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August 15, 1968
HIGH COURT
GHANA
CORAM
JUDGMENT OF ANNAN J.
The plaintiff's claim is for:
(1) A declaration that the sale by public auction on 16 September 1963 of the property situate at plot No. 24 Block P, Ayigya, Kumasi (formerly known as Plot Nos. 2, 3, 4, and 5 Ayigya, Kumasi) to the third defendant by the second defendant at the instance of W. Bartholomew & Co., Ltd. of Kumasi, the predecessors of the first defendant is void and of no legal effect whatsoever.
(2) Damages for the said unlawful sale.
(3) An order for the defendants to account to the plaintiff for all the rents which have accrued out of the said house from 16 September 1963 until the date of judgment.
(4) An order for the defendants to return to the plaintiff the furniture, fittings and fixtures in the said house and for damages for the wrongful use of the said furniture, fixtures and fittings.
The action arose as a result of the sale by public auction under a writ of fi. fa. of the premises described in the writ together with certain movables in it consisting mainly of various items of furniture. The sale was at the request of the predecessors of the first defendants and the property was sold by the second defendant, a licensed auctioneer, on the instructions of the deputy sheriff and was bought by the third defendant. The predecessors of the first defendant had obtained judgment against a partnership company, Messrs. Fattal and Madjoub, of which the plaintiff was a member, in the sum of £G1,350 with costs of £G46 3s. on 28 November 1960 and in the execution of that judgment applied to the deputy sheriff to seal a writ of fieri facias against Messrs. Fattal and Madjoub. The papers submitted to the deputy sheriff consisted of the praecipe, the writ of fi. fa. and the particulars of the property required to be attached.
Before the sale, the deputy sheriff gave public notice for the statutory period, but on the advertised date of the sale, i.e. on 2 September 1963, the auctioneer, the second defendant, postponed the sale from that date to 16 September 1963 and the sale took place on the latter date when the building with the furniture in it was knocked down to the third defendant for £G2,750. There is no dispute that the entire interest of the partnership company in the premises and its contents were sold at one go by the second defendant to the third defendant.
The praecipe submitted to the deputy sheriff by the solicitors for the judgment creditors was in the usual terms and requested him to "seal a writ of fieri fa
AI Generated Summary
Annan J. adjudicated an action by a former partner of Messrs. Fattal and Madjoub seeking to declare void and set aside the 16 September 1963 auction sale of Plot No. 24 Block P, Ayigya, Kumasi (formerly plots 2–5) and its furniture, conducted under a writ of fi. fa. at the instance of W. Bartholomew & Co., Ltd., predecessors of the first defendant. The licensed auctioneer (second defendant) sold the property on the deputy sheriff’s instructions; the third defendant purchased for £G2,750. The plaintiff alleged illegality and irregularities: use of a movables-form writ to sell immovables, selling movables and immovables together, postponement and advertisement deficiencies, and undervalue. Applying Order 51 rr. 15, 18 and Order 42 r. 46, and authorities including Government of Ashanti v. Korkor, Ojuolape v. Benning, Cramer v. Murphy, Edge v. Kavanagh and Kwabena v. Aninkora, the court held undervalue alone is insufficient, the postponement and advertising were proper, the writ defect was irregular but not illegal, no breach of Order 42 r. 46 was shown, no substantial injury was proved, and, in any case, the challenge was delayed. The action was dismissed with costs.