HIGH COURT, CAPE COAST
DATE: 12 APRIL 1967
BEFORE: ARCHER J.
CASES REFERRED TO
(1) Ojuolape v. Benning (1957) 2 W.A.L.R. 253.
(2) Hage v. Quartey and Pappoe (1924) D.Ct. ‘21-‘25, 134.
(3) Okai v. Reindorf (1914) D. & F. ‘11-‘16, 75.
(4) Reindorf v. Marnan alias Simmons (1925) D.Ct. ‘21-‘25, 165.
(5) Addoo v. Crombie Steedman & Co., Ltd. (1925) F.C. ‘26-‘29, 344.
(6) Boafo IV v. Kuma II (1926) F.C. ‘26-‘29, 193.
(7) Government of Ashanti v. Korkor (1938) 4 W.A.C.A. 83.
NATURE OF PROCEEDINGS
APPLICATION by a judgment debtor for an order to set aside the auction sale of his farms on the ground of material irregularity in the conduct of the sale. The facts are sufficiently stated in the ruling.
COUNSEL
E. M. A. Ablorh for the applicant.
I. K. Abban for the respondent.
JUDGMENT OF ARCHER J.
This is a motion on notice by the plaintiff, the judgment debtor, for an order setting aside the sale of his three cocoa farms under a writ of fieri facias. The facts are shortly as follows: On 22 December 1965, the defendant, the judgment creditor, issued a writ of fieri facias to recover the sum of £G539 6s. 6d. being the judgment debt and costs awarded against the plaintiff after an application for stay of execution had been refused by this court on 20 December 1965. The plaintiff applied to the then Supreme Court (now Court of Appeal) and on 14 February 1966, the appellate court made the following order as certified by that court’s registrar:
“(1) £G300 to be paid on or before 31 March 1966.
(2) The balance of £G239 6s. 6d. to be stayed pending the hearing and determination of the appeal.
(3) No order as to costs.”
A proper and true construction of the appellate court’s order is that the plaintiff should pay to the defendant the sum of £G300 on or before 31 March 1966, after which a date the defendant was at liberty to proceed with execution for the sum of £G300 only, execution for the balance of £G239 6s. 6d. being stayed. Before the appellate court had heard the application, the registrar had instructed a licensed auctioneer, Mr. James Kanko Arthur of Winneba to sell the three farms already attached. The auctioneer then advertised the sale on 20 January 1966 indicating that the sale would take place after 21 days in compliance with rule 15 of Order 51 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A). It appears that the sale
[p.205] of [1967] GLR 202
was suspended on the instructions of the High Court registrar as the plaintiff had applied to the then Supreme Court for stay of execution. After 31 March 1966, when the plaintiff had not paid the £G300 as ordered by the appellate court, the auctioneer was instructed to proceed with the sale. On 30 April 1966, according to the affidavit filed by him, the auctioneer issued another notice of sale on 30 April 1966, purposely to invite purchasers and on 16 May 1966, the three farms originally attached were sold by public auction and a gross amount of £G600 was realised at the sale.
The grounds of objection to the sale of 16 May 1966, as disclosed in the affidavit filed by the plaintiff are as follows:
“(a) The sale was made without proper advertisement [as] required by law.
(b) That, inasmuch as the subsequent auction notice which endorsed a sum substantially different from the sum endorsed on the original writ of fi. fa. was not served on the plaintiff, that in itself is a material irregularity.
(c) Since the original auction sale was postponed indefinitely because of the plaintiff’s application to the Supreme Court for stay of execution, the deputy sheriff erred in levying the subsequent execution without fresh notices as required by law and without an order by the court.
(d) The sale could not have been effected on 16 May 1966, since at the time of the sale, the plaintiff had already filed in the registry of the High Court, Cape Coast, a summons to show cause against the defendant, Prah, for the summons of £G260 10s. 6d. and that the sums to show cause should have been heard before any execution could be levied on the property.”
I wish at this stage to rule that I do not think grounds (b) and (d) are tenable. It was not necessary that the subsequent auction notice endorsed with the sum of £G300 ordered to be paid on or before 31 March 1966, should have been served on the plaintiff who was aware that, if he did not obey the appellate court’s order, the defendant would proceed to execution and levy for the sum of £G300 only which sumhad not been stayed. Moreover, the mere fact that the plaintiff had filed a praecipe for the issue of a summons to show cause on 22 March 1966, did not and could not have operated as a stay of execution of the £G300 ordered by the appellate court because the praecipe to the registrar could not override the order of the Supreme Court.
