AKYEAMAH v. POKU AND OTHERS
1960
HIGH COURT
GHANA
CORAM
- OLLENNU J
Areas of Law
- Property Law
- Civil Procedure
1960
HIGH COURT
GHANA
CORAM
AI Generated Summary
Judgment for the defendants. The plaintiff's claim to set aside the sale of two farms on grounds of fraud and material irregularity is dismissed. The court held that the plaintiff did not fall within the class of persons entitled to apply under Order 51, rule 18 and found no material irregularity in the conduct of the sale.
JUDGMENT OF OLLENNU J.
In this case the plaintiff claims three reliefs:
(1) An order declaring null and void the sale of the plaintiff's two farms, on grounds of fraud and material irregularity in the said sale;
(2) declaration of title to and recovery of possession of the said two farms, and
(3) £G100 damages for trespass.
The first prayer, it was submitted, was made in exercise of a right under Order 51, rule 18, of the Rules of the Supreme Court; and the sale required to be annulled is a sale made at a public auction upon an order of court made in execution of a decree which the second defendant had obtained against the first defendant. The said rule 18 of Order 51 is as follows:
“At any time within twenty-one days from the date of the sale of any immovable property, application may be made to the Court to set aside the sale on the ground of any material irregularity in the conduct of the sale, but no sale shall be set aside on the ground of such irregularity unless the applicant shall prove to the satisfaction of the Court that he has sustained substantial injury by reason of such irregularity."
The irregularity relied upon for the exercise of this alleged right is "breach of undertaking by the sheriff at Koforidua with whom papers for interpleader proceedings to oppose the sale had been filed, to notify the deputy sheriff at Kibi to suspend the sale pending the determination of the interpleader proceedings."
It is necessary to determine firstly whether the plaintiff is entitled under the said Order 51, rule 18 to apply to have the sale in question set aside; secondly if she is, whether this is the court to which she should make such an application; and thirdly whether there has been material irregularity in the conduct of the sale, and if there has been, whether the plaintiff has sustained substantial injury.
In the case of Government of Ashanti v Adjuah Korkor and Others, (4 W.A.C.A. 83) the West African Court of Appeal, stated that they agreed with Bannerman, J., upon all the points of his judgment in the Divisional [p.112] Court. Among other points, Bannerman, J. had decided that the wording of the rule (it was then Order 44, rule 31) is so wide in its scope as to permit any one not a party to the suit in which the execution issued, who is affected by the sale, to invoke the aid of the rule. But a careful study of Bannerman, J.'s judgment and the language itself, reveal that the term “any one not a party” employed in the judgment is qual