HIGH COURT, SUNYANI
DATE: 5 JULY 1971
ANTERKYI J.
CASE REFERRED TO
Noel v. Ahuloo (1950) D.C. (Land) ‘48-’51, 264.
NATURE OF PROCEEDINGS
ACTION for an order to set aside the sale by auction of the plaintiff’s farm consequent upon a purported execution of a judgment debt.
COUNSEL
Dr. I. L. Ohene-Djan for the plaintiff.
W.Y. Oppong for the first, second and third defendants.
Awuku Yeboah for the fourth defendant.
JUDGMENT OF ANTERKYI J.
By his writ filed on 6 October 1969 the plaintiff’s claim “against the defendants is for an order to set aside the purported sale of the plaintiff’s cocoa farm … by the second defendant on the alleged instructions of the third and fourth defendants to the first defendant and (2) N¢200.00 damages for trespass.”
[p.348] of [1971] 2 GLR 346
Upon a summons for directions being taken out, the court granted the plaintiff’s application under the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), Order 25, rr. 2 and 3 for an order setting down for hearing and disposal (before trial) the points of law raised in the pleadings, i.e. in paragraph (7) of the statement of claim, and in paragraphs (6) and (7) of the reply to the statement of defence, and paragraphs (2) and (5) of the summons for directions which are substantially these:
“(1) Whether or not L.I. 619 prevented the third defendant from going into execution while appeal is pending.
(2) Whether or not under Order 42, rule 46, the third defendant could lawfully cause the plaintiff’s immovable property to be auctioned without exhausting his movable properties.”
During the hearing of the arguments the following were the undenied facts in respect of which the legal points raised were to be disposed of, after the necessary evidence had been received to establish the facts about dates on which were taken certain steps relative to the proceedings and order and execution arising out of the institution of a civil action before the District Court Grade II, Offinso, entitled “Kofi Badu (the present plaintiff) v. Alfred Kwame Mensah (the present third defendant).”
In the instant case, when after several adjournments the plaintiff had applied to have his action discontinued, the trial court made the following order on 25 March 1969 as appeared at p. 6 exhibit A, certified copy of the proceedings, in the District Court Grade II, Offinso:
“By court: Case struck out for lack of prosecution as per letter for discontinuance with full costs N¢300.00 to cover all costs including the cost awarded for defendant (N¢25.00) on 28 January 1969 with liberty for fresh action. Injunction order is discharged.
(Sgd.) I.K. Marful
District Magistrate Grade II.”
Thus by this order dated 25 March 1969 N¢300.00 costs were awarded in favour of the defendant (the present third defendant).
In connection with this order awarding N¢300.00 costs the plaintiff applied for a review and for a stay of execution. And the notes of the court on Monday, 30 June 1969 on the hearing of this application, as at page 7 exhibit A, were as below:
“Kofi Badu of
Traa/Techiman Plaintiff/Judgment/Debtor/Appellant
Alfred Kwame Mensah
of Aborfua/Afrencho Defendant/Judgment/Creditor/Respondent
Both parties present in court. K.W. Brobby for defendant respondent present. Dr. I.L. Ohene-Djan for plaintiff/appellant absent on excuse.
[p.349] of [1971] 2 GLR 346
By plaintiff: Motion by plaintiff to review costs awarded of N¢300.00 against plaintiff and to stay the execution in this case.
By court: Applicant said the award was wrong vide paragraph (10) of the affidavit, but I say the award is not wrong taking into consideration time taken to come to court with his counsel before the case went to Sunyani and back, cost of sketch plan and the expenses defendant incurred to go with bailiff to Traa including costs awarded to defendant when bailiff filed a wrong motion to review this very case instead of relisting it.
The N¢300.00 costs awarded is therefore not wrong. If plaintiff is not satisfied he should call for a detailed bill of costs, or this present costs should stand.
I cannot stay the execution since no portion of the amount awarded is paid. The execution to be carried on with N¢8.00 for costs to be paid to defendant-respondent forthwith.
(Sgd.) I.K. Marful
District Magistrate Grade II.”
And here was a final decision of the court—it was not an interlocutory decision.
Thereafter, pursuant to a writ of fi. fa. No. 152 dated 22 May 1969 issued at the instance of the defendant-judgment-creditor, the present third defendant, in respect of the costs of N¢300.00 awarded him against the plaintiff on 25 March 1969, a notice of attachment was issued on 22 May 1969 for the sale of the plaintiff’s farm, the subject-matter of his claim in the present suit.
Subsequently on 5 July 1969 the plaintiff filed a notice of appeal—this filing was effected at a time when the property had not been sold by the auctioneer (the present second defendant) to whom the court had entrusted the sale of the farm in question; and therefore the registrar (the fourth defendant in this case) was obliged to instruct the second defendant (the auctioneer) on 7 July 1969 to suspend the sale; and this he did, but after some communication between the registrar (the fourth defendant) and the solicitor of the third defendant (then the defendant-judgment-creditor), the fourth defendant instructed the second defendant (auctioneer) by telegram to sell the farm, and consequently the sale was effected on 16 August 1969.
