[1982-83] 

GHANA LAW REPORT

MANU AND ANOTHER v. YEBOAH [1982-83] GLR 34-46

COURT OF APPEAL
11 MAY 1982
 

FRANCOIS, EDWARD WIREDU AND COUSSEY JJ.A.

Auction sale—Setting aside—Regular, irregular or illegal—Categories of auction sales and l
consequences flowing therefrom—Failure of dispossessed owner of house to contest validity
auction sale of house for over seventeen years—Loss of docket relating to auction sale—Rul
regularity of official acts—Application of maxim omnia praesumuntur rite esse acta.
Execution—Immovable property—Attachment without investigating movables—Immovable
property of judgment debtor not to be levied until movables exhausted under Order 42, r. 46—
Burden of investigating or establishing sufficiency of movable properties of judgment debtor
judiciary division—Whether on judgment debtor or judgment creditor—Immovable property
judgment debtor attached to satisfy judgment debt and costs—Claim by judgment debtor of b
Order 42, r. 46—Failure of judgment debtor to establish sufficiency of her movables at time
Substantial part of judgment debt still unsatisfied after the sale of immovable property— Wh
attachment of debtor's house breach of Order 42, r. 46—Tussle on validity of sale envisaged
Order 42, r. 46—Proper parties—High Court (Civil Procedure) Rules, 1954 (LN 140A), Orde
46.
Execution—Immovable property—Attachment without investigating movables—Limitation
actions —Immovable property of judgment debtor not to be levied until movables exhausted
Order 42. r. 46—Breach of Order 42, r. 46—Whether material irregularity or illegality—Imm
property of judgment debtor attached to satisfy judgment debt and costs—Claim by judgmen
of breach of Order 42, r. 46 brought after over seventeen years—Effect of delay—Actions fo
recovery of land statute-barred after twelve years—Title of claimants also extinguished after
years—LN 140A, Order 42, r. 46—Limitation Decree, 1972 (NRCD 54), s. 10(1) and (6).
Limitation of actions—Recovery of land—Computation of time—Effect of delay—NRCD 5
(1) and (6).
HEADNOTES
In 1962, the respondent purchased a house at Sunyani which was previously owned by the se
appellant at a public auction at which the house was offered for sale at the instance of the dep
sheriff to satisfy the judgment debt and costs incurred by the second appellant in a land suit.
entering possession, however, the respondent struck an agreement with the appellants (the se
appellant and her daughter) which enabled the appellants to remain in the house, no longer as
but as rent-paying tenants. The tenancy continued undisturbed for over seventeen years and a
did the dispossessed second appellant raise any question regarding the validity of the 1962 au
sale. In 1979, however, through the intervention of some soldiers, the respondent was coerce
relinquishing his title to the house and to signify the release of his title in a formal document;
[p.35] respondent was also made to receive ¢1,000 as the refund of the purchase price of the
Subsequently, the respondent, who claimed the immunity of an innocent purchaser, successfu
brought an action at the High Court for a rescission of the 1979 agreement, by which he relin
his title, on grounds of duress and for the reinstatement of his title to the house. The High Co
held that the 1962 auction sale was not void. On appeal, the appellants contested the validity
1962 auction sale, contending that that sale was illegal as being in breach of Order 42, r. 46 o
High Court (Civil Procedure) Rules, 1954 (LN 140A) and could therefore not effect any tran
property. The second appellant maintained that the sheriff ordered the sale of her immovable
without making a nulla bona return on the sufficiency of her movable property to satisfy the j
debt. In the view of the appellants, the breach of Order 42, r. 46 was an illegality that was inc
Finally, the appellants submitted that since they sought relief ex debito justitiae, time could n
against their redemptive efforts. On the issue of the validity of the 1962 auction sale,
Held, dismissing the appeal (Coussey J.A. dissenting):
(1) an auction sale could be categorised as regular, irregular or illegal. Where the sale was reg
conducted, the purchaser's title to the property could not be impeached; but where the sale wa
irregularly conducted, it was voidable and could be set aside if a timeous application to avoid
it aside was made and a substantial injury was sustained. In the case of an illegal sale, howev
sale was void ab initio and no title whatsoever passed; time was also no bar in such a case. M
Adusei [1964] G.L.R. 365, S.C.; Republic v. Circuit Court Registrar; Ex parte Arthur [1980]
309, C.A.; Kwabena v. Aninkora [1964] G.L.R. 299, S.C. and Addai v. Donkor [1972] 1 G.L
C.A. applied.
