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BONSU v. MANU AND 3 OTHERS


  • appeal
  • 1961-11-10
  • HIGH COURT
  • GLR 644- 647
  • Print

APALOO, J.


Summary

Execution?-Sale in execution of judgment?-Whether action to set aside sale on ground of irregularity must be brought within 21 days?-Native Courts (Ashanti) Procedure Rules, 1954 (LN 30/54) rules 101 and 110.Practice?-Action to set aside sale in execution of judgment must be brought in the court which authorised the sale.Estoppel?-Laches?-Action instituted thirteen years after sale.

Headnotes

A cocoa farm belonging to the plaintiff was sold in 1946 at a public auction in execution of a judgment obtained against him by the first three defendants in the Asantehene's Court. The farm was bought by the fourth defendant. The fourth defendant improved and extended the farm and by 1959 it yielded five times its yield in 1946. The plaintiff instituted the present action in 1959 in the Jamasi Local Court to set aside the sale and to recover possession of the farm on the ground that the sale in 1946 was fraught with "many irregularities and frauds." The defendants contended, inter alia, that as he did not bring his action within 21 days of the sale, in compliance with rule 101 of the Native Courts (Ashanti) Procedure Rules, 1954, the plaintiff was statute-barred. The local court relying on rule 110 of the said rules, dismissed the contention and gave judgment for the plaintiff. The defendants appealed.

Judgement

APPEAL from a judgment of the Jamasi Local Court given in favour of the plaintiff setting aside the sale of a farm thirteen years previously.

This is an appeal from the judgment of the Jamasi Local Court delivered on the 21st December, 1959. The plaintiff was the owner of a cocoa farm said to be situated at a place called Pampatia on Tabere stool land. In or about 1946, the plaintiff litigated with the first three defendants and lost to them in the Asantehene's Court. He was ordered to pay costs to the said defendants. The evidence shows that he did not pay and for that reason the farm in dispute was attached by fi.fa. and advertised to be sold in satisfaction of the said costs. At that time, the farm in dispute was in possession of a man called Adawuah to whom the plaintiff had pledged it.

When the farm was thus attached, the said Adawuah brought interpleader proceedings to which the plaintiff was privy. During the hearing of the interpleader action before the Asantehene's Court on the 27th August, 1946, the said Adawuah agreed to withdraw his claim provided the then execution- creditors paid to him the sum of G43 which was then due to him from the plaintiff. The execution-creditors agreed but requested the court to order that the farm should be sold at a price that would meet the payment of their costs as well as the sum of G43 due to the claimant. The court acceded to this request and so ordered.

The evidence shows that a licensed auctioneer by name S. C. Etiemo sold the farm in dispute by public action on the 31st August, 1946. The fourth defendant was the highest bidder and the farm was knocked down to him for G85. The said auctioneer filed an account sale in court. Accordingly, on the 20th June, 1947 the Asantehene's Court issued in favour of the fourth defendant a certificate of purchase. The fourth defendant testified that since the sale aforesaid he has been in undisturbed possession and has increased the acreage of his farm which now yields five times as much cocoa as it yielded in 1946. This evidence was not disputed.

The plaintiff now claims an order to recover possession of the farm on the ground, to quote his own words, that "the sale of my cocoa farm contains many irregularities and frauds". He then proceeded to list these irregularities. The trial court felt satisfied of this and said in the last paragraph of its judgment: "The court unanimously holds that the procedure adopted by the defendants in the sale of his cocoa farm was by frauds and the provisions in sales and conditions of sale were not complied with". At the trial court the fourth defendant seemed to have relied on rule 101 of the Native Courts (Ashanti) Procedure Rules, 19541 and contended that the plaintiff was precluded by that rule from making the present claim. That rule limited the time within which an application such as the present could be brought to 21 days from the date of the sale. The trial court dismissed that contention by saying that notwithstanding that rule the plaintiff was entitled to bring a regular action. The court based itself on rule 110 of the procedure rules.

