SARPONG vs. ATTA YAW AND ANOTHER [1964]DLSC1954

Date	1964-06-29
Suit No.
Citation No.	[1964]DLSC1954

OLLENNU JSC

ACOLATSE JSC

APALOO J.S.C.

MENSAH FOR THE APPELLANT.

ANSAH-TWUM FOR THE RESPONDENTS.

[1964]DLSC1954
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													<main id="main" class="content" style="min-height: 60rem" >SARPONG <o:p></o:p>vs. <o:p></o:p>ATTA YAW AND ANOTHER<o:p></o:p>[SUPREME COURT]<o:p></o:p>[1964] GLR 419<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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DATE:
29TH JUNE, 1964.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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MENSAH FOR THE APPELLANT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

OLLENNU, ACOLATSE AND APALOO JJ.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT APALOO J.S.C.<o:p></o:p>Apaloo
J.S.C. delivered the judgment of the court. The facts which the learned trial
judge found and which were quite ineffectively challenged in this appeal are
briefly as follows: The respondents are the joint-owners of house No. D27
Duayaw-Nkwanta. At some time prior to May 1962, they jointly raised a loan of
£G80 from a man called Kofi Nyamekye who was the first defendant at the trial
(but did not join in this appeal). The respondents did not repay the loan when
the time for repayment fell due. Accordingly, the said Nyamekye instituted an
action against them in the Bechem Local Court. This was in May 1962. The
respondents did not defend the action and the local court accordingly gave
judgment against them for the sum claimed with assessed costs of £G31 4s. 6d.
In execution of that judgment, Nyamekye applied for a writ of fi. fa. to attach
the house in question. This was duly issued. A copy of the notice of attachment
was served on the respondents. On receipt of this, they took fright and quickly
raised a loan of the £83 14s. 6d. from one Asamoah Kofi, alias Kekyere. With
this loan, they paid the judgment debt and costs to the said Nyamekye on 25
June 1962. About two weeks after the judgment was satisfied, namely, 9 July
1962, the house in question was sold by public auction by a licensed auctioneer
called Effah (who was the second defendant at the trial but did not join in
this appeal). This sale was made in the purported satisfaction of the judgment
debt and costs which had been paid about two weeks previously.<o:p></o:p><o:p>&nbsp;</o:p>The
learned trial judge also found, rejecting the evidence of Nyamekye that the
latter did not inform the registrar of the local court of this payment and did
not instruct him to stop the projected sale of the respondents house.
Accordingly, he awarded damages against the said Nyamekye for trespass and
proceeded to set aside the aforesaid sale. The appellant, who purchased the
house at the said auction and who was sued as the third defendant in the court
below, was adjudged not to be liable in damages to the respondents because, as
the learned judge said, she was merely a purchaser at an auction sale and was
not shown to have been in collusion with Nyamekye. Accordingly, the judge
dismissed the action against her with costs.<o:p></o:p><o:p>&nbsp;</o:p>The
appellant feeling aggrieved by that part of the judgment which set aside the
sale, appeals to this court on a number of grounds, only two of which were
argued. The first ground of appeal argued before us reads as follows: “The
learned trial judge having dismissed the action of plaintiff as against the second
and third defendants could not properly set aside the sale and the order
setting aside the sale was erroneous.” On this ground, counsel for the
appellant, referred us to that part of the judgment in which the learned trial
judge found that although he received the judgment debt and costs in full,
Nyamekye failed to notify the local court registrar of this fact. Accordingly,
counsel submitted, the latter who was acting as the sheriff did not revoke his
authority to the auctioneer. Counsel therefore contended that as the authority
to sell was not countermanded, the sale was lawful and passed good title in the
house to the appellant, who counsel said, was on the learned trial judge’s
finding, a bona fide purchaser for value without notice. Counsel for the appellant
referred us to Bassil v. Serwah1 and Quartey Papafio v. Laryea.2<o:p></o:p><o:p>&nbsp;</o:p>In my
opinion, both these cases are plainly distinguishable from the instant case.
The Bassil case (supra) decided that where property is conveyed to a mortgagee
who in the exercise of his power of sale, authorised an auctioneer to sell, the
sale would be binding on the mortgagor, if at the time of the sale, the
auctioneer’s authority was not revoked or if revoked, such revocation was not
communicated to an intending purchaser. The Quartey Papafio case (supra)
decided that where a man bought property under a writ of fi. fa. issued by a
court of competent jurisdiction, the purchaser’s title was not affected by a
subsequent vacation of the judgment under which the fi. fa. issued on appeal.
Counsel for the appellant also referred us to the case of Pilcher v. Rawlins.3
That case merely emphasises the rights of a bona fide purchaser for value
without notice. Whether the appellant is a bona fide purchaser for value or not
does not seem to me to matter a great deal. The real question to be decided in
this appeal is whether a sale in execution after the payment of a judgment debt
is valid and passes good title to a purchaser.<o:p></o:p>The only
object of putting the sheriff in motion in execution proceedings is to get the
judgment satisfied. But if the judgment has already been satisfied, then the
execution can serve no purpose. Since the execution often involved the se</main>