Obiter per Francois J.A. Though the law is settled and not in doubt, the real difficulty lies in
application to the instant facts. A problem which immediately faces an investigator into the c
of the 1962 sale, is the loss of the docket relating to the auction... It however brings into oper
rule as to the regularity of official acts. When juxtaposed against the second appellant's admi
that she never once uttered a word of complaint regarding the viability of the landlord's title,
continued with her daughter, the first appellant, to live in their erstwhile house as rent-paying
a challenge so late in the day loses any force it may once have possessed. Since no attempt w
to seek judicial relief in any legal forum, a more compelling instance for the application of th
omnia praesumuntur rite esse acta cannot readily be conceived.
(2) There could be no violation of Order 42, r. 46 of the High Court (Civil Procedure) Rules,
(LN 140A), unless it was established that sufficient movable property was available within th
judicial division which was ignored by the sheriff. The burden, however, was on the judgmen
who sought to impugn the sheriff's instruction, to prove that movable property sufficient to sa
debt in the judicial division had been ignored or that the judgment creditor knew of the existe
whereabouts of the judgment debtor's movables. In the instant case, the judgment debtor was
to establish that she had sufficient movable property within the judicial division at the time o
which was ignored by the sheriff or that the judgment creditor knew of the existence of such
movables. Furthermore, the fact that a fairly substantial part of the judgment debt and costs r
unsatisfied after the sale, was a factual rejection of the argument that there was movable prop
within the judicial division sufficient to meet the debt. Madjoub v. John Holt Bartholomew &
Ltd. [1967] G.L.R. 554; Badu v. Atta Kwadwo [1971] [p.36] 2 G.L.R. 346; Mensah v. Bimpe
[1980] G.L.R. 141 approved. Yeboah v. Krah [1974] 1 G.L.R. 247 explained.
Per Francois J.A. (a) It is only commonsense that unless the personal property is clearly visib
only the owner with his peculiar knowledge of his assets who can best assert and identify his
possessions.
(b) If a breach of Order 42, r. 46 is the subject of complaint, one should expect a formulated
complaint. There must be an assertion and proof of it that movables of the debtor openly exis
were by-passed in preference for reality. Obviously, a forum must exist for the averment to b
proclaimed and traversed. He who complains of the non-observance of the rule must be its
proponent... It seems unacceptable as a valid judicial practice, to condemn an officer of the c
the "irregular or illegal" conduct of a sale, by a mere assertion unbuttressed by proof. In my v
will amount to an anarchical attempt to throw overboard the whole judicial machinery for the
ascertainment of facts, if the judgment creditor must shoulder the burden of proving the nega
the debtor did not have sufficient movable property. In my view, this is an area where good s
rather than a hard attempt to construe a statute, must prevail.
Contra per Coussey J.A. By the authority thus given him [under Order 42, r. 46 of LN 140A]
sheriff may enter the house of a judgment debtor. He may even enter the house of a third part
goods of the debtor be actually therein. But in all this, it is the judgment creditor whose respo
it is to make his inquiry before issuing the necessary writ directed to the sheriff commanding
take certain compulsory proceedings for the purpose of carrying into effect the judgment of t
see United Simpson & Ayitey Co. v. Jeffrey (Jeffrey - Claimant) [1962] 1 G.L.R. 279.
