ENDURANCE OTI BOATENG AND OTHERS vs. NOBLE DREAM MICRO FINANCE CO. LTD AND EZEKIEL OWUSU AFRIYIE AND DANIEL OKYEM ABOAGYE [2018]DLHC3976

ENDURANCE OTI BOATENG AND OTHERS vs. NOBLE DREAM MICRO FINANCE CO. LTD AND EZEK... [2018]DLHC3976

Date	2018-05-11
Suit No.	SUIT NO. INTS. 39/2016
Citation No.	[2018]DLHC3976

DR. RICHMOND OSEI-HWERE JUSTICE OF THE HIGH COURT

BRIGHT OBENG MANU FOR THE APPLICANT

KWAKU YEBOAH APPIAH FOR THE RESPONDENT

[2018]DLHC3976
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													<main id="main" class="content" style="min-height: 60rem" >ENDURANCE OTI BOATENG AND
OTHERS<o:p></o:p>vs.<o:p></o:p>NOBLE DREAM MICRO FINANCE CO. LTD&nbsp; AND EZEKIEL OWUSU AFRIYIE AND DANIEL OKYEM
ABOAGYE<o:p></o:p>&nbsp;[HIGH COURT
(COMMERCIAL DIVISION), KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT&nbsp;NO. INTS. 39/2016&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; DATE: 11TH
MAY, 2018<o:p></o:p>

</div>COUNSEL
<o:p></o:p>BRIGHT OBENG MANU FOR THE
APPLICANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</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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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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</div>On
9th March, 2018 the court upon an application by the respondent
herein placed the respondent in possession of House No. Plot 8, 25th
Street Atasomanso, Kumasi. This was after the respondent had purchased the
property at an auction sanctioned by the court and a certificate of purchase
had been issued by the court in favour of the respondent.<o:p></o:p>In
this application, the applicant herein is praying the court to review and set
aside the said orders of the court made on the 9th of March, 2018.
The grounds of the application are contained in an affidavit in support of the
motion and a supplementary affidavit filed on 9th March, 2018 and 20th
March, 2018 respectively.<o:p></o:p>The
respondent is opposed to the application and has demonstrated it in an
application in opposition filed on 21st March, 2018.<o:p></o:p>Counsel
for the applicant submitted that having become aware of the ex parte motion which was granted by the
court on 9/03/2018 the applicant has brought this application to draw the
court’s attention to certain facts which were not brought to the attention of
the court when the application was made and to draw the court’s attention to
certain principles of law which the court might not have adverted its mind to. Counsel
referred to exhibits A and C which they had attached to their affidavit. Both
exhibits are processes relating to suits on the property – the subject matter
of the application. Exhibit A is an action initiated by the applicant against
the defendant and other parties to set aside the sale of the property in
dispute. Exhibit C is also an action initiated by the respondent for a
declaration of title to the disputed property. Counsel, however drew the court’s
attention to the fact that the suit relating to exhibit A has been dismissed on
02/05/2018, a day before the hearing of the instant application by a court of coordinate
jurisdiction. Counsel argued that insofar as 7 days had not elapsed since its
dismissal the suit is still pending and that it is not for nothing that the
automatic stay for 7 days has been incorporated in our law such that within the
7 days the party who wishes to exercise any right would not be taken advantage
of. In sum, it is the contention of the applicant that notice ought to have
been served on him when the application to place respondent in possession of
the said property was brought to court and that failure to do so has occasioned
a miscarriage of justice, as the court would have stayed proceedings if the
pendency of the suits had been brought to its attention. More so, since the
sale was conducted at the instance of the court any attempt to enforce the
order emanating from the sale should have been on notice to the applicant
herein. Counsel made reference to Order 19 rule 1(3), Order 43 rule 3 of the
High Court (Civil Procedure) Rules, 2004 (CI 47) and the case of the Republic v
High Court Koforidua ex parte (Akonnor Samuel Agyei interested party) 2005
SCGLR 573 in support of his claim. It is also the contention of the applicant
that since the suits particularly Exhibit A is still pending, it is prudent for
the court to set aside its order.<o:p></o:p>In
his submission to the court, counsel for the respondent reiterated the latter’s
opposition to the motion and emphasised that the suit relating to exhibit A
which was dismissed the previous day cannot be said to be pending. Counsel
submitted that the 7-day automatic stay of execution after judgment only affect
judgment creditors and it also does not mean that the suit is still pending.
Counsel also submitted that assuming exhibit A placed fetters on the respondent
same has been removed by the dismissal of the action. Counsel argued that the
suit relating to exhibit C has no effect on the orders made by this court
placing the respondent in possession of the property. He prayed the court to
dismiss the application.<o:p></o:p>Order
19 rule 1(3) of CI 47 provides that no motion shall be made without notice to
the parties affected except where the rules otherwise provide. The court may,
however, entertain an ex-parte motion
under Order 19 rule 3(1) where it considers it proper to permit the application
to be made.<o:p></o:p>Order
43 rule 3 of CI 47 deals specifically with enforcement of judgment for
possession of immovable property by means including a writ of possession. A
writ of possession to enforce judgment of the court shall only be issued with
leave of the court except where the judgment or order was given or made in a
mortgage action. Under Order 43 rule 3(3) it is provided that:<o:p></o:p>“The
leave shall not be granted unless it is shown that every person in actual
possession of the whole or any part of the immovable property</main>