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  • appeal
  • 1961-10-06
  • GLR 566-569
  • Print



Execution?-Sale by order of court?-Death of judgment-debtor?-Effect of sale without substitution.


Subsequent to a judgment obtained by Kuma, the co-plaintiff herein, against J.K.A. in the Native Tribunal of Ogome, Yilo Krobo, the said J.K.A. died. Kuma applied to the tribunal and obtained a writ of fi.fa., but without first obtaining leave for execution to issue, and without obtaining an order of substitution for the deceased J.K.A. The property was eventually sold and bought by Tetteh the plaintiff herein in 1955. In 1957 the defendant, the customary successor of J.K.A. challenged the title of the plaintiff, whereupon the plaintiff sued him in the Yilo Krobo Court "A" for a declaration of title and for recovery of possession. The case travelled to the then Court of Appeal and was remitted to the Land Court, Accra, for rehearing.


APPEAL from a judgment of the Yilo Krobo Native Court "A" in a suit for declaration of title to property sold in execution of a judgment-debt, the said sale having taken place after the death of the judgment-debtor.

This case came on appeal from a judgment of Yilo Krobo Native Court Grade "A" delivered on the 18th December, 1957, to the then Land Court, in 1958. The said appeal was dismissed on the 24th October, 1958. An appeal from the said decision of the Land Court was allowed on the 2nd February, 1960, by the then Court of Appeal which by their order, remitted the case of this court to rehear it in whole, directing that "evidence be taken as to necessity or otherwise of substitution of parties".

Since the plaintiff-appellant relies for his claim to declaration of title upon a sale in execution of a decree upon an attachment made after the death of the judgment-debtor, J. Kwabla Anikpi, the onus lies upon him to prove that before the said execution issued, the personal representative or successor by customary law of the deceased judgment-debtor was substituted for the deceased for purposes of the execution, for no valid execution could issue without such substitution, the execution would be null and void as being without jurisdiction, and consequently a purchaser at a sale made in pursuance of that void attachment acquired no title. See the case of Gyebu v. Lagos Anor.1 Not only did the plaintiff fail to tender any evidence of such substitution, but further the evidence taken as a whole together with the documentary evidence, i.e. two writs of fi.fa. and two auction notices, led to an irresistible conclusion that no such substitution was made.

Again, although there is a vague oral evidence that the said Williams did obtain judgment against the said J. Kwabla Anikpi, no evidence was led as to the date of the said judgment; the space on the writ of fi.fa. where the date of the judgment should appear, if indeed a judgment was obtained, is left blank. Therefore it has not been shown that the execution levied upon any lawful judgment. And since the tribunal from which the said execution issued, the former Native Tribunal of Ogome, Yilo [p.568] Krobo, was an inferior court, there could be no presumption that it had jurisdiction to issue the execution. For that reason also, the alleged sale is null and void.

It was contended on behalf of the plaintiff that even though they may in fact have no title to the land, yet they honestly believing that they had acquired good title of it went into possession of the land and remained in quiet possession unchallenged by the defendant's vendor; therefore it is submitted that the defendant as a privy to his vendor, must be held to be estopped by his laches; learned counsel cited the case of Abbey v. Ollennu2 in support of that proposition.

The most important attribute of laches both as a principle of equity and as a principle of customary law is that it must be conduct amounting to fraud which will result in ill-gotten gain to the person guilty of it. An essential element in it is that the person who honestly believed he had title but who in actual fact had none, must have been induced to spend large sums of money with regard to the land and thereby so altered his position that he could not be compensated in money. See Abbey v. Ollennu cited above; Thompson v. Mensah3 and Allotey v. Essien.4 Therefore to avail himself of that principle, the plaintiff must prove that he has been led to change his position by spending large sums of money in connection with the land. On that issue the only evidence relied upon by the plaintiff is his own evidence, that within the two years 1955 to 1957, he put pegs at the four corners of the land, and those pegs were removed by someone, and further that he placed some sand on it.

In my opinion that evidence is too meagre to warrant consideration; even in the case where concrete foundations for a building were laid on land and nothing more was done for many years it was held that that is not enough evidence to invoke estoppel; that is the case of Baidoo v. Osei.5

In the result the appeal must be and is hereby dismissed with costs fixed at 20 guineas.


<P>Appeal dismissed.</P>

Plaintiff / Appellant

W. A. N. Bossman

Defendant / Respondent



(1) Gyebu v. Lagos & Anor (1957) 2 W.A.L.R. 138

(2) Abbey v. Ollennu (1954) 14 W.A.C.A. 567

(3) Thompson v. Mensah (1958) 3 W.A.L.R. 240, C.A.

(4) Allotey v. Essien (1958) 3 W.A.L.R. 527

(5) Baidoo v. Osei (1957) 3 W.A.L.R. 289

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