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Property -
Auction sale - Sureties - Bail
bond - Non-execution of bond -
Action to set aside – Debt –
Execution - Fi.fa - Writ of
possession - Declaration of
title and recovery of possession
- Absconding warrant – Whether
or not the entire judgment debt
was paid before the auction sale
was conducted - Whether or not
legal right to seized property
by way of writ of fi.fa ceased
to exist after payment of the
judgment debt in full - Order 28
rules 11 and 12 - Court Civil
Procedure Rules LN 140 A, 1954,
HEADNOTES
The plaintiff
commenced an action against one
Joshua defendant at the High
Court, Accra. Before the case
could be disposed of the
plaintiff applied for absconding
warrant against the defendant as
he had information that he was
preparing to leave the
jurisdiction The claim was for
refund of an amount of US$8,
850. The defendant in that case
was arrested with the warrant
and was granted bail in the sum
of ¢1,500,000.00 with two
sureties who executed bail bonds
as sureties for the defendant
the same day the bail bonds was
amended by the cancellation of
the name and residential address
of Benjamin Akwei Allotey and
the insertion thereof of the
name of Adjin Okwabi There were
other serious irregularities
bordering on the thumbprint and
signature of Benjamin Akwei
Allotey which was made before
the purported amendment. even
though the name Benjamin Akwei
Allotey was cancelled, his
signature as one of the two
sureties stood Be that as it
may, the case against the said
defendant ended with a summary
judgment by which the defendant
and was adjudged to pay an
amount of ¢2,508,903.28
inclusive of interest and cost.
In the process of levying
execution of the judgment
against defendant the house
owned by Adjin Okwabi, was sold
at a public auction and
purchased by one B.N .Akowuah
The respondent herein who
described herself as the
beneficiary of the property sold
at the
auction brought an
action at
the High Court, Accra to set
aside the writ of possession
which culminated in the sale,
declaration of title and
recovery of possession of
the auctioned house the Amended
Entry of Judgment out of which
the execution was levied was
declared void by the trial judge
The appellant herein lodged
an appeal at the Court of Appeal
on several grounds. The Court
of Appeal in a judgment
unanimously dismissed the
appeal.
HELD
An official
court process or document like
bail bond or Justification of
Sureties should be free from
irregularities to leave no one
in doubt that the surety
executed the bond.
Cancellations and lack of
signature or thumbprint or mark
apparent on the face of the
document as happened in this
case would create serious doubts
as to its authenticity in the
minds of jurists as it occurred
in this case In my respectful
view, a judgment-creditor who
discovers his error in filing
such a vital process should not
be permitted to amend the
process on his own motion
without resort to the judicial
process by invoking the court’s
jurisdiction to correct the slip
or omission through amendment
with notice to the
judgment-debtor who is the
affected party. Unilateral step
to amend the entry of judgment
as it happened in the case
should be frowned upon. I find
to miscarriage of justice in any
manner or form in this appeal to
warrant the reversal of the
judgment of the Court of Appeal
which affirmed the judgment of
the High Court. I therefore
proceed to dismiss the appeal.
STATUTES
REFERRED TO IN JUDGMENT
Court Civil
Procedure Rules LN 140 A, 1954,
CASES
REFERRED TO IN JUDGMENT
ACHORO
V AKANFELA [1996 – 7]
SCGLR 209
OBRASIWA II & ORS
V OTU & ORS [1996-7]
SCGLR 618.
KARIMU
V GHASSOUB [1970] CC 104
CA
KWABENA
V ANINKORA & OR [1964]
GLR 299 SC
ZABRAMA
V SEGBEDZI [1991] 2 GLR
221, CA,
BOAKYEM
V ANSAH [1963] 2 GLR 223
WAYA
V BYROUTHY [1958] 3 WALR
413
NORA STORES
V UNION INDUSTRIES (GHANA)
LIMITED [1969] CC 123
OTU & ORS
V SOKODE [1969] CC 66
CA.
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
ANIN YEBOAH, JSC;
COUNSEL
KWAMENA
BAIDEN FOR THE 1ST
APPELLANT.
