GUARANTY TRUST BANK (GH) LTD vs. WESTERN STEEL & FORGINGS LTD AND OTHERS [2017]DLSC2564

Date	2017-05-31
Suit No.	CIVIL APPEAL NO. J4/34/2016
Citation No.	[2017]DLSC2564

AKUFFO (MS) JSC PRESIDING

YEBOAH JSC

BAFFOE-BONNIE JSC

BENIN JSC

PWAMANG JSC

ERIC OSEI-MENSAH FOR THE DEFENDANT/RESPONDENT/APPELLANT

EDITH AKIWUMI FOR THE PAINTIFF/APPELLANT/RESPONDENT

[2017]DLSC2564
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >GUARANTY TRUST BANK (GH)
LTD<o:p></o:p>vs.<o:p></o:p>WESTERN STEEL &amp;
FORGINGS LTD<o:p></o:p>AND OTHERS<o:p></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.
J4/34/2016&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: 31ST MAY, 2017<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>ERIC OSEI-MENSAH FOR THE
DEFENDANT/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">

EDITH
AKIWUMI FOR THE PAINTIFF/APPELLANT/RESPONDENT<o:p></o:p>

</div>CORAM: <o:p></o:p>AKUFFO (MS), JSC PRESIDING YEBOAH, JSC BAFFOE-BONNIE, JSC BENIN, JSC AND
PWAMANG, JSC<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;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">JUDGEMENT<o:p></o:p>

</div>BAFFOE-BONNIE,
JSC:-&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>The facts in this case are fairly straight forward
and generally uncontroverted. The respondent in this court, Guaranty Trust
Bank, recovered judgement against the appellants in the High Court, Commercial
Division, Accra, for various sums of money owed it as a result of appellants’
default in repaying loan facilities it extended to them. Upon application, the
High Court on 28th January, 2012 granted the appellants’ prayer to stay
execution and to pay the judgment debt by instalments. The appellants defaulted
in the payment terms they themselves had proposed.
Respondent caused the properties the appellants had mortgaged as security for
the loans, to be attached in order that they would be sold in satisfaction of
the judgment debt.<o:p></o:p>The attached properties were valued and the
respondent applied for reserved prices for them. Claiming that the properties
had been undervalued, the appellants prayed the High Court to order a second
valuation of the properties at their expense, but later abandoned that prayer
and agreed to the auction. The High Court made an order for the reserved price
on 7th August, 2013. Thereafter the registrar appointed an
auctioneer. The auctioneer advertised the auction in The Ghanaian Times
Newspaper of 9th September, 2013, and stated that the auction would
be conducted on 30th September, 2013. <o:p></o:p>Meanwhile, after the public auction had been
advertised, the appellants again sought to stop or delay the sale by opening
some form of negotiations with the respondents herein, for fresh terms to pay
the judgment debt by instalment. These fresh negotiations yielded some results
and the appellants actually made some payments pursuant to these fresh terms.<o:p></o:p>&nbsp;Clearly,
both the court and the court appointed auctioneer were oblivious of these fresh
negotiations and subsequent arrangements, because the public auction took place
as advertised, on 30th September, 2013. Two out of the three
mortgaged landed properties of the appellants were sold at the public auction
to third parties who were subsequently put in possession by bailiffs of the
High Court.<o:p></o:p>&nbsp;Pursuant to
Order 45 rule 10 of C.I 47, the appellants filed a motion at the High Court
praying for an order for stay of execution in respect of the third property for
which there was no reserved price, and for an order setting aside the sale of
the two houses. The main reason for the application to set aside the sale was
that the auction was conducted in circumstances of deceit since at that time
appellants were in negotiations with respondents for a settlement and
respondents undertook not to sell the attached properties. The respondent
vehemently opposed the application on the grounds of time and also that there
had been no breach of the rules. The High Court overruled respondents’
objection, granted the application, &nbsp;set
aside the auction sale and ordered the parties to abide by proposed terms of
settlement that were yet to be signed by respondent. He held as follows in his
ruling;<o:p></o:p>“I
find that the auction was conducted in deceit of the Applicant and it is
therefore fraudulent in that at the very time he was being made to believe that
the sale would not be conducted until the happening of the event, i.e. his
failure to pay as expected, at that very time the sale has been conducted
without his knowledge and behind his back. Thus, the representation made to the
Applicant was a fraudulent one and in my view no injury could be caused the
owner of the property than to deceive him into not attending the auction sale
of his house.”<o:p></o:p>What the trial judge considered as evidence of
deceit and fraud was a letter dated 3rd October, 2013 written by the
respondent bank to appellants’ lawyer in which they promised not to auction the
attached properties unless appellants defaulted in payment of new instalments
they had proposed. <o:p></o:p>Being aggrieved by the decision to set aside the
sale, the respondent herein appealed against same to the Court of Appeal. Before
the Court of Appeal, respondents argued that there was no irregularity with the
auction as same was carried out after all procedures for execution had been
complied with, so the sale ought not to have been set aside. Respondent further
argued that since at the time of applying to set aside the auction appellants
were in default of payment of the judgment debt, they were not ent</main>