HIGH COURT, KUMASI
DATE: 15 AUGUST 1967
BEFORE: ANNAN J.
CASES REFERRED TO
(1) Cramer v. Murphy (1887) 20 L.R.Ir. 572.
(2) Edge v. Kavanagh (1888) 24 L.R.Ir. 1.
(3) Government of Ashanti v. Korkor (1938) 4 W.A.C.A. 83.
(4) Okai v. Reindorf (1914) D. & F.’11-’16, 75.
(5) Afutu v. Stavely & Co., Ltd. (1923) F.C. ‘23-’25, 30.
(6) Ojuolape v. Benning (1957) 2 W.A.L.R. 253.
(7) Kwabena v. Aninkora[1964] G.L.R. 299, S.C.
NATURE OF PROCEEDINGS ACTION
by a judgment debtor for, inter alia, a declaration that the auction sale of his property was null and void because of material irregularity in the conduct of the sale. The facts are sufficiently stated in the judgment.
COUNSEL
H. W. Kofi Sackey for the plaintiff.
Mensah-Bonsu for the defendants.
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JUDGMENT OF ANNAN J.
The plaintiff’s claim is for:
(1) A declaration that the sale by public auction on 16 September 1963 of the property situate at plot No. 24 Block P, Ayigya, Kumasi (formerly known as Plot Nos. 2, 3, 4, and 5 Ayigya, Kumasi) to the third defendant by the second defendant at the instance of W. Bartholomew & Co., Ltd. of Kumasi, the predecessors of the first defendant is void and of no legal effect whatsoever.
(2) Damages for the said unlawful sale.
(3) An order for the defendants to account to the plaintiff for all the rents which have accrued out of the said house from 16 September 1963 until the date of judgment.
(4) An order for the defendants to return to the plaintiff the furniture, fittings and fixtures in the said house and for damages for the wrongful use of the said furniture, fixtures and fittings.
The action arose as a result of the sale by public auction under a writ of fi. fa. of the premises described in the writ together with certain movables in it consisting mainly of various items of furniture. The sale was at the request of the predecessors of the first defendants and the property was sold by the second defendant, a licensed auctioneer, on the instructions of the deputy sheriff and was bought by the third defendant. The predecessors of the first defendant had obtained judgment against a partnership company, Messrs. Fattal and Madjoub, of which the plaintiff was a member, in the sum of £G1,350 with costs of £G46 3s. on 28 November 1960 and in the execution of that judgment applied to the deputy sheriff to seal a writ of fieri facias against Messrs. Fattal and Madjoub. The papers submitted to the deputy sheriff consisted of the praecipe, the writ of fi. fa. and the particulars of the property required to be attached. Before the sale, the deputy sheriff gave public notice for the statutory period, but on the advertised date of the sale, i.e. on 2 September 1963, the auctioneer, the second defendant, postponed the sale from that date to 16 September 1963 and the sale took place on the latter date when the building with the furniture in it was knocked down to the third defendant for £G2,750. There is no dispute that the entire interest of the partnership company in the premises and its contents were sold at one go by the second defendant to the third defendant. The praecipe submitted to the deputy sheriff by the solicitors for the judgment creditors was in the usual terms and requested him to “seal a writ of fieri facias directed to the deputy sheriff, Kumasi, against the defendants-judgment-debtors Messrs. Fattal and Madjoub . . .” The writ which accompanied the praecipe, was that [p.557] of [1967] 554used for execution in a case of movable property and the form appropriate for use in the case of immovable property or both types of property was not used by the solicitors for the judgment creditors and there was no amendment of the writ before it was sealed. However, in the particulars attached to the writ, the solicitors described the property to be attached under the writ as:
“All and singular the right title and interest of the defendants-judgment-debtors Messrs. Fattal and Madjoub in the premises situate and known as Plot No. 24 Block P Ayigya formerly plots Nos. 2, 3, 4 and 5 Ayigya, Kumasi.” The property itself is a leasehold property and in the year of the sale, had an unexpired term of 41 years at an annual rent of £G40.
At the date of the judgment and the sale, the partnership had been dissolved and it appears that by virtue of the dissolution agreement the plaintiff took over the branch of the partnership business in Kumasi and assumed responsibility for the payment of the liabilities and the collection of assets of the company in Kumasi. The dissolution agreement—exhibit B—is dated 19 August 1960.
In this action the plaintiff challenges the sale on three grounds:
(1) That the writ of fi. fa. issued by the predecessors of the first defendant was for the attachment of movable properties and that the sale of the immovable property described in the particulars attached to the writ of fi. fa. together with the movable property was null and void and of no legal effect whatsoever.
(2) The plaintiff contended furthermore that the property was sold at an undervalue and that there was a material irregularity in that, the sale was postponed from 2 September 1963 to 16 September 1963 without fresh advertisements being posted.