ALBERT ADAARE
FOR THE 2ND
RESPONDENT.
________________________________________________________________
J U D G M E N T
________________________________________________________________
ANIN YEBOAH, JSC;
The facts of this appeal appear
not to be in serious
controversy.
One
Samuel Nii Otoo Ankrah commenced
an action against one Joshua
Kpakpo Allotey at the High
Court, Accra. Before the case
could be disposed of the
plaintiff Samuel Nii Otoo Ankrah
applied for absconding warrant
against the said Joshua Kpakpo
Allotey as he had information
that he was preparing to leave
the jurisdiction. It was
granted by Her Ladyship Justice
Emelia Aryee.
The claim was for refund of an
amount of US$8, 850. The
defendant in that case was
arrested with the warrant and
was granted bail in the sum of
¢1,500,000.00 with two sureties.
Two persons namely: Eugene Darko
Amoako and Benjamin Akwei
Allotey executed bail bonds as
sureties for Joshua Kpakpo
Allotey.
The two bail bonds were tendered
in evidence at the trial court
in this case. The two sureties
were named in exhibits F1 and
F2. Exhibit F was the bail bond
while exhibits F1 and F2 were
the justification of sureties’
forms. Exhibit F2 which was
executed on the 3/12/1987
the same
day exhibits F and F1 were
executed, was amended by the
cancellation of the name and
residential address of Benjamin
Akwei Allotey
and the
insertion thereof of the name of
ADJIN OKWABI with his
residential address.
There
were other serious
irregularities bordering on the
thumbprint affixed to exhibit F2
and signature of Benjamin Akwei
Allotey which was made before
the purported amendment.
It was apparent that
even
though the name Benjamin Akwei
Allotey was cancelled, his
signature as one of the two
sureties stood.
Be that
as it may, the case against the
said Joshua Kpakpo Allotey ended
with a summary judgment by which
the defendant in that suit
Joshua Kpakpo Allotey was
adjudged to pay an amount of
¢2,508,903.28 inclusive of
interest and cost.
In the process of levying
execution of the judgment
against Joshua Kpakpo Allotey,
H/№ B182/12 Odorkor, Accra owned
by Adjin Okwabi at the time was
sold at a public auction and
purchased by one B.N.AKOWUAH
who is the appellant in this
appeal.
The respondent herein who
described herself as the
beneficiary of the property sold
at the auction brought an action
at the High Court, Accra to set
aside the writ of possession
which culminated in the sale,
declaration of title and
recovery of possession of the
auctioned house and other
ancillary reliefs.
The statement of claim and the
evidence led appeared to be very
brief. In the statement of
claim the respondent herein
pleaded that in suit number
3626/87, one Samuel Nii Otu
Ankrah as plaintiff was adjudged
to recover a certain amount of
money as judgment debt from
Joshua Kpakpo Allotey as
defendant in a suit at the High
Court, Accra. It was further
pleaded that the entire judgment
debt was paid to the said Samuel
Nii Otu Ankrah
(defendant/judgment-creditor),
nevertheless he proceeded to
levy execution against the
property of Adjin Okwabi
ostensibly to satisfy the
judgment debt.
The auction of the house
numbered as B. 182/12 Odorkor,
Accra took place and same was
bought by one Bernard Nimako
Ankowuah The evidence of the
respondent sought to establish
the relationship between her
later father Adjin Okwabi and
Joshua Kpakpo Allotey as uncle
and a nephew. It does appear
that the respondent herein is
the cousin of Joshua Kpakpo
Allotey. It was contended in
her evidence that
the
entire judgment debt was paid
before the auction sale was
conducted out of which the
appellant herein bought the
house in dispute.
The defendant/judgment-debtor
in the earlier suit one Joshua
Kpakpo Allotey also gave
evidence for the respondent
herein and sated that he had to
complete exhibits F, F1 and F2
in connection with the bail and
was advised not to leave the
jurisdiction until the said suit
had been determined.
It was to secure his presence
that his uncle Adjin Okwabi used
his own house as security.