I shall now deal with grounds (a) and (c) which substantially and in effect mean that after the auctioneer had been instructed to proceed
[p.206] of [1967] GLR 202
with the sale after 31 March 1966, he should have re-advertised the sale for a further period of 21 days with effect from 30 April when he issued his notice of sale; in other words, the sale should have taken place some time after 21 May 1966, and not before.
Learned counsel for the plaintiff relied on the decision of Windsor-Aubrey J. in the case of Ojuolape v. Benning (1957) 2 W.A.L.R. 253, where the learned judge held that where a sale under an order of the court is postponed indefinitely by reason of further judicial proceedings then, notwithstanding the fact that public notice of the sale has once been given in accordance with the provisions of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), Order 51, r. 15, an order to proceed with the postponed sale operates to require a re-compliance with the rule so that the sale shall be re-advertised. Learned counsel for the defendant in opposition relied on the earlier decision of Michelin J. in Hage v. Quartey and Pappoe (1924) D.Ct. ‘21-‘25, 134 where the learned judge held that on a re-sale by the auctioneer of property, it is necessary that the provisions of Order 45, r. 28 of the then Rules of Court (now Order 51, r. 15 of L.N. 140A) should be strictly followed notwithstanding the fact that fourteen days’ public notice of the said sale has been given in respect of the first sale; it is necessary that a further similar notice should be given in respect of the second sale, and failure to give such notice is a material irregularity in the conduct of the sale, sufficient to justify the court in setting aside the sale. The defendant’s argument was therefore that re-compliance with Order 51, r. 15 of L.N. 140A was essential in all cases of re-sale and not necessary in cases of indefinite postponement. Both Michelin J. in the Hage case and Windsor- Aubrey J. in the Ojuolape case considered and distinguished the earlier case of Okai v. Reindorf (1914) D. & F. ‘11-‘16, 75. I must confess that I have been struggling for the past few weeks to get hold of this volume of the law reports and to read the full judgment before considering my ruling. I managed to borrow a copy from outside Cape Coast only last a Monday and the non-availability of this volume was responsible for the delay in writing my ruling.
The case of Okai v. Reindorf (supra) was heard by Crampton Smyly C.J. on 21 December 1914, and I have decided to quote in extenso a portion of that judgment. The learned Chief Justice stated at pp. 75-76 as follows:
“[T]he Sheriff’s notice was posted at Nsaba on the 10th of September for the sale to take place on the 25th of September. It did not take place and a further notice was posted at Nsaba on the morning of the 6th [November] the sale actually taking place on the afternoon of the 6th. The facts in dispute are an allegedN
[p.207] of [1967] GLR 202
undertaking by Mr. Sackey the auctioneer to the defendant not to sell before 7th. The grounds of objection to the sale taken are first:
(1) Undertaking not to sell before the 7th of November not carried out.
(2) Apart from any agreement sufficient notice was not given of the sale on the 6th. As regards the first ground a number of affidavits have been filed of such contradictory nature that Counselfor the Defendant considered it useless to argue this ground, and I was unable to see that any useful purpose would be served by having the deponents· cross-examined in Court. On the second ground of objection counsel moved under Rule 31 of Order XLV [45] of the Rules of Court which deals with setting aside sales for irregularity. The irregularity alleged being insufficiency of notice of sale under Rule 28 of the same order, which is to the effect that no sale of immovable property shall be made, until after at least fourteen days’ public notice thereof, unless on the consent in writing of the judgment debtor.
