HIGH COURT, SUNYANI
DATE: 2ND NOVEMBER, 1962
BEFORE: BRUCE-LYLE, J.
CASE REFERRED TO
Kofi v. Brentuo (1944) 10 W.A.C.A. 92
[p.119] of [1962] 2 GLR 118
NATURE OF PROCEEDINGS
ACTION to set aside the sale of the plaintiff’s farm, and for damages for wrongful sale and a perpetual injunction restraining the defendants and their agents from interfering with the said farm.
The facts are set out in full in the judgment of the court.
COUNSEL
Agyepong for the plaintiff.
Anin for the defendants.
JUDGMENT OF BRUCE-LYLE J.
The plaintiff’s claim is for: (1) an order of the court to set aside the sale of the plaintiff’s cocoa farm which was sold by public auction by the third defendant at the instance of the first defendant to the second defendant; (2) £G600 damages against the defendants jointly and severally for wrongful sale of the plaintiff’s said cocoa farm; and (3) perpetual injunction restraining the first and third defendants, their agents servants and/or workmen from interfering with or having anything to do with the plaintiff’s said cocoa farm.
The case for the plaintiff is that the first defendant in this case on the 14th September, 1960, took action against the plaintiff in the Urban Council Court, Sunyani, for arrears of tribute of £46 10s. in respect of a farm situate at Nanketewa on Sunyani stool land, and the defendant had judgment on the 4th November, 1960. On the 7th November, 1960, the plaintiff filed a notice of intention to appeal in the urban council court and a copy of the notice was lodged in the District Court, Wenchi. After the plaintiff had filed the notice of intention to appeal, the defendant went into execution and sold the farm of the plaintiff on the 12th May, 1961. The farm was sold by the second defendant at the instance of the first defendant and on the instructions of the urban council court, and bought by the third defendant for £G80. The plaintiff said that this farm had earlier been pledged by the plaintiff to the third defendant for £G370. The plaintiff alleged in the statement of claim that there was collusion between the second and third defendants, on the grounds that the property worth £G700 was sold below that price, and that the third defendant, who bought the property, knew that the property had already been pledged to him. Counsel for the plaintiff neither adduced evidence nor argued in support of these grounds and appeared to rely solely on the ground that the sale was wrong in law.
The defendant did not call evidence and submitted that the claim for farm tribute is a claim for ownership, occupation and possession of land and therefore an appeal from the local court lay to the Land Court and not to the district court. Further, that the notice of intention to appeal to the district court was of no effect and, therefore, no appeal was pending before the sale of the farm.
On the issue of whether or not a claim for farm tribute in respect of land is one for ownership, occupation or possession of land, both counsel relied on the case of Adu Kofi v. Chief Kwasi Brentuo.1(1) What this case laid down can be summarised in this way. That where there is a claim for farm tribute and the defendant admits liability then it is a claim for money and not one for ownership,
occupation or possession of land, but where the defendant denies liability then the court should find out what the plaintiff claims and what the defence is, to enable it to decide the nature of the claim. This authority did not lay down a hard and fast
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principle that a claim for farm tribute is a claim for ownership, occupation or possession of land. I find, however, that in claims for farm tribute, where the defendant denies liability, the plaintiff’s title is, in most of these cases, put into issue and this makes those claims, claims for ownership, occupation and possession of land.
I have examined the record of proceedings of the urban council court, exhibit A, and I am satisfied that this was a claim for farm tribute and both the plea of not liable and the nature of the defence show clearly that it was a claim for ownership, occupation and possession of land. An appeal from the decision of the urban council court on this matter therefore lay to the Land Court.
The plaintiff filed the notice of intention to appeal to the district court on the 7th November, 1960, within the statutory period allowed for such notices. Is this notice of intention to appeal to the wrong court of no effect? Regulation 172 of the Local Courts Procedure Regulations 1959 reads, “The filing of such notice of intention shall operate as a stay of execution.” I find that by this regulation, a notice of intention to appeal, once filed, operates as a stay of execution whether or not it relates to an appeal to the proper appeal court. I have come to this conclusion having regard to the proviso in regulation 180 (1) which lays down the procedure to be adopted by an appeal court which has jurisdiction to entertain the appeal before it. The relevant part of regulation 180 (1) reads as follows: “180. (1) An Appeal Court of its own motion as soon as may be convenient after the receipt of the Notice of Intention to Appeal and unless it shall for good cause shewn extend the period of one month within which the requirements of these regulations are to be complied with (which power of extension is reserved to the Appeal Court) shall upon being satisfied that the appellant is not entitled to appeal or that the requirements have not been complied with, order the appeal to be struck out: . . . Provided further that if it appears to the Appeal Court that it has no jurisdiction to entertain the appeal but that some other Court has such jurisdiction it shall not strike out the appeal but shall remit the appeal to such Court which appears to have such jurisdiction which shall thereupon become the Appeal Court for the purposes of these Regulations.”
Under the proviso I find that it was the intention of the legislature to preserve such notices of intention to appeal directed to the wrong appeal court and to allow these notices to operate as a stay of execution until an appeal court under the said proviso in regulation 180 (1) decides to remit the appeal to “such Court which appears to have such jurisdiction.”
For these reasons I find that the notice of intention to appeal filed by the plaintiff operated as stay of execution and the first defendant was wrong in law in going into execution and selling the farm of the plaintiff after the 7th November, 1960. I find, therefore, that the sale of the plaintiff’s farm at the instance of the first defendant is wrong in law and should be set aside.
[His lordship next considered the claims against the second and third defendants. He dismissed these claims and continued:] On the issue of quantum of damages as against the first defendant I find there is no evidence by the plaintiff’s witness P.W.2, the registrar of the urban council court, that the first defendant was informed at the time when he filed his application for a writ of fi.fa. to issue, that a notice of intention
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to appeal had been filed. If the first defendant has been informed and still had persisted in having a writ of fi.fa. issued, the position as regards damages would have been different. For this reason I hold that damages against the first defendant should only be nominal.
On the claim for perpetual injunction I find that so far as the circumstances of the case go, it will not be proper for this court to make such an order for the reason that the plaintiff’s appeal to the district court having been dismissed on the 15th October, 1961, as shown by exhibit D, an order for perpetual injunction will amount to preventing the first defendant in this case going into execution and selling this very same farm again to satisfy the judgment of the urban council court which still stands.
I therefore give judgment for the plaintiff as against the first defendant and hereby set aside the sale of the 12th May, 1961, and award the plaintiff damages of £G25 with costs fixed at £G62 1s. inclusive of counsel’s fee of forty guineas. The claim for perpetual injunction is dismissed.
I dismiss the claim of the plaintiff as against the second and third defendants and enter judgment for each of the defendants with costs.
DECISION
Judgment for plaintiff against first defendant only with costs.
J. D.
