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April 12, 1967
HIGH COURT
GHANA
CORAM
JUDGMENT OF ARCHER J.
This is a motion on notice by the plaintiff, the judgment debtor, for an order setting aside the sale of his three cocoa farms under a writ of fieri facias. The facts are shortly as follows: On 22 December 1965, the defendant, the judgment creditor, issued a writ of fieri facias to recover the sum of £G539 6s. 6d. being the judgment debt and costs awarded against the plaintiff after an application for stay of execution had been refused by this court on 20 December 1965. The plaintiff applied to the then Supreme Court (now Court of Appeal) and on 14 February 1966, the appellate court made the following order as certified by that court's registrar:
"(1) £G300 to be paid on or before 31 March 1966.
(2) The balance of £G239 6s. 6d. to be stayed pending the hearing and determination of the appeal.
(3) No order as to costs."
A proper and true construction of the appellate court's order is that the plaintiff should pay to the defendant the sum of £G300 on or before 31 March 1966, after which a date the defendant was at liberty to proceed with execution for the sum of £G300 only, execution for the balance of £G239 6s. 6d. being stayed. Before the appellate court had heard the application, the registrar had instructed a licensed auctioneer, Mr. James Kanko Arthur of Winneba to sell the three farms already attached. The auctioneer then advertised the sale on 20 January 1966 indicating that the sale would take place after 21 days in compliance with rule 15 of Order 51 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A). It appears that the sale was suspended on the instructions of the High Court registrar as the plaintiff had applied to the then Supreme Court for stay of execution. After 31 March 1966, when the plaintiff had not paid the £G300 as ordered by the appellate court, the auctioneer was instructed to proceed with the sale. On 30 April 1966, according to the affidavit filed by him, the auctioneer issued another notice of sale on 30 April 1966, purposely to invite purchasers and on 16 May 1966, the three farms originally attached were sold by public auction and a gross amount of £G600 was realised at the sale.
The grounds of objection to the sale of 16 May 1966, as disclosed in the affidavit filed by the plaintiff are as follows:
"(a) The sale was made without proper advertisement [as] required by law.
(b) That, inasmuch as the subsequent auction notice which endorsed a sum substantially different from the s
AI Generated Summary
Archer J. of the High Court considered a motion by a judgment debtor to set aside the auction sale of three cocoa farms conducted under a writ of fieri facias to enforce a judgment in favour of Prah, the judgment creditor. After the High Court refused a stay in December 1965, the then Supreme Court (now Court of Appeal) ordered on 14 February 1966 that a2G300 be paid by 31 March 1966 and execution of the remaining a2G239 6s. 6d. be stayed pending appeal. The court-appointed auctioneer, Mr. James Kanko Arthur of Winneba, had advertised the sale in January 1966 under Order 51, rule 15, but suspended it due to the stay application. Following non-payment of a2G300, the properties were sold on 16 May 1966 for a2G600. Rejecting grounds about non-service and supposed stay via praecipe, Archer J. held that an indefinite postponement does not require re-compliance with the 21-day notice rule and, even if irregularity were assumed, the applicant failed to prove substantial injury under rule 18. The application was dismissed with costs.