Division: IN THE SUPREME COURT
Date: 29TH JUNE, 1964
Before: OLLENNU, ACOLATSE AND APALOO JJSC
JUDGMENT APALOO JSC
Apaloo JSC delivered the judgment of the court. The facts which the learned trial judge found and which were quite ineffectively challenged in this appeal are briefly as follows: The respondents are the joint-owners of house No. D27 Duayaw-Nkwanta. At some time prior to May 1962, they jointly raised a loan of £G80 from a man called Kofi Nyamekye who was the first defendant at the trial (but did not join in this appeal). The respondents did not repay the loan when the time for repayment fell due. Accordingly, the said Nyamekye instituted an action against them in the Bechem Local Court. This was in May 1962. The respondents did not defend the action and the local court accordingly gave judgment against them for the sum claimed with assessed costs of £G31 4s. 6d. In execution of that judgment, Nyamekye applied for a writ of fi. fa. to attach the house in question. This was duly issued. A copy of the notice of attachment was served on the respondents. On receipt of this, they took fright and quickly raised a loan of the £83 14s. 6d. from one Asamoah Kofi, alias Kekyere. With this loan, they paid the judgment debt and costs to the said Nyamekye on 25 June 1962. About two weeks after the judgment was satisfied, namely, 9 July 1962, the house in question was sold by public auction by a licensed auctioneer called Effah (who was the second defendant at the trial but did not join in this appeal). This sale was made in the purported satisfaction of the judgment debt and costs which had been paid about two weeks previously.
The learned trial judge also found, rejecting the evidence of Nyamekye that the latter did not inform the registrar of the local court of this payment and did not instruct him to stop the projected sale of the respondents house. Accordingly, he awarded damages against the said Nyamekye for trespass and proceeded to set aside the aforesaid sale. The appellant, who purchased the house at the said auction and who was sued as the third defendant in the court below, was adjudged not to be liable in damages to the respondents because, as the learned judge said, she was merely a purchaser at an auction sale and was not shown to have been in collusion with Nyamekye. Accordingly, the judge dismissed the action against her with costs.
The appellant feeling aggrieved by that part of the judgment which set aside the sale, appeals to this court on a number of grounds, only two of which were argued. The first ground of appeal argued before us reads as follows: “The learned trial judge having dismissed the action of plaintiff as against the second and third defendants could not properly set aside the sale and the order setting aside the sale was erroneous.” On this ground, counsel for the appellant, referred us to that part of the judgment in which the learned trial judge found that although he received the judgment debt and costs in full, Nyamekye failed to notify the local court registrar of this fact. Accordingly, counsel submitted, the latter who was acting as the sheriff did not revoke his authority to the auctioneer. Counsel therefore contended that as the authority
to sell was not countermanded, the sale was lawful and passed good title in the house to the appellant, who counsel said, was on the learned trial judge’s finding, a bona fide purchaser for value without notice. Counsel for the appellant referred us to Bassil v. Serwah1 and Quartey
Papafio v. Laryea.2
In my opinion, both these cases are plainly distinguishable from the instant case. The Bassil case (supra) decided that where property is conveyed to a mortgagee who in the exercise of his power of sale, authorised an auctioneer to sell, the sale would be binding on the mortgagor, if at the time of the sale, the auctioneer’s authority was not revoked or if revoked, such revocation was not communicated to an intending purchaser. The Quartey Papafio case (supra) decided that where a man bought property under a writ of fi. fa. issued by a court of competent jurisdiction, the purchaser’s title was not affected by a subsequent vacation of the judgment under which the fi. fa. issued on appeal. Counsel for the appellant also referred us to the case of Pilcher v. Rawlins.3 That case merely emphasises the rights of a bona fide purchaser for value without notice. Whether the appellant is a bona fide purchaser for value or not does not seem to me to matter a great deal. The real question to be decided in this appeal is whether a sale in
execution after the payment of a judgment debt is valid and passes good title to a purchaser.
The only object of putting the sheriff in motion in execution proceedings is to get the judgment satisfied. But if the judgment has already been satisfied, then the execution can serve no purpose. Since the execution often involved the seizure and sale of property, it must, if it has no object, be in the nature of things unlawful. It can, in my judgment, only be lawful if it has the shelter of the law and such shelter would be withdrawn if its object ceases to exist. If this matter had fallen to be decided as of principle without the aid of authority, I should, for my part, be prepared to hold that a sale of property in execution of a satisfied judgment was void and passed no title to the purchaser whether the latter be bona fide or otherwise. True, this may cause great disappointment and possibly, hardship to purchasers in some cases, but people who speculate in the purchase of property put up for sale by the sheriff invariably take a
certain amount of risk and must take the consequences of the sale turning out to be invalid.