According to him he had as at
31/1/1989 paid the entire
judgment debt by sending money
on regular basis from the United
States of America for the
defraying of the judgment debt
as it appeared on the face of
the entry of judgment filed on
behalf of the judgment-creditor
in that suit. Joshua Kpakpo
Allotey (PW1) tendered exhibit M
which is a statement of accounts
of the payments made to the
judgment/creditor in the earlier
suit and claimed that he did not
receive any reaction from the
judgment/creditor. His evidence
on the satisfaction of the
judgment debt was corroborated
by PW1 who tendered exhibit N
and the Entry of Judgment
[exhibit E] and an amended Entry
of Judgment subsequently filed
as exhibit P which amended the
judgment debt to ¢4, 413, 913.75
instead of the ¢2, 508, 903. 28.
On the part of the appellant
herein his case was very
simple. In his pleadings and
the evidence led at the trial,
he contended that H/№ B182/12
Odorkor, Accra was purchased by
him at a public auction
authorized by a court of law and
had no notice of any interest in
the property. He further
contended that the judgment debt
for which execution was levied
had not been paid and called a
witness to give evidence of
several unsuccessful attempts to
set aside the sale.
Given the nature of the
pleadings, few issues emerged
for determination. The learned
trial judge in her judgment
entered judgment in favour of
the respondent herein declaring
the sale unlawful and further,
there was no liability incurred
by the respondent as regards the
bail bond, as to her, the said
Joshua Kpakpo Allotey attended
court up to the finality of the
case. Another point on which
the respondent’s claim was
upheld was that there were
serious irregularities apparent
in exhibit F2 (Justification of
Sureties) which according to the
learned trial judge was not
executed by Adjin Okwabi as it
did not bear his thumbprint as
an illiterate as required by
law. She also found that the
cancellation of the name of
Benjamin Akwei and substitution
thereof of Adjin Okwabi amounted
to “definite irregularities in
the whole execution” to hold
Adjin Okwabi liable. The
learned trial judge was of the
view that the liabilities of the
sureties was to the tune of
¢1,500,000.00 which they offered
to pay upon default on the part
of Joshua Kpakpo Allotey as
spelt out in the bail bond
executed by the sureties.
Lastly,
the Amended Entry of Judgment
out of which the execution was
levied was declared void by the
trial judge.
The appellant herein lodged an
appeal at the Court of Appeal on
several grounds. The Court of
Appeal on 29/07/2010, in a
judgment which virtually sought
to endorse all the fact findings
and the law applied by the trial
judge unanimously dismissed the
appeal.
This appeal before this court
is the second appeal. Learned
counsel for the appellant has
filed three grounds of appeal to
seek the reversal of the
judgment of the Court of Appeal
which affirmed the judgment of
the High Court.
In arguing the first ground of
appeal, learned counsel for the
appellant disputed the
concurrent finding by the two
lower courts that the judgment
debt was
not fully paid. He attacks
the Court of Appeal and the High
Court’s judgments on the grounds
that the two lower courts did
not address their minds to the
fact that contrary to their
finding that the whole judgment
debt had been paid, paragraph 3
of the statement of claim in
this case stated expressly that
the judgment debt was paid
during the pendency of this case
at a time when the appellant had
already bought the house. In as
much as I agree with counsel
that a party is bound by his
pleadings the evidence led which
in this case was basically
documentary, established
conclusively by reference to the
payment made as per exhibits
“G”, “H”, “J”, “K”, “L” and “M”
that as at 31/1/89 the amount of
¢2,508,910.00 had been paid.
If indeed the whole amount of
the judgment debt had not been
paid before the
execution
was levied the sale would on
that ground be regular and the
appellant would have obviously
raised this in the statement of
defence. It was an issue set
down in the summons for
directions after close of
pleading which was resolved in
favour of the respondents based
on the uncontroverted
documentary evidence on record.
