MERCHANT BANK LTD. vs. JOSEPH NTI AND NIU YONGJUN [2020]DLHC9173

Date	2020-03-22
Suit No.	SUIT NO.MISC/11/2010
Citation No.	[2020]DLHC9173

HIS LORDSHIP JUSTICE DR. RICHMOND OSEI-HWERE

WILLIAM KUSI FOR MICHAEL YOURI FOR THE APPLICANT

JAPHTHA APAU FOR STEPHEN ALEWABA FOR THE DEFENDANT/JUDGMENT DEBTOR/RESPONDENT

[2020]DLHC9173
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													<main id="main" class="content" style="min-height: 60rem" >MERCHANT BANK LTD.<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>JOSEPH NTI<o:p></o:p>(DEFENDANT)<o:p></o:p>NIU YONGJUN<o:p></o:p>(APPLICANT)<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;
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SUIT
NO.MISC/11/2010&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE:
22ND MARCH, 2020<o:p></o:p>

</div>COUNSEL:<o:p></o:p>WILLIAM KUSI FOR MICHAEL
YOURI 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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JAPHTHA
APAU FOR STEPHEN ALEWABA FOR THE DEFENDANT/JUDGMENT DEBTOR/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;
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HIS
LORDSHIP JUSTICE DR. RICHMOND OSEI-HWERE, HIGH COURT JUDGE<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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</div><o:p>&nbsp;</o:p>The
applicant herein has filed the instant application for writ of possession of property
described as Plot No. 17, Block ‘J’, Atonsu, Kumasi (hereinafter referred to as
‘the Property’).<o:p></o:p>The
background to the application is that the applicant bought the Property through
a judicial auction sale on the 17th January, 2014. A certificate of purchase
and the registrar’s certificate were duly issued to him. According to the
applicant, after the purchase he made several attempts to take possession of
the property but his efforts were frustrated by the Defendant/Judgment
debtor/Respondent. The Respondent filed a motion to set aside the auction sale
of the Property and same was dismissed by the court on the 7th April, 2017. The
Respondent then filed an appeal against the 7th April, 2017 ruling of the Court
dismissing his application to set aside the auction sale. On the 19th May,
2017, an application for stay of execution of the said ruling was also filed by
the Respondent.&nbsp; From the record, the
Respondent has not prosecuted the appeal neither has he moved the application
for stay of execution of the order dismissing his application to set aside the
auction sale dated 7th April, 2017.<o:p></o:p>The
applicant has invited the court to grant an order for issue of writ of
possession to enable him take possession of the Property which he purchased as
far back as 17th January, 2014.<o:p></o:p>Order
43 of the High Court (Civil Procedure) Rules, 2004 (CI 47) deals with
enforcement of judgments and orders. Order 43 rule 3 specifically deals with
enforcement of judgment for possession of immovable property by means including
a writ of possession. Like all the enforcement processes under Order 43, the
writ of possession is applied for by the judgment creditor and is only issued
with leave of the court except where the judgment or order was given or made in
a mortgage action. See Order 43 rule 3(3).<o:p></o:p>In
the instant case, the applicant is not a judgment creditor. The applicant
purchased the property after the sale had become absolute. He was subsequently issued
with a certificate of purchase. From the rules, his right to be put in
possession of the property cannot be exercised under an application for issue
of writ of possession. It is trite learning that where the rules of procedure
prescribe a mode of enforcing a right or seeking a relief same must be adhered
to, as failure to do so in accordance with the prescribed mode is not only an
irregularity but a nullity since it raises the fundamental issue of
jurisdiction. See Ayikai v Okaidja III [2011] 1SCGLR 205, 208 per Gbadegbe JSC.<o:p></o:p>Accordingly,
the application is dismissed as the same is incompetent.<o:p></o:p>Cost
of GHC 1,000.00 awarded against the applicant.<o:p></o:p>

<o:p>&nbsp;</o:p></main>