(3) In any case, a breach of Order 42, r. 46 amounted to a material irregularity only and not a
illegality. Consequently, in the instant case, the appellants were completely out of time as the
complaint related to an irregularity which they had not challenged in a judicial forum for ove
seventeen years. The claim of the appellants was also foreclosed by section 10 (1) and (6) of
Limitation Decree, 1972 (NRCD 54), which barred and extinguished claims to title to land on
expiration of twelve years from the date on which the right of action accrued to the person br
the action. Madjoub v. John Holt Bartholomew & Co., Ltd. (supra) and Kwabena v. Aninkor
applied.
Contra per Coussey J.A. (a) In a fi.fa., the instruction given to the sheriff by the judgment cre
his solicitor should, in accordance with Order 42, r. 46, provide that movables should be attac
sale first before immovables. The rule does not permit a judgment creditor to elect on going i
execution immediately on movables or immovables. Where a judgment creditor goes into exe
straightaway against immovables of the judgment debtor, then as held in Kwabena v. Aninko
(supra), the sale of the immovable property would be illegal, and therefore void.
(b) It would appear that no precautionary measures provided by the rules were resorted to, an
application for fi.fa., the judgment creditor requested for the sale of house No. SNT. 75 after
discovering that the judgment debtor had such a house. The sheriff therefore was placed in a
where he had to act according to the writ. This is not a case of injudicious exercise of discreti
the sheriff. If it had been the remedy of the defendant would have been an action for trespass
on an irregularity and not an illegality which vitiates the whole transaction; and where the wr
execution is wrongly issued, the judgment creditor or his solicitor is liable and the purchaser
no title in the property purchased.
[p.37]
CASES REFERRED TO
(1)  Mosi v. Bagyina [1963] 1 G.L.R. 337, S.C.
(2) Marfo v. Adusei [1964] G.L.R. 365, S.C.
(3) Republic v. Circuit Court Registrar; Ex parte Arthur [1980] G.L.R. 309, C.A.
(4) Kwabena v. Aninkora [1964] G.L.R. 299, S.C.
(5) Addai v. Donkor [1972] 1 G.L.R. 209, C.A.
(6) Yeboah v. Krah [1974] 1 G.L.R. 247.
(7) Badu v. Atta Kwadwo [1971] 2 G.L.R. 346.
(8) Mensah v. Bimpeh, [1980] G.L.R. 141.
(9) Madjoub v. John Holt Bartholomew & Co., Ltd. [1967] G.L.R. 554.
(10) Abbam v. Appiah (1929) Div.Ct. `26-'29, 175.
(11) Amoa v. Obil (1885) Sar.F.L.R. 39.
(12) Nettey v. Nassar (1943) D.C. (Land) 138-'47, 106.
(13) United Simpson & Ayitey Co. v. Jeffrey (Jeffrey-Claimant) [1962] 1 G.L.R. 279.
(14) Ghassoub v. Dizengoff (W.A.) [1962] 2 G.L.R. 133, S.C.
 (15) Amoabimaa v. Badu (1957) 2 W.A.L.R. 214.
NATURE OF PROCEEDINGS
APPEAL by the appellants against the decision of the High Court upholding the validity of th
auction sale of their house wherein the appellant contended, inter alia, that the 1962 auction s
illegal as being in contravention of Order 42, r. 46 of the High Court (Civil Procedure) Rules
(LN 140A).
COUNSEL
Kofi Oppong (for Obeng Manu) for the appellants.
W. Y. Oppong for the respondent.
JUDGMENT OF FRANCOIS J.A
On 22 September 1962, a house at Sunyani, numbered SNT. 75, previously owned by the sec
appellant was offered for salt at a public auction to satisfy the judgment debt and costs incurr
her in a land suit. The sale, which was at the instance of the deputy sheriff, ended in the respo
being declared the highest bidder. He consequently claimed the immunity of an innocent purc
for value in a suit he initiated in the court below to establish his title to the property.
