WUSU vs. DONKOR AND OTHERS [1980]DLHC2172

Date	1980-07-29
Suit No.
Citation No.	[1980]DLHC2172

AMPIAH J.

OBENG-MANU FOR THE PLAINTIFF.

W. Y. OPPONG FOR THE DEFENDANT.

[1980]DLHC2172
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													<main id="main" class="content" style="min-height: 60rem" >WUSU <o:p></o:p>vs. <o:p></o:p>DONKOR AND OTHERS <o:p></o:p>[HIGH COURT, SUNYANI]<o:p></o:p>[1982-83] GLR 616<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:
29 JULY 1980<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">

OBENG-MANU FOR THE PLAINTIFF. <o:p></o:p>

W. Y. OPPONG FOR THE DEFENDANT.<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">

AMPIAH J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AMPIAH J.<o:p></o:p>By his
writ of summons the plaintiff claims against the defendants jointly and
severally a declaration that the sale and purchase in execution of certain
properties were “illegal, null and void ab initio and of no legal effect.” He
claims for the recovery of possession of these properties, an order for accounts
in respect of the house from 1966 to the date of judgment, damages for trespass
and an order of perpetual injunction restraining the defendants, their agents
and assigns from interfering with these properties in any manner whatsoever.<o:p></o:p><o:p>&nbsp;</o:p>The
properties are: House No. DE 19 Mim; a cocoa farm at Ayisesuagye on Mim stool
land, having boundaries with the properties of Kwasi Addae, the plaintiff’s
fallow or scrub land and the Ayisesu River; a cocoa farm at Ayisesu on Mim
stool land, having boundaries with the properties of Akosua Nsia, Amma Tawiah
and the Ayisesu River and cocoa farm at Onyinasiso also on Mim stool land and
bounded by the properties of Kwasi Bio, Ofori and S. K. Owusu.<o:p></o:p><o:p>&nbsp;</o:p>There
does not seem to be any real dispute about the identity of these properties.
Since their sale in or about 1966, the respective purchasers or their
successors or both have been in actual possession of these properties with the
knowledge of the plaintiff.<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>It is the
case of the plaintiff that some time in 1964 or 1965, in the course of his
operations as a timber contractor, he felled some timber trees which caused
damage to the cocoa farms of the first and fourth defendants. Both took action
against him in the High Court, Sunyani, claiming damages. The two suits were
entitled, Donkor v. Wusu — suit No. LC.23/63 and Kramo v. Wusu — suit No.
LC.29/63. Judgment was given in both cases against him. The plaintiffs in that
case, namely the first and fourth defendants herein, took out a writ of fi. fa.
to execute the judgment against him. In consequence thereof, his above-named
properties were attached and sold. His house No. DE 19 at Mim was sold to one
Paul Mensah; the cocoa farm at Ayisesuagya was sold to the second defendant;
the cocoa farm at Ayisesu was sold to one Kwadwo Boampong and the cocoa farm at
Onyinasiso was sold to one Kwadwo Agyapong. The house No. DE 19, Mim, was
subsequently sold to the fifth defendant who, on that ground, was joined in
this action later. The second defendant has succeeded to Kwadwo Boampong and is
therefore now in possession of the farm at Onyinasiso. The plaintiff claims
that these properties were all attached and sold without first attaching and
selling his movables. Counsel for the plaintiff contends therefore that the
attachment and sale of the immovables were in contravention of the provisions
of Order 42, r. 46 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A);
the whole sale was therefore `illegal, null and void ab initio and of no legal
effect.” The plaintiff therefore claims against the defendants jointly and
severally for the reliefs indorsed on his writ of summons. The attachment and
sale of these properties took place between 1965 and 1967.<o:p></o:p><o:p>&nbsp;</o:p>It is the
contention of the defence counsel that the attachment and sale were regular, and
for that matter, legally carried out and that even if there was non-compliance
with the rules, the sale became only voidable. In the circumstances, not only
is the plaintiff debarred by the rules from bringing this action, but he is
also debarred by statute, namely the Limitation Decree, 1972 (N.R.C.D. 54),
from taking any action on the matter.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff did not offer any evidence but relied solely on the legal issue
whether or not the attachment and sale were proper; he thus threw the onus on
the defendant to establish the legality of the a</main>