It was contended on behalf of the appellants that the trial court was in error in holding that rule 110 defeated the limitation imposed by rule 101. In my opinion, that contention is right. Rule 110 deals only with interpleader proceedings and enables an owner of property who for one reason or other was unable to interplead to maintain an action provided he did not by that action seek to impugn the regularity of the sale. The obvious object of the rule is to protect bona fide purchasers from stale claims based on the conduct of the sale.

The present decision of the trial court is, in my view, tantamount to running a pencil through a legislative enactment which has the security of the purchaser as its object. On the plaintiff's own showing, he brought proceedings the substance of which is to set the sale aside on the ground of irregularity. That action was brought, on undisputed evidence, thirteen years after the sale. In my opinion, he was caught by the limitation imposed by rule 101 and the trial court ought to have accepted that contention and dismissed the plaintiff's claim.

I also agree with the submission made on behalf of the appellants which, to my mind, was wholly unanswered, that a claim to set aside a sale on the ground of irregularity lies only to the court on whose orders the sale was conducted. Accordingly the action in this case could only properly have been brought before the Asantehene's Court and not the Jamasi Local Court in which the plaintiff instituted the present proceedings. This point is, however, on the facts of this case, purely academic since the plaintiff was precluded in any event by rule 101 of the procedure rules from maintaining this action.

It was also contended on behalf of the appellants that independently of the rules the plaintiff was guilty of laches and was on that account disentitled to relief. On the plaintiff's own showing, he was indebted to the first three defendants in the sum of G43 and would not or could not pay. He knew his farm was attached by a writ of fi. fa. He himself said the notice of attachment was served on him. He also knew that that farm was sold by public auction. On the 1st October, 1946, he and his co-plaintiff prayed the Chief Commissioner's Court to suspend payment of the money realised from the sale of his farm to the first three defendants pending an appeal he made to the then West African Court of Appeal.

Although he knew of the sale and presumably of the irregularities about which he now complains, he took no steps to set the sale aside and led the fourth defendant to believe that all was well with the sale. The latter, no doubt on the faith of this, expanded and improved the farm and increased its yield five-fold. Mr. Lutterodt who appeared in defence of the judgment of the trial court said the point of laches was not raised in the trial court and that, he said, implied that the defendant had been absent.

Whatever that means, there is clear unchallenged evidence that the plaintiff knew about the sale of this farm and did not seek to disturb it for thirteen years. Counsel for the respondent relied on the High Court case of Baku v. Daku Ors.2 It requires no ingenuity to distinguish that case from this. In that case, B's farm was sold in her absence and without her authority and as soon as she became aware of it she brought an action to recover it and was successful. In this case, the plaintiff was aware of the attachment and sale of his farm and for a debt which he did not dispute.

He did nothing about it for thirteen years and thereafter sought to have it set aside on the ground of irregularity. In my opinion, the cases of Rafat v. Ellis3 and Agbeyegbe v. Ikomi Anor.4 to which counsel for the appellants helpfully referred me govern this case. In my judgment, the plaintiff did not only acquiesce in the sale of his farm, but was very clearly guilty of laches and was wholly undeserving of relief.

The judgment of the trial court ought clearly not to be allowed to stand and is hereby set aside. For it, I substitute a judgment dismissing the plaintiff's claim. I order that the proceeds of the farm in the possession either of the caretaker Okyeame Kwaku Addae or the trial court be paid to the fourth defendant. The appellants will have their costs in the trial court to be taxed and in this court assessed at 35 guineas.

Decision

<P>Appeal allowed.</P>

Plaintiff / Appellant

D. S. Effah

Defendant / Respondent

J. E. C. Lutterodt

Referals

(1)  Baku v. Daku & Ors. [1959] G.L.R. 89

(2)  Rafat v. Ellis (1954) 14 W.A.C.A. 430

(3)  Agbeyegbe v. Ikomi & Anor. (1953) 12 W.A.C.A. 383

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