HIGH COURT, CAPE COAST
10 MARCH 1975
EDWARD WIREDU J
CASES REFERRED TO
(1) Government of Ashanti v. Korkor (1938) 4 W.A.C.A. 83.
(2) Anyimah III v. Kodia IV [1962] 2 G.L.R. 1.
(3) Reichel v. Magrath (1889) 14 App.Cas. 665; 59 L.J.Q.B. 159; 54 J.P. 196, H. L.
(4) Watkins v. North American Land and Timber Co., Ltd. (1904) 20 T.L.R. 534, H.L.
(5) Metropolitan Bank v. Pooley (1885) 10 App.Cas. 210; 54 L.J.Q.B. 449; 53 L.T. 163; 49 J.P. 756; 33 W.R. 709, H.L.
(6) MacDougall v. Knight (1890) 25 Q.B.D. 1; 59 L.J.Q.B. 517; 63 L.T. 43; 54 J.P. 788; 38 W.R. 533; 6 T.L.R. 276, C.A.
(7) Blair v. Crawford [1906] 1 Ir. R. 578, C.A.
(8) Amissah-Abadoo v. Abadoo [1973] 1 G.L.R. 490.
(9) Bharwani v. Mansour & Sons [1963] 2 G.L.R. 349.
(10) Mmera v. Achampong [1962] 1 G.L.R. 74.
(11) Boafo IV v. Kuma II (1926) F.C. ‘26-’29, 193.
(12) Sarpong v. Atta Yaw [1964] G.L.R. 419, S.C.
(13) Clissold v. Cratchley [1910] 2 K.B. 244; 79 L.J.K.B. 635; 102 L.T. 520; 26 T.L.R. 409; 54 S.J. 442, C.A.
(14) Marfo v. Adusei [1964] G.L.R. 365, S.C.
(15) Donkoh v. Nkrumah [1964]1 G.L.R. 739, S.C.
(16) Kwabena v Aninkora [1964] G.L.R. 299, S.C.
NATURE OF PROCEEDINGS
APPLICATION invoking the inherent jurisdiction of the court and Order 25, r. 4 of L.N. 140A, to strike out the plaintiff’s statement of claim and to dismiss the action. The facts are fully stated in the ruling.
COUNSEL
J. B. Short for the applicant.
K. Ofosu-Asante for the respondents.
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JUDGMENT OF EDWARD WIREDU J.
The plaintiff-respondent in this action (who shall hereafter be referred to simply as the plaintiff) is described in his statement of claim as a timber merchant resident at Takoradi. The statement of claim further alleges that he is the owner of house No. EF. 109, Assin Fosu, the subject-matter of this action. The first defendant is also described as a merchant living in Cape Coast. The second defendant is the deputy sheriff of the District Court, Grade I, Cape Coast; whilst the third and fourth defendants are respectively, the auctioneer and the applicant herein. The fourth defendant-applicant will for the purpose of this ruling be referred to hereafter simply as the applicant.
The facts of this case which have provoked the present application may be stated as follows: On 25 June 1969, the first defendant obtained a judgment against the plaintiff in the Cape Coast District Court, Grade I, for the sum of ¢490.00. With the judgment unsatisfied, the first defendant caused the disputed house admittedly the property of the plaintiff to be attached for sale under a writ of fi. fa. issued out of the district court. The property was on 30 October 1969, sold at a public auction on the instructions of the second defendant, the deputy sheriff, by the third defendant and the applicant herein (the fourth defendant) was declared the purchaser.
Some time after the sale the plaintiff herein moved the district court under Order 45, r. 31 of Schedule II to the Courts Ordinance, Cap. 4 (1951 Rev.), to set aside the sale complaining of a material irregularity in the conduct of the sale which had caused him substantial injury. Even though the undisputed facts revealed that the plaintiff’s application was brought out of time, the trial magistrate did not appear to have been persuaded by an objection taken against the application on that ground and acceded to the request of the plaintiff and by an order dated 23 February 1970, set aside the sale of the disputed house.
