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ARYEETEY, J.A.
A brief background to
the interpleader summons, which has resulted in this
appeal is as follows: On 12th April 1991 the appellant
who is the plaintiff/ judgment/creditor obtained
judgment against the defendant/judgment/debtor, Yaw
Amoako in the sum DM 12039.00 plus damages of ¢200,000
and costs of ¢50,000.00. On 31st October 1991, pursuant
to praecipe for the issue of writ of fi:fa, Plot Number
28A, Block IX Gyinyase, Kumasi, property of the judgment
debtor, was attached in execution of the said judgment.
On 18th November 1991, the sheriff issued an order
prohibiting alienation of the property attached (exhibit
4). He also issued a notice of auction. The sheriff's
officer attached property No. 28A Block IX Gyinyase by
serving a copy of exhibit 4 on the judgment debtor, Yaw
Amoako and by affixing another copy on the property to
be attached. On 25th November 1991, the sheriff
entrusted the conduct of the auction sale to a licensed
auctioneer. Subsequent to these processes, the judgment
debtor on 9th July 1992 issued a receipt for ¢2,500,000
in favour of Rexford Kyei Anokye, the claimant in the
interpleader summons and respondent this appeal, being
the price of the attached property purchased by the
respondent. According to the receipt, the money was
supposed to have been received by the judgment debtor on
10th July 1992. The receipt for the payment of the
purchase price was followed by a statutory declaration
dated 28th August 1992 from the defendant/judgment
debtor reciting a transfer by him of the property to the
respondent. On 30th October 1992, the respondent filed
notice of his claim, which the appellant disputed by
notice dated 11th November 1992. The High Court heard
the case and gave judgment in favour of respondent in
respect of his "reliefs sought in the interpleader
claim".
Originally, the
appellant filed only one ground of appeal, namely "The
decision is against the weight of evidence. He however
filed four additional grounds of appeal as follows:
"(1) The learned trial
judge erred in law when he held that the purported sale
by the judgment/debtor of the attached property was
lawful and upheld his claim. His Lordship thereby
ignored the provisions of Order 43 rules 7, 10, 11 of
the Rules of the High Court, 1954,
(2) The learned trial
judge erred In law when he held that the claimant was a
bona fide purchaser for value of the property without
notice. There was no evidence that the claimant acquired
the legal title in the property.
(3) The learned trial
judge erred in law when he held that the writ of
execution was unexecuted within the meaning of the word
In Order 42 rule 19 even though the evidence showed that
the property in dispute had been attached under the
writ.
(4) The trial was
unsatisfactory as the learned judge failed to make the
necessary findings."
In his written
statement of the appellant' case, counsel for the
appellant dwelt only on the additional grounds of
appeal. I intend to take all the four additional grounds
together. In concluding the reasons for his judgment
which had been given earlier, the learned trial judge
explained what he considered being the operation of
Order 42 rule 19 of the High Court (Civil Procedure)
Rules, 1954 (L.N. 140A). Before coming to that, I think
it would be appropriate to quote in full Order 42 rule
19. It reads:
"A writ of execution if
unexecuted shall remain In force for one year only from
its issue, unless renewed in the manner hereinafter
provided, but such writ may, at any time before its
expiration, by leave of the Court or a Judge, be renewed
by the party issuing it for one year from the date of
such renewal, anal so on from time to time during the
continuance of the renewed writ, either by being marked
with a seal of the Court bearing the date of the day,
month, year of such renewal, or by such party giving a
written notice of renewal to the sheriffs signed by the
party or his solicitor, and bearing the like seal of the
Court, and a writ of execution so renewed shall have
effect, and be entitled' to priority, according to the
time of the original delivery thereof."
Since the trial judge
based his judgment on what he considered to be the
correct interpretation of Order 42 rule 19, I would do
well to quote in full what he had to say in his judgment
relating to the implication of that rule. In his
judgment at page 81 of the record of appeal the learned
judge stated as follows:
"Now under Order 42
rule 19, 'A writ of execution if unexecuted shall remain
in force for one year only from its issue, unless
renewed ...'
As at 31st October
1992, and in particular as at 11th November 1992 when
the claimant's claim was disputed therefore, the writ of
execution, the Prohibition Notice, and all the other
execution processes had ceased, in my humble opinion, to
have any legal effect. The claimant who thus purchased
the property in good faith, and without notice of the
judgment against Yaw Amoako, or the attachment on the
property itself at the site, as proved by the videotape
shown in court, is therefore entitled in the
circumstances to have the property.
The attachment was
therefore formally discharged. This is all the basis of
my said judgment."
Since the judgment of
the court below apparently turned on the word
'unexecuted' contained in the above quoted rule 19 of
Order 42, it would be appropriate if we look at how that
word has been judicially considered in another
jurisdiction. In the case of Lloyds and Scottish Finance
Ltd. v. Modern Cars and Caravans (Kingston) Ltd. [1964]
3 W.L.R. 859 at pages 870 and 871 Edmund Davis J. had
this to say when he was faced with the meaning to be
attached to that word in a legislation:
"Notwithstanding these
findings as to seizure on April 14 and non-abandonment
thereof, counsel for the defendants submits that in May
his clients acquired from Wood a good title unencumbered
by the judgment debt due from his vendor or any rights
possessed by the sheriff under the writ, and that this
title they in due course passed on to the plaintiffs.
The submission is a startling one, for, badly stated, it
amounts to an assertion that, even although the sheriff
had already seized the caravan, the defendants acquired
title free from any liability to have their property
seized.