The facts disclose that after entering into possession, an agreement was struck between the
respondent and the appellants which enabled the latter to remain in the house, no longer as ow
but as rent-paying tenants. At no time did the dispossessed second appellant disclose to her n
landlord that the validity of the sale was in doubt. Indeed, the subsistence of the landlord and
relationship for over seventeen years could only have created a conviction in any inquiring [p
mind of the due regularity of the sale, as the one most affected by it made no protest and appe
have acquiesced in all that had transpired.
The tenancy continued undisturbed till 1979, when through military intervention, described v
as coercion or an appeal, the respondent relinquished his title to the house, and signified the r
his title in a formal document.
When the political climate seemed opportune, the respondent sought the court's assistance to
the agreement on grounds of duress and for the reinstatement of his title to the house.
The issue of duress was not seriously challenged in the court below; and on appeal, the coerc
nature of the intervention was openly acknowledged. The lower court had no difficulty in sus
the plea of non est factum; and it not being seriously challenged in this appeal, that holding m
upheld.
The only serious question concerns the validity of the auction sale that took place some seven
years ago. It was urged on behalf of the appellants that the sale was illegal and therefore coul
effect any transfer of property. The species of illegality urged as rendering the sale null and v
the breach of Order 42, r. 46 of the High Court (Civil Procedure) Rules, 1954 (LN 140A).
The second appellant contends that the sheriff ordered the sale of her immovable property wi
making a nulla bona return on the sufficiency of her movable property to satisfy the judgmen
This illegality, the appellant maintains, is incurable. Time therefore cannot run against her re
efforts. For, an aggrieved party seeking relief ex debito justitiae is protected from the race of
The appellant relies for support on the well-known case of Mosi v. Bagyina [1963] 1 G.L.R.
S.C.
The resolution of the matter in issue involves an investigation into the conduct of the auction
the legal consequences flowing therefrom. Three situations are possible: the sale could be cat
as regular, irregular or illegal. If the sale was regularly conducted, the respondent's title to the
property could not be impeached. A similar result would even follow an irregular sale if a tim
application to avoid it or set it aside were not made, and no substantial injury was sustained.
entirely different complexion is the situation where the sale is void ab initio and time is no ba
law on this area of jurisprudence seems well enough settled.
Marfo v. Adusei [1964] G.L.R. 365, S.C. is authority for the proposition that where the sale i
irregular, it is voidable at the instance of a debtor who proves that she has sustained substanti
from the irregularity. See also Republic v. Circuit Court Registrar; Ex [p.39] parte Arthur [19
G.L.R. 309, C.A. But where the sale is illegal, the sale is void ab initio and no title passes. Kw
v. Aninkora [1964] G.L.r. 299, S.C. and Addai v. Donkor [1972] 1 G.L.R. 209 at p. 218, C.A
reaffirm the law as stated above.
Though the law is settled and not in doubt, the real difficulty lies in its application to the insta
A problem which immediately faces an investigator into the conduct of the 1962 sale, is the l
the docket relating to the auction. After the lapse of seventeen years, this cannot be considere
extraordinary happening. It, however, brings into operation the rule as to the regularity of off
acts. When juxtaposed against the second appellant's admission that she never once uttered a
complaint regarding the viability of her landlord's title, but continued with her daughter, the f
appellant, to live in their erstwhile home as rent-paying tenants, a challenge so late in the day
any force it may once have possessed. Since no attempt was made to seek judicial relief in an
forum, a more compelling instance for the application of the maxim omnia praesumuntur rite
acta, cannot be readily conceived.
