AFARI v. NYAME [1961]DLHC534

Date	1961-10-24
Suit No.
Citation No.	[1961]DLHC534

OLLENNU J

G. KORANTENG-ADDOW FOR THE PLAINTIFF-APPELLANT.

TWUM-BARIMA FOR THE DEFENDANT-RESPONDENT.

[1961]DLHC534
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&nbsp;[HIGH COURT, ACCRA]

[1961] GLR 599

DATE: 24TH OCTOBER, 1961.

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COUNSEL:&nbsp;&nbsp;

G.
KORANTENG-ADDOW FOR THE PLAINTIFF-APPELLANT.,TWUM-BARIMA FOR THE
DEFENDANT-RESPONDENT.

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OLLENNU, J.

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&nbsp;

Both the appellant and the respondent claim title to the land in
dispute through one and the same person, one Kwame Amponsah Darko. The
appellant based his claim upon a sale made by private treaty on the 30th
December, 1950, while the respondent based his claim upon a sale made to him on
the 15th September, 1958, by one Kwadjo Duku who purchased the right title or
interest of the same Kwame Amponsah Darko at a sale in execution against the
said Kwame Amponsah Darko, made on the 30th July, 1951.

A purchaser at a sale in execution acquires nothing more than the
right, title and interest of the execution-debtor. In July, 1951, Kwame
Amponsah Darko had no right, title or interest in the farms in dispute because
he had already disposed of the same to the respondent as far back as December,
1950. Therefore Amponsah Darko obtained no title to the farms in dispute by the
sale under the attachment. Consequently, the respondent who bought from the
said Amponsah Darko, also acquired no right, title or interest in the land.

Upon the purchase of the land, the appellant entered into
possession and collected cocoa rehabilitation grants in respect of it; he later
placed the farm in charge of a labourer who remained in possession until he was
driven away by the respondent about two years ago. Therefore the appellant
proved not only his title to the land, he also proved invasion of his
possession of the land by the respondent.

The attachment under which the sale took place was made in June,
1951. The appellant immediately interpleaded. That interpleader suit was
disposed of on the 20th September, 1951, after the execution-creditor had
failed to appear upon many adjournments and the court made an order for the
release of the properties from attachment. The execution- creditor then applied
to the court, the District Magistrate’s Court, Koforidua, to review its order,
but his application was refused on the 11th October, 1951. The alleged sale of
the properties took place on the 30th July, 1951. According to the auctioneer,
one Jones Kojo Bruce, D.W.1, four farms were attached but the interpleader was
in respect of one farm only, and that there was no interpleader in respect of
the farms now in dispute. But his evidence that only one property was attached
is not borne out by the order of the district magistrate’s court which ordered
“that the said properties be released from attachment”, meaning more than one
property.

The local court magistrate seemed to think that since the
properties were sold before the order for their release was made the sale is
valid and effective. That is misdirection. A person whose property has been
attached in execution of a decree against another person is not obliged to
interplead, therefore his omission to interplead will not operate as a bar to a
claim he makes against a person who purports to purchase the property at such a
sale. Again if an owner of property wrongfully attached interpleaded, but the
auctioneer sold the property before he could have notice of the interpleader,
that sale will not preclude the owner from bringing a substantive action
against the execution-creditor, the auctioneer and the purchaser or any of them
for declaration of title or for trespass. There may be no irregularity in the
conduct of the sale and therefore the sale may not be set aside; but the
validity or legality of the procedure and conduct of the sale does not of
itself make the sale effective to pass any right, title or interest in the
property to the purchaser if the execution-debtor had no attachable interest in
the property. The main question therefore is did the appellant prove his title
to the farms, and had the execution-debtor Kwame Amponsah Darko any right,
title or interest in the farms at the date of the auction sale which could pass
to Kwadjo Duku, the purchaser, upon the sale? As pointed out earlier, he had
none.

Again another ground upon which the local court magistrate
dismissed the appellant’s claim is that the sale at the public auction and the
certificate of purchase were both prior in time to the order to release the
properties from attachment. He therefore held that since both parties based
their claim upon the same root of title, the title of the respondent derived
from the sale in execution took priority over that of the appellant. In coming
to that conclusion the local court magistrate seemed to have directed himself
that the appellant’s title depended upon the order for the release of the
properties from attachment. That is a misdirection. The appellant’s title is
based, as earlier pointed out, upon a sale made to him as far back as the 30th
December, 1950, evidenced by the document exhibit A, and it was upon the
strength of that sale and purchase of the same by him, that he interpleaded,
and it is upon the same that he ins</main>