ENDURANCE OTI BOATENG & 3 OTHERS vs. NOBLE DREAM MICRO FINANCE CO. LTD & 2 OTHERS [2018]DLHC9319

ENDURANCE OTI BOATENG & 3 OTHERS vs. NOBLE DREAM MICRO FINANCE CO. LTD & 2 OTHE... [2018]DLHC9319

Date	2018-05-11
Suit No.	SUIT NO. INTS. 39/2016
Citation No.	[2018]DLHC9319

HIS LORDSHIP JUSTICE DR. RICHMOND OSEI-HWERE

BRIGHT OBENG MANU FOR THE APPLICANT

KWAKU YEBOAH APPIAH FOR THE RESPONDENT

[2018]DLHC9319
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													<main id="main" class="content" style="min-height: 60rem" >ENDURANCE OTI BOATENG &amp; 3 OTHERS<o:p></o:p>(PLAINTIFFS/ DEFENDANT)<o:p></o:p>vs.<o:p></o:p>NOBLE DREAM MICRO FINANCE CO. LTD &amp; 2
OTHERS<o:p></o:p>(CLAIMANT/APPLICANT)<o:p></o:p>[HIGH COURT, KUMASI]<o:p></o:p><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</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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<p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;text-align:
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YEBOAH APPIAH FOR THE RESPONDENT<o:p></o:p>

</div>&nbsp;CORAM:<o:p></o:p>HIS
LORDSHIP JUSTICE DR. RICHMOND OSEI-HWERE<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:0cm;margin-bottom:.0001pt;
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</div><o:p>&nbsp;</o:p>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 th</main>