BONSU vs. MANU AND 3 OTHERS [1961]DLHC868

Date	1961-11-10
Suit No.
Citation No.	[1961]DLHC868

APALOO J

D. S. EFFAH FOR THE DEFENDANTS-APPELLANTS

J. E. C. LUTTERODT FOR THE PLAINTIFF-RESPONDENT.

[1961]DLHC868
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >

&nbsp;[HIGH COURT, KUMASI]

[1961] GLR 644

DATE: 10TH NOVEMBER, 1961.

</div>

COUNSEL:&nbsp;&nbsp;

D.
S. EFFAH FOR THE DEFENDANTS-APPELLANTS.

J.
E. C. LUTTERODT FOR THE PLAINTIFF-RESPONDENT.

</div>

APALOO, J.

</div>

&nbsp;

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(1) 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 plai</main>