PARTNERS HEALTH SERVICES vs. BIKKIA LIMITED, MOSES ANTWI, DANGSCHAFT GMBH, DEPUTY SHERIFF HIGH COURT ACCRA, AND SILVERCREST INVESTMENT LTD [2016]DLSC5620

PARTNERS HEALTH SERVICES vs. BIKKIA LIMITED, MOSES ANTWI, DANGSCHAFT GMBH, DEPU... [2016]DLSC5620

Date	2016-04-27
Suit No.	CIVIL APPEAL NO: J4/48/2015
Citation No.	[2016]DLSC5620

ATUGUBA JSC (PRESIDING)

BENIN JSC

AKAMBA JSC

APPAU JSC

PWAMANG JSC

KWABENA ASANTE KROBEA ESQ. FOR THE PLAINTIFF/1ST RESPONDENT/ APPELLANT

STEPHEN OPPONG ESQ. FOR THE 1ST DEFENDANT /2ND RESPONDENT/ APPELLANT

THADDDEUS SORY ESQ. WITH HIM SEAN POKU FOR THE 5TH DEFENDANT/ APPELLANT/RESPONDENT

[2016]DLSC5620
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													<main id="main" class="content" style="min-height: 60rem" >PARTNERS HEALTH SERVICES<o:p></o:p>(PLAINTIFF/1ST
RESPONDENT/APPELLANT)<o:p></o:p>vs.<o:p></o:p>BIKKIA LIMITED, MOSES ANTWI, DANGSCHAFT GMBH, DEPUTY SHERIFF
HIGH COURT ACCRA, AND SILVERCREST INVESTMENT LTD<o:p></o:p>(DEFENDANTS/RESPONDENTS/APPELLANTS)<o:p></o:p><o:p>&nbsp;</o:p>[SUPREME COURT, 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">

CIVIL APPEAL NO: J4/48/2015&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: 27TH APRIL,
2016<o:p></o:p>

</div>COUNSEL:<o:p></o:p>KWABENA ASANTE KROBEA
ESQ.&nbsp; FOR THE PLAINTIFF/1ST
RESPONDENT/ APPELLANT<o:p></o:p>STEPHEN OPPONG ESQ.&nbsp; FOR THE 1ST DEFENDANT /2ND
RESPONDENT/ APPELLANT.<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">

THADDDEUS
SORY ESQ. WITH HIM SEAN POKU FOR THE 5TH DEFENDANT/
APPELLANT/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:0in 0in 1.0pt 0in">

ATUGUBA
JSC (PRESIDING), BENIN JSC, AKAMBA JSC, APPAU JSC, PWAMANG JSC&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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JUDGMENT<o:p></o:p>

</div>PWAMANG, JSC.<o:p></o:p>By a certificate of
Purchase issued by the High Court Registrar, Accra dated 12th
October, 1998 Silvercrest Investments Ltd acquired the title and interest of
Bikkai Laboratories Ltd in H/No. BA 181/182, Bantama, Kumasi. Then by an indenture
dated 27th October 1998, Partners Health Services Ltd acquired the
title and interest of Bikkai Ltd in the same property.<o:p></o:p>In the appeals before us
we are called upon to determine which of the two purchasers stated above is
entitled to ownership and possession of the property in dispute. In this
judgment the plaintiff/respondent/appellant shall be referred to as
“plaintiff”, the 1st defendants/respondent/ appellant shall be referred
to as “1st defendant” and 5th
defendant/appellant/respondent as “5th defendant”. The 2nd,
3rd and 4th defendants are not parties to this appeal and
will continue to be referred to as such.<o:p></o:p>Having regard to the fact
that the validity of the auction sale as well as the bona fides of the parties have been raised in this case, we deem it
necessary to set out the detailed facts in a chronological order for ease of
analysis. So here we go; In 1995, the 3rd defendant, a German pharmaceutical
company, through its lawyer, Kwaku Ansa-Asare of Hencil Chambers, brought an
action in the High Court, Accra against Bikkai Laboratories Ltd, a sister
company of 1st defendant. The action was to recover certain sums of
money owed 3rd defendant for pharmaceutical products supplied on
credit to Bikkai Laboratories Ltd. On 26th April, 1995 judgment was
entered in favour of 3rd defendant. Upon application by 3rd
defendant the Registrar of the High Court, Accra sealed a writ of fi.fa dated
24th May, 1995 for the attachment of the property in dispute to be
sold in satisfaction of the judgment. More than one year after the fi.fa was
issued the Registrar wrote to the 2nd defendant by letter dated 28th
May, 1997, appointing him as the auctioneer to sell the property.<o:p></o:p>All this while the writ of
fi.fa had not been executed by attachment of the property in dispute. It was
when 2nd defendant received the authorization from the Registrar
that he went to effect the attachment on 30th May 1996 and served
the judgment debtor with a Notice of Auction to be held on 27th
June, 1996. About the same time 2nd defendant published notice of
the auction in the 6th June, 1996 edition of ‘The Pioneer’ newspaper
in Kumasi.<o:p></o:p>Upon the attachment 1st
defendant immediately filed a Notice of Claim, claiming ownership of the
property.&nbsp; The Registrar therefore wrote
to 2nd defendant dated 5th June, 1996 requesting him to
suspend the sale because a Notice of Claim had been filed. The Notice of Claim in
which 1st defendant claimed ownership of the property as against
Bikkai Laboratories Ltd &nbsp;was served on
the 3rd defendant, the judgment creditor. The parties attended court
on the Notice of Claim and 1st defendant was ordered to file a
statement of claim in order for the interpleader to be determined.&nbsp; He failed to do so and on 31st
January, 1997, the interpleader was struck out. <o:p></o:p>