The corollary to this
submission would appear to be that they could have
demanded its unconditional surrender by the plaintiff.
In so far as I was able to follow it, the basis for the
submission appears to be this:
(a) Under the proviso
to section 26 of Act of 1893 a purchaser in good faith
and for valuable consideration gets a good title
unfettered by any right of seizure in the sheriff,
provided that when he purchased he had no notice that a
writ of fieri facias by virtue of which the goods of the
execution 'debtor might be seized ... had been delivered
to and remained 'unexecuted' in the hands of the
sheriff.'
(b) Where an execution
issues, the transaction involves four stages: (1)
delivery of the writ to the sheriff; (2) seizure; (3)
the possible payment of the money after the seizure; and
(4) if no payment, sale . . . .
(c) Until either
payment or sale, the writ remains 'unexecuted
(d) The defendants
having bought the caravan from Wood in May and the
sheriff's sale not taking, place until August, the writ
(of which they had no notice) 'remained unexecuted' when
they bought.
(e) As against the
sheriff, they were accordingly protected by the proviso
to section 26, and this protection enured to the
plaintiffs when they in due course purchased the caravan
from the defendants.
I propose to deal with
this submission briefly. The proviso must of necessity
be limited in its operation to the ambit of the section
which it qualifies. When, by the opening words of the
section, it is provided that 'a writ of fieri facias ...
shall bind the property in the goods of the execution
debtor ...' this simply means that on the delivery of
the writ the sheriff acquires a legal right to seize
sufficient of the debtor's goods to satisfy the amount
specified in the writ (Samuel v. Duke 1838 3 M. & W.
622). The proviso, accordingly, does no more than
protect a purchaser of the goods against the right of
seizure if the stated conditions are fulfilled. But it
has no scope of operation where an actual seizure of the
debtor's goods has already been effected; and where this
has occurred, it is immaterial whether or not the
purchaser from the debtor had notice of the seizure, or
even of the writ. Furthermore by its wording the proviso
relates only to the writ 'by virtue of which the goods
of the execution debtor might be seized', and where such
an essential step in execution as actual seizure had
already been effected, it is, I hold, impossible to
regard the writ as one which still 'remained unexecuted
in the hands of the sheriff'. In my judgment, according
the defendants are not saved by the proviso." (The
emphasis mine)
In the instant case the
property of the judgment debtor had been attached and
the sheriff took steps for auction sale of the attached
property to be effected. After the judgment debtor's
property had been attached on 31st October 1991, the
sheriff issued a notice prohibiting alienation of the
property attached as well as give notice of the auction
on 18th November 1991. On 25th November 1991, he
actually entrusted the conduct of the auction sale to a
licensed auctioneer. It is worthy of note that all these
took place within one year of the issue of writ of
fi:fa. By his judgment, the learned trial judge seems to
be of the opinion that so long as the matter remains in
the hands of the sheriff the writ of execution is
'unexecuted'. If we go by the interpretation the court
below puts on the word 'unexecuted', it would mean that
even if all steps in the execution process are carried
out and for some reason the matter still remains in the
hands of the sheriff after the expiration of one year,
for example where the auctioneer is yet to conduct the
auction sale, the writ would cease to remain in force
as in the instant case. Such an interpretation
would obviously lead to totally absurd consequences. For
example if that interpretation were to hold, all that a
judgment debtor would do to prevent auction sale of his
property after it has been attached would be to resort
to spurious applications and processes, which are
allowed by the rules, to delay the auction sale of the
attached property in the hope that the matter would
remain in the hands of the sheriff for over a year,
which hopefully would make the writ of execution cease
to remain in force. I quite agree with the stand taken
by Edmund Davis J., in the case of Lloyds and Scottish
Finance Lt. v. Modern Cars and Caravans (Kingston) Ltd.
(supra) that "where such an essential step in execution
as actual seizure has already been effected, it is, …
impossible to regard the writ as one which still
'remained unexecuted" in the hands of the sheriff"
This erodes the whole
basis of the judgment of the court below as indicated by
the learned trial judge. I would however like to refer
to a clear provision of the law, which should lay the
issue of innocent purchaser for value without notice
raised by the respondent's counsel to rest. According to
Order 43 rule 11 of the High Court (Civil Procedure)
Rules:
"After any attachment
shall have been made by actual seizure, or by written
order as aforesaid, and in case of an attachment by
written order, after it shall have been duly intimated
and made known in manner aforesaid, any alienation
without leave of the Court of the property attached,
whether by sale, gift, or otherwise, any payment of debt
or debts, or dividends, or shares to the judgment debtor
during the continuance of the attachment, shall be null
and void, and the person making such alienation or
payment shall be deemed to have committed a contempt of
Court."
According to the
wording of Order 43 rule 11, it is immaterial whether or
not the purchaser from the debtor had notice of the
seizure, or even of the writ of execution. During the
Continuance of the attachment, the rule places the
attached property in the hands of the Court through the
sheriff. That would therefore render any alienation
without leave of the Court null and avoid as well as a
subject matter of sanction by the Court. For the reasons
given in this judgment, I allow the appeal and set aside
the judgment of the court below.
B. T. ARYEETEY
JUSTICE OF APPEAL
I agree.
J.C. AMONOO-MONNEY
JUSTICE OF APPEAL
I also agree.
S.Y. ANIM
JUSTICE OF APPEAL
COUNSEL
MR. KWAME ASIEDU BASOA
FOR CLAIMANT/RESPONDENT |