The rule relating to execution of a judgment debt which has created all the difficulty must no
examined, since it is only on the ground of illegality that the appellants can have any hope of
Order 42, r. 46 of LN 140A reads:
"46. If the judgment debtor has sufficient movable property within the Judicial Division in w
judgment was issued to satisfy the debt, damages, and costs recovered, his movable property
be levied upon; but if he has not sufficient movable property within the Judicial Division it sh
optional to the execution creditor to levy upon his immovable property within the same Judic
Division before levying on his movable property elsewhere, or to levy upon the movable pro
such judgment debtor wherever it may be found within the Gold Coast, before having recour
immovable property."
Although the peremptory language employed in the rule cannot be overlooked, the very impo
qualifications clamped on to it whittle its absolute force. There can therefore be no violation
rule unless it is established that sufficient movable property was available within the judicial
which was cavalierly ignored by the sheriff.
It seems to me that the policy rationale behind the rule is to avoid any high-handed arbitrarin
even perverseness in the sheriff's conduct of a public duty which deprives a person of his pro
is to obviate the situation where out of sheer mischief or malice, a [p.40] sheriff capriciously
immovable property when the debtor's personal property is glaringly sufficient to satisfy the
seems to me, further, that the rule lays a burden on the judgment debtor who seeks to impugn
sheriff's instructions, to prove that movable property sufficient to satisfy the debt in the judic
division had been ignored. It is only commonsense that unless the personal property is clearly
it is only the owner with his peculiar knowledge of his assets who can best assert and identify
possessions.
In this case, the judgment debtor boasts of a tin trunk in her daughter's room. No attempt has
been made to disclose what it contained. The second appellant herself was not around to iden
personal property at the time of the sale. If the trunk contained precious jewellery, there wou
have been the need for any execution to take place.  The facts indeed show that after the sale,
substantial part of the judgment debt and costs still remained unsatisfied. This, in my view, is
factual rejection of the argument that there was movable property within the jurisdiction, suff
meet the debt.
A view, contrary to what has been expressed above is contained in Yeboah v. Krah [1974] 1
247. There, the learned judge of the High Court postulated that there is no duty on a judgmen
to satisfy the judgment creditor that he has sufficient movable property to meet a judgment d
that the duty was rather on the judgment creditor. But the learned judge's subsequent qualific
this pronouncement by adding that each particular case depended on its merits, showed that h
formulation was not a categorical stance: see particularly p. 249.
At the same time, one cannot quarrel with the view that knowledge of the existence of movab
property must be imputed in obvious cases. To sell a well-stocked shop or well-furnished hom
instead of the contents for a mere bagatelle of a debt, demonstrates an immediate breach of O
In that sense, there is no real conflict with Badu v. Atta Kwadwo [1971] 2 G.L.R. 346 which
postulates that there must be proof that the judgment creditor knew of the existence and wher
of the debtor's movables before he could be condemned. I think the logic is faultless. If a brea
Order 42, r. 46 is the subject of complaint, one should expect a formulated complaint.
There must be an assertion and proof of it; that the movables of the debtor openly existed but
by-passed in preference for realty. Obviously, a forum must exist for the averment to be proc
and traversed. He who complains of the non-observance of the rule must be its proponent. He
available to be examined for a proper evaluation of its truth or falsity. It seems unacceptable
valid judicial practice, to condemn an officer of the court with the "irregular or illegal" condu
sale, by a mere [p.41] assertion unbuttressed by proof. In my view, it would amount to an ana
attempt to throw overboard the whole judicial machinery for the ascertainment of facts, if the
judgment creditor must shoulder the burden of proving the negative that the debtor did not ha
sufficient movable property! In my view, this is an area where good sense rather than a hard
to construe a statute, must prevail. In this regard, I incline to the view expressed by Edward W
(as he then was) in Mensah v. Bimpeh [1980] G.L.R. 141.
A similar view was expressed by Annan J. (as he then was) in Madjoub v. John Holt Bartholo
Co., Ltd. [1967] G.L.R. 554, to which the distinguished judge added this important classifica
560:
"Is a breach of rule 46 of Order 42 a case of material irregularity or illegality? I think the case
properly to be considered as one of irregularity and I think the judgment in the Aninkora case
supports this view."