Aggrieved by this order of the district court, the applicant herein successfully invoked certiorari proceedings in the High Court, Accra. The result was the quashing of the proceedings of the district court and the order setting aside the sale of the disputed house. The relevant portion of the ruling of Coussey J. in the certiorari proceedings reads as follows:
“The proceedings of 23 February 1970 show that the respondent in this application was not served with the attachment, and so could not have applied to set the sale aside within 21 days of the sale. The learned magistrate showed a sympathetic view to set the sale aside, but there is no evidence on the face of the record to show that material damage was proved by the respondent. Besides, since the application before the learned magistrate was not made within 21 days, by Order 45, r. 32 the sale became absolute.
I must, therefore, grant the application for certiorari. The proceedings and the order made on 23 February 1970 by the learned district magistrate, District Court, Grade I, Accra, are hereby quashed. Costs of ¢50.00 to the applicant.”
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An appeal to the Court of Appeal by the plaintiff against the above ruling of the High Court was struck out for want of prosecution and a further application to relist the appeal was also dismissed as being unmeritorious.
Having exhausted all legal avenues to have his appeal heard, the plaintiff on 30 May 1974 commenced his present action against the defendants herein for the following reliefs:
(1) Declaration of title to all that piece or parcel of land with dwelling-house No. EF. 109 thereon situate at Assin Fosu in the Central Region.
(2) Recovery of possession of the said dwelling-house No. EF. 109, Assin Fosu.
(3) An order setting aside the said auction sale of the said dwelling-house No. EF. 109 situate at Fosu on 30 October 1969.
(4) Damages for trespass.
The writ was accompanied by an eight paragraphed statement of claim setting out in detail his claim against the defendants. The relevant paragraphs were as follows:
“(3) The plaintiff says that pursuant to a judgment given against him for the first defendant herein, for the sum of four hundred and ninety cedis (¢490.00) on 25 June 1969, the first defendant herein caused formal decree to be served on him (the plaintiff) at a time when he (the plaintiff) was ill and away from Assin Fosu.
(4) The plaintiff avers that an auction notice posted on the walls of his said house was communicated to him at Takoradi and he timeously paid the said judgment debt to the first defendant herein, A. K. Amados, per two cheques for ¢50.00 (fifty cedis) and two hundred and ninety cedis (¢290.00) respectively through his (the plaintiff’s) bankers in October 1969; and again paid the balance due to the first defendant’s wife in the first defendant’s house in Accra on 26 October 1969. The plaintiff says that all the said cheques were cleared by the first defendant.
(5) The plaintiff however says that notwithstanding the said payments and notwithstanding the fact that no notice of attachment was personally served on him, the third defendant acting on the instructions of the deputy sheriff, the second defendant herein, proceeded erroneously to sell the plaintiff’s said house at a public auction on 30 October 1969, while the said premises had been advertised for sale on 27 October 1969.
(6) The plaintiff will contend that no notice was served on him, that the sale on 30 October 1969 while the auction notice had fixed the sale for 27 October 1969, was most irregular and otherwise vitiated the said auction sale; and that the price for which his said house was sold was so low as to savour of collusion between the third defendant, the auctioneer, and the fourth defendant, the purchaser; more so since the said advertisement indicated that no reserve price was fixed. A house worth forty thousand cedis (¢40,000.00) was sold for only two thousand, one hundred cedis (¢2,100.00).
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(7) The plaintiff says that he thereupon took immediate steps successfully to set aside the said sale but an application for certiorari to quash the ruling of the trial magistrate was sustained. The plaintiff’s appeal to the Court of Appeal against the ruling of the High Court was struck out for want of prosecution on 9 January 1974 and the motion to relist same was not granted on 7 May 1974.