In my opinion this rule was intended to protect the true owner from having a sale of the property made behind his back, and once the notice of sale has been posted for the fourteen days, that this rule does not apply to subsequent postponements. Indeed Counsel for the Defendant changed his position in argument and contended that although the auctioneer was not bound under the rule to give 14 days’ notice, still reasonable notice of the sale was not given for the 6th.” It seems to me therefore that this is the earliest available reported judicial interpretation and construction of Order 51, r. 15 of L.N. 140A;When Michelin J. in Hage v. Quartey and Pappoe (supra) considered Okai v. Reindorf (supra), he distinguished that case on the ground that the principle enunciated bynCrampton Smyly C.J. did not apply to re-sales but to mere postponements of sale. Nevertheless, it appears from the judgment of Windsor-Aubrey J. in Ojuolape v. Benning (supra) that Michelin J.’s judgment in the Hage case was not cited to him and not considered by him. Michelin Ag.C.J. (as be then was), also had another opportunity in following Okai v. Reindorfin the later case of Reindorf v. Marnan alias Simmons (1925) D.Ct. ‘21-’25, 165. See also another judgment of the same Michelin J. in the case of Addoo v. Crombie Steedman & Co., Ltd. (1925) F.C. ‘26-’29, 344 at p. 350, which repeats the principle laid down by Crampton Smyly C.J.
[p.208] of [1967] GLR 202
I shall now attempt to consider the reasons which compelled Windsor-Aubrey J. in Ojuolape v. Benning (supra) to distinguish Okai v. Reindorf. In his judgment at p. 254 Windsor-Aubrey J. stated as follows: “Order 51, Rule 15, does not expressly deal with the necessity for notice when a sale is postponed because of interpleader proceedings, but it does say no sale shall take place without at least twenty-one days’ notice. In my opinion this rule applies to every sale where there has been an indefinite postponement. I realize that the case of Okai v. C.J. Reindorf is against the view I have propounded above, but it is founded on different rules than these in force now so I am not bound to follow it.” It is patent from this extract from the judgment of Windsor-Aubrey J., that he refused to follow Okai v. Reindorf on the simple ground that the decision in that case was founded on different rules prevailing in 1914 when Crampton Smyly C.J. made his ruling. The first question I would like to answer is whether in fact Windsor-Aubrey J.’s reason is true? What were the rules prevailing in 1914 and if so how did they differ from the present Order 51, rr. 15 and 18 of L.N. 140A? The earliest edition of the Gold Coast Ordinance I have seen in the library is that published in 1903 containing court rules in force on 31 March 1903. Volume 1 contains the Supreme Court Ordinance, 1876 (No. 4 of 1876), and the Second Schedule contains the rules in civil causes. Order 45, rr. 28, 29 and 31 read as follows: “28. Subject to the provisions of the next rule, no sale shall be made until after at least four days public notice of the sale, nor in the case of immovable property until after at least fourteen days public notice thereof, unless on the consent in writing of the judgment debtor. Whatever notices are made elsewhere, the said notices shall be made in the town or place where the property to be sold is situated, and if the sale is to take place at any other town or place the said notices shall also be made at the place of sale. 29. The Court may for any sufficient reason increase the said periods of notice in any case or diminish those periods . . .31. 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.”
[p.209] of [1967] GLR 202
Order 17 in the same Second Schedule relates to interpleader proceedings. These were the rules in force as from 31 March 1876. They were repeated word for word without amendment in the revised edition prepared under the Reprint of Statutes Ordinance, 1909, as the court rules in force on 31 December 1909.
The provisions of Order 45, rr. 28, 29 and 31 continued in force when Crampton Smyly C.J. delivered his ruling in Okai v. Reindorf in 1914 and when Michelin J. also delivered the judgments which I have already referred to. When the Ordinance was revised in 1936 by Leslie McCarthy, then Solicitor-General, the same rules were repeated without amendment except that the Order was re-numbered as Order 44 and the rules under consideration remained as rules 28, 29 and 31. When Windsor-Aubrey J. delivered his ruling in Ojuolape v. Benning in 1957 the court rules in force were the Supreme [High] Court (Civil Procedure) Rules, 1954) (L.N. 140A). The Order under consideration had been re-numbered as Order 51; rule 28 became rule 15; rule 29 turned out to be rule 16; and rule 31 had to assume a new number that is 18. The marginal notes speak for themselves. The words of the rules as they were enacted in 1876 were preserved without modification. The only modification in the present rule 15 is that the former period of fourteen days’ notice in the case of the sale of immovable property has been increased to 21 days. There is therefore evidence that the rules have not materially or substantially changed since 1876.