And so say most of us. If one were4 to proceed by a head count, then the appellants are comp
out of time as their complaint must relate to an irregularity they had not challenged in a judic
forum for over seventeen years! I think, however, that it is the formidable reasons given in th
majority view expressed in the above cases rather than a count of heads which must comman
general acceptance.
The tussle on the validity of the sale as envisaged in Order 42, r. 46, is between the judgment
and the deputy sheriff on one side, and the aggrieved judgment debtor on the other. It should
dispute between the judgment debtor and a purchaser for value. It is consequently, an adjunct
rule that an auction sale must be set aside by an appropriate court before other reliefs can be
considered: see Amoa v. Obil (1885) Sar.F.L.R. 39; Abbam v. Appiah (1929) Div.Ct. '26-'29
Nettey v. Nassar (1943) D.C. (Land) '38-'47, 106.
The rule itself and the authoritative decisions derived therefrom, sufficiently cater for stale cl
Otherwise, purely on the grounds of illegality, a debtor may spring a claim hoary with years o
neglect, and after the evidence has disappeared, rely on the unconscionable expectation that t
purchaser for value may not be able to justify the execution of the judgment debt.
Legislative intervention by section 10 (1) and (6) of the Limitation Decree, 1972 (NRCD 54)
also foreclosed the appellants' claim. Section 10 (1) and (6) bars and extinguishes claims to ti
the expiration of twelve years from the date on which the right of action accrued to the perso
bringing it.
[p.42]
For the above reasons, I would affirm the decision of the court below and dismiss the appeal.
JUDGMENT OF WIREDU J.A
 I agree with the able judgment just read by the president of the court both as to its reasons an
conclusion and have nothing useful to add.
JUDGMENT OF COUSSEY J.A.
This is an appeal by a mother and her daughter against the judgment of Ampiah J. dated 28 J
sitting at the High Court, Sunyani, where he held that the purported attachment and sale of th
defendants' house, No. SNT. 75, Sunyani was not void.
The circumstances which led to the action being instituted by the respondent in the court belo
that in 1962, he bought the second appellant's house, No. SNT. 75, Sunyani, at a public aucti
£G500. During the month of September 1979, the respondent was taken to the Liberation Bar
for soldiers in Sunyani and was made to receive ¢1,000 as a refund of the purchase price of th
The action at the High Court was to set aside the transaction which led to his surrendering the
and its documents to the appellants, an order that the appellants receive back the sum of ¢1,0
to the respondent as the refund, and an order for injunction to restrain the appellants or their a
from interfering or otherwise dealing with the house.
The statement of claim filed and the evidence of the respondent clearly showed that he was re
a certificate of purchase as his sole evidence of title. But a certificate of purchase is only a pr
evidence of title. Its validity was put in issue by the appellants; the issue being that the judgm
creditor had failed to attach first the movable property of the second appellant in execution o
judgment debt in accordance with the provision of Order 42, r. 46 of the High Court (Civil Pr
Rules, 1954 (LN 140A).
The learned judge of the High Court had before him the evidence of what transpired at the Li
Barracks culminating in the transfer to the appellants of the house in question. He was satisfi
the respondent was procured under duress or undue influence to receive ¢1,000 as a refund o
purchase price of the house. This finding has not been challenged by the appellants.
But that was not all. The counterclaim of the appellants raised matters of concern which if
established, could render the sale of the house No. SNT. 75, Sunyani, illegal. The appellants
declaration that the attachment and sale by public auction, in execution, of the appellants' hou
SNT. 75, was null and void ab initio; and as such, conferred no title on the respondent. The
appellants' argument is founded on the interpretation of Order 42, r. 46 of LN 140A. The rule
prescribes:
[p.43]
"46. If the judgment debtor has sufficient movable property within the Judicial Division in w
judgment was issued to satisfy the debt, damages, and costs recovered, his immovable proper
not be levied upon; but if he has not sufficient movable property within the Judicial Division
be optional to the execution creditor to levy upon his immovable property within the same Ju
Division before levying on his movable property elsewhere, or to levy upon the movable pro
such judgment debtor wherever it may be found within the Gold Coast, before having recour
immovable property."
