AKORNOR v. MAMA AND ANOTHER
1960
HIGH COURT
GHANA
CORAM
- OLLENNU, J
Areas of Law
- Civil Procedure
1960
HIGH COURT
GHANA
CORAM
AI Generated Summary
In a case before the District Magistrate's Court, Accra, the plaintiff Tei Akornor executed a decree against the defendant Alhaji Mama by auctioning House No. 909/26, Accra. The defendant's wife, Alhaji Habiba, sought to set aside the sale citing irregularities. Upon affidavits, the sale was set aside by the magistrate. In the appeal, it was ruled that the lower court's decision was final, not interlocutory, thereby allowing the appeal to proceed without special leave. The sale was deemed irregular and thus set aside.
JUDGMENT OF OLLENNU J.
In execution of a decree he obtained in the District Magistrate's Court, Accra, against the defendant Alhaji Mama, the plaintiff Tei Akornor, had House No. 909/26, Accra attached by the deputy sheriff, Accra and sold on the 19th day of October, 1959 at public auction conducted by a licensed auctioneer. One Alhaji Habiba, wife of the judgment-debtor applied to the court on behalf of her husband, then in prison, to set aside the sale on the grounds that there had been certain material irregularities in the said sale. The irregularities she alleged are:- (1) the sale took place before the hour scheduled for it; (2) the deputy sheriff entrusted the sale to an auctioneer other than the one nominated by the execution creditor for the work; (3) the auction bell was rung only on the premises to be sold and nowhere else; and (4) the price at which the property was knocked down was grossly under value.
The execution creditor swore to an affidavit supporting the motion to set aside the sale; in it, he alleged that he was present at the sale, and that the auctioneer who conducted the sale was not the one whose name he submitted to the deputy sheriff as the auctioneer to be entrusted with the sale.
No oral or documentary evidence was tendered; the motion was argued solely upon the affidavits filed by the parties. The learned district magistrate granted the application and set aside the sale; the full text of his judgment is as follows:—
"Having read the motion papers and counter affidavits, I am satisfied that the conduct of the sale has been irregular. Stay of execution granted for two weeks."
Counsel for the respondent objected to the jurisdiction of this court to entertain the appeal contending that the decision appealed from is interlocutory, and no appeal lies therefrom except by special leave of the magistrate as provided by section 40 (2) of the Courts Ordinance, Cap. 4.
I overruled the preliminary objection because in my opinion the submission that the judgment appealed from is an interlocutory decision is a misconception. The application to set aside the sale was made under Order 45, rule 31, Schedule 2 of the Courts Ordinance, Cap. 4. That application is not a matter in a cause. It is a substantive statutory application which is in no way dependent upon the suit out of which the execution issued. That substantive suit determined with the judgment delivered on the 9th September, 1959; the execution which issued upon the decree ther