Deprecated: mysql_connect(): The mysql extension is deprecated and will be removed in the future: use mysqli or PDO instead in /home/ghanalegal/domains/ghanalegal.com/public_html/engine/Drivers/mysql.php on line 101 AKORNOR v. MAMA AND ANOTHER | GhanaLegal - Resources for the legal brains

AKORNOR v. MAMA AND ANOTHER


  • New
  • 1960-06-13
  • HIGH COURT
  • GLR 176-178
  • Print

OLLENNU, J


Summary

Practice?-Sale of house in execution of decree obtained in district magistrate's court?-Judgment setting aside sale?-Whether final or interlocutory decision.

Headnotes

In execution of a decree he obtained in the District Magistrate's Court, Accra the plaintiff had the first defendant's house in Accra attached by the deputy sheriff, Accra and sold at a public auction conducted by a licensed auctioneer. An application made on behalf of the judgment debtor under Order 45, rule 31, Schedule 2 of the Courts Ordinance, Cap. 4 to have the sale set aside on the ground of material irregularity in the conduct of the sale was subsequently granted by the district magistrate.The purchaser of the property appealed to the High Court, and the appeal was allowed on the merits.At the hearing of the appeal a preliminary objection was taken that the judgment of the district magistrate was an interlocutory decision, and therefore as special leave to appeal had not been obtained in accordance with section 40 (2) of the Courts Ordinance [2] the appeal was not properly before the court.The present report is concerned only with that part of the judgment dealing with this preliminary point.

Judgement

APPEAL from a decision of the District Magistrate, Accra, setting aside the sale of property which had been sold in execution of a decree of the court.

In execution of a decree he obtained in the District Magistrate's Court, Accra, against the defendant Alhaji Mama, the plaintiff Tei Akornor, had House No. 909/26, Accra attached by the deputy sheriff, Accra and sold on the 19th day of October, 1959 at public auction conducted by a licensed auctioneer. One Alhaji Habiba, wife of the judgment-debtor applied to the court on behalf of her husband, then in prison, to set aside the sale on the grounds that there had been certain material irregularities in the said sale. The irregularities she alleged are:- (1) the sale took place before the hour scheduled for it; (2) the deputy sheriff entrusted the sale to an auctioneer other than the one nominated by the execution creditor for the work; (3) the auction bell was rung only on the premises to be sold and nowhere else; and (4) the price at which the property was knocked down was grossly under value.

The execution creditor swore to an affidavit supporting the motion to set aside the sale; in it, he alleged that he was present at the sale, and that the auctioneer who conducted the sale was not the one whose name he submitted to the deputy sheriff as the auctioneer to be entrusted with the sale.

No oral or documentary evidence was tendered; the motion was argued solely upon the affidavits filed by the parties. The learned district magistrate granted the application and set aside the sale; the full text of his judgment is as follows:?-

"Having read the motion papers and counter affidavits, I am satisfied that the conduct of the sale has been irregular. Stay of execution granted for two weeks."

Counsel for the respondent objected to the jurisdiction of this court to entertain the appeal contending that the decision appealed from is interlocutory, and no appeal lies therefrom except by special leave of the magistrate as provided by section 40 (2) of the Courts Ordinance, Cap. 4.

I overruled the preliminary objection because in my opinion the submission that the judgment appealed from is an interlocutory decision is a misconception. The application to set aside the sale was made under Order 45, rule 31, Schedule 2 of the Courts Ordinance, Cap. 4. That application is not a matter in a cause. It is a substantive statutory application which is in no way dependent upon the suit out of which the execution issued. That substantive suit determined with the judgment delivered on the 9th September, 1959; the execution which issued upon the decree therein is an administrative act and not part of the judicial proceedings in that cause.

Again, the judgment appealed from finally determined the proceedings initiated by the application to set aside the sale; it required nothing more to be done to make it complete. It is therefore a final decision. In a ruling given by me in the case of Seawornu, Amenyitor and Others v. Gakor and Others (3 W.A.L.R. at p.20) I stated the principle as follows:

"The finality or otherwise of a decision must be considered in relation to the court which gave it. If the decision completely determines the particular issue which the parties brought to that court, that decision will be final, otherwise it will be interlocutory."

In the case of Ababio and Another v. Turkson (13 W.A.C.A. 35) the West African Court of Appeal held that a judgment given on appeal in a claim for accounts, holding that the defendant is accountable, and directing accounts to be taken, is a final judgment of the appellate court, even though that judgment remitted the matter to the trial court to take the accounts. In their judgment, their Lordships cited with approval the judgment of Brett, M.R. in Ex parte Moore. In re Faithfull (14 Q.B.D. at p. 634) where the learned judge said:

"If the Court ordered the result of the inquiries to be reported to itself before the judgment was given, it would not be a final judgment. But if the court orders something to be done according to the owner to the inquires, without any further reference to itself, the judgment is final"

Those words may well be applied to the judgment from which the present appeal has come to the court. There is nothing more to be done by the court to give effect to the judgment. The decision completely determined the matter brought before the court. The judgment is therefore final, and the jurisdiction of this court to hear the appeal has not been ousted by the failure to obtain special leave to appeal. An appeal lay as of right under section 40 (1) of the Courts Ordinance, Cap. 4.

As to the merits of the appeal, counsel for the respondents confessed that he found himself unable to support the judgment of the learned district magistrate. I sympathise with learned counsel for the situation in which the judgment placed him ...

Decision

<P>Appeal allowed</P>

Plaintiff / Appellant

Doe

Defendant / Respondent

Benjamin

Referals

1) Seawornu, Amenyitor and Others v. Gakor and Other 3 W.A.L.R. 17.

(2) Ababio and Another v. Turkson 13 W.A.C.A. 35.

(3) Ex parte Moore. In re Faithfull (1885) 14 Q.B.D. 627.

Warning: fopen(/home/ghanalegal/domains/ghanalegal.com/public_html/cases/public/cache/3df5285ccf9afe80f5f6fadf3cee1b7c): failed to open stream: Permission denied in /home/ghanalegal/domains/ghanalegal.com/public_html/cases/apps/modules/render/models/cache.php on line 44 Warning: fwrite() expects parameter 1 to be resource, boolean given in /home/ghanalegal/domains/ghanalegal.com/public_html/cases/apps/modules/render/models/cache.php on line 46 Warning: fclose() expects parameter 1 to be resource, boolean given in /home/ghanalegal/domains/ghanalegal.com/public_html/cases/apps/modules/render/models/cache.php on line 48