TUFFUOR vs. ANOKYI AND OTHERS [1979]DLHC1121

Date	1979-11-12
Suit No.
Citation No.	[1979]DLHC1121

OSEI-HWERE J.

A TO DADZIE FOR THE PLAINTIFF.

K. EWUSI-WILSON FOR THE DEFENDANTS.

[1979]DLHC1121
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													<main id="main" class="content" style="min-height: 60rem" >TUFFUOR <o:p></o:p>vs. <o:p></o:p>ANOKYI AND OTHERS<o:p></o:p>[HIGH COURT, CAPE COAST] <o:p></o:p>[1978] GLR 764<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:
12 NOVEMBER 1979<o:p></o:p>

</div><o:p>&nbsp;</o:p>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">

A TO DADZIE FOR THE PLAINTIFF.<o:p></o:p>

K. EWUSI-WILSON FOR THE DEFENDANTS.<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">

OSEI-HWERE J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OSEI-HWERE J.<o:p></o:p>The issue
taken up by the parties as a preliminary point of law for the determination of
the court is, “whether the sale violated Order 44, r. 14 of the Courts
Ordinance, Cap. 4 (1951 Rev.), Sched. II.” Briefly, the background to the
plaintiff’s action is that on 23 September 1970 the first defendant (as the
plaintiff) recovered judgment against the plaintiff (as the defendant) in the
sum of ¢270. Subsequently, the first defendant applied to the registrar of the
trial district court grade I for a fi. fa. to issue for the attachment of the
following properties of the plaintiff (then the judgment debtor):<o:p></o:p>“(1) One
compound house at Ntronang and at a place commonly known and called Rest House
... <o:p></o:p>(2) All
personal effects of the judgment debtor.”<o:p></o:p><o:p>&nbsp;</o:p>Following
this application, the plaintiff’s house was attached and the third defendant, a
licensed auctioneer who had been authorised to sell the house, knocked it down
for ¢400.75 to the second defendant. It is the plaintiff’s case that the
co-defendant subsequently purchased this house from the second defendant. The
plaintiff brought this action claiming from the defendants jointly and
severally a declaration that the sale of his house was null and void and should
be set aside and also for recovery of possession.<o:p></o:p>It has
been conceded by counsel for both parties that although the writ of fi. fa.
issued some time in October 1970, yet the sale of the plaintiff’s house took
place as late as 26 April 1972 because of the intermediary steps the plaintiff
took in an attempt to defeat the execution. Before this court, the plaintiff’s
counsel has tendered a certified copy of the record of proceedings in
connection with the criminal charges of threatening and assault against the
plaintiff. The plaintiff was alleged to have committed these offences on 12 June
1972 after the bailiffs of the district court had taken possession of the house
on 7 June 1972 upon the authority of a writ of possession. In the process of
executing the writ of possession the bailiffs removed all the personal effects
of the plaintiff and took an inventory of these personal belongings which was
tendered as an exhibit at the trial. The inventory appears at page 21 of the
certified copy of the proceedings tendered. Counsel for the plaintiff has
tendered this inventory to show that the plaintiff had sufficient moveables
which the first defendant could have attached to satisfy his judgment debt.
Counsel for the defendants has also argued that as, for nearly two years, the
plaintiff was given every opportunity to settle the judgment debt and he failed
to do so the court should infer that the plaintiff would not have left his
moveables open for execution. At any rate, he argued that he was prepared to
call witnesses to establish that at the time of the attachment by the writ of
fi. fa. the plaintiff had no goods in the house. He further contended that the
inventory tendered bore no relevance to this case as it was taken some time
after the sale of the house.<o:p></o:p><o:p>&nbsp;</o:p>Order 44
in Schel. II to Cap. 4 regulates the practice as to the mode of execution in the
district courts. Although rule 13 of the Order makes all property whatsoever,
moveable or immovable, belonging to the party against whom a decree is to be
enforced liable to attachment and sale in execution of the decree, yet rule 14
specifically excludes lands from being levied on till goods have been exhausted
and only gives the judgment creditor the option to levy on either in a given
situation. Rule 14 provides:<o:p></o:p><o:p>&nbsp;</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">‘‘14. If
the judgment debtor has sufficient moveable property within the Judicial Division
in which the decree was issued to satisfy the debt, damages, and costs
re</main>