MANU AND ANOTHER vs. YEBOAH [1982]DLCA2155

Date	1982-05-11
Suit No.
Citation No.	[1982]DLCA2155

FRANCOIS JA

EDWARD WIREDU JA

COUSSEY J.A.

KOFI OPPONG (FOR OBENG MANU) FOR THE APPELLANTS.

W. Y. OPPONG FOR THE RESPONDENT.

[1982]DLCA2155
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													<main id="main" class="content" style="min-height: 60rem" >MANU AND ANOTHER <o:p></o:p>vs. <o:p></o:p>YEBOAH <o:p></o:p>[COURT OF APPEAL]<o:p></o:p>[1982-83] GLR 34<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:
11 MAY 1982<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">

KOFI OPPONG (FOR OBENG MANU) FOR THE APPELLANTS. <o:p></o:p>

W. Y. OPPONG 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 1.0pt 0in">

FRANCOIS, EDWARD WIREDU AND COUSSEY
JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF FRANCOIS J.A<o:p></o:p>On 22
September 1962, a house at Sunyani, numbered SNT. 75, previously owned by the
second appellant was offered for salt at a public auction to satisfy the
judgment debt and costs incurred by her in a land suit. The sale, which was at
the instance of the deputy sheriff, ended in the respondent being declared the
highest bidder. He consequently claimed the immunity of an innocent purchaser
for value in a suit he initiated in the court below to establish his title to
the property.<o:p></o:p><o:p>&nbsp;</o:p>The facts
disclose that after entering into possession, an agreement was struck between
the respondent and the appellants which enabled the latter to remain in the
house, no longer as owners, but as rent-paying tenants. At no time did the
dispossessed second appellant disclose to her new landlord that the validity of
the sale was in doubt. Indeed, the subsistence of the landlord and tenant
relationship for over seventeen years could only have created a conviction in
any inquiring mind of the due regularity of the sale, as the one most affected
by it made no protest and appeared to have acquiesced in all that had
transpired.<o:p></o:p><o:p>&nbsp;</o:p>The
tenancy continued undisturbed till 1979, when through military intervention,
described variously as coercion or an appeal, the respondent relinquished his
title to the house, and signified the release of his title in a formal
document.<o:p></o:p>When the
political climate seemed opportune, the respondent sought the court’s
assistance to rescind the agreement on grounds of duress and for the
reinstatement of his title to the house.<o:p></o:p><o:p>&nbsp;</o:p>The issue
of duress was not seriously challenged in the court below; and on appeal, the
coercive nature of the intervention was openly acknowledged. The lower court
had no difficulty in sustaining the plea of non est factum; and it not being
seriously challenged in this appeal, that holding must be upheld.<o:p></o:p><o:p>&nbsp;</o:p>The only
serious question concerns the validity of the auction sale that took place some
seventeen years ago. It was urged on behalf of the appellants that the sale was
illegal and therefore could not effect any transfer of property. The species of
illegality urged as rendering the sale null and void was the breach of Order
42, r. 46 of the High Court (Civil Procedure) Rules, 1954 (LN 140A).<o:p></o:p><o:p>&nbsp;</o:p>The
second appellant contends that the sheriff ordered the sale of her immovable
property without making a nulla bona return on the sufficiency of her movable
property to satisfy the judgment debt. This illegality, the appellant
maintains, is incurable. Time therefore cannot run against her redemptive efforts.
For, an aggrieved party seeking relief ex debito justitiae is protected from
the race of time. The appellant relies for support on the well-known case of
Mosi v. Bagyina [1963] 1 G.L.R. 337, S.C.<o:p></o:p><o:p>&nbsp;</o:p>The
resolution of the matter in issue involves an investigation into the conduct of
the auction sale and the legal consequences flowing therefrom. Three situations
are possible: the sale could be categorised as regular, irregular or illegal.
If the sale was regularly conducted, the respondent’s title to the property
could not be impeached. A sim</main>