KINGDON, C-J., NIGERIA, PETRIDES, C-J., GOLD COAST, AND WEBBER, C.J., SIERRA LEONE.
J. P. Allotey-Hammond brought an action in the Asere Divisional Tribunal against Messrs. Papafio and Adjomoku claiming a declaration that he was the owner of a piece of land in Zion Street, Ussher Town, Accra. Judgment in that Tribunal was delivered in favour of Allotey-Hammond. There is no copy of that judgment or those proceedings in the appeal record, but it would appear that Allotey- Hammond obtained judgment for £88 and costs, but did not obtain the declaration he sought.
The two defendants, after unsuccessfully appealing to the Ga Manche's Tribunal, took the case on appeal to the Court of the Commissioner, Eastern Province. That Court, coming to the conclusion that both native Tribunals had given judgment concerning a piece of land which was not in occupation of Messrs. Papafio and Adjomoku, allowed the appeal and quashed the judgment of the native Tribunal.
Before the Commissioner of the Eastern Province had delivered that judgment Allotey-Hammond levied execution on the land in dispute. The land was sold under a writ of Fi. Fa. To S. S. Laryea by public auction for the sun of £280.
Messrs. Papafio and Adjomoku, who are respondents to this appeal, then sued Laryea in the Ga Manche's Tribunal claiming possession of the property sold to Laryea. J. P. Allotey-Hammond was subsequently made a co-defendant in this suit. The respondents succeeded and were given possession of the property, and the appellants were jointly and severally ordered to pay the plaintiff £25 as mesne profits as well as costs. The appellants having unsuccessfully appealed from this judgment to the Commissioner of the Eastern Province have now appealed to this Court.
The real question to be decided on this appeal is whether obtained a good title as against the respondents when he bought the land in dispute. It will be seen from the record that Papafio admitted that the property was sold under a writ of Fi. Fa. “to cover the award by the Asere Tribunal which was confirmed by Ga Manche's Tribunal.”
In our opinion it is not open to doubt that if Laryea had obtained a certificate of purchase in the form provided in these cases (see Form 16 at p. 888 of Vol, III) and produced it at the trial he would in the absence of any proof that the sale had been irregularly conducted have established a good title to the land in dispute.
Laryea at the trial said he had received a receipt for the purchase price, but he did not produce either that receipt or a certificate of purchase. We have therefore to consider whether the fact that Laryea has failed to produce either a receipt or a certificate of purchase should deprive him of the property which he undoubtedly and admittedly purchased when it was sold under process of Court.
Hall, J., in his judgment in the case of Bodukuma v. Abaka (Div. Court, 1926-29, 124), examined very thoroughly the question of the effect of a purchase of a property at an execution sale when no certificate of purchase had been issued. In the course of his judgment he said:
“The Court, in granting a certificate, has not to determine what property was to pass by the sale, but merely to record an already accomplished fact, and to state what has been sold. Of this, the certificate is evidence, but not conclusive evidence, nor exclusive evidence, for, in order to determine what was sold, the whole execution proceedings might be looked at."
It is not clear whether the sale in question was one in respect of a judgment of the Supreme Court or some other Court, but in any event we are of the opinion that the view expressed by Hall, J., in that case applies to an execution sale by a native court of competent jurisdiction.
Having regard to the fact that it was not in dispute at the trial in the Ga Manche's Tribunal that the property was sold under a writ of Fi. Fa. and purchased by Laryea and that Laryea obtained possession of the property by reason of that purchase, we are of the opinion that the respondents were not entitled to recover the property which had been sold to Laryea under process of a Court the competency of whose jurisdiction was not in dispute.
We accordingly allow the appeal and reverse the judgments of the two Courts below.
As to costs. Laryea must have the costs of this appeal which we assess at £21 1s. and his taxed costs in the two Courts below.
Allotey-Hammond, although a party to this appeal, has not appeared before us we therefore do not award him any costs of this appeal. As it does not appear to our satisfaction that he has incurred any costs in either of the Courts below we make no order as to his Webber, costs, if any, in either of those Courts.