2012
SUPREME COURT
CORAM
AI Generated Summary
This second appeal to the Supreme Court arises from a disputed execution sale of house H/ B182/12, Odorkor, Accra, formerly owned by Adjin Okwabi. In suit no. 3626/87, Samuel Nii Otoo Ankrah obtained summary judgment against Joshua Kpakpo Allotey, who was arrested on an absconding warrant and admitted to bail. The respondent, Okwabi s daughter and Allotey s cousin, challenged the execution, alleging the debt was fully paid by 31 January 1989 and highlighting irregularities in the justification of sureties (F2), which had Okwabi s name inserted without a thumbprint. Bernard Nimako Ankowuah, the purchaser at the auction, defended the sale as a bona fide purchaser. The High Court declared the sale unlawful, found no surety liability, and voided the amended Entry of Judgment; the Court of Appeal unanimously affirmed. Applying authorities on fi.fa and illiterate execution, and the rule against unilateral amendments to execution processes, the Supreme Court held the sale void ex post facto and dismissed the purchaser s appeal.
ANIN YEBOAH, JSC;
The facts of this appeal appear not to be in serious controversy. One Samuel Nii Otoo Ankrah commenced an action against one Joshua Kpakpo Allotey at the High Court, Accra. Before the case could be disposed of the plaintiff Samuel Nii Otoo Ankrah applied for absconding warrant against the said Joshua Kpakpo Allotey as he had information that he was preparing to leave the jurisdiction. It was granted by Her Ladyship Justice Emelia Aryee.
The claim was for refund of an amount of US$8, 850. The defendant in that case was arrested with the warrant and was granted bail in the sum of ¢1,500,000.00 with two sureties.
Two persons namely: Eugene Darko Amoako and Benjamin Akwei Allotey executed bail bonds as sureties for Joshua Kpakpo Allotey. The two bail bonds were tendered in evidence at the trial court in this case. The two sureties were named in exhibits F1 and F2. Exhibit F was the bail bond while exhibits F1 and F2 were the justification of sureties’ forms. Exhibit F2 which was executed on the 3/12/1987 the same day exhibits F and F1 were executed, was amended by the cancellation of the name and residential address of Benjamin Akwei Allotey and the insertion thereof of the name of ADJIN OKWABI with his residential address. There were other serious irregularities bordering on the thumbprint affixed to exhibit F2 and signature of Benjamin Akwei Allotey which was made before the purported amendment.
It was apparent that even though the name Benjamin Akwei Allotey was cancelled, his signature as one of the two sureties stood. Be that as it may, the case against the said Joshua Kpakpo Allotey ended with a summary judgment by which the defendant in that suit Joshua Kpakpo Allotey was adjudged to pay an amount of ¢2,508,903.28 inclusive of interest and cost.
In the process of levying execution of the judgment against Joshua Kpakpo Allotey, H/№ B182/12 Odorkor, Accra owned by Adjin Okwabi at the time was sold at a public auction and purchased by one B.N.AKOWUAH who is the appellant in this appeal. The respondent herein who described herself as the beneficiary of the property sold at the auction brought an action at the High Court, Accra to set aside the writ of possession which culminated in the sale, declaration of title and recovery of possession of the auctioned house and other ancillary reliefs.
The statement of claim and the evidence led appeared to be very brief. In the statement of claim the respondent herein pleaded that in suit number