And the following became therefore the order of the events:
(1) Date of the order awarding the N¢300.00 costs against plaintiff: March 1969; (2) Date of dismissal of application for review of the order: 30 June 1969;
(3) Date of attachment of property: 22 May 1969;
(4) Date notice of appeal filed: 5 July 1969;
(5) Date of the sale of the farm (of the plaintiff-judgment-debtor): 16 August 1969. [p.350] of [1971] 2 GLR 346
For the plaintiff it was contended that the notice of appeal as filed on 5 July 1969 was factually in respect of an appeal from (i) the order for costs of N¢300.00 awarded on 25 March 1969 and as the same time from (ii) the order of dismissal (of the application for review made) on 30 June 1969 and therefore, with the second order, the order dismissing the application for review being also a subject-matter within the notice of appeal, it could not be legitimately stated that the said notice of appeal filed on 5 July 1969 was so filed out of the three-months’ period, if, as it was contended it should be, the calculation of this period be made from 30 June 1969, i.e. from the date of the dismissal of the application for review (of the order for N¢300.00 costs as made on 25 March 1969); and that such period should not be calculated from the date of the order for the costs so as to make the three-months’ period run from 25 March 1969 and thus to result in the notice of appeal having been effected out of time.
Again, on the basis that the notice of appeal was therefore operative as falling within the three-months’ period, it was equally operative in effecting a stay of execution by virtue of the combined result of Order 58, r. 1 and of the High Court (Civil Procedure) Amendment Rules, 1969 (L.I. 619), amending Order 58, r. 7 to run thus:
“An appeal shall operate as a stay of execution or of proceedings under the judgment or decision appealed from except so far as the Court below or the Court may otherwise order.”
Moreover, the facts disclosed that subsequent to the filing of the notice of appeal the registrar (the fourth defendant) had by telegram ordered the auctioneer to suspend the sale, but that he was later obliged to instruct the auctioneer to carry on with the sale upon the advice of the solicitor for the third defendant (as the then judgment creditor) that the notice of appeal had been filed out of time and was therefore inoperative to stay the execution. In this respect, as it was contended, the mere letter to the solicitor could not legitimately be considered to be an effective order of the court setting aside the notice of appeal which, it was contended, was then legally operative to stay the execution in progress; and that the legal mode of nullifying the effect of the notice of appeal was to have it set aside by an order of the court for execution to continue.
Furthermore, under Order 42, r. 46 immovables cannot be attached in execution, as was done in that case, without a prior resort to the movables of the judgment debtor. Finally, as argued by counsel for the plaintiff, the subsequent sale of the plaintiff’s farm by the second defendant (the auctioneer) was in the circumstances invalid in law, and must be set aside.
Counsel for the defendants argued to the contrary by contending substantially that:
(1) The notice of appeal was void as filed more than three months after the date the order for the N¢300.00 costs was awarded; and that this order was not a final order but an interlocutory one.
[p.351] of [1971] 2 GLR 346
(2) That the order for costs of N¢300.00 was even an interlocutory order and therefore the necessary special leave required at that time under Order 58, r. 3 should be sought.
(3) The sale was therefore legally valid on the basis of the nullity of the notice of appeal, and of Order 42, r. 46 being inapplicable in the circumstances in which the farm was sold.
Now, as the sale had in the circumstances already taken place, the question arising, with regard to these points of law being heard, is whether such sale of the farm was void or voidable or valid.
With regard to the contention on behalf of the plaintiff that the sale of the farm was invalid on the ground that Order 42, r. 46 enjoined the judgment creditor in execution to resort to immovables only after a prior unsatisfactory execution levied on the debtor’s movables, I do uphold the argument of Mr. Oppong for the defendants that the instant rule would be enforceable only if it was proved that the judgment creditor had known of the existence and whereabouts of the debtor’s movables, and that as there had been no available evidence in proof of such knowledge the rule had no application. The supporting case cited did receive the attention of the court, i.e. Noel v. Ahuloo (1950) D.C. (Land) ‘48-’51, 264 at p. 266.
Now it was the contention for the plaintiff that, by the notice of appeal, what was being appealed was both the order awarding the costs of N¢300.00 on 25 March 1969 and the order dated 30 June 1969 dismissing the application for review (of the award of the costs), and that, therefore, the calculation of the statutory three-months’ period for appeal could not legitimately start from the date of the order of costs, but from the date of the dismissal of the application for review, i.e. from 30 June 1969; and that on this basis, as it was further contended, notice of the appeal was filed within the three-months’ statutory period.
But while I disagree with Mr. Oppong for the defendants in his contention that the order for the N¢300.00 costs was an interlocutory order, but holding that it was a final order, I cannot uphold the above contention for the plaintiff, for the following reasons: Whether or not the notice of appeal operated on the order dismissing the application for review, that application had a direct relation to the order awarding the costs of N¢300.00; and as the dismissal order was also being appealed by means of the very notice of appeal, the pivot of the resultant appeal itself was the order for the costs of N¢300.00. And it must hereby be pointed out also that the appeal incidental to the refusal order (in connection with the application for review) was in itself a nullity for want of the basic grant of special leave under Order 58, r. 3 (1), an interlocutory order as that refusal order was.