As the trial judge found as a
fact based on the evidence,
which was concurred by the Court
of Appeal, this court can only
reverse the concurrent findings
if the appellant demonstrates
convincingly that the findings
were not supported by the
evidence. See
ACHORO
V AKANFELA [1996 – 7]
SCGLR 209 and OBRASIWA II &
ORS V OTU & ORS
[1996-7] SCGLR 618.
As this court concurs in the two
lower courts finding that the
judgment debt had been fully
paid before the execution, the
learned trial judge was right to
declare the sale to the
appellant void. In
KARIMU
V GHASSOUB [1970] CC 104
CA, a judgment debt of
£1,816.00 in a previous suit was
left unpaid and the
judgment-creditor sought to levy
execution by
fi.fa
for the unpaid amount. The
house was sold at a public
auction. Unknown to the
purchaser, the entire judgment
debt had been paid two days
before the auction sale, the
money having been paid in two
installments to the
judgment-creditor’s solicitor.
The High Court set aside the
sale. On appeal, the defence of
the appellant was that he was a
bona fide purchaser for value
without notice and that the sale
was not void ab initio. In
dismissing the appeal, the Court
of Appeal held that the purpose
of issuing a writ of fi.fa is
not necessarily to sell the
property of the judgment-debtor
but to compel the
judgment-debtor to pay the
judgment debt and as the
judgment debt had been paid in
full before the sale, the
execution was not void ab initio
but was void ex post facto and
passed no title to the
purchaser. The Court of Appeal
proceeded to lay down the law
that the
legal right to seize the
property by way of writ of fi.fa
ceased to exist after payment of
the judgment debt in full.
On this ground the court below
was right in holding that the
sale was void. In this case the
judgment debt had been paid in
full as at 31/1/89 and the
“Notice of filing of Accounts
pursuant to Order” of the court
was filed on 2/3/89 before the
sale took place on 12/06/1989,
more than three months after the
payment of the entire judgment
debt. It stands on the
authority of the above-cited
case that the sale was obviously
void and passed no title to the
appellant who claims to be
purchaser for valuable
consideration. See
KWABENA V ANINKORA & OR
[1964] GLR 299 SC
Another ground which was argued
touches on exhibits “F”, “F1”
and “F2” out of which the
learned judge at the High Court
found as a fact that the said
Adjin Okwabi was not a surety in
the case in which his nephew
Joshua Kpakpo Allotey was
arrested. The Court of Appeal
also concurred on this and
stated that exhibit “F2” stood
contradicted and it was void as
it did not in any case create
any legal obligations on the
said Adjin Okwabi. The two
lower courts both advanced
convincing reasons to support
this finding. This was what the
Court of Appeal said:
“Now
on the question of the
sureties,
from the evidence and exhibits
F,F1 it is clear the plaintiff’s
deceased father was not one of
the sureties. However, on
exhibit F2 one of the names on
the Justification of Sureties
was cancelled and the name of
Adjin Okwabi written at the top
and the address again at the top
of the cancelled one. Here the
crucial point is at the bottom
of the form, and in place of the
signature of Benjamin Akwei
Allotey one of the original
sureties, there is the writing
“thumbprint” but indeed there
was no thumbprint, (Adjin Okwabi
being illiterate) which in
effect meant he had not executed
it an it also still had the
signature of the surety who had
earlier executed it. There
were definite irregularities in
the whole execution process
which proved to be fatal”
It is settled on authorities
like
ZABRAMA V SEGBEDZI
[1991] 2 GLR 221, CA, BOAKYEM
V ANSAH [1963] 2 GLR 223
and WAYA V BYROUTHY
[1958] 3 WALR 413 that to
bind an illiterate to a document
evidence must be led to prove
that same was read and
interpreted to the illiterate in
the language he understands
before he made his mark or
thumbprint. The onus is always
on the party who wants to bind
the illiterate to the document.
In this case, both courts from
the evidence found as a fact
that the cancellation of a court
process and the serious
irregularities associated with
document like
non-execution of the bond by
Adjin Okwabi makes the document
bad in law as Adjin Okwabi never
was not a surety as he never
executed the
bail bond
or the justification of
sureties. These findings are
supported by the evidence and I
think no convincing reasons have
been urged on this court for us
to set aside those findings.
