ALBERT DADZIE v. YAW AMOAKO AND REXFORD KYEI ANOKYE AND ANOR
2004
COURT OF APPEAL
GHANA
CORAM
- ARYEETEY, J.A. (PRESIDING)
- AMONOO-MONNEY, J.A.
- ANIM, J.A
Areas of Law
- Civil Procedure
- Property and Real Estate Law
2004
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This Ghana Court of Appeal decision arises from an interpleader over Plot 28A, Block IX, Gyinyase, Kumasi. The appellant, a judgment creditor who had obtained judgment against Yaw Amoako, arranged attachment of the property and auction processes within a year of the writ of fi.fa. Despite the prohibition notice, Amoako purported to sell the property to Rexford Kyei Anokye, who filed a claim that the High Court upheld after reading Order 42 rule 19 as rendering the writ and execution processes ineffective after one year as “unexecuted.” On appeal, Aryeetey, J.A. rejected that interpretation as absurd, stressing that once seizure occurs, the writ cannot be “unexecuted.” He further applied Order 43 rule 11 to hold that any alienation during attachment without leave is null and void, irrespective of purchaser notice. The appeal was allowed and the High Court’s judgment set aside.
ARYEETEY, J.A.
A brief background to the interpleader summons, which has resulted in this appeal is as follows: On 12th April 1991 the appellant who is the plaintiff/ judgment/creditor obtained judgment against the defendant/judgment/debtor, Yaw Amoako in the sum DM 12039.00 plus damages of ¢200,000 and costs of ¢50,000.00. On 31st October 1991, pursuant to praecipe for the issue of writ of fi:fa, Plot Number 28A, Block IX Gyinyase, Kumasi, property of the judgment debtor, was attached in execution of the said judgment. On 18th November 1991, the sheriff issued an order prohibiting alienation of the property attached (exhibit 4). He also issued a notice of auction. The sheriff's officer attached property No. 28A Block IX Gyinyase by serving a copy of exhibit 4 on the judgment debtor, Yaw Amoako and by affixing another copy on the property to be attached. On 25th November 1991, the sheriff entrusted the conduct of the auction sale to a licensed auctioneer. Subsequent to these processes, the judgment debtor on 9th July 1992 issued a receipt for ¢2,500,000 in favour of Rexford Kyei Anokye, the claimant in the interpleader summons and respondent this appeal, being the price of the attached property purchased by the respondent. According to the receipt, the money was supposed to have been received by the judgment debtor on 10th July 1992. The receipt for the payment of the purchase price was followed by a statutory declaration dated 28th August 1992 from the defendant/judgment debtor reciting a transfer by him of the property to the respondent. On 30th October 1992, the respondent filed notice of his claim, which the appellant disputed by notice dated 11th November 1992. The High Court heard the case and gave judgment in favour of respondent in respect of his "reliefs sought in the interpleader claim".
Originally, the appellant filed only one ground of appeal, namely "The decision is against the weight of evidence. He however filed four additional grounds of appeal as follows:
"(1) The learned trial judge erred in law when he held that the purported sale by the judgment/debtor of the attached property was lawful and upheld his claim. His Lordship thereby ignored the provisions of Order 43 rules 7, 10, 11 of the Rules of the High Court, 1954,
(2) The learned trial judge erred In law when he held that the claimant was a bona fide purchaser for value of the property without notice. There was no evidence that the claimant acquired the legal title in the propert