(8) The plaintiff says that the said sale conducted by the third defendant, the auctioneer, was most irregular and otherwise wrongful; that since the said notice of attachment was not served on him (the plaintiff) the deputy sheriff too erred and was grossly negligent in ordering the sale. The conduct of the judgment creditor, the first defendant herein; too in failing to advise the sheriff and the auctioneer to stop the sale when he had been paid the judgment debt was wrongful. The plaintiff has therefore suffered great loss and damages, and irreparable injury to his reputation.
Wherefore the plaintiff claims as per his writ of summons.”
On 12 November 1974, the applicant herein through his solicitor, Mr. J. B. Short of Cape Coast, entered an appearance and filed his defence, paragraph (5) of which reads:
“By way of defence, the fourth defendant says that all the matters raised in paragraph (8) of the statement of claim were canvassed in the proceedings mentioned in paragraph (7) of the statement of claim and that, (a) he is in possession of certificate of purchase in respect of the house mentioned in the writ, and (b) the plaintiff is estopped per rem judicatam from bringing this action against him in respect of that property.”
On 1 January 1975, an application was filed on his behalf invoking the inherent jurisdiction of the court and Order 25, r. 4 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A), to strike out the plaintiff’s statement of claim and to dismiss the action on the ground that it was vexatious and an abuse of the court’s process. The facts on which the applicant sought to rely are contained in an affidavit and a number of documents filed to support the application. The affidavit reads as follows:
“I, Anthony Appeatsi of Cape Coast, make oath and say as follows:
(1) That I am the fourth defendant herein.
(2) That a statement of defence in reply to the statement of claim filed in the matter herein has been filed.
(3) That in the defence I submitted that the action herein as against me was unmaintainable.
(4) That in the first place I hold a certificate of purchase in respect of the property, the subject-matter of the action and therefore vis-à-vis the plaintiff my title to the property is unassailable.
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(5) That further, the plaintiff took action to set aside that certificate and I attach hereto a copy of the affidavit sworn to by the plaintiff in support of that application and marked A.
(6) That following the setting aside of the sale, I applied to the High Court, Accra, for an order of certiorari which was granted quashing the order setting aside the sale: I attach a copy of the affidavit filed pursuant to that application, a copy of the affidavit in opposition and a copy of the ruling marked B, C and D respectively.
(7) That the plaintiff appealed against that ruling of the High Court, Accra, and I attach a copy of the grounds of that appeal, marked E.
(8) That the appeal was dismissed for want of prosecution. I attach a copy of the affidavit filed in support of the application to relist, my affidavit in reply thereto and a copy of the ruling of the Court of Appeal, marked F, G and H respectively.
(9) That I am advised and verily believe the same to be true that the plaintiff is estopped per rem judicatam from bringing this action against me.
(10) That at the hearing of this application, I will crave leave to tender certified true copies of the several documents hereto annexed.
(11) That in the circumstances I swear to this affidavit in support of a motion praying for an order dismissing the action herein as against me.”
Arguing in support of the application, learned counsel for the applicant rested his submissions on two main points. He argued firstly that the undisputed facts of this case showed that the plaintiff was the judgment debtor whose property was sold to satisfy a judgment debt against him and that the present applicant having been declared the purchaser and issued with a certificate of purchase by the court in respect of the disputed property, vis-à-vis the plaintiff, the applicant’s title to the said property was unimpeachable. Secondly, Mr. Short argued that having failed on the undisputed facts in his attempt to set aside the sale of the disputed house, the plaintiff was estopped per rem judicatam from re-opening the same subject-matter by a fresh action. Learned counsel referred to the 1960 “White Book.” i.e. The Annual Practice at p. 577 to support his contention that where a party was seeking to re-open by a fresh action an issue already adjudicated upon between the same parties, Order 25, r. 4, could successfully be invoked to stop him. He submitted that the certiorari proceedings in the High Court (which quashed the order setting aside, the sale) operated to estop the plaintiff from maintaining his present action which should be dismissed as being vexatious.
