MENSAH vs. BIMPEH [1979]DLHC1087

Date	1979-05-09
Suit No.
Citation No.	[1979]DLHC1087

EDWARD WIREDU J.

S. A. X. TSEGAH FOR THE PLAINTIFF.

ADUSEI FOR THE DEFENDANT.

[1979]DLHC1087
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													<main id="main" class="content" style="min-height: 60rem" >MENSAH <o:p></o:p>vs. <o:p></o:p>BIMPEH<o:p></o:p>[HIGH COURT, ACCRA] <o:p></o:p>[1978] GLR 141<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:
9 APRIL 1979<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. A. X. TSEGAH FOR THE PLAINTIFF.<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 1.0pt 0in">

EDWARD WIREDU J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF EDWARD WIREDU J.<o:p></o:p>Some time
around May 1971 one John Emmanuel Vanderpuije sued the defendant in this court
for title to a piece of land at Odorkor in Accra. He also asked for other
consequential reliefs in his writ and obtained judgment against him. The
monetary award arising out of that suit against the defendant resulted in the
sale of his property which is now the subject of the present action.<o:p></o:p><o:p>&nbsp;</o:p>The facts
of the execution processes resulting in the auction of the defendant’s property
are these: On or about 16 May 1977 the deputy sheriff of this court by a
letter, exhibit El, despatched copies of sheriff’s notice and conditions of
sale to a Mr. Okine, a licensed auctioneer of Accra (who shall hereafter be
referred to simply as the auctioneer) asking him to sell the property in
dispute described as “the property of the judgment debtor” now the defendant in
this case. The attachment itself arose out of the case John Emmanuel
Vanderpuije v. Yaw Bimpeh, High Court, Accra, 7 January 1977, unreported,
referred to above; the evidence shows that the sale was to take place on 8 June
1977 at ten o’clock in the forenoon: (see exhibit E2, the sheriffs’ auction
notice).<o:p></o:p>By
another letter dated 6 June 1977 addressed to the auctioneer the deputy sheriff
directed the suspension of the sale of the property to await “further
instructions.” The reason for the suspension being that “a motion for a stay of
execution had been filed.”<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>On 13
September 1977, another letter, exhibit D, from the deputy sheriff to the
auctioneer directed the latter to proceed with the sale of the property and acting
on this authority, the auctioneer advertised the sale of the disputed property
in an Accra daily for 1 October 1977 at 9 a.m. (see exhibit B.)<o:p></o:p><o:p>&nbsp;</o:p>The facts
further show that the property was auctioned on 1 October 1977 as advertised.
The plaintiff in this case was declared the purchaser at a price of ¢29,760. On
31 October 1977 a certificate of purchase, exhibit A, was issued in favour of
the plaintiff by the deputy sheriff.<o:p></o:p>The
present action by the plaintiff is for a declaration of title, recovery of possession
and mesne profits against the defendant who has refused to vacate the premises
since the date of purchase.<o:p></o:p><o:p>&nbsp;</o:p>The
defendant resists the plaintiff’s claim and for his part contends that the
judgment upon which the execution was levied against his property was void
because he was not served with any hearing notice as ordered by the court in
the earlier case Vanderpuije v. Yaw Bimpeh. It is his further contention that
the auction sale itself was wrongful and illegal having been conducted in
violation of the mandatory provisions of Order 42, r. 46 of the High Court
(Civil Procedure) Rules, 1954 (L.N. 140A). He therefore counterclaims for the
setting aside of the sale.<o:p></o:p><o:p>&nbsp;</o:p>The
evidence brought by and on behalf of the plaintiff which I accept show that on
1 October 1977 the property in dispute was by the older of the deputy sheriff
sold by </main>