ATTA KWADWO AND OTHERS vs. BADU [1976]DLCA1240

Date	1976-07-28
Suit No.
Citation No.	[1976]DLCA1240

ARCHER JA

KINGSLEY-NYINAH JA

HAYFRON-BENJAMIN J.A.

T. K. OFORI FOR THE APPELLANT.

MRS. J. BAMFORD-ADDO PRINCIPAL STATE ATTORNEY FOR THE RESPONDENT.

[1976]DLCA1240
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													<main id="main" class="content" style="min-height: 60rem" >ATTA KWADWO AND OTHERS <o:p></o:p>vs. <o:p></o:p>BADU <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1977] 1 GLR 1<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
28 JULY 1976<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;
padding:0in 0in 0in 0in">

T. K. OFORI FOR THE APPELLANT.<o:p></o:p>

MRS. J. BAMFORD-ADDO, PRINCIPAL STATE ATTORNEY,
FOR THE RESPONDENT.<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">

ARCHER, KINGSLEY-NYINAH AND<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF APALOO J.A.<o:p></o:p>The
respondent was the owner of a cocoa farm at a place called Adease Bepoho on
Offinso stool land. This farm was sold by public auction on 16 August 1969, to
recover an order for costs of ¢300.00 made against him by the Offinso District
Court on 25 March 1969. On 10 October 1969, respondent issued out of the High
Court, Sunyani, a writ against the purchaser, auctioneer and two other named
persons seeking an order setting aside the sale on the ground that such sale
was illegal for two reasons, namely, first that by reason of the pendency of an
appeal against the said order for costs there was an automatic stay of
execution imposed by Order 58, r. 7 of the High Court (Civil Procedure) Rules,
1954 (L.N. 140A), as amended by the High Court (Civil Procedure) (Amendment)
Rule, 1969 (L.I. 619), and inasmuch as the sale was conducted in contravention
of that rule, the same was invalid, second, the appellants were obliged by law
to proceed first against his movable property before attaching his immovables,
and as they did not do this, the sale of his cocoa farm was illegal and void.
The learned judge, Anterkyi J., ruled against the respondent on the second
ground but found for him on the first. He concluded therefore that there was no
sale in law and that the first appellant bought, as the judge put it, “airy
nothing.” The appellants contest this ruling by this appeal.<o:p></o:p><o:p>&nbsp;</o:p>For the
purpose of deciding whether or not the sale was valid, there was no adduction
of evidence in the ordinary way. Documents thought to be relevant for the
determination of the issues were tendered by consent and only the auctioneer
who conducted the sale and the registrar of the magistrate’s court which
ordered the sale gave evidence. The facts on which the judge based his ruling
are these:<o:p></o:p><o:p>&nbsp;</o:p>On 13
January 1967, the respondent sued the third appellant in the Offinso District
Court claiming damages for trespass to the former’s cocoa farm. The case came
before the court on 28 January 1969 when for a reason, which is not relevant,
it was adjourned to 28 February 1969 and costs of ¢25.00 were awarded against
the respondent. On the adjourned date, counsel were absent from court and the
case was again adjourned to 25 March 1969. On 24 March 1969 notice of
discontinuance was filed by counsel on behalf of the respondent. Accordingly,
when the suit was called on 25 March 1969, it was disposed of and the court
noted as follows: “Case struck out for lack of prosecution as per letter for
discontinuance with full costs of ¢300.00 to cover all costs including costs
awarded for the defendant (¢25.00) on 28 January 1969 with liberty for fresh
action . . .”<o:p></o:p><o:p>&nbsp;</o:p>On or
about 4 June 1969 the respondent applied to the district court for a review of
the order for costs, on the ground that it was excessive and thereafter stay of
execution of any steps that might be taken to enforce it. This motion was
considered and declined on 30 June 1969. On 5 July 1969, the respondent filed a
notice of appeal said to be against the ruling of 1 July 1969. It is obvious
that the order against which the appeal was directed is the refusal of review
made on 30 June 1969.<o:p></o:p><o:p>&nbsp;</o:p>The
respondent’s farm was in fact attached by the deputy sheriff at the instance of
the execution creditor (i.e. the third appellant) on 22 May 1969. But because
of the filing of the appeal, the registrar instructed the auctioneer to suspend
the sale by a telegram dated 7 July 1969. As the solicitor for the third
appellant pointed out to the registrar that the notice of appeal was invalid
and did not operate as a stay of execution, the registrar reversed his
position, and by another telegram dated 15 August 1969, ordered the sale to
proceed. It was promptly carried out on the following day.<o:p></o:p><o:p>&nbsp;</o:p>