There was no affidavit filed in opposition to the application. Learned counsel for the plaintiff based his opposition solely on points of law. He argued that the application was misconceived. He submitted that the certiorari proceedings on which the defendant was relying to establish a
[p.407] of [1975] 1 GLR 401
plea of res judicata against the plaintiff, merely declared the proceedings which sought to set aside the sale of the disputed house a nullity for want of jurisdiction in the trial court. Learned counsel referred to the affidavit filed by the applicant in support of the application for the certiorari order and the ruling of the High Court, and contended that the ruling having declared the proceedings void the matters in controversy between the parties were re-opened and that the ruling was not a decision upon which res judicata could be founded. Learned counsel for the plaintiff submitted further that granting that the plea of res judicata as canvassed on behalf of the applicant was accepted, it could not operate to estop the plaintiff from his present action to set aside the sale, on grounds of illegality. For authority he cited the case of the Government of Ashanti v. Korkor (1938) 4 W.A.C.A. 83. He therefore contended that the present application was without merit and should be dismissed:
The present application raises for consideration:
(a) the scope and the extent of the application of the inherent jurisdiction of the court to strike out and dismiss actions considered vexatious, frivolous or otherwise an abuse of the court’s process and Order 25, r. 4 of L.N. 140A;
(b) the scope and application of Order 45, r. 31 of Schedule II to Cap. 4 and the extent to which failure of an application brought thereunder operates to bar further proceedings to set aside the same sale, and
(c) the consequences of a sale declared absolute and a subsequent issue of a certificate of purchase under Order 45 of Schedule II to Cap. 4.
We shall now examine in some detail the matters raised above for consideration to see how far the applicant’s case based on them is made out on the facts of this case. First, Order 25, r. 4 of L.N. 140A reads as follows:
“The Court or a Judge may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer, and in any such case or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the Court or a Judge may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just.”
Order 25 as a whole is a procedure of convenience. It is usually invoked along with the inherent jurisdiction of the court to strike out a pleading as an abuse of the court’s process and legal machinery: see Anyimah III v. Kodia IV [1962] 2 G.L.R. 1 and Reichel v. Magrath (1889) 14 App.Cas. 665, H.L. Apart from all rules and orders, the court has an inherent jurisdiction to stay all proceedings before or at the trial which are considered obviously frivolous and vexatious or an abuse of the court’s process. When successfully invoked, the court will dispense with the necessity of calling a whole host of witnesses thereby reducing the cost of litigation. In such cases it will strike out part of an endorsement of a writ, or set aside the service of it or will stay or dismiss before hearing, actions which
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it holds to be frivolous or vexatious: see Watkins v. North American Land and Timber Co., Ltd. (1904) 20 T.L.R. 534, H.L. and Metropolitan Bank v. Pooley (1885) 10 App.Cas. 210, H.L. Under its inherent jurisdiction, the court will prevent a party who seeks to raise anew a question which has already been decided between the same parties by a court of competent jurisdiction: see the “White Book” (1961 ed.) at p. 577. This fact may be brought before the court by affidavit, and the statement of claim though good on the face of it, may be struck out and the action dismissed, even though res judicata might not strictly be an answer to the action. It is enough if substantially the same point has been decided in a prior proceeding: see MacDougall v. Knight (1890) 25 Q.B.D. 1 and Reichel v. Magrath (supra) at p. 667. But if there be a matter of fact fit to be investigated, which the plaintiff is not estopped from proving, the court will refuse to stay action: see Blair v. Crawford [1906] 1 Ir. R. 578 at p. 587, C.A. The appropriate time to invoke the summary process under Order 25, r. 4, is after the close of pleadings or on summons for directions: see Amissah-Abadoo v. Abadoo [1973] 1 G.L.R. 490; Bharwani v. Mansour & Sons [1963] 2 G.L.R. 349 and Mmera v. Achampong [1962] 1 G.L.R. 74.