A considerable volume of evidence was led by both sides in regard to the value of the building at Ayigya and of the furniture in it. The house was built between 1956 and 1957 for the partnership company by the construction company of the third defendant and the agreed cost of the building was £G4,196 although the final cost went up to something nearer £G5,000 than £G4,000. The value of the furniture was put variously at £G2,098 10s. by the plaintiff himself as per exhibit L, which was put forward as an inventory made in 1961 when the premises were first let to the Kumasi College of Technology, and at £G800 to £G1,000 by his witness, Mr. Forson and at £G1,200 to £G1,300 by Mr. Akoto another of the plaintiff’s witness. On the other hand, the defendants’ witness, Mr. Adu-Asa,
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who seems to me to be the most competent to express an opinion on this matter, put the value at £G1,000 in 1963.
I will first deal with the plaintiff’s claim under the second head, namely, the question raised by him in the amended statement of claim as to undervalue and postponement. On the evidence it has been clearly established that the premises were sold at £G2,750 in 1963 and that the building alone cost between £G4,000 and £G5,000, quite apart from the land and the furniture, and whatever figure is finally accepted for the price of the land (the plaintiff put it at over £G800) and the furniture, it is quite clear that the price of £G2,750 realised at the auction was substantially below the original cost of the building and furniture and it may well be that the premises did not fetch such a price as might have been expected or obtained. I will, however, observe at once, that the position at law seems to me to be that although it is the duty of the sheriff and his agents to sell for a reasonable price and in that regard not to conduct the sale so as to prevent the property fetching a reasonable price yet it has been held that he can sell at any price if the goods have been properly advertised and there is no negligence: see Halsbury’s Laws of England (3rded.), Vol. 16, p. 57, para. 88, note (i)—and Cramer v. Murphy (1887) 20 L.R. Ir. 572. Again there is authority for the proposition that the proper course, if an adequate price cannot be obtained at the sale, is to adjourn the sale to a named day: see Edge v. Kavanagh (1888) 24 L.R. Ir. 1 at p. 5; and see Cramer v. Murphy (supra) where there were two adjournments. There is also the case of Government of Ashanti v. Korkor (1938) 4 W.A.C.A. 83, wherein the judgment of Bannerman J. which was set out in full, was approved in no uncertain terms by the West African Court of Appeal, at p. 86, “upon all points” and one of these points was in respect of a claim to have a sale set aside because the property was sold at an undervalue. In his judgment Bannerman J. at p. 85 had no difficulty in dismissing this aspect of the claim as follows: “I hold that this is no ground for setting aside a sale . . .” and he relied on the earlier cases of Okai v. Reindorf (1914) D. & F. ‘11-’16, 75 and Afutu v. Stavely & Co., Ltd. F.C. ‘23-’25, 30.
On the authorities I am in no doubt, and I so state it, that a claim to set aside a sale by the deputy sheriff in execution of a judgment cannot succeed if the sole ground of complaint is that the property was sold at an undervalue. It is also my view that a sale at an undervalue cannot be relied on as any evidence upon which a case of material irregularity, in terms of Order 51, r.18 of the Supreme[High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), could be based. On the other hand a sale at a value substantially less than that which the property could reasonably have fetched, could afford
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evidence of substantial injury and where such injury was sustained by an applicant “by reason of” a material irregularity, the relief provided by the rule 18 should be available to him. With regard to the question of postponement, which is the case of irregularity relied on by the plaintiff, the undisputed evidence shows one postponement for a period of two weeks from 2 September 1963 to 16 September 1963. The subsequent sale was advertised in two issues of the Daily Graphic—see exhibits 6A and 6B—for 13 and 14 September 1963 respectively and before then the second defendant had announced the subsequent date to the persons present on 2 September 1963. The plaintiff contends however that the subsequent sale should have been re-advertised for the full statutory period of 21 days and in the manner laid down by Order 51, r.15, and reliance was placed on the judgment of Windsor-Aubrey J. in Ojuolape v. Benning (1957) 2 W.A.L.R. 253. Upon a careful analysis of this contention, and the argument and judicial decision in support of it, I am unable to accept it and I feel bound to dismiss that contention as not well-founded. As Windsor-Aubrey J. pointed out in his judgment, r. 15 is silent as to the length of notice that needs be given when a sale is postponed and he stated that at any rate in the case of a postponement from day to day, fresh notices need not be issued. This is obviously the reasonable view to take and the question I have asked myself is whether in principle, there is any justification for taking a different line in the case of a postponement longer than one day, but for a short duration and to a definite and announced date and I am constrained to answer this question in the negative. In Ojuolape v. Benning (supra) the postponement was indefinite and there were interpleader proceedings during the period before the sale took place. That case is obviously distinguishable from the case where the sale is adjourned to a definite date. I do not think there is any merit in an argument based on the application of r. 15 to the case of every postponement longer than a day and it seems to me that whenever there is a postponement of a sale previously advertised under Order 51, r. 15 to a definite date, the question whether or not fresh notices should be posted and the length of such notice, should properly depend on the circumstances of each case, and such circumstances would includenthe duration of the postponement and the reason for the postponement, i.e. insufficient number of bidders present at the sale.
