KUMAH AND ANOTHER v. HIMAH

JUDGMENT OF ANIN J.A.

This is an appeal from the judgment of the Sunyani High Court dated 10 October 1972 decreeing title in favour of the plaintiff to a cocoa farm known as Popoagya situate on Konsia stool land together with other ancillary reliefs and dismissing the co-defendant's counter-claim.

The gist of the plaintiff's action was that he bought the farm at an auction sale held at Konsia on 7 January 1969. The sale was under a writ of fi. fa. issued at the instance of the plaintiff judgment creditor in an earlier suit entitled Kwabena Anane v. Atta Kwadwo of Konsia and two others - suit No. HC.15/67. The plaintiff happened to be visiting Konsia on the day of the auction sale and his bid for the three lots of property (including the farm in dispute) offered for sale turned out to be the highest. "After the bid," he continued in evidence, "I went and inspected the farm before I paid the purchase money." He was shown round the farm by the auctioneer and the execution creditor; and was given to understand that the properties being sold belonged to the said judgment debtors (Atta Kwadwo, Kwabena Febiri and Asumana Watara). Later on, he was issued with a certificate of purchase (exhibit A) dated 4 February 1969 in evidence of the three lots of property (including the farm in dispute) sold to him. When the subsequently sent his labourers [p.207] to the farm they found the defendant's son (Kofi Tawiah) and labourers working on the land. He therefore promptly reported them to the police and caused their arrest for trespass. He resorted to this civil action when the defendant explained at the police station that he had authorised Kofi Tawiah to work on the land which had been offered to him by the co-defendant as security.

In this action, the plaintiff relied almost exclusively on his certificate of purchase (exhibit A) as vesting title to the farm in him. Apart from calling the High Court registrar to tender the docket in the earlier suit No. HC.15/67 and the execution proceedings in evidence, he called no other witness of fact in support of his case. For example, he omitted to call the auctioneer or any of the execution debtors as witnesses. Under cross-examination, he confessed ignorance of the person in possession of the farm prior to the auction sale, and he also admitted not having set foot to the farm before the auction sale. In his address, learned counsel for the plaintiff contended that the defendant and the co-defendant bore the burden of satisf