The procedural requirements of Order 42, r. 46 have been stated clearly in the case of Kwabe
Aninkora [1964] G.L.R. 299 at p. 306, S.C. where Ollennu J.S.C. sitting with Sarkodee-Addo
and Acolatse J.S.C. in the course of their judgment were agreed that:
"At common law, the writ of fi.fa. is issued for the sale of goods and chattels; real property is
seizable under it, but chattels real like leasehold could: see Halsbury's Laws of England (3rd
Vol. 16, p. 45, para. 67. The writ of elegit applies to realty: Watson v. Murray & Co. [1955] 2
Our form of execution came to us from Hong Kong where it permits the attachment of real p
under a writ of fi.fa. should there not be enough personalty to satisfy the judgment debt. Aga
England, the writ obliges the sheriff to seize such chattels sufficient to satisfy the debt and co
what he seizes in one place proves to be insufficient, he may proceed to seize more. See Math
Sheriff and Execution Law (3rd ed.), p. 83.
The principle is stated in Halsbury's Laws of England (3rd ed.), Vol. 16, p. 40, para. 59 as fol
`Under the writ of fieri facias it is [the Sheriff's] duty to seize and sell any goods which he ha
power to seize, to an amount reasonably sufficient, but not more than sufficient, to satisfy the
and his own expenses.' See also Gawler v. Chaplin [(1848) 154 E.R. 590] and Alfred v. Cons
[(184) 6 Q.B. 370]."
By the authority thus given him, the sheriff may enter the house of a judgment debtor. He ma
enter the house of a third party if the goods of the debtor be actually therein. But in all this, it
judgment creditor whose responsibility it is to make his inquiry before issuing the necessary
directed to the sheriff commanding him to take certain compulsory proceedings for the purpo
carrying into effect the judgment of the court: see United Simpson & Ayitey Co. v. Jeffrey (J
Claimant) [1962] 1 G.L.R. 279.
On the question of discovery in aid of execution, Order 42, r. 31 of LN 140A, prescribes that
judgment debtor may be examined on [p.44] an application to the court, by the party entitled
enforce the judgment for the recovery or payment of money "as to whether any and what deb
owing to the debtor, and whether the debtor has any and what other property or means of sati
the judgment or order..."
Surely, the above rule is a necessary precaution against infringing the provision of Order 42,
LN 140A and it can be inferred from the rules on the execution process that the sheriff's dutie
threefold: (1) to the judgment creditor, to obey the writ and any lawful instructions that have
given him; (2) to the judgment debtor not to do any act not authorised by the writ; and (3) to
court, to make a return. In a fi.fa., the instruction given to the sheriff by the judgment credito
solicitor should, in accordance with Order 42, r. 46, provide that movables shall be attached f
first before immovables. The rule does not permit a judgment creditor to elect on going into e
immediately on movables or immovables. Where a judgment creditor goes into execution
straightaway against immovables of the judgment debtor, then as held in Kwabena v. Aninko
(supra), the sale of the immovable property would be illegal, and therefore void. The purchas
acquire no property to litigate on.
The second appellant's evidence on the conduct of the sale as found at p. 33 of the record of
proceedings is as follows:
"It is about eighteen years when I litigated with Atta Kwaku. I eventually lost the action agai
Kwaku. I was represented in that case by a lawyer known as Jantuah. I instructed counsel to a
that case. Three days after giving the instruction, I left for Kumasi. I was at Kumasi when my
daughter, the first defendant, came to inform me that my house No. SNT. 75 had been attache
sold by auction."
