–
ADU KOFI
V.
G. A. ADJEI
WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA
17TH DAY OF DECEMBER, 1942
2PLR/1942/8 (WACA)
–
OTHER CITATION(S)
2PLR/1942/8 (WACA)
(1942) IX WACA PP. 198 – 200
LEX (1942) – WACA PP. 198 – 200
–
BEFORE THEIR LORDSHIPS:
KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
GRAHAM PAUL, C.J., SIERRA LEONE
–
BETWEEN:
ADU KOFI – Plaintiff-Respondent-Respondent-Respondent
AND
G. A. ADJEI – Defendant-Appellant-Appellant-Appellant
–
REPRESENTATION
K. A. Dossman — for Appellant
Akufo Addo — for Respondent
–
ISSUE(S) FROM THE CAUSE(S) OF ACTION
DEBTOR AND CREDITOR LAW:- Sale by auction — Writs of Fi. Fa. issued by Native Courts — No attachment of property or rules relating thereto — Priority of purchasers
–
CASE SUMMARY
On the 10th June, 1939, Kwabena and Dawuru each bought a piece of land at a sale by public auction under a writ issued by a Native Tribunal. They received Certificates of Purchase. On the 11th June, 1939, the same property was bought by defendant at a sale by public auction under a writ issued by another Native Tribunal. He also received a Certificate of Purchase.
The writ in relation to the latter sale was issued by the Tribunal on the 6th June, whereas the writ in respect of the first sale was issued on the 14th June. The Supreme Court Rules specifically lay down that alienation rafter seizure by attachment is void. There are no such rules as regards writs of Fi Fa issued by a Native Tribunal.
The Provincial Commissioner’s Court upon the facts, held that the property in question had not been attached by either Tribunal.
–
DECISIONS OF THE WEST AFRICAN COURT OF APPEAL
Held (appeal dismissed):-
Persons who bought the property first in point of time, i.e. Kwabese and Dawuru, obtained a good title to the land in dispute and that the subsequent sale to the defendant had no effect and gave him no title.
–
–
MAIN JUDGMENT
The following joint judgment was delivered:-
KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL, C.J., SIERRA LEONE
Before the Tribunal of the Adontenhene of Akyem Abuakwa the plaintiff swore the oath of “Wukuda-ne-Kwanyako”, on behalf of Afari Kwabena and Kwame Dawuru, upon the defendant, charging him with stealing their cocoa from their farms at Asikasu and claiming a declaration of their ownership to these farms. The defendant joined issue and pleaded “Not Guilty.” Judgment was given in plaintiff’s favour, the Tribunal ordering that “Dawuru and Kwabena shall continue to hold their farms as owners” and awarding the plaintiff costs.
The defendant successively appealed to the Tribunal of the Paramount Chief of Akyem Abuakwa and to the Provincial Commissioner’s Court, Eastern Province. Both appeals were dismissed.
The land in dispute originally belonged to Asante Heneku. On the 10th June, 1939, Kwabena and Dawuru each bought a piece of that land at a sale by public auction under a Writ of Fi. Fa. issued by the Tribunal of the Krontihene of Akwapim and were granted Certificates of Purchase. On the following day the defendant bought the same land at a sale by public auction under a Writ of Fi. Fa. issued by the Tribunal of the Nifahene of Akwapim and was granted a Certificate of Purchase. The three certificates were exhibits in the Adontenhene’s Tribunal, but are not before us so that we do not know their exact form. But there is no dispute as to Asante Heneku’s title and nothing turns on this point.
Defendant’s contention is that although he bought the property one day later than Kwabena and Dawuru, yet as the Writ of Fi. Fa. under which he bought was issued about the 6th June and notices of sale were issued on the 7th June whereas the Writ of Fi. Fa. under which the plaintiff bought the land was dated the 14th June and the notice of sale was issued about that date, he obtained a good title to the land in dispute. He contended also that the sale to him would have taken place at an earlier date than it did had there not been interpleader proceedings at plaintiff’s instance.
There is no dispute as to the facts and the question which this Court has to decide is whether, in the circumstances mentioned: Kwabena and Dawurn or the Defendant obtained a good title to the land.
It is quite clear that, by reason of the provisions of Order 44 Rule 15 of Schedule 3 to the Supreme Court Ordinance (Cap. 4) where land has been attached under Writ of Fi. Fa. issued by the Supreme Court by actual seizure, any alienation without leave of the Court of the property attached is null and void. It has been contended that, inasmuch as the Writ of Fi. Fa. issued in Tribunals is in the same form as that issued in the Supreme Court, the same principal applies to sales by order of a Tribunal.
We are unable to agree with this contention. The Supreme Court Rules specifically lay down that alienation after seizure by attachment is void. There is no such rule as regards attachments under a Writ of Fi. Fa. issued by a Native Tribunal. It is quite clear that the procedure in a Native Tribunal differs very materially from that in the Supreme Court. The Provincial Commissioner’s Court, after hearing the evidence of the Registrars of the Krontihene’s Tribunal and the Nifahene’s Tribunal, came to the conclusion that, after a Writ of Fi. Fa. is issued, a notice of sale is posted, either by a licensed auctioneer or a Tribunal Messenger, and that no writ of attachment is issued. Having come to this conclusion that Court held that the property in question had not been attached by either Tribunal. We are quite unable to find that he was wrong in so holding.
There having been in this case no seizure by attachment by either Tribunal we are satisfied that the persons who bought the property first in point of time, i.e., Kwabena and Dawuru obtained a good title to the land in dispute and that the subsequent sale to the defendant had no effect and gave him no title.
The appeal is accordingly dismissed with costs assessed at £19 6s 0d.
We think it right to point out that by section 135(1)(h) of the Native Administration (Colony) Ordinance it is lawful for the Governor with the approval of the Legislative Council to make regulations as to “The execution of judgments, orders and decisions; and the process to be issued by the Court, and by Tribunals, State Councils, and Provincial Councils; and the mode of executing the same;” Under this section regulations have been made as to the conduct of execution against the person, and of Writs of Possession. Also certain forms of process have been prescribed including a form of Writ of Fi. Fa. in similar terms to the Writ of Fi. Fa. prescribed for use by the Supreme Court (vide Vol. III of the Laws of the Gold Coast pages 340 to 345 inclusive) but no regulations appear to have been made as to the mode of executing a writ of Fi. Fa. This appears to be an omission which might suitably be remedied by the making of further regulations.
–