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AFARI v. NYAME


  • New
  • 1961-10-24
  • HIGH COURT
  • GLR 599-601
  • Print

OLLENNU, J.


Summary

Execution?-Title of purchaser.Practice?-Person who fails to interplead is not precluded from suing substantively for declaration of title.

Headnotes

Kwame Amponsah Darko, the original owner of the farms in dispute, sold them by private treaty to the plaintiff-appellant in December, 1950. In July, 1951, in execution of a judgment obtained against the said Darko, the farms were sold at a public auction under a writ of fi. fa. and bought by a Kwadjo Duku who, in his turn sold them in September, 1958, to the defendant-respondent herein. The plaintiff instituted the present action in the South Akim-Abuakwa Local Court for declaration of title and for damages for trespass. He lost. He appealed to the High Court, Accra.

Judgement

APPEAL against a decision of the South Akim Abuakwa Local Court given in favour of the defendant-respondent in an action by the plaintiff-appellant for declaration of title to certain farms purchased by him in December, 1950, but sold in July, 1951, in execution of a judgment recovered against his vendor. The facts are more fully set out in the judgment. [p.600]

Both the appellant and the respondent claim title to the land in dispute through one and the same person, one Kwame Amponsah Darko. The appellant based his claim upon a sale made by private treaty on the 30th December, 1950, while the respondent based his claim upon a sale made to him on the 15th September, 1958, by one Kwadjo Duku who purchased the right title or interest of the same Kwame Amponsah Darko at a sale in execution against the said Kwame Amponsah Darko, made on the 30th July, 1951.

A purchaser at a sale in execution acquires nothing more than the right, title and interest of the execution-debtor. In July, 1951, Kwame Amponsah Darko had no right, title or interest in the farms in dispute because he had already disposed of the same to the respondent as far back as December, 1950. Therefore Amponsah Darko obtained no title to the farms in dispute by the sale under the attachment. Consequently, the respondent who bought from the said Amponsah Darko, also acquired no right, title or interest in the land.

Upon the purchase of the land, the appellant entered into possession and collected cocoa rehabilitation grants in respect of it; he later placed the farm in charge of a labourer who remained in possession until he was driven away by the respondent about two years ago. Therefore the appellant proved not only his title to the land, he also proved invasion of his possession of the land by the respondent.

The attachment under which the sale took place was made in June, 1951. The appellant immediately interpleaded. That interpleader suit was disposed of on the 20th September, 1951, after the execution-creditor had failed to appear upon many adjournments and the court made an order for the release of the properties from attachment. The execution- creditor then applied to the court, the District Magistrate's Court, Koforidua, to review its order, but his application was refused on the 11th October, 1951. The alleged sale of the properties took place on the 30th July, 1951. According to the auctioneer, one Jones Kojo Bruce, D.W.1, four farms were attached but the interpleader was in respect of one farm only, and that there was no interpleader in respect of the farms now in dispute. But his evidence that only one property was attached is not borne out by the order of the district magistrate's court which ordered "that the said properties be released from attachment", meaning more than one property.

The local court magistrate seemed to think that since the properties were sold before the order for their release was made the sale is valid and effective. That is misdirection. A person whose property has been attached in execution of a decree against another person is not obliged to interplead, therefore his omission to interplead will not operate as a bar to a claim he makes against a person who purports to purchase the property at such a sale. Again if an owner of property wrongfully attached interpleaded, but the auctioneer sold the property before he could have [p.601] notice of the interpleader, that sale will not preclude the owner from bringing a substantive action against the execution-creditor, the auctioneer and the purchaser or any of them for declaration of title or for trespass. There may be no irregularity in the conduct of the sale and therefore the sale may not be set aside; but the validity or legality of the procedure and conduct of the sale does not of itself make the sale effective to pass any right, title or interest in the property to the purchaser if the execution-debtor had no attachable interest in the property. The main question therefore is did the appellant prove his title to the farms, and had the execution-debtor Kwame Amponsah Darko any right, title or interest in the farms at the date of the auction sale which could pass to Kwadjo Duku, the purchaser, upon the sale? As pointed out earlier, he had none.

Again another ground upon which the local court magistrate dismissed the appellant's claim is that the sale at the public auction and the certificate of purchase were both prior in time to the order to release the properties from attachment. He therefore held that since both parties based their claim upon the same root of title, the title of the respondent derived from the sale in execution took priority over that of the appellant. In coming to that conclusion the local court magistrate seemed to have directed himself that the appellant's title depended upon the order for the release of the properties from attachment. That is a misdirection. The appellant's title is based, as earlier pointed out, upon a sale made to him as far back as the 30th December, 1950, evidenced by the document exhibit A, and it was upon the strength of that sale and purchase of the same by him, that he interpleaded, and it is upon the same that he instituted the present suit. Thus it is rather the appellant's title which took priority over the title of the respondent, and not vice versa. The judgment of the local court is therefore wrong.

The appeal is allowed, the judgment of the South Akim Abuakwa local Court is set aside including the order as to costs, any costs paid to be refunded. The following judgment is substituted for that judgment of the local court: There will be judgment for the plaintiff for G25 damages for trespass, and for an order for recovery of possession of the farms described in the writ of summons. The appellant will have his costs in this court fixed at 18 guineas and his costs in the local court fixed at G10.

Decision

<P>Appeal allowed.</P> <P>&nbsp;</P>

Plaintiff / Appellant

G. Koranteng-Addow

Defendant / Respondent

Twum-Barima

Referals

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