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AKYEAMAH v. POKU AND OTHERS


  • New
  • 1960-04-25
  • HIGH COURT
  • GLR 110-113
  • Print

OLLENNU, J.


Summary

Practice?-Execution?-Application to set aside sale under Supreme Court (Civil Procedure) Rules, 1954, Ord. 51, r. 18?-Appropriate court?-Parties who may apply.

Headnotes

Alimi Lagos through his attorney (the second defendant) had obtained judgment in the District Magistrate?'s Court, Koforidua for G500 against Kwasi Poku (the first defendant) and in execution of the judgment debt attached and sold by public auction two farms purporting to belong to the said Kwasi Poku. The second defendant was also the auctioneer and the fourth and fifth defendants were the purchasers.The plaintiff (who was not a party to the judgment but was a relative of Poku) brought this action in the High Court, Accra in which she claimed (1) an order declaring the sale null and void on the grounds of fraud and material irregularity in the sale and (2) declaration of title to the farms, recovery of possession and damages for trespass.The irregularity alleged was a breach of an undertaking by the sheriff at Koforidua (who was the third defendant) to notify the deputy sheriff to suspend the sale pending determination of interpleader proceedings, which the plaintiff had instituted before the sale took place.This report is concerned only with the first of the plaintiff?'s claims.

Judgement

ACTION claiming an order to set aside sale of property and declaration of title, recovery of possession and damages for trespass.

In this case the plaintiff claims three reliefs:

(1) An order declaring null and void the sale of the plaintiff's two farms, on grounds of fraud and material irregularity in the said sale;

(2) declaration of title to and recovery of possession of the said two farms, and

(3) G100 damages for trespass.

The first prayer, it was submitted, was made in exercise of a right under Order 51, rule 18, of the Rules of the Supreme Court; and the sale required to be annulled is a sale made at a public auction upon an order of court made in execution of a decree which the second defendant had obtained against the first defendant. The said rule 18 of Order 51 is as follows:

?"At any time within twenty-one days from the date of the sale of any immovable property, application may be made to the Court to set aside the sale on the ground of any material irregularity in the conduct of the sale, but no sale shall be set aside on the ground of such irregularity unless the applicant shall prove to the satisfaction of the Court that he has sustained substantial injury by reason of such irregularity."

The irregularity relied upon for the exercise of this alleged right is "breach of undertaking by the sheriff at Koforidua with whom papers for interpleader proceedings to oppose the sale had been filed, to notify the deputy sheriff at Kibi to suspend the sale pending the determination of the interpleader proceedings."

It is necessary to determine firstly whether the plaintiff is entitled under the said Order 51, rule 18 to apply to have the sale in question set aside; secondly if she is, whether this is the court to which she should make such an application; and thirdly whether there has been material irregularity in the conduct of the sale, and if there has been, whether the plaintiff has sustained substantial injury.

In the case of Government of Ashanti v Adjuah Korkor and Others, (4 W.A.C.A. 83) the West African Court of Appeal, stated that they agreed with Bannerman, J., upon all the points of his judgment in the Divisional [p.112] Court. Among other points, Bannerman, J. had decided that the wording of the rule (it was then Order 44, rule 31) is so wide in its scope as to permit any one not a party to the suit in which the execution issued, who is affected by the sale, to invoke the aid of the rule. But a careful study of Bannerman, J.'s judgment and the language itself, reveal that the term ?"any one not a party?" employed in the judgment is qualified by, and should be read together with the words "has sustained substantial injury by reason of such irregularity " which govern them. When so read, it appears that the person who may apply to have a sale by order of the court set aside upon fraud or material irregularity in the conduct of the sale, is the person whose interest in the property sold is such that it would be affected by the sale if all the formalities of the sale were observed: that is to say a person in respect of whom the sale is only voidable, and not the person in respect of whom the sale is void ab initio. In other words, the person who may exercise the right under the rule must be one, who admits the judgment debtor's title to the property, but complains that by reason of some irregularity which occurred in the conduct of the sale, there should be a re-sale. The rule cannot apply to a sale of property in which the judgment debtor has no right, title or interest, because the sale of such a property, whether the same were conducted regularly or irregularly, is ineffective in any event, and the owner would suffer no injury. In my opinion therefore, the right given by Order 51, rule 18 to apply to have a sale set aside, is only for the judgment debtor and all persons whose interest in the property is identical with, or subordinate to that of the judgment debtor. It has no reference to persons who claim title adverse to that of the judgment debtor; such persons cannot suffer any injury by reason of the sale; they have other and more effective remedies should an alleged purchaser at the sale attempt to interfere with their ownership possession and occupation of the property alleged to have been sold.

In the present suit, the plaintiff?'s case is that the first defendant, the judgment debtor, had no attachable interest in the farms sold, and therefore no right title or interest in the two farms passed or could pass to the fourth and fifth defendants the purchasers at the said sale. Therefore the plaintiff does not come within the class of persons to whom right is reserved by Order 51 rule 18, to apply to the court to have a sale set aside on grounds of material irregularity.

Now, from the context of the said rule 18 and all the rules relating to sale in execution under a decree of a court, the proper construction to be placed upon the term "the court" used in rule 18 of Order 51, to whom a person may apply to set aside a sale, is the court which ordered the sale. It appears from the evidence that the order for the sale of the farms in dispute did not issue from this court. Therefore even if the plaintiff is a person entitled to the right given under Order 51 rule 18, she cannot make her application to this court.

Thirdly no fraud or material irregularity "in the conduct of the sale" has been alleged, and none proved; even the allegation by the plaintiff that she filed an interpleader summons, but the sheriff at Koforidua failed to [p.113] request the deputy sheriff at Kibi to suspend the sale, was not proved; and even if it had, it is not an irregularity "in the conduct of the sale," and will not entitle the plaintiff to an order to annul the sale.

Therefore the first relief the plaintiff prayed for is misconceived and cannot be granted.

The claims for title to, for recovery of possession of and damages for trespass to the farms can be dealt with together. (His lordship reviewed the evidence and continued): I am further satisfied that the two farms in dispute are farms made by the first defendant (Kwasi Poku) by cultivating the virgin forest, and they are farms which could properly be sold in execution of a decree issued against the said Kwasi Poku by a court of competent jurisdiction.

In every respect the plaintiff has failed to satisfy the court that she is entitled to any of the reliefs she claims. It is clear to me that she instituted this action in an attempt to save for the first defendant her father, these farms, which I believe, and as stated by the first defendant are the first defendant's only source of livelihood.

The plaintiff's claim is dismissed and judgment entered for the second, fourth and fifth defendants with costs which, in mercy to the plaintiff, I fix at a token figure of 5 guineas.

Decision

<P>Judgment for defendants</P>&nbsp;

Plaintiff / Appellant

Twum Barima

Defendant / Respondent

Moore for second, fourth and fifth defendants. No appearance by first and third defendants

Referals

Government of Ashanti v. Korkor and Others 4 W.A.C.A. 83.

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