It is apparently clear from the above analytical examination of the scope and application of the powers of the court discussed above that the propriety of the present application cannot be questioned. It has been brought after the close of pleadings: (see the Mmera case (supra)) and that it seeks to prevent the plaintiff from re-opening a matter allegedly resolved between the parties in prior proceedings: see the MacDougall case (supra).
It is necessary at this juncture to consider the scope and application of Order 45, r. 31 of Schedule II to Cap. 4 to see how far the quashing of the proceedings commenced by the plaintiff to set aside the sale of the disputed property, operates to estop him from maintaining his present action.
Order 45, r. 31 reads as follows:
“At any time within twenty-one days from the date of the sale of any immovable property, application may be made to the Court to set aside the sale on the ground of any material irregularity in the conduct of the sale, but no sale shall be set aside on the ground of such irregularity unless that applicant shall prove to the satisfaction of the Court that he has sustained substantial injury by reason of such irregularity.”
It is a rule of limited and restrictive application. It is also a special remedy provided for a limited class of persons. It can only be invoked by parties to the judgment resulting in the sale: see Government of Ashanti v. Korkor (1938) 4 W.A.C.A. 83. To succeed under it the following conditions must be satisfied:
(1) the application must be made within 21 days from the date of sale; (2) the applicant must prove material irregularity in the conduct of the sale and (3) the applicant must satisfy the court that he has suffered substantial injury by reason of such irregularity: see Boafo IV v. Kuma II (1926) F.C.’26—’29, 193.
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Order 45, r. 31 provides a special remedy for avoiding sales conducted in execution of judgments at the instance of the aggrieved party complaining about material irregularity in the conduct of the sale. The sale remains valid until set aside by the court. It is a distinct and peculiar remedy available to the judgment debtor: see the Government of Ashanti and Boafo cases (supra). When an application brought under Order 45, r. 31 fails or where no such application is made, the sale becomes absolute after the expiration of the 21 days under rule 32 and a certificate of purchase will be issued in favour of the purchaser. Under the above circumstances, the debtor is for ever barred from challenging the sale under rule 31. So in the instant case the plaintiff having had his order setting aside the sale of the disputed property and proceedings initiated for that purpose quashed, is barred forever from re-opening the sale by invoking the remedy provided under rule 31 by a fresh action. In other words he is estopped from raising anew the issue of material irregularity in the conduct of the sale in his present action. Even if the res judicata as pleaded and relied on by the defendant is not the proper answer to this action the certiorari proceedings which quashed the order setting aside the sale helped to render the sale absolute under rule 32. The ruling of the High Court set to rest any proceedings envisaged under Order 45, r. 31 by pushing any further application that could be brought thereafter far outside the permissive 21 days. The plaintiff is therefore estopped in this action from raising the issue of material irregularity.
The above conclusion appears to decide the case against the plaintiff. A critical examination of the plaintiff’s case in the present action however reveals another leg which calls for an investigation into a fresh matter which is distinct and entirely different from the grounds set out under Order 45, r. 31. This is contained in paragraphs (4) and (5) of his statement of claim. In a nutshell, the plaintiff complains in these paragraphs that the sale was illegal because at the time of the sale there was no judgment debt subsisting against him, he having paid the whole of the judgment debt to the defendant. He complains that despite this state of affairs the property was sold. If his allegation were true then on the authority of Sarpong v. Atta Yaw [1964] G.L.R. 419, S.C. the sale was void ab initio and therefore illegal and passes no title notwithstanding the certificate of purchase: see also Clissold v. Cratchley [1910] 2 K.B. 244, C. A.
The case of Marfo v. Adusei [1964] G.L.R. 365, S.C. makes a clear distinction between an irregularity and an illegality in sale either in execution or under a mortgage. In that case it was held as stated in the headnote at p. 365, that, “Whereas an irregular sale may be voidable or give cause for action in damages where substantial injury is suffered by the debtor, an illegal sale is void ab initio and no title passes under it.” Other distinctive features of illegal sale are that unlike a voidable sale under Order 45, r. 31 lapse of time is no bar, title does not pass as it is void ab initio notwithstanding the grant of a certificate of purchase.
