HIGH COURT, KOFORIDUA
Date: 25 APRIL 1974
QUASHIE-SAM J
CASES REFERRED TO
(1) Okai v. Reindorf (1914) D. & F. ‘11 -’14, 75.
(2) Hage v. Quartey and Pappoe (1924) D. Ct. ‘21 -’25, 134.
(3) Reindorf v. Marnan alias Simmons (1925) D.Ct. ‘21-’25, 165.
(4) Ojuolape v. Benning (1957) 2 W.A.L.R. 253.
NATURE OF PROCEEDINGS
APPEAL against the decision of a district court setting aside an auction sale on the grounds of insufficient notice contrary to section 14 (1) of Cap. 196.
COUNSEL
Nyarnor for the auctioneer.
Asante Tannor for the judgment debtor.
JUDGMENT OF QUASHIE-SAM J
This is an appeal against the decision of a district court grade I dated 19 August 1971 setting aside an auction sale on the grounds of an alleged irregularity.
It is necessary to show the background of the matter. On 29 April 1971 the plaintiff, Kardi Fulani, obtained judgment against the defendant, Beatrice Ankrah, for the sum of 0510.00 with 030.00 costs. This was on
[p.364] of [1974] 1 GLR 363
the admission of liability for the debt by the defendant. At the instance of the plaintiff the house of the defendant was to be sold under a writ of fi. fa. issued under the order of the court in execution of the said judgment debt and costs. The sale was entrusted by the deputy sheriff of Koforidua to Mr. Fred Obodai Torto, a licensed auctioneer.
It is conceded by the defendant judgment debtor that several notices for the impending sale were issued by the auctioneer, but for some reason or other the sale never came on till 31 July 1971 when it was again postponed, because it rained and it was impossible to attract bidders. On 2 August 1971, however, the sale was announced by local radio broadcast to take place on 5 August 1971 and on that date the sale of the house was carried out by public auction. The defendant then filed a motion to set aside the sale on grounds of alleged irregularity.
The court, having heard both the auctioneer and learned counsel for the defendant on the issue of irregularity of the sale, upheld counsel’s submission, granted the motion, and set aside the sale of 5 August 1971. The court held that by virtue of section 14 (1) of the Auction Sales Ordinance, Cap. 196 (1951 Rev.), when the sale did not take place on 31 July 1971 the auctioneer should have given fourteen days’ notice to the public before the next contemplated date for sale; in this instant case, fourteen days’ notice before 5 August 1971.
It is against this decision that Mr. Torto, the auctioneer has appealed. The issue for determination in this appeal therefore is the period of notice. The provisions relating to notice are found in section 14 (1) of the Auction Sales Ordinance, Cap. 196 (1951 Rev.), which reads as follows:
“14. ( 1) No sale by auction of any land shall take place until after at least fourteen days’ public notice
thereof has been made at the headquarters town of the district in which the land is situated, and also at the place of the intended sale. The notice shall be made not only by printed or written documents, but also by beat of drum or such other method intelligible to uneducated persons as may be prescribed, or if not so prescribed, as the District Commissioner of the district where such sale is to take place may direct; and the notice shall state the name and place of residence of the vendor. Any auctioneer who sells any land by auction in contravention of the provisions of this section shall be guilty of an offence, and on summary conviction thereof shall be liable to a fine not exceeding one hundred pounds.”
It was not the case of the defendant judgment debtor that no such notice was ever given as required under these provisions. It is conceded by her that there was one given in the first instance of the intended sale; but her contention is that if the original intended sale never took place and had to be postponed, then a further fourteen days’ notice was required before any other date of a later or subsequent sale. In other words, the sale in this case having been postponed on 31 July 1971 another fourteen days’ notice should have been given before the sale that took place on 5 August 1971.
[p.365] of [1974] 1 GLR 363
It was argued and submitted on behalf of Mr. Torto, the auctioneer and appellant herein, that for a postponed sale, fourteen days’ notice was not required. Learned counsel relied on the case of Okai v. Reindorf (1914) D. & F. ‘ll-’16, 75 cited in Hage v. Quartey (1924) D.Ct. ‘21-’25, 134 at p. 138 where the facts are on all fours with the present case. The following passage appears to support the appellant’s contention:
“In the case of James Okai v. C. J. Reindorf (reported in Divisional and Full Court Judgments, 1919, at page 75), in which a Sheriff’s notice was posted at Nsaba on the 10th September, for sale to take place on the 25th September, but the sale 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 6th November, it was held by the learned Chief Justice, that once the notice of sale had been posted for fourteen days, the requirements of rule 28 did not apply to subsequent postponements, and the Court would not be justified in setting aside the said sale.”
This view was also expressed in the case of Reindorf v. Marnan alias v. Simmons (1925) D.Ct. ‘21-’25, 165 where the Okai case was mentioned and relied on. But in the case of Ojuolape v. Benning (1957) 2 W.A.L.R. 253, Windsor-Aubrey J. differed from the decision in Okai v. Reindorf when he declared at p. 254: “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.”
In the Ojuolape case what happened was that the sale was originally to take place on 26 January 1956 but, as a result of interpleader proceedings the sale was postponed indefinitely. Eventually the interpleader was rejected and on 12 October 1956, the registrar sent to the auctioneer a telegram as follows: “Reference case Ojuolape versus Benning interpleader struck out proceed with execution letter follows.” The auctioneer took this to mean that the sale could then proceed without notice and on 16 October 1956, went to the farm and sold it, the only notice being the ringing of the auctioneer’s bell on the day of the sale at Nsaba and the village of Obodam. In that case, as in this case, the issue depended on sufficient notice, whether notice was of such nature and sufficiency as to attract bidders and I opine in the judgment in the Ojuolape case that merely ringing the auctioneer’s bell on the day of the sale was insufficient notice for the sale. In the instant case what was the nature of the notice?
The facts in this case are that the statutory notice was given for fourteen days for the sale to proceed on 31 July 1971. On that day it never went on but was postponed. On 2 August 1971 the sale was announced by the local radio broadcast to proceed on 5 August 1971. The sale then was conducted before bidders who must have had notice thereof. In this regard this case must be distinguished from the Ojuolape case where there was an indefinite postponement of sale for the purpose of hearing to conclusion a substantive interpleader case and the only notice for the next intended sale was the ringing of the auctioneer’s bell precisely on the day that the sale was to take place.
[p.366] of [1974] 1 GLR 363
Upon these consideration I find persuasion in Okai v. Reindorf (supra). I am also of the opinion that once the statutory notice has been posted for fourteen days, then after a postponement of sale, any other effective notice short of fourteen days is sufficient notice for a subsequent intended sale.
I would therefore allow the appeal, set aside the decision of the lower court and confirm the sale. The appellant shall have 040.00 costs.
DECISION
Appeal allowed.
S.E.K.