In the present case the postponement was to a named day two weeks later and the subsequent date was advertised. I have no difficulty consequently in coming to the conclusion that the advertisement wasproper and sufficient and that there was no material irregularity on the grounds of the postponement andNadvertisement.
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The first head of the plaintiff’s claim is based on the nature of the writ of fi. fa., and the procedure adopted in the sale of the property. The writ was for movables and under it both the building and its contents were sold at one go and in one lot. Was the sale illegal or irregular? Certainly the sale was at the very least irregular and the irregularity to my mind is material. This is so for the reason that the building was sold under a writ which commanded the sale of movables only and could not therefore be relied upon to support a sale of immovable property. Apart from irregularity, does this fact enable the plaintiff to vitiate the sale on grounds of illegality? I think not, as I am of the opinion that the use of the wrong form by the solicitors of the judgment creditors, though irregular is not so serious a defect as to deserve condemnation as an illegal act. With regard to the sale of both the movable and immovable property at the same time it seems to me that the clear intention of Order 42, r. 46 of L.N. 140A at the time when it was made, was (to quote the language of Ollennu J.S.C. in Kwabena v. Aninkora [1964] GLR 299 at p. 306, SC) that it “authorises the bailiff, by virtue of that common law process, to seize movable property, if there is a reasonable amount of such property sufficient to meet the debt and his costs; and that he can only resort to attachment of immovable property . . . where the movable property is not enough to satisfy the debt.”
Is a breach of rule 46 of Order 42 a case of material irregularity or illegality? I think the case ought properly to be considered as one of irregularity and I think the judgment in the Aninkora case supports this view. Was there a breach of this rule in the present case? The answer to this question depends on whether the judgment debtors had sufficient movable property “within the Judicial Division in which the judgment was issued [to] satisfy [the] debt” at the date of the sale. The difficulty in construing rule 46 is that the judicial divisions in relation to which the rule was made have been swept away by the Courts Act, 1960 (C.A. 9), and the Courts Decree, 1966 (NLCD 84), and such judicial divisions no longer exist. What then is the effect of rule 46 in the context of the legislation of today? Clearly the rules of court were saved generally by both the Courts Act, 1960, and the Courts Decree, 1966 but their application was made subject to such necessary modification as may be found convenient: see paragraph 88 (2) of NLCD 84—and it seems to me that the view could well be taken that rule 46 can have no significant effect today. Be that as it may, I have come to the conclusion that the evidence before me does not justify a finding that the judgment debtors had sufficient movable
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property in the premises at Ayigya or elsewhere to satisfy the judgment debt and costs of the judgment creditors. In coming to this conclusion I have taken into consideration the conflict in the evidence both as between the plaintiff and his witnesses and as between the plaintiff and the defendants’ witness, Mr. Adu-Asa. Indeed, in all that welter of evidence as to the value of the movables I have found it difficult to accept any of the figures of over £G2,000 (given by the plaintiff), £G2,500-1,300 or £G800 to £1,000. I should have been disposed to accept the figure of £G1,000 given by Mr. Adu-Asa but then that figure is not of any real assistance since he lived in the premises after the sale when the third defendant had become the new landlord and it is admitted by the witness for the plaintiff, Mr. Akoto, that the third defendant repaired the furniture before the university took the premises from him.
But then I am further of the opinion that even if the plaintiff had been able to establish a materialirregularity, based on either the postponement and the extent of the subsequent advertisement or breach of Order 42, r. 46, he would still have failed because there is no evidence to show that he has suffered any substantial injury by reason of such irregularity; and this defect in his case applies equally to the other irregularity based on the form of the writ of fi. fa. used by the solicitors for the judgment debtors.
The question is, has it been shown, on the balance of probabilities that the plaintiff has sustained substantial injury by reason of:
(a) the sale of his immovable property under a writ of fi. fa. which commanded the sale of movable property only? or
(b) the sale of his movable property together with the immovable property? or
(c) the postponement and the length of notice of the sale?
In other words, do the probabilities of the case show a real likelihood that the low figure realised at the sale or to put it another way, the fact that a higher figure was not realised, was due to any such irregularities? The judgment debt and costs amounted to £G1,396 3s. The value of the movables has been put at figures varying from £G1,000 to over £G2,000. Was there any real likelihood that these items would have fetched anything in the region of £G1,000 if they had been sold separately? As I have indicated earlier the evidence of the value of the furniture is rather unreliable and I am satisfied that that evidence does not show any reasonable probability that the movables on the premises could have fetched a sufficient price if sold separately to meet the judgment debt and costs. In these circumstances, I have come to the conclusion that the evidence does not establish a case of substantial injury within the terms of rule 18 of Order 51 of L.N. 140A. But then even if there had been a case of [p.562] of [1967] 554
substantial injury made out the plaintiff would in any case have failed since the sale took place in 1963 and his writ was taken out four years later. In the result I hold that the plaintiff has failed to establish his claims and the action must fail and judgment is entered for the defendants with costs of N£200.00 inclusive to the defendants.
DECISION
Action to set aside auction sale dismissed.
S.Y.B.B.
