Jaji Vrs Boateng [2022] GHASC 16 (6 April 2022)

IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT ACCRA - A.D. 2022

Coram

DOTSE JSC (PRESIDING) PROF. KOTEY JSC OWUSU (MS.) JSC TORKORNOO (MRS.) JSC PROF. MENSA-BONSU (MRS.) JSC

Civil Appeal

NO. J4/68/2021

6TH APRIL, 2022

Kamaru Jaji

(SUING PER HIS LAWFUL …… PLAINTIFF/RESPONDENT/RESPONDENT

Attorney - Sikiru Jaji)

VRS PAUL BOATENG …… DEFENDANT/APPELLANT/APPELLANT

Judgment

DOTSE JSC:-

Introduction

On the 16 th of March 2022, this court by a unanimous decision dismissed the appeal filed by the Defendant/Appellant/Appellant hereafter referred to as the Defendant, against the decision of the Court of Appeal dated 23 rd July 2020 which affirmed an earlier trial High Court decision dated 9 th October 2019, in favour of the

Plaintiff/Respondent/Respondent, hereafter referred to as the Plaintiff. We reserved our reasons for the said unanimous decision and and we proceed to proffer the reasons as follows:- In view of the complexities of the facts which have led to the appeal, we have decided to set out in very clear details, the evolution of the facts in the instant appeal from the High Court, through the Court of Appeal to this court. It is also considered worthwhile to set out with clarity the facts of a related suit which commenced in the District Court, Kaneshie, Accra, Suit No. A2/21/11 intitutled Rosemary Onipayede – Plaintiff v Faustina Sakyi & Anr – Defendants. The 1st Defendant named supra is the wife of the Defendant herein. PREAMBLE The property at the center of this appeal for which the parties have litigated from the High Court all the way to the Supreme Court is described as H/No DF 17 Race Course, near Lapaz, Accra . This property was purchased by t he Plaintiff hereinat a public auction where the property was being sold in satisfaction of a debt owed by the wife of the Defendant herein. The Plaintiff was declared the highest bidder and upon the payment of G H¢ 65,000.00 was issued with a Certificate of Purchase on the 8 th of January 2013 , which was duly signed by a Judicial Officer and numbered J.S 7525900. In March 2015 , the Plaintiff was served with a Writ of possession from the High Court requesting him to vacate the purchased property on the grounds that the property belongsto Defendant. The Plaintiff petitioned the Office of th e Chief Justice concerning the matters arising after the judicial sale of the property .On 13 th August 2015 , the Judicial Secretary in response to his petition ,stated thatinvestigations revealed that hehas been lawfully placed in possession of the purchased property. The Judicial Secretary advised the Plaintiff to seek redress through legal proceedings to vindicate his title to the property.

The Plaintiff therefore caused a writ of summons to be issued against the Defendant and also filed an application for injunction in the matter. The High Court at the conclusion of the entire proceedings gave judgment for the Plaintiff which decision was further affirmed by the Court of Appeal hence this appeal to the apex court.

Procedural History

As we stated in the introduction, for a proper understanding of the facts of this case, we must start the rendition of the facts from the District Court case which gave birth to the suit in the instant appeal. District Court In the District Court, Kaneshie, the wife of the Defendant herein was found to be liable for a debt in the case of Rosemary Onipayede v Faustina Sakyi and Rose Bemah Suit No: A2/21/11. The subject matter property in this suit that is, H/No. DF 7, Race Course, Near Abeka Lapaz, Accra was by a Writ of fifa attached to be sold in satisfaction of the debt. The Defendant, the husband of the judgment debtor in the District Court , filed a Notice of Claim which was dismissed on the 5th April 2012 by the Kaneshie District Court as the Claimant was absent in court. The Appellant brought an application to set aside the dismissal of his Claim in the District Court but same was also dismissed on the merits on 24th September 2012. After the dismissal of the claim, the Judgment Creditor , Rosemary Onipayede, proceeded to follow all the required procedure and the property was sold at a public auction where the Plaintiff herein purchased the property for GH¢ 65,000.00 and was given a certificate of purchase on the 8th January 2013. On the very next day, that is, the 9 th January 201 3 the Defendant herein file d an application to invoke the supervisory jurisdiction of the High Court for amongst other things an order of certiorari to quash the decision of the District Court, Kaneshie dated the 5th April 2012.

