Appeal Court. 27th May, 1938. Appeal from Supreme Court exercising appellate jurisdiction

,Motion by Applicants, not parties to Judgment, to set aside a sale on grounds of fraud, irregularity, etc.

The plaintiffs obtained judgment against the defendant for moneys, and arrears of ground rent and a writ of Fi Fa issued and sale took place. The first respondent was declared the purchaser at public auction, and the applicants moved the Court of the District Magistrate that the sale be set aside on grounds of fraud, irregularity, etc. The Magistrate found in their favour and the respondents appealed to the Supreme Court. The latter Court, holding first that the applicants had locus standi under. Rule 31 Order 44 of the Supreme Court Rules, decided in favour of the respondents on all points and from this decision the applicants appealed to the Appeal Court.

       Held: The Supreme Court decision was right on all points; appeal dismissed.

        The following judgment of Bannerman, J., sitting on appeal from the Magistrate, fully sets out the facts:-

BANNERMAN, J.

 

" This is an appeal from the ruling of the District Magistrate (the late Mr. Tyrer Egg), Kumasi, dated the 8th day of September, 1936, whereby he set aside the sale of the property herein.

    I regret that, owing to my sudden illness, it was not possible for me to give my decision in this matter before I left the Gold Coast for Europe.

The applicants moved the District Magistrate's Court under Order 44 Rule 31, praying that the sale of the immovable property herein be set aside on the following grounds:-

(1) No notice of the sale was posted for fourteen days as required by law.

(2) There were no bidders at the alleged auction sale.

(3) There was collusion between the auctioneer and the purchaser.

(4) The property was sold at an under-value, the property being worth £300.

(5) The property was !lold to payoff a debt of £10 3s. 2d. although the auctioneer knew that if this debt had been brought to the notice of the applicants or other persons interested in the property the amount would have been paid.

After hearing arguments on the affidavits filed the learned District Magistrate set aside the sale on the ground of material irregularity in the conduct of the sale in that it was sold before the time of the notice of the sale, as called for by law, had expired. That the applicants had proved to his satisfaction that they had sustained material injury by reason of such irregularity. The substantial injury was that the purchaser was the husband of the Lessee and the nephew of the auctioneer. The amount realised also influenced the ruling of the Magistrate.

In the first place, it must be stated that neither of the applicants was a party to the judgment upon which the Fi Fa was grounded; but the wording of Rule 31 Order 44 is so wide in its scope as to make it possible for any person, who is affected by any sale, to invoke the aid of the Court. In this connexion it may be mentioned that the applicants have alleged in their affidavit that they have an interest in the property in question; their right therefore to move the Court cannot be challenged by the Appellant. In these circumstances it was incumbent upon the Respondents not only to prove that there was material irregularity in the conduct of the sale, but they must also satisfy the Court by proof that they have suetained substan.tial injury by reason of such irregularity. Did the Appellant do this?

Now Rule 31 upon which the applicants base their contention, reads as follows:-

" , At any time within twenty-one days from the date of the sale of any immoveable property, application may be made to the Court to set aside the sale on the g-round of any material irregularity in the conduct of the sale, but no sale shall be set aside 011 the ground of such irregularity unless the applicant shall prove to the satisfaction of the Court that he has sustained substantial injury by reason of such irregularity' "

In my opinion the governing or controlling words in this Rule are the words "Substantial Injury". Before I address myself to the issues involved in this appeal I will permit myself one question. Assume for the sake of argument that the appli­cants have sustained substantial injury by reason of some material irregularity in the conduct of the sale, could they come before the Court to seek their remedy under Rule 31 Order 44?

In my view they could not come before the Court to establish their claim to the property under Rule 31 Order 44.

To proceed. Was there satisfactory evidence before the learned Magistrate that the applicants has sustained substantial injury? Clearly the notice of sale did not comply with the terms of Rule 28 Order 44. This Rule ordains, inter alia, that in the case of immoveable property, no sale shall take place until after  at least fourteen days public notice thereof

      From the auctioneer's affidavit, it is clear that the property was sold after thirteen days notice Now this is  a material irregularity which would undoubtedly render the sale a nullity; . but the Rule says that no sale shall be set aside for such irregularity unless there is satisfactory proof before the Court that the applicant has sustained substantial injury by reason of such irregularity (see the case of Acting Omanhene Yao Boafo IV v. Ex Omanhene Ofori Kuma II reported at page 193 of Full Court Reports 1926-29).

       In my opinion, apart from the fact that the property was sold after thirteen days, there was no evidence of satisfactory proof before the learned Magistrate to support the allegations contained in grounds 2, 3, 4 and 5 of the applicants' affidavit.

       In his affidavit of the 18th August, 1936, the auctioneer joined issue with the applicants on each of these grounds.

       In my view it was necessary for the Magistrate to hear witnesses on both sides and to admit relevant documents, if any, in evidence in order to enable him properly to determine the issues raised. This the learned Magistrate failed to do, and it is difficult for me to discover the evidence upon which he based his conclusions on the issues joined before him.

        I will now deal seriatim with grounds 2, 3, 4 and 5 already referred to.

        As to ground 2 :-Both the auctioneer and the purchaser challenged this allegation in their affidavits and I hold that the burden of proof was shifted on to the applicants.

        As to ground 3: -This is a serious allegation and the Auctioneer and the purchaser denied it in their affidavits. On this point, too, the learned Magistrate held that the purchaser is the nephew of the auctioneer and the husband of the judgment debtor, Adjuah Korkor ..

        In my opinion there was no evidence before the Magistrate to justify him in coming to the conclusion that the applicants had sustained injury or that there was any collusion between the auctioneer and the purchaser.

       As to 4: -I hold that this is no ground for setting aside a sale (see the case of Okai v. Reindorf (1924 Divisional Court and Full Court Judgments), also the ease of Afutu v. Stavely & Co. (1923) Full Court Judgments).

As to 5 :-In my opinion the amount of the judgment debt in respect of which the property was sold cannot affect the validity of the sale. In other words, the amount of the judgment debt cannot be alleged as a ground for setting aside a sale. Every judgment creditor is entitled to enjoy the fruits of his victory. Furthermore, it was not incumbent upon the auctioneer to notify the judgment debtor or the applicants that he was about to sell the property in question. the auctioneer is under no legal obliga­tion to do so .

Viewed from every standpoint I hold that the ruling of the learned Magistrate was wrong and I allow the appeal with costs here and below. Court below to carry out.

I wish to make it perfectly clear here that my decision is based solely upon Rules 28 and 31 of Order 44 and the issues before t he Magistrate.

If the applicants feel that they have a joint interest in tile property, which has been sold without their knowledge and consent, they have their remedy and they are entitled to pursue that remedy before the Court.

I refrain from discussing here what the applicants' interest is in the property and whether or not that interest has been materially prejudiced by the sale".

E. A.. Asafu-Adjaye for Applicants.

T. Hutton-Mills for Purchaser-Respondent.

A. G. Heward-Mills for Auctioneer-Respondent.

The Acting Solicitor-General for Government of Ashanti.

The following joint judgment was delivered:-

KINGDON, C.J.~ NIGERIA, PETRIDES, C.J., GOLD COAST AND  YATES, J.

In this case we agree with the learned Judge of the Court below upon all points. The appeal is dismissed with costs assessed at £21 6s. 6d. in favour of the auctioneer-respondent and £26 11s. Gel. in favour of the purchaser-respondent.