AKYEAMAH vs. POKU AND OTHERS [1960]DLHC50

Date	25 Apr, 1960
Suit No.
Citation No.	[1960]DLHC50

OLLENNU J.

TWUM BARIMA FOR PLAINTIFF.

MOORE FOR SECOND FOURTH AND FIFTH DEFENDANTS.

NO APPEARANCE BY FIRST AND THIRD DEFENDANTS.

[1960]DLHC50
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													<main id="main" class="content" style="min-height: 60rem" >AKYEAMAH

&nbsp;vs.

POKU AND OTHERS

[1960] GLR 110

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DATE: 25TH APRIL, 1960.
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COUNSEL:&nbsp;&nbsp;

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TWUM BARIMA FOR PLAINTIFF.

MOORE FOR SECOND, FOURTH AND FIFTH DEFENDANTS.

NO APPEARANCE BY FIRST AND THIRD DEFENDANTS.
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OLLENNU J.
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&nbsp;

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:

&ldquo;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.&rdquo;

The irregularity relied upon for the exercise of this alleged right is &ldquo;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.&rdquo;

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 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.&rsquo;s judgment and the language itself, reveal that the term &ldquo;any one not a party&rdquo; employed in the judgment is qualified by, and should be read together with the words &ldquo;has sustained substantial injury by reason of such irregularity &ldquo; 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&rsquo;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 subordinat</main>