The High Court , two years after the application was fi led, on the 16th January 2014 granted the order of cer tiorari to quash the decision of the District Court delivered on 5th April 2012. The High Court proceeded to further order that “The property of the Applicant which was sold in executi on of the Court’s Judgment and Orders goes back to the owner, the Applicant herein”. The Judgment creditor in the District Court filed an appeal against the certiorari and further filed an application for stay of execution. The application for stay of execution was dismissed by the Court of Appeal on the 23rd January 2015. After the dismissal of the application for stay of execution the Defendant herein sought leave to issue a Writ of Possession on the 27 th January 2015 and on the 16th February 2015 the order for Writ of Possession was granted.

HIGH COURT SUIT THAT HAS RESULTED INTO THE INSTANT APPEAL The Plaintiff after being served with the Writ of Possession wrote to the Chief Justice concerning the issues surrounding the purchase of the property at the auction. On the 13th August 2015 the Judicial Secretary wrote to the Plaintiff informing him that investigations reveal that he has been placed in lawful possession of the property He was further advised to commence legal proceedings to vindicate his claim. On the very same day, the Plaintiff issued a Writ of Summons and also filed an application for injunction pending the final determination of the suit. The Writ of Summons was endorsed with the following reliefs: i. A declaration that the Plaintiff is the owner of the Property No. DF 17, Race Course near Lapaz, Accra having bought the said property at auction sale and being in possession since 2012.

ii. An order for a perpetual injunction restraining Defendant, his agents, workmen, assigns or who so ever claiming under him not to claim ownership of House No. DF 17, Race Course, property of Plaintiff. iii. Cost The learned High Court Judge , Ackah Boafo J after hearing both parties on the injunction application granted the application. In his ruling granting the injunction the learned judge stated that the injunction application has raise d two fundamental questions, namely:

1. Whether or not the Orders made in favour of the Defendant herein by the High Court differently constituted were legally justified based on the affidavit evidence before the court and counsel’s submission? and

2. Whether or not the Plaintiff herein has made out a case for the grant of an interlocutory injunction? In respect of the first issue, the learned trial judge after a careful consideration of the law on the Supervisory Jurisdiction of the High Court held as follows:- “ From the relevant law, as has been explained above therefore, it is my considered view that this court differently constituted fell into error when after quashing the decision of the Kaneshie District Court, it did not remit same for redetermination of the Claimant’s claim but went ahead to order that “The property of the Applicant which was sold in execution of the Court’s judgment an d orders goes back to the owner, the Applicant herein”. In my respectful view, the Court lacked jurisdiction to make that order in a Certiorari application . Not only that, it seems the Court did not avert its mind to the fact that the claimant had to estab lish and prove his claim on the merits before a decision could be made. Therefore, without hearing any evidence from the Judgment Creditor and/or claimant establishing his title but making the order as it did in a certiorari application was not

just wrong in law but palpably wrong and same is therefore void. Emphasis The above ruling meant that the legal basis for which the Defendant herein had issued the Writ of Possession has been declared void.The parties therefore proceeded with the main trial and on 9 th October 2019 the learned trial Judge gave judgment in favour of the Plaintiff. DECISION OF THE HIGH COURT After an exhaustive and critical review of the pleadings, evidence, exhibits and arguments of law, the lea rned High Court Judge made the following significant findings of fact in his judgment in Suit No. AP/206/2015 on the 9th October 2019 as follows:- “I note that all the witnesses including the plaintiff’s Attorney and the Defendant were subject to critical cross -examination by both counsel. From t he total evidence heard, I make the following findings of fact:-

1. I find as a fact that further to a judgment obtained by a certain Rosemary Onipayede against one Faustina Sakyi, the property at the centre of the suit was attached and a judicial sale was conducted by the Judicial Service. The Plaintiff purchased the said property located at DF. 17, Race Course in Accra.