I am further fortified in my view expressed above by the following observation of the Supreme Court in Donkoh v. Nkrumah [1964] G.L.R. 739 per Ollennu J.S.C. at p. 745 which reads:
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“Here it must be pointed out that issues raised in complaint that a sale in execution was irregularly conducted are quite different from those in a claim that the sale is illegal; where there are irregularities in the conduct of the sale, the sale is voidable and a special remedy is provided in the procedure regulations for setting the same aside; if the complaint were as to irregularity, the relevant procedure rules would be rules 101 and 103 of the Native Courts (Ashanti) Procedure Rules (Cap. 99, Vol. VIII (1954 Rev.)); on the other hand, a sale conducted without lawful authority is not merely irregular, it is illegal, null and void, and any rights exercised in pursuance of it are wrongful.”
(The emphasis is mine.)
In the cast, of Kwabena v. Aninkora [1964] G.L.R. 299 at p. 308 the Supreme Court had an occasion to discuss the Boafo case (supra) and also made a distinction between an action brought under Order 45, r. 31 and one brought on grounds of illegality and came to the conclusion that the two were separate and distinct. In the course of the judgment this is what the court had to say on the Boafo case (supra) at pp. 308—309:
“In the Boafo case (supra), a judgment debtor moved the court to set aside a sale made in execution. The rules of court regulating a sale in execution provide that such a sale may be set aside at the instance of a judgment debtor if he fulfils each of three conditions: (i) he makes his application within 21 days of the date of the sale; (ii) he proves material irregularity in the conduct of the sale; and (iii) he satisfies the court that he has suffered substantial injury by reason of the sale. See Government of Ashanti v. Korkor ((1938) 4 W.A.C.A. 83). It was proved in the Boafo case (supra) that sufficient notice of the sale was not given, and that is a material irregularity; but that there was no proof of substantial injury. It was held, therefore, that the sale could not be set aside. To put it in other words, a material irregularity in the conduct of a sale in execution makes the sale merely voidable, not void. Until such a sale is set aside, it is legal for all purposes; but the moment it is declared by a court to be void, it ceases to have effect, and a purchaser thereunder will not be protected. The sale in the instant case is being challenged on grounds of illegality, not of irregularity. The contention therefore is that it is void ab initio, not just voidable. Should the court void a sale on grounds of material irregularity, the innocent purchaser for value will not be protected, he will have to surrender the property.”
It is clear from the above cases that a party who unsuccessfully invokes the provisions of Order 45, r. 31 to set aside an irregular sale is not precluded from challenging the same sale on grounds of illegality by another action. On grounds of illegality he makes no complaint against the conduct of the sale neither does he complain of any injury arising therefrom. His sole complaint is that the sale is void ab initio on grounds of illegality and therefore passes no title. He calls into question a new and
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entirely different matter for consideration (which unlike the proceedings envisaged under Order 45, r. 31) he can only maintain by commencing a fresh action to achieve his purpose. The allegation of illegality is a matter of fact fit to be investigated which the plaintiff has never put in issue in any proceedings and it is not one of the grounds envisaged within the language of Order 45, r. 31. The plaintiff therefore is not estopped from proving the same and the court will therefore refuse to stay the action: see Blair v. Crawford (supra).
The present application therefore succeeds in respect of the averments in paragraphs (6) and part of (8) which seek to complain of a material irregularity in the conduct of the sale and the loss suffered therefrom. These are ordered to be struck out from the plaintiff’s statement of claim. The plaintiffs action will therefore be limited to the illegality complained of regarding the sale. Subject to the above observations the application is dismissed.
DECISION
Application upheld in part.
Action to proceed.
