Division: IN THE HIGH COURT, SEKONDI
Date: 8 MAY 1964
Before: BRUCE-LYLE J
JUDGMENT OF BRUCE-LYLE J
In this action the plaintiff’s claim as against the defendants Messrs. G. B. Ollivant Ltd. is for:
“(1) A declaration setting aside an alleged deed of mortgage purported to have been made on 24 August 1953 between the plaintiff and the defendants, (2) an injunction restraining the defendants, their agents and licensees from interfering with the plaintiff’s ownership of the said house, (3) £G500 damages for trespass to the same house (No. 64/1 Amonoo Street, Takoradi) and (4) an injunction restraining the defendants their agents and servants from interfering with plaintiff’s ownership and possession of the said house.”
The defendants, Messrs. Ollivant & Co. (hereafter referred to as Ollivant) in the exercise of their right of sale under a deed of mortgage, dated 24 August 1953, instructed an auctioneer Mr. C. Q. Ocran to sell house No. 64/1, Amonoo Street, Takoradi, by public auction. The date for the sale was fixed for 30 June 1962, but owing to a heavy down pour of rain on the afternoon of that day the sale did not come on. The bell summoning the public to the sale was rung and persons gathered but because of the rain the sale did not come on and in the same afternoon the house was sold by private treaty by Mr. Ocran, who was then an in-patient in the Takoradi hospital, to one Mr. Sey, acting as agent for Mr. J. W. Acquah, for £G3,000.
Sey subsequently arranged with Ollivant and paid £G1,000 down and promised to pay the balance by monthly instalments of £G200 and Ollivant accepted this offer. It is of interest to note that Sey, at the time of the sale, was a tenant of the plaintiff and lived in the same house.
After the sale Acquah and Sey assumed possession of the house and wrote to the tenants informing them that Acquah was from 30 June 1962 the new landlord. Acquah then proceeded to make certain structural and substantial improvements to the house.
The plaintiff, in her evidence, has claimed to be the owner of this house, it having been built for her by her late husband Mr. Cudjoe; that the documents relating to this house were kept for her by her late husband; that her husband died in 1955 and one-and-half years later when the box in which her husband kept his documents was opened, the title deeds relating to this house were found to be missing; and that she did practically nothing to find out the whereabouts of these deeds until two to three years ago when she wanted to make a wall around the house and she got a copy of the plan of this house from the town council.
The plaintiff’s evidence is that she knew nothing about the existence of any mortgage on this house (to Ollivant) and that it was when she went to the house to collect her rents from the tenants that she was informed of the auction notice; that she had the notice read to her, removed it and immediately sent it to her solicitor; that subsequent to this her sister Ama, brought her a letter dated 12 February 1962 from Messrs. Giles Hunt (solicitors) in which a mortgage on her house was mentioned as a mortgage securing the indebtedness of her daughter Mrs. Christiana Sangmuah to Ollivant; that she handed this letter also to her solicitor with instructions to issue a writ against Ollivant on the ground that she had not executed the
mortgage and knew nothing of the existence of such a mortgage; that the execution of the mortgage was without her knowledge and consent; that she later got to know that the house had been sold; and that she was informed by Sey that the house had been bought by J. W. Acquah. Sey also showed her a letter he had written to the tenants to vacate the house. Finally Mr. Acquah had instructed Sey to renovate the house. As a result of this she instructed her solicitor to write to Sey and Acquah not to interfere with the house and that she had not mortgaged the house. She later instructed her solicitor to take action against Sey and Acquah for damages for trespass. The evidence of the plaintiff is to the effect that she had not mortgaged this house to Ollivant and therefore the sale to Sey for Acquah was not proper. She also contended that the sale was not by auction and that the subsequent sale by private treaty without notices to her rendered the sale null and void.
[The learned trial judge after finding that the plaintiff herself had transacted the mortgage then
proceeded:] On the second issue, counsel for the plaintiff has contended that from the evidence before this court the auction sale on 30 June 1962 was abortive and therefore the subsequent sale by the auctioneer, Mr. Ocran, by private treaty, rendered the sale null and void. Counsel relied on section 19 of the Auction Sales Ordinance,1 which reads: “The employment of an auctioneer to sell any property by public auction does not authorise him, in case the public auction proves abortive, to sell the property by private contract.”
The position of the law as to whether or not an auctioneer has the implied authority of the employer to sell by private treaty where the auction sale proves abortive is well settled. In the case of Marsh v. Jelf,2 the headnote states: “On an employment of an auctioneer to sell by auction there is no employment to sell by private contract if the public sale proves abortive, and evidence of a custom to that effect among auctioneers is not admissible.” Is such a sale by private treaty subsequent to an abortive public sale void or voidable? From Marsh’s case (supra) and the wording of section 19 of Cap. 196, it is clear that they relate to the scope of authority given an auctioneer by his employer, so that, in my opinion, if the employer accepts such a sale by private treaty the third party, i.e. the one whose property was the subject-matter of the sale, cannot complain. In the case of Attorney-General of Nigeria v. M.A. Ajisegiri3
the construction of a section similar to section 19 of our Cap. 196 was in issue and it was held that,
“This section does not prohibit the sale by an auctioneer of any property the sale of which by auction has proved abortive, as in this case, but only provides that the mere employment of an auctioneer to sell any property by public auction does not authorise him, in case the auction sale proves abortive, to sell the property by private contract.”
From the above decision it is clear that sale by private contract where the auction sale proves abortive, does not render such a sale void but rather voidable at the instance of the employer who can rely on the fact that he had never authorised the auctioneer to sell by private contract.
There is no doubt from the evidence adduced that an unlicensed person was authorised to conduct a sale by public auction, that bidding started but the down pour of rain prevented it from going on. This shows clearly that the public auction was abortive. It is most unfortunate for the plaintiff that it started to rain, for if there had been no rain and the auctioneer had knocked down the hammer after the highest bid, the sale would have been irregular. See Hage v. Quartey and Pappoe.4 There is evidence by Mr. Ocran that the sale of the house to Sey, agent for J. W. Acquah, was by private contract subsequent to the abortive public sale. There is evidence that Sey later saw the manager of Ollivant who accepted his terms of payment. Ollivant have not taken any steps to set aside the sale and in the absence of such action by Ollivant, I find that the plaintiff as the mortgagor, not being the auctioneer’s employer, cannot set aside the sale of her house.
I therefore find that the sale of the plaintiff’s house to Sey as agent of J. W. Acquah is valid. Having found that the sale is valid I further find that the defendants Sey and Acquah have not committed any trespass by their taking possession of the house they had validly bought. I therefore dismiss both claims of the plaintiff and enter judgment for the defendants in both actions with costs. Costs for Ollivant fixed at 150 guineas. Costs for Sey and Acquah fixed at 90 guineas.
DECISION
Action dismissed.
T. G. K.
