DANDYCYN LIMITED vs. THOMAS ANOKYE AND ANOTHER [2019]DLHC6885

Date	2019-06-11
Suit No.	SUIT NO: RPC /06/2016
Citation No.	[2019]DLHC6885

HIS LORDSHIP JUSTICE DR. RICHMOND OSEI-HWERE

YAW ACHEAMPONG BOAFO WITH FRANCISCA ADJO AYIVOR FOR THE

PLAINTIFF/JUDGMENT CREDITOR/RESPONDENT

EDWARD ANOKYE FOR THE DEFENDANTS/JUDGMENT DEBTORS/ APPLICANTS

[2019]DLHC6885
																																						<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" >DANDYCYN
LIMITED<o:p></o:p>vs.<o:p></o:p>THOMAS
ANOKYE AND ANOTHER<o:p></o:p>[HIGH COURT (COMMERCIAL DIVISION), KUMASI]<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">

SUIT
NO: RPC /06/2016&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 11TH JUNE, 2019<o:p></o:p>

</div>COUNSEL:
<o:p></o:p>YAW
ACHEAMPONG BOAFO WITH FRANCISCA ADJO AYIVOR FOR THE PLAINTIFF/JUDGMENT
CREDITOR/RESPONDENT<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">

EDWARD
ANOKYE FOR THE DEFENDANTS/JUDGMENT DEBTORS/ APPLICANTS<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">

<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height:
115%;mso-outline-level:1;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">HIS LORDSHIP JUSTICE DR.
RICHMOND OSEI-HWERE<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;
padding:0in 0in 1.0pt 0in">

</div>This ruling is in respect of an
application filed on behalf of the Defendants/Judgment Debtors/Applicants (hereinafter
called the Applicants) praying the Honourable Court for an order of
interlocutory injunction restraining the Plaintiff/Judgment Creditor/Respondent
(hereinafter called the Respondent) either by itself, its agents, privies,
assigns, servants or otherwise howsoever including the Registrar and Auctioneer
from auctioning property situate on Plots 115 and 116 Block “EE”, Patuda/Daban,
Kumasi.<o:p></o:p>The background facts to the application
are that a default judgment was given in favour of the Respondent on 22nd
November, 2016. The Respondent subsequently went into execution and applied for
a reserved price to be set by the Court for the sale of the properties attached
in execution. The applicants herein objected to the valuation report
commissioned by counsel for the Respondent and upon an application by the
applicants herein, the court ordered the Registrar of this court to appoint an
independent valuer to re-value the property. When the valuation report was
brought to the notice of counsel for the Applicants, he expressed serious
reservations and prayed the court to appoint the Government valuer to re-value
the property. On 12th March, 2018 the court granted this request and
appointed the Regional Surveyor, Lands Commission, Kumasi to do another
valuation at the expense of the applicant. The valuation report was to be filed
by 26th March, 2018 and the motion was adjourned to 9th April, 2018. When the
motion came up for hearing on 9th April, 2018, counsel for the applicants
failed to show up but wrote to the court expressing his frustration in getting
the Head of the Valuation Division of the Lands Commission to comply with the
order of the court. The court presided over by Her Ladyship Justice Angelina
Mensah-Homiah determined the application by fixing the reserved price. The
court was guided by the valuation report filed by Surveyor Richard Darko, the
independent valuer appointed by the court and fixed the reserved price of the
applicant’s properties at GHC900,000.00. Aggrieved by the decision of the
court, the applicants appealed against the decision per a Notice of Appeal
filed on 16th April, 2018. Subsequently, the Applicants sought to
stay the Order for reserved price but the same was dismissed by the Court.<o:p></o:p>The Applicants have thus brought the
instant application to seek the relief of interlocutory injunction.<o:p></o:p>The Applicants’ case is that the
court’s reserved price of Nine Hundred Thousand Ghana Cedis (GHC 900,000.00)
was heavily influenced by an undervaluation of the properties and that the
appeal against the order of the court has a reasonable chance of success. That
success of the appeal would be rendered nugatory if the instant application for
interlocutory injunction is refused. That the applicants would clearly suffer
greater hardship if the application is dismissed.<o:p></o:p>The respondent is opposed to the
application. It is the respondent’s case that the application is incompetent
and an abuse of the court process since a similar application in stay of
execution filed by the applicants has been dismissed by the court. Counsel for
the respondent submitted that the application is misconceived as the Registrar
of the Honourable Court is not an agent or assign of the Respondent. He
submitted that the Registrar is an officer of the Court assigned to perform
certain tasks which include execution of judgments of the Court. That the
registrar being an officer of the court has the authority to direct an
auctioneer to carry out an auction sale. Counsel further submitted that the
Registrar and the auctioneer are not parties to the instant suit and neither
does their involvement in the execution process make them a party to the suit.
It was submitted that the Applicants have not also in their affidavit shown
that the Respondent has by intervention made the registrar of the Court its
agent. Thus, the court cannot restrain the Registrar and Auctioneer from acting
as agents of the respondent since they are not the latter’s agents. In support
of this point counsel cited Kwami Tetteh’s book, Civil Procedure; A Practical
Approach at page 1004 where the learned author relied on the English case of
WILLIAMS v WILLIAMS (1937) 2 All ER 559 at 561 and stated that:<o:p></o:p>“I
think it is clear to demonstration, from the case that has been cited... and
other &nbsp;&nbsp;&nbsp; cases, and from well-known rule
of law, that a registrar and a registrar's &nbsp;officer, executing a judgment of the court,
are acting, as one may say, on behalf of the court. Each is doing his duty as
an officer of the court, and is not a servant or age</main>