GHANA HOME LOANS LIMITED (PLAINTIFF) vs. WILLIAM KARIKARI BANNERMAN (DEFENDANT) [2016]DLHC7368

Date	2016-01-15
Suit No.	SUIT NO: BFS/10/13
Citation No.	[2016]DLHC7368

HIS LORDSHIP SAMUEL K. A. ASIEDU J.

AMELIA ADJOTEYE FOR PLAINTIFF/ RESPONDENT

MR. GODFRED YEBOAH-DAME WITH SAMUEL ADUFU FOR DEFENDANT/APPLICANT

[2016]DLHC7368
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													<main id="main" class="content" style="min-height: 60rem" >GHANA HOME LOANS LIMITED<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>WILLIAM KARIKARI
BANNERMAN<o:p></o:p>(DEFENDANT)<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;
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SUIT
NO:&nbsp; BFS/10/13&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: 15TH JANUARY,
2016<o:p></o:p>

</div>COUNSEL: <o:p></o:p>AMELIA
ADJOTEYE FOR PLAINTIFF/ RESPONDENT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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MR. GODFRED YEBOAH-DAME WITH SAMUEL ADUFU
FOR DEFENDANT/APPLICANT<o:p></o:p>

</div>CORAM:<o:p></o:p>HIS LORDSHIP SAMUEL K. A.
ASIEDU, J.<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="margin-bottom:0in;margin-bottom:.0001pt;
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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>The instant application seeks an order of the court
to set aside “the purported sale by public auction of House No. 1(34), His
Majesty Court, East Legon Accra done on Thursday, 26th November,
2015”. The motion which was filed on the 27th day of November, 2015
is supported by an affidavit and it is also opposed by an affidavit filed on
the 11th day of December, 2015.<o:p></o:p>The defendant’s plaint is that on the 6th
day of May, 2015 the plaintiff, through an Auctioneer successfully sold the
property in question at an auction such that, the highest bidder, one Alex
Owusu even made a deposit/payment of an amount of GH¢10,000 towards the price
which was agreed at GH¢3,300,000.00. &nbsp;This is clearly captured on exhibit WB
attached to the affidavit in support.<o:p></o:p>The applicant says that despite the successful sale
conducted on the 6th day of May, 2015; the Plaintiff/Respondent went
ahead to conduct or caused to be conducted on its behalf subsequent auction sales
of the same property on the 4th June, 2015; 19th June,
2015 and finally on the 26th November, 2015. The defendant alleges
that these subsequent sales were conducted without the Auctioneer issuing fresh
notices in accordance with the Auction Sales Act and also without the Auctioneer
obtaining a fresh Reserve Price from the court. According to the applicant the
Auctioneer needed the leave of the Court before he could have conducted the
subsequent sale.<o:p></o:p>The Plaintiff/Respondent has not denied the conduct
of the auction sales on the 6th day of May, 2015; 4th June, 2015;
19th June, 2015 and 26th November, 2015 in respect of the same
property which is the subject of the instant application. The Respondent’s
answer is that all the sales conducted before the 26th November,
2015 failed because the highest bidders could not pay the price at which the
property was knocked down to them.<o:p></o:p>One issue raised by the application is whether
fresh notices ought to be issued in strict compliance with the Auction Sales
Act in the event that fresh auctions have to be held.<o:p></o:p>From the affidavit in opposition filed by the
Plaintiff/Respondent particularly paragraph 10 thereof, one can infer that the Respondent
concedes that on the 6th day of May, 2015 the property in question
was successfully auctioned and sold to Alex Owusu who in fact paid a deposit of
GH¢10,000.00 towards the auctioned&nbsp; price
of GH¢3,300,000.00. Hence, the subsequent sale of the same property,
purportedly, became necessary because of the inability of Alex Owusu to pay for
the value of the property sold to him. <o:p></o:p>Therefore what took place after the auction sale of
6th day of May, 2015 was in fact a resale of the property. The
subsequent sale did not arise as a result of the postponement of the auction
scheduled for 6th May, 2015. Indeed there was a sale by auction on
the 6th day of May, 2015 and accordingly a contract of sale emerged
and was created as soon as the property was knocked down to Alex Owusu in
accordance with Section 27 of the Auction Sales Act 1989 (PNDCL 230). It has
been held that where auction sales is postponed there was no need for fresh
hearing notices to be issued and posted in accordance with Order 45 rule 9(1)
of the High Court (Civil Procedure) Rules 2004 CI 47 and Section 15(1) of the
Auction Sales Act. See The Republic vs. Circuit Court Registrar
Ex-parte: Arthur [1980] GLR 309; Ennin vs. Prah [1967] GLR 202 and Madjoub vs. John Holt Bartholomew &amp; Co.
Ltd [1967] GLR 554.<o:p></o:p>Nonetheless, where a resale of the property has
become necessary as a result of the failure of an earlier sale as against a
postponement of an auction, then the law and the relevant rules on the posting
of notices ought to be observed and fresh notices for twenty-one days ought to
be published. And failure to publish fresh notices would constitute a material
irregularity. In Zakari vs. Nkusum Mart
[1992] 1 GLR 1, the High Court was confronted with issues similar to the
ones raised in the present application. The court found that the highest bidder
in that case could not raise funds to pay the purchase price as a result of which
subsequent auctions were conducted before a bidder paid the purchase price.
Ansah J (as he then was) held in the Zakari case at page 10 that “the failure
to post fresh notices amounted to a material irregularity in the conduct of the
sale which would in proper circumstances enable the judgment debtor to set the
sale aside.”<o:p></o:p>Thus, the court in the Zakari case saw and treated
the failure to post fresh notices, in the circumstances of that case, as
amounting to a breach of the rules of court only. In my view however, it goes
beyond a breach of only the rules of court. Indeed it constitutes a breach of
Section 1</main>