ATTA KWADWO AND OTHERS v. BADU

JUDGMENT OF APALOO J.A.

The respondent was the owner of a cocoa farm at a place called Adease Bepoho on Offinso stool land. This farm was sold by public auction on 16 August 1969, to recover an order for costs of ¢300.00 made against him by the Offinso District Court on 25 March 1969. On 10 October 1969, respondent issued out of the High Court, Sunyani, [p.3] a writ against the purchaser, auctioneer and two other named persons seeking an order setting aside the sale on the ground that such sale was illegal for two reasons, namely, first that by reason of the pendency of an appeal against the said order for costs there was an automatic stay of execution imposed by Order 58, r. 7 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A), as amended by the High Court (Civil Procedure) (Amendment) Rule, 1969 (L.I. 619), and inasmuch as the sale was conducted in contravention of that rule, the same was invalid, second, the appellants were obliged by law to proceed first against his movable property before attaching his immovables, and as they did not do this, the sale of his cocoa farm was illegal and void. The learned judge, Anterkyi J., ruled against the respondent on the second ground but found for him on the first. He concluded therefore that there was no sale in law and that the first appellant bought, as the judge put it, "airy nothing." The appellants contest this ruling by this appeal.

For the purpose of deciding whether or not the sale was valid, there was no adduction of evidence in the ordinary way. Documents thought to be relevant for the determination of the issues were tendered by consent and only the auctioneer who conducted the sale and the registrar of the magistrate's court which ordered the sale gave evidence. The facts on which the judge based his ruling are these:

On 13 January 1967, the respondent sued the third appellant in the Offinso District Court claiming damages for trespass to the former's cocoa farm. The case came before the court on 28 January 1969 when for a reason, which is not relevant, it was adjourned to 28 February 1969 and costs of ¢25.00 were awarded against the respondent. On the adjourned date, counsel were absent from court and the case was again adjourned to 25 March 1969. On 24 March 1969 notice of discontinuance was filed by counsel on behalf of the respondent. Accordingly, when the suit was called on 25 March 1969, it was disposed of and the court noted as follows: "Case struck out for lack of prosecution as