When she was cross-examined on her personal properties, and it was suggested to her that sh
personal effects in Sunyani and that all her personal effects were at Kumasi, she said she had
her personalties in Sunyani. When the question was repeated, her answer was, "I had one of m
trunks at Sunyani and this contained my personal effects."
When the case for the respondent was concluded, the judge made an order that on the adjourn
3 June 1980, the registrar of the court was to make available to the appellants a true copy of t
judgment in the case. I do not know the reason for the request of the judge; but I should have
the proceedings of the execution would have helped resolve the issue before the court. Howe
without any evidence, the learned judge held that:
[p.45]
"It is now eighteen years since that case was disposed of. The execution creditor himself is no
to the suit. It is, therefore, impossible to determine whether or not the application was for the
a writ against only the movables of the second defendant or both his movables and immovab
only for his movables. It is therefore equally impossible to determine what return the deputy
had made."
The judge then went on to treat the complaint as one of an irregularity and therefore was save
Order 70, r. 1 of LN 140A.
Order 42 empowers the court to issue a writ of fieri facias as a common law process. Order 4
enables the sheriff by virtue of the common law process to seize the movable properties of th
judgment debtor if there is a reasonable amount to meet the judgment debt and his costs, and
can only resort to the attachment of immovable property as provided by Order 42, r. 46 wher
movable property is not enough to satisfy the debt. Order 43, r. 5 prescribes that the attachme
goods, chattels and other property in the possession of the judgment debtor shall be made by
seizure; but where the property to be attached consists of land, houses or other immovables. O
r. 7 provides that the attachment shall be made by a written order of the sheriff prohibiting th
judgment debtor from alienating the property by sale, gift or any other way, and all persons f
receiving the same, etc.
It would appear that no precautionary measures provided by the rules were resorted to, and in
application for fi.fa., the judgment creditor requested for the sale of house No. SNT. 75 after
discovering that the judgment debtor had such a house. The sheriff, therefore, was placed in a
position where he had to act according to the writ. This is not a case of injudicious exercise o
discretion by the sheriff. It it had been, the remedy of the defendant would have been an actio
trespass based on an irregularity and not an illegality which vitiates the whole transaction; an
the writ of execution is wrongly issued, the judgment creditor or his solicitor is liable and the
purchaser acquired no title in the property purchased.
In the case of Mosi v. Bagyina [1963] 1 G.L.R. 337, S.C. it was held that Order 70 applies to
irregularities as do not render void any proceedings based thereon. Therefore, where an irreg
only voidable, it may be waived; and an application to set it aside must be made within a reas
time, in this case within 21 days, and the applicant must satisfy the court that he has suffered
substantial damage. But where the party affected is entitled ex debito justitiae to have the sale
aside, then there is no time limit within which he may apply to have the sale set aside: see Gh
v. Dizengoff [p.46] (W.A.) [1962] 2 G.L.R. 133, S.C. and Amoabimaa v. Badu (1957) 2 W.A
214.
There is evidence on record by the second appellant that her house was attached first and her
personalties were not considered. The auctioneer who conducted the sale in respect of the ho
evidence, said his instructions from the Registrar of the High Court, Sunyani was to conduct
house No. SNT. 75 which had been issued in execution of the judgment in the case of Atta K
Konamah and the property was sold on 22 September 1962. He tendered exhibit 1, a letter fro
deputy sheriff, dated 19 September 1962 and exhibit 1B being the notice of the property to be
The notice of attachment is exhibit 2 in the case.
It is my opinion that by the sale of the appellant's house No. SNT. 75 without recourse to her
personalties first, the judgment creditor in the case infringed the law. Therefore, the responde
acquired no right in the property purchased at the sale of 22 September 1962. The sale was vo
would, therefore, set aside the judgment and enter judgment for the appellants.
DECISION
Appeal dismissed.
J. K. E. E.