2. I also find as a fact that after the sale of the property, the Plaintiff was issued with a certificate of purchase by the Judicial Service of Ghana.

3. I further find as a fact that before the sale of the property, the Defendant filed an interpleader at the District Court, Kaneshie but same was dismissed. The Defendant then filed an application for Certiorari at the High Court and same was granted by the Court on 16 th January 2014. The Court made certain orders together with quashing the District Courts order and also later granted the Defendant a Writ of Possession on 16th February 2015.

4. I also find as a fact that on 15 th July 2016 this Court q uashed the orders made by the High Court including the Writ of Possession as being null and void and of no effect.”

Based on the above findings of fact which automatically and logically flow from the appeal record, the learned High Court Judge, concluded the judgment in the following terms:- “From the totality of the evidence on record, the court holds that the Plaintiff succeeds in proving his reliefs endorsed on the Writ of Summons as (1) and (11) against the Defendant. Accordingly, judgment is entered fo r the Plaintiff against the Defendant’s reliefs. In my view the plaintiff is also entitled to cost for the litigation having succeeded in proving his claim. However, based on the facts and the circumstances of this case, I shall award the Plaintiff only a nominal cost of GH¢5,000.00 against the Defendant.” The Defendant aggrieved by the decision appealed to the Court of Appeal. But the Court of Appeal in a decision rendered on 23 rd July, 2020 dismissed the said appeal in a unanimous decision. It is this judgment that is on appeal to this apex court. After evaluating the appeal, the Court of Appeal in a unanimous decision concluded their rendition in a concurring opinion of the High Court decision as follows:- “The fact of the matter is that where no application is made to set aside a sale, it would become absolute at the expiration of the period of twenty -one days, thereafter the court would not countenance any application to set asi de the sale. See Zakari v Nkusum Mart [1992] 2 GLR 1 . Whenever the court dismisses an application it would make a consequential order confirming the sale. Once the sale of immovable property becomes absolute or confirmed, the court would grant to the purchaser a certificate of purchase in proof of the right, title and interest of the judgment debtor in the property. The Certificate constitutes a valid transfer of the right, title and interest of the judgment debtor in the property sold. See S. Kwami Tetteh on Civil Procedure, at page 1020. Applying the principles enunciated above and from the totality of the foregoing analysis of the ROA, this court is of the opinion that the learned High court Judge applied the right principle of law to the facts of the case. He also

applied the evidence before the court properly to the facts. From the foregoing overwhelming evidence on the ROA, this court cannot but agree more with the trial High Cour t on his decision. We accordingly dismiss the appeal in entirety. The judgment of the trial High Court dated 9th October 2019 is therefore affirmed.” Emphasis It must therefore be noted and appreciated that, for the Defendant herein to succeed in his appeal to this court, he must overcome the burden that the two concurring findings and decisions of the two lower courts portend in a litany of established principles enunciated in locus classicus decisions of this court. GROUNDS OF APPEAL TO THE SUPREME COURT

1. The Court below erred when it concluded at page 20 of the judgment that once a judicial sale becomes absolute, at the expiration of twenty -one days, the court will not countenance any application to set aside the sale.

2. The judgment is against the weight of evidence

3. The Court below erred when it held at page 9 of the judgment that the Appellant was not entitled at law, to a counterclaim.

4. The court below erred when it held at page 12 of the judgment that the Plaintiff/Respondent/Respondent had no prior legal duty to investigate the judgment debtor’s title before purchasing the property at a judicial service organized public auction.