LAMPTEY vs. HAMMOND [1987]DLCA781

Date	1987-06-02
Suit No.
Citation No.	[1987]DLCA781

ABBAN JA

WUAKU JA

AMPIAH J.A.

J. AYIKOI OTOO FOR THE PLAINTIFF-APPELLANT.

AFERI YEBOAH FOR THE APPLICANT-RESPONDENT.

[1987]DLCA781
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													<main id="main" class="content" style="min-height: 60rem" >LAMPTEY <o:p></o:p>vs. <o:p></o:p>HAMMOND <o:p></o:p>[COURT OF APPEAL, ACCRA.]<o:p></o:p>[1987-88] 1 GLR 327<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
2 JULY 1987<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">

J. AYIKOI OTOO FOR THE PLAINTIFF-APPELLANT. <o:p></o:p>

AFERI YEBOAH FOR THE APPLICANT-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">

ABBAN, WUAKU AND AMPIAH JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ABBAN J.A<o:p></o:p>The
appeal is from the ruling of the High Court, Accra. The said ruling, dated 14
July 1986, set aside a judgment which the learned High Court judge had
previously on 20 July 1984 entered in favour of the appellant. That is the
ruling complained of set aside a judgment which had been outstanding in favour
of the appellant and against the defendant (now deceased) for almost two years.<o:p></o:p><o:p>&nbsp;</o:p>The
appellant (hereinafter referred to as the plaintiff) had sued the defendant,
one M. A. Botchway, in suit No. 17/74 for a declaration that house No. X243,
West Korle Gonno, Accra formed part and parcel of the estate of one late
Elizabeth Lamley Lamptey; and the latter having died intestate the house became
the property of her family and could not therefore be sold to satisfy the personal
debts of her administratrix, one Mary Larkai Lamptey.<o:p></o:p><o:p>&nbsp;</o:p>It may be
observed that the action was instituted in 1974; and reading from the judgment
of 20 July 1984, the suit had been pending in the High Court for almost ten
years. Apparently, after many adjournments it was finally fixed for hearing on
20 July 1984, and even though the parties were regularly and properly served
with the hearing notice, the defendant and counsel failed to turn up.<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>Consequently
the learned trial judge applying the provisions of Order 36, r. 16 of the High
Court (Civil Procedure) Rules, 1954 (L.N. 140A), heard the evidence of the
plaintiff. At the close of the plaintiff’s case he proceeded to give judgment
for the plaintiff in the following terms:<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">“I am
satisfied by the evidence of the plaintiff that house No. X243, West Korle
Gonno formed part of the estate of the late Elizabeth Lamley Lamptey and that
letters of administration of the said estate were granted to Mary Larkai
Lamptey. The assumption of the character of family property of the said house
upon the death of Elizabeth Lamley Lamptey cannot be disputed. Exhibit A shows
the original lease of the house to Elizabeth Lamley Lamptey by the government.
There is no evidence that she assigned her interest to anyone. The evidence
clearly establishes that the house was purported to have been sold at an
auction to satisfy the judgment debt of the administratrix, Mary Larkai
Lamptey. It is common knowledge that a purchaser at an auction sale purchases
no more than the right title and interest of the judgment debtor.<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">As the
sale was to satisfy the personal debt of the said Mary Larkai Lamptey and the
said house was not her personal property the said sale was ineffective to
convey any title to the purchaser and it still remains the property of the
plaintiff’s family of which he is the head. I accordingly give judgment to the
plaintiff as per the relief indorsed on his writ with ¢3,000 costs . . .”<o:p></o:p><o:p>&nbsp;</o:p>(The
emphasis is mine.)<o:p></o:p>The
respondent, a third party, brought an application to set aside the above
judgment. The application was granted by the learned High Court judge in his
said ruling of 14 July 1986.<o:p></o:p><o:p>&nbsp;</o:p>