An official court process or
document like bail bond or
Justification of Sureties should
be free from irregularities to
leave no one in doubt that the
surety executed the bond.
Cancellations and lack of
signature or thumbprint or mark
apparent on the face of the
document as happened in this
case would create serious doubts
as to its authenticity in the
minds of jurists as it occurred
in this case.
The last ground of appeal which
was argued was the finding by
Court of Appeal that the
appellant was not entitled to
the sum stated on the Amended
Entry of Judgment. In practice,
judgment –creditors seeking to
levy execution file Entry of
Judgment and serve same on the
judgment-debtor as a prelude to
execution. It is a formal
notification to the
judgment-debtor of the reliefs
granted by the court which the
judgment-creditor may seek to
enforce. Under the rules of
court as it then stood after the
judgment was delivered the
judgment-creditor was enjoined
by Order 41 rr 1,3 and 5 to
officially notify the
judgment-debtor the terms of the
judgment and what was due to be
paid. See
NORA
STORES V UNION INDUSTRIES
(GHANA) LIMITED [1969] CC
123 and OTU & ORS V
SOKODE [1969] CC 66 CA.
In this case the judgment-debtor
paid what he was requested to
pay as per the Entry of Judgment
served on him and subsequent to
the payment in full filed a
Statement of Account Pursuant to
the order of the court on
21/3/1989 and same was tendered
as exhibit “M” at the High
Court. The Entry of Judgment
filed later by the
judgment-creditor in that suit
was an Amended Entry of Judgment
(exhibit “10”) which computed
interest on the judgment debt
which according to the learned
High Court judge was almost
double the original amount on
the first Entry of Judgment.
The learned trial judge did not
find out when it was served. It
is not clear on record whether
it was indeed served on the said
judgment-debtor Joshua Kpakpo
Allotey to make him officially
aware of the new amount he was
supposed to pay, even if he was
to pay same.
It is not on record whether the
judgment-creditor sought leave
of the court to amend such a
vital process in execution.
Under the then existing rules,
the Supreme [High]
Court
Civil Procedure Rules LN 140 A,
1954, Order 28 rules 11 and 12
required accidental slips
and omissions to be amended by
motion or summons. Indeed
learned counsel for the
appellant in his written
submissions in this appeal
stated as follows:
“There is no doubt that the
ruling of Miss Aryee J found at
RA/221-223 contained an error
affecting the quantum of the
judgment-debt”
Assuming without admitting, that
here was an error in the initial
Entry of Judgment, such error
should be corrected by the
judicial process.
In my
respectful view, a
judgment-creditor who discovers
his error in filing such a vital
process should not be permitted
to amend the process on his own
motion without resort to the
judicial process by invoking the
court’s jurisdiction to correct
the slip or omission through
amendment with notice to the
judgment-debtor who is the
affected party. Unilateral step
to amend the entry of judgment
as it happened in the case
should be frowned upon.
Another vital point raised by
the trial court was that there
was no evidence of service.
Indeed learned counsel for the
appellant has not been able to
point out when the said Joshua
Kpakpo Allotey was served with
the Amended Entry of Judgment.
I find to miscarriage of justice
in any manner or form in this
appeal to warrant the reversal
of the judgment of the Court of
Appeal which affirmed the
judgment of the High Court. I
therefore proceed to dismiss the
appeal.
(SGD)
ANIN YEBOAH
JUSTICE OF
THE SUPREME COURT
(SGD)
G. T. WOOD (MRS.)
CHIEF JUSTICE
(SGD) S. A.
BROBBEY
JUSTICE OF THE SUPREME COURT
(SGD)
R. C. OWUSU (MS.)
JUSTICE OF THE SUPREME
COURT
(SGD) P. BAFFOE-BONNIE
JUSTICE OF THE SUPREME COURT
COUNSEL;
KWAMENA
BAIDEN FOR THE 1ST
APPELLANT.
ALBERT ADAARE
FOR THE 2ND
RESPONDENT.
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