable.<o:p></o:p>The purchasers then filed an application for leave to
issue writ of possession.&nbsp; The said
application was granted on the 5th November, 2015.&nbsp; It is this decision of the court delivered on
the 5th November, 2015 granting leave for the purchasers to issue
writ of possession that the defendants have filed the present application to
stay its enforcement.<o:p></o:p>I have read the application and the affidavits
filed by the parties with their annexures.&nbsp;
I have also read the written submissions filed by both counsel.&nbsp; I have given thoughtful consideration to the
principles governing the grant or otherwise of application of this nature.&nbsp; It is however, useful for me to refer to a
few judicial decisions on these principles.<o:p></o:p>The Supreme Court in NDK FINANCIAL SERVICES LTD VRS YIADOM CONSTRUCTION &amp; ELECTRICAL
WORKS [2007-2008] SCGLR 93 stated that: <o:p></o:p>“the main principle adopted by the courts was what
the positon of the appellant would be if the judgment were to be enforced and
the appeal was successful.&nbsp; In effect,
the essential point in considering such applications was whether the applicant
would be referred to the status quo ante should the appeal succeed.&nbsp; Another determining principle was which of
the parties would suffer greater hardship should the application be granted or
refused.”<o:p></o:p>In DJOKOTO
&amp; ANOR VRS BBC INDUSTRIES COMPANY LIMITED &amp; ANOR [2011] 2 SCGLR 25
the Supreme Court again held that:</main>