And I hold that, upon the dates given above, the notice of appeal was filed out of time and upon no prior grant of an enlargement of time. And, at this juncture, the controversial legal issue is what was the effect of the filing of the notice of appeal thus out of time on 5 July 1969, if it had any effect at all, on the execution then in progress. The salient points arising immediately for consideration upon the basis that
L.I. 619 was then operative are:
[p.352] of [1971] 2 GLR 346
(i) the time within which to appeal from a final decision or order or judgment, but this is undoubtedly a period of three months from the date of such final order or decision or judgment, as stated under order 58, rr. 1 and 3 (1);
(ii) the time within which a judgment debtor is liable to execution in the event of such a judgment, order or decision and this, by Order 42, r. 22 (a), is six years since the date of such judgment, order or decision.
And the crucial questions now arising are what the respective effects are of a notice of appeal, which is filed after the expiration of the statutory period for appeal, upon execution which had commenced before such notice of appeal was thus filed out of time, at a time (i) before L.I. 619 came into operation, and (ii) during the operativeness of L.I. 619, with regard to the issue of stay of execution.
At this stage it is pertinent to observe that the effect of L.I. 619, which became operative as from 25 April 1969, was to amend Order 58, rule 7 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), to read:
“An appeal shall operate as a stay of execution or of proceedings under the judgment or decision appealed from except so far as the Court below or the Court may otherwise order.”
From the outset it must be borne in mind that in the present case the plaintiff (as appellant) was appealing against the order for costs (made on 25 March 1969 at which time L.I. 619 was not in operation) by means of the notice of appeal filed on 5 July 1969, at a time when the statutory three-months’ period allowable for appeal had expired, and at a time when L.I. 619 was in operation.
Before L.I. 619 became operative on 25 April 1969 a notice of appeal when filed had no bearing on execution, and the appellant would have to file at his pleasure an application for a stay of execution for it to be heard on its merits. The application for stay of execution could be filed at any time, once execution has not already taken place within the provisions of Order 48, r. 22.
With the operation of L.I. 619 a notice of appeal when filed carried a dual effect of (1) entering an appeal from a decision or judgment or order, and of (2) having the legal effect of an order of the court staying execution.
And, in this regard, it was the contention of counsel for the defendants that, once the notice of appeal was filed outside the statutory three-months’ period for appeal, it was void and of no effect and therefore it could not be effective to stem the execution then in progress, short of being a basis for exercising the appellant’s right of appeal.
But, in the view of this court, distinction must be made between a case in which a decision of the court is by statute not appealable at all, and one in which the decision is appealable. In the one case, as no right of appeal exists upon the decision, a notice of appeal, whenever it is filed, is void ab initio—it is a nullity—since it has no prior legal basis of a right
[p.353] of [1971] 2 GLR 346
of appeal vested in the purported appellant. In the other case, whenever a notice of appeal is filed after a decision it is prima facie valid, because the filing thereof had the prior legal basis of the right vested in the appellant to appeal against the decision; and, therefore, after it has been filed upon the expiration of the statutory period allowed for appeal, the notice of appeal becomes merely voidable, and it thus stands prima facie valid; and it stands prima facie valid for all the purposes for which it was filed; as, in those circumstances, it is voidable, it is only liable to be set aside by means of a court order upon an application disclosing any of the defects covered by the provisions of Order 58, rr. 1-3.
And therefore in the present case the notice of appeal, which was clearly filed out of time and without a prior order of an enlargement of time, did stand prima facie valid and was only liable to be avoided on the ground that it was not duly filed within the three-months’ statutory period. And if it had been so avoided, such avoidance would have been fatal to the dual purpose for which it stood prima facie effective, i.e. (i) the purpose of prosecuting the appeal and (ii) the purpose of staying execution. Hence, when (in this case) the notice of appeal was so filed, the registrar acted properly by firmly ordering the second defendant (auctioneer) to suspend the sale. But it was unfortunate that the registrar was subsequently swayed off his anchorage by the mere advice of the solicitor for the judgment creditor, and that consequently by a second telegram he instructed the second defendant (the auctioneer) to proceed with the sale, and that the farm attached was eventually sold.
It is clear that at the time of the apparent sale the statutory effect of L.I. 619 was that by the filing of the notice of appeal the execution is legally deemed to be stayed, and therefore it could not legally have proceeded merely upon the second telegram of the registrar without a basic order of the court authorising the sale.
The execution as commenced was legally valid, and had proceeded in that state until its progress was stopped by the effect of the registrar’s telegram to the auctioneer instructing him to suspend the sale, upon the legal basis that the notice of appeal had been filed. And the execution became void ex post facto when it resumed its progress from the time the auctioneer received the registrar’s second telegram instructing him to proceed with the sale, when at that time the notice of appeal had not been set aside by a court order.
In the result I find, upon the arguments on the points of law raised, that there was no sale in law, and that the purchaser (first defendant) bought therefore airy nothing, the execution resulting in the sale, after the filing of the notice of appeal, being thus void ex post facto.
DECISION
Judgment for the plaintiff.
Sale declared void.
S. A. B.