But the matter is really set to rest by authority. In Clissold v. Cratchley,4 a solicitor who had an office in London with a branch office in the country, sued out in London a writ of fi. fa. upon an order for costs with a direction to the sheriff to levy the amount of the debt. Unknown to him, three hours before the fi.fa. issued, the money was paid in his branch office and was duly received by a clerk who had authority to receive the same. When the execution was levied on the plaintiff’s goods, the solicitor became aware that the debt had in fact been paid before the writ issued. He therefore immediately withdrew the execution. In an action against the solicitor and his client on the case to recover damages for improperly levying execution and in the alternative for trespass, the English Court of Appeal, reversing the Divisional Court, held that the defendants were liable in trespass. Vaughan Williams L.J. who delivered the leading judgment of the court said inter alia5 “But common sense, wholly apart from authority, tells one that, when the total amount has been paid which is ordered by a judgment to be paid, the judgment ought no longer to be of any force or effect. But, as it has been argued that a writ of execution is good so long as the judgment under which the moneys have been paid has not in law been set aside, it is convenient to shew the authority for the proposition that, when the total amount of a judgment debt has been paid, the judgment ceases to be of any avail… If the judgment was not an existing judgment, it is manifest that the writ of execution issued under it was void ab initio, and that an entry has been made upon the plaintiff’s premises under a writ void ab initio.”
In the same case Fletcher Moulton L.J. expressing his concurrence with Vaughan Williams L.J. said inter alia6
“The sole defence relied on is that there was an order for payment of costs which was equivalent to a judgment, and that a writ of execution was sued out, under which the defendants acted. The plaintiff replies that (as is now admitted to be the case) prior to the suing out of the writ the order had been obeyed. I am satisfied that in this state of things the order was dead for all purposes, and that the suing out of a writ of execution under an order which had already been obeyed was an act void ab initio and could justify nothing.”
In Cubitt v. Gamble,7 the principle that a person who issues execution for a debt after payment is liable for trespass was carried further and was held to apply also in cases where instead of payment, there has been an effective and valid tender of the amount of the debt.
In the instant case it would seem that the writ of fi. fa. was issued out on or about 4 June 1962. On that day, the registrar of the local court authorised the auctioneer to sell the house in question by public auction to satisfy the judgment debt and costs. The learned judge found that the judgment was fully satisfied on 25 June. It follows that the writ of fi.fa. spent its force on that day and to use the words of Fletcher Moulton L.J., became dead for all purposes. Accordingly, the sale conducted on 9 July on the strength of it was absolutely void and passed no title to the appellant. Her bona fides is wholly immaterial to the issue. In my judgment, the learned trial judge was right in setting aside that sale. It follows that the first ground of appeal fails.
The last and only other ground of appeal which counsel for the appellant argued with manifest diffidence was: “The learned trial judge erred in holding that the negative evidence of Kekyere helped to resolve the doubt in his mind as to whether the amount was paid before or after the sale.” It was submitted on this ground that there was insufficient evidence to justify the finding of the learned judge that the judgment debt was paid before the sale took place and that in any event the evidence of the plaintiff as to his payment was in conflict with some of his witnesses.
In my opinion, whether the judgment debt was paid before the sale took place or not was an
extraordinarily simple question of fact. In addition to the evidence of the plaintiff, his first witness said in cross-examination, “I know the judgment debt had been paid fully. It was paid in my presence in the room of the first defendant at Duayaw-Nkwanta on 25 June 1962.” The fact of this payment on the said date, was completely clinched by the evidence of the appellant’s witness Kekyere. He said in chief: “Atta Yaw my brother came to inform me about this amount and I went with him to pay it on 25 June 1962.” In view of the unanimity of the witnesses on the fact and date of this payment, it is difficult to see how the learned judge could have found otherwise. In my opinion, there is no substance in this ground of appeal. I hold that this ground of appeal also fails and with it the entire appeal.
DECISION
Appeal dismissed.
T. G. K.