The Supreme [High] Court (Civil Procedure) Rules, 1954 had one important task and that was the introduction of pleadings for the first time in civil proceedings in this country. With the greatest respect therefore to Windsor-Aubrey J. I am not convinced that the reason he gave for refusing to follow Okai v. Reindorf and the basis for the distinction he made are tenable. He might have held genuine belief in what he said but unfortunately I must say right now that I have good and obvious reasons which compel me to refuse to follow his decision. Windsor-Aubrey J. was not a timorous soul on the bench in Ghana because he never hesitated on condemn as pernicious any piece of legislation which was not in the interest of the public, passed after Ghana’s independence. I therefore have great admiration for his judicial valour and independence but unfortunately in the present case I must differ from his pronouncements on the principles involved.
There is also another defect in that judgment. Windsor- Aubrey J. thought that rule 15 amounted to an absolute prohibition, that is, no sale shall take place unless 21 days’ notice has expired, but he seems to have overlooked rule 16 which enables the court to reduce the period of 21 days. Moreover, he did not consider rule 18 which clearly
[p.210] of [1967] GLR 202
provides that: “no sale shall be set aside on the ground of such irregularity unless the applicant shall prove to the satisfaction of the Court that he has sustained substantial injury by reason of such irregularity.” Windsor-Aubrey J. merely set aside the sale because no fresh notice was given which in his opinion amounted to a material irregularity, but he did not go further to consider whether the applicant in that case had suffered any substantial injury. Indeed the judgment itself dismissed the applicant’s evidence as discreditable. At p. 253 the learned judge said: “The applicant alleges that his farm is worth £1,000 and that the absence of proper notice resulted in the farmrealizing only £400. He is not a reliable witness as he says his farm of 12.28 acres has roughly a million trees on it which is manifestly absurd.”
In effect, the applicant in that case failed to prove to the satisfaction of Windsor-Aubrey J. that he had suffered substantial injury but the learned judge did not consider this aspect of the matter at all.
Considering all the cases I have already cited and my refusal to follow the decision in Ojuolape v. Benning (supra), I am of the view that it was not necessary, as a statutory requirement, that the auctioneer in the present case should have re-advertised the sale for 21 days in compliance with Order 51, r. 15. The Supreme Court ordered the applicant to pay £G300 on or before 31 March 1966, in other words, execution so far as the £G300 was concerned was stayed up to 31 March and no longer. If the auctioneer had re-advertised the sale for another 21 days after 31 March 1966, the re-advertisement would have indirectly granted the applicant extension of time after 31 March without an order from the appellate court to the prejudice of the judgment creditor.
Nevertheless, assuming I am wrong in holding that there was no irregularity in the sale and that, on the basis of the principle laid down in Ojuolape v. Benning, there was material irregularity for non-compliance with rule 15, has the applicant proved to the satisfaction of this court that he has suffered substantial injury by reason of such irregularity? I think the applicant has not done so. The affidavit filed by him does not disclose any injury. There is no proof that the three farms were under-sold or that therewas fraud or collusion. Rule 18 clearly forbids the court to set aside a sale unless the applicant has discharged this task of proving substantial injury. The law on this point is settled and I shall not cite too many authorities. In the case of Boafo IV v. Kuma II (1926) F.C. ‘26-‘29, 193, Gardiner [p.211] of [1967] GLR 202
Smith, Michelin and Hall JJ. unanimously held that the applicant has first of all to show that there has been material irregularity in the conduct of the sale, and then has to show further that, by reason of such irregularity, substantial injury has been sustained. This decision was followed by Bannerman J. in Government of Ashanti v. Korkor and was approved by the West African Court of Appeal by its judgment reported in (1938) 4 W.A.C.A. 83.
In conclusion therefore I rule that:
(a) Where a sale has been declared null and void and a re-sale has to take place, then Order 51, r. 15 must be complied with again.
(b) Where a sale has merely been postponed indefinitely, it is not necessary to re-comply with Order 51, r. 15 although it is desirable to give notice (not necessarily 21 days) to the public as a reminder and to invite potential bidders or purchasers.
(c) In the present application, compliance with Order 51, r. 15 for the second time was not necessary and there has been no irregularity, whether material or not.
(d) On the other hand assuming that non-compliance for the second time with Order 51, r. 15 amounted to material irregularity, the applicant has failed to prove that he has suffered any substantial injury as required by rule 18 of the said Order. The application is therefore dismissed. N¢42.00 costs to the respondent.
DECISION
Application to set aside auction sale dismissed.
S.Y.B.-B.
