KUMAH AND ANOTHER vs. HIMAH [1977]DLCA1343

Date	1977-06-28
Suit No.
Citation No.	[1977]DLCA1343

APALOO JA

LASSEY JA

ANIN J.A.

S. K. AKOTO FOR THE APPELLANTS.

OHENE ANOBAH FOR THE RESPONDENT.

[1977]DLCA1343
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													<main id="main" class="content" style="min-height: 60rem" >KUMAH AND ANOTHER <o:p></o:p>vs. <o:p></o:p>HIMAH <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1977] 1 GLR 204<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 JUNE 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">

S. K. AKOTO FOR THE APPELLANTS.<o:p></o:p>

OHENE ANOBAH 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">

APALOO, LASSEY AND ANIN JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ANIN J.A.<o:p></o:p>This is
an appeal from the judgment of the Sunyani High Court dated 10 October 1972
decreeing title in favour of the plaintiff to a cocoa farm known as Popoagya
situate on Konsia stool land together with other ancillary reliefs and
dismissing the co-defendant’s counter-claim.<o:p></o:p><o:p>&nbsp;</o:p>The gist
of the plaintiff’s action was that he bought the farm at an auction sale held
at Konsia on 7 January 1969. The sale was under a writ of fi. fa. issued at the
instance of the plaintiff judgment creditor in an earlier suit entitled Kwabena
Anane v. Atta Kwadwo of Konsia and two others - suit No. HC.15/67. The
plaintiff happened to be visiting Konsia on the day of the auction sale and his
bid for the three lots of property (including the farm in dispute) offered for
sale turned out to be the highest. “After the bid,” he continued in evidence,
“I went and inspected the farm before I paid the purchase money.” He was shown
round the farm by the auctioneer and the execution creditor; and was given to
understand that the properties being sold belonged to the said judgment debtors
(Atta Kwadwo, Kwabena Febiri and Asumana Watara). Later on, he was issued with
a certificate of purchase (exhibit A) dated 4 February 1969 in evidence of the
three lots of property (including the farm in dispute) sold to him. When the
subsequently sent his labourers to the farm they found the defendant’s son
(Kofi Tawiah) and labourers working on the land. He therefore promptly reported
them to the police and caused their arrest for trespass. He resorted to this
civil action when the defendant explained at the police station that he had
authorised Kofi Tawiah to work on the land which had been offered to him by the
co-defendant as security.<o:p></o:p>In this
action, the plaintiff relied almost exclusively on his certificate of purchase
(exhibit A) as vesting title to the farm in him. Apart from calling the High
Court registrar to tender the docket in the earlier suit No. HC.15/67 and the
execution proceedings in evidence, he called no other witness of fact in
support of his case. For example, he omitted to call the auctioneer or any of
the execution debtors as witnesses. Under cross-examination, he confessed
ignorance of the person in possession of the farm prior to the auction sale,
and he also admitted not having set foot to the farm before the auction sale.
In his address, learned counsel for the plaintiff contended that the defendant
and the co-defendant bore the burden of satisfying the court that they were the
owners of the farm despite the issue of the certificate of purchase (exhibit A)
to his client. He seemed in his argument both in the court below and in this
court to be equating a certificate of purchase issued under Order 51, r. 21 of
the High Court (Civil Procedure) Rules, 1954 (L.N. 140A), with a deed of
conveyance; and to be contending that the certificate conferred indefeasible
title on the purchaser. For these submissions he relied on the concluding
passage of Order 51, r. 21 emphasised below:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“After a
sale of immovable property shall have become absolute in manner aforesaid, the
Court shall grant a certificate to the person who may have been declared the
purchaser at such sale, to the effect that he has purchased the right, title,
and interest of the judgment debtor in the property sold and such certificate
shall be taken and deemed to be a valid transfer of such right, title, and
interest.”<o:p></o:p><o:p>&nbsp;</o:p>I will
return to the correct interpretation and meaning of this rule presently after
summarising the defence and evidence adduced by the appellants herein.<o:p></o:p>It was
the case of the defendant and his brother, the co-defendant, that the farm in
dispute belonged to the co-defendant, but that it was offered as security for a
loan of ¢1.520.00 which the latter raised from the former about two years
before the issue of the writ under a customary pledge. By virtue of this
pledge, the defendant through his son and caretaker Kofi Tawiah had been in
quiet possession of the farm and had recouped ¢432.00 of the loan front
accruing cocoa proceeds. Just before the action, the defendant’s caretaker was
arrested and incarcerated by the police upon complaint lodged by the plaintiff
that he had trespassed upon the very farm he purchased at the said auction
sale.<o:p></o:p><o:p>&nbsp;</o:p>