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ALFA MAHMUDU
AND
B. H. ZENUAH TESALA ZENUAH
WEST AFRICAN COURT OF APPEAL, ACCRA, OLD GOLD COAST (GHANA)
20TH DAY OF NOVEMBER, 1934
2PLR/1934/8 (WACA)
OTHER CITATION(S)
2PLR/1934/8 (WACA)
(1934) II WACA PP. 172-175
LEX (1934) – II WACA PP. 172 – 175
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BEFORE THEIR LORDSHIP(S):
KINGDON, C.J., NIGERIA
YATES, ACTING C.J., GOLD COAST
GRAHAM PAUL, J.
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BETWEEN:
ALFA MAHMUDU — Respondent
AND
B. H. ZENUAH TESALA ZENUAH — Claimant-Appellant
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REPRESENTATION
H. F. RIBEIRO — for Appellant
C. C. LOKKO — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CUSTOMARY LAW — FAMILY LAND:- Native customary law that only the Head of the family can sue in regard to family land — Sanctity of — Suit brought by family challenging wrongful attachment of family land to satisfy private debt of family head — How treated
DEBTOR AND CREDITOR LAW:- Satisfaction of private debt by attaching property which debtor does not have right to — family land — Where debtor is the Family head — Right of a member of the family to challenge such attachment — Validity of any court attachment of such property — Relevant considerations
FAMILY LAW — FAMILY HEAD AND MEMBER:- Powers of the Family head to alienate property of the family and to bring action in defence thereof — Whether exclusive — Challenge by a member to prevent the dissipation of family property in satisfaction of private debt of Head of the family — Locus standi of member/jurisdiction of court thereto
REAL ESTATE AND PROPERTY LAW — LAND:- Family land — Action related thereto brought by member — Validity of — Customary law recognising exclusive right thereto by Head of Family alone — Whether repugnant to natural justice in certain cases
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PRACTICE AND PROCEDURE ISSUE(S)
ACTION:- Interpleader by person not being head of Family in respect of attachment of Family property for private debt of Head of Family — Where ordinarily only Head of Family can sue but under Order 45 rule 25(1) of Supreme Court Rules, Court is empowered to hear claimant, notwithstanding any native customary law to the contrary — Section 19 of Supreme Court Ordinance applied
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CASE SUMMARY
The appeal arose out of a case stated by the Supreme Court exercising Appellate jurisdiction in relation to an Interpleader by a person not being head of Family who nonetheless sued to challenge the attachment of Family property for the satisfaction of the private debt of the Head of the Family.
The Police Magistrate in giving judgment said:
“The proper person to bring an action of this nature is the head of the family. I am satisfied that claimant is not the head of the family. The claim is dismissed with costs”.
Against that judgment the claimant appealed to the Divisional Court which referred same to the West African Court of Appeal on the following point of law:-
“Is the rule of native customary law to the effect that only á Head of a family can sue on its behalf not contrary to justice, equity and good conscience in a case like this and therefore not applicable thereto?
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MAIN JUDGMENT
The following judgment was delivered:
GRAHAM PAUL, J.
This case was heard in the Police Magistrate’s Court, Accra, on an Interpleader Summons issued by one Tesala Zanuah, claimant, who in her summons as amended claimed “for and on behalf of herself and other members of the family and descendants of the late Native Officer Harry Zenuah deceased”.
The interpleader was in respect of a process of execution issued in the Police Magistrate’s Court by Alfa Mahmudu against B.H. Zenuah under which there had been attached in execution and advertised for sale “All the right title and interest of B.H. Zeruah in all that piece of parcel of land with buildings thereon, situate, lying and being at Pagan Road Accra and known as ‘the property of B.H. Zenuah’”
It is admitted that the judgment obtained by Alfa Mahmudu against B.H. Zenuah was for a private debt; that the property attached in execution and advertised for sale under that judgment is family property, and that B.H. Zenuah is the head of the family in question.
The Police Magistrate in giving judgment said:
“The proper person to bring an action of this nature is the head of the family. I am satisfied that claimant is not the head of the family. The claim is dismissed with costs”.
Against that judgment the claimant appealed to the Divisional Court. The appeal was heard by Aitken, J. who has referred to this Court the following point of law upon which he considered the appeal turned:-
“Is the rule of native customary law to the effect that only á Head of a family can sue on its behalf not contrary to justice, equity and good conscience in a case like this and therefore not applicable thereto?
The learned Judge also says in his judgment that it is no longer open to a Judge of the Divisional Court to consider that question owing to previous decisions. I accept that statement of the learned Judge, but neither by him nor by counsel was it suggested that this Court was precluded from considering the question and I treat the question as open for consideration by this Court.
In his judgment the learned Judge further says that “it is a “fundamental rule of native customary law throughout this Colony that no part of any family house or land can be seized or sold in satisfaction of the private debt of any member of the family”. Thus, bad the judgment debtor in his capacity of Head of the Harri Zenuah family interpleaded on their behalf, there can be no doubt that he would have been successful in obtaining an order releasing every part of the house and land in question, which are admittedly family property, from attachment. He refused, however, to take any such action and his refusal led the claimant, who is an older member of the family, to sue out “an Interpleader Summons on behalf of herself and most of the other members of the family”. That statement of native customary law and of fact was in no way controverted by counsel before this Court and I accept it.
The judgment-creditor seeks to invoke the native customary law upon which he relies (1) to allow a stranger to the family to use the machinery of the Supreme Court, in violation of a fundamental rule of native customary law, to dispossess the family of the family house and land, and (2) to stop any member of the family except the Head from interfering by way of interpleader to prevent the machinery and officers of the Supreme Court being used to commit a breach of a fundamental rule of native customary law.
It is to my mind clear that such a native customary law is “repugnant to justice, equity or good conscience” and that it is therefore under section 19 of the Supreme Court Ordinance not a rule of native customary law which the Supreme Court has the right to “observe and to enforce the observance of”.
But it seems to me that the matter does not end there. The native customary law in question is in my opinion certainly incompatible “either in terms or by necessary implication” with the Supreme Court Ordinance Schedule II Order 45 rule 26(1), and for that reason is not a native customary law which the Supreme Court under section 19 can “observe and enforce the observance of”.
The words immaterial to the present point being omitted, that section reads as follows:
“In the event of any claim being preferred to, or objection offered against the sale of land or any other immovable or movable property which may have been attached in execution of a decree … as not liable to be sold in execution of a decree against the judgment debtor, the Court shall proceed to investigate the same with the like powers as if the claimant had been originally made a party to the suit, and if it shall appear to the satisfaction of the Court that the land or other immovable property was not in the possession of the party against whom execution is sought it …or that, being in the possession of the party himself at such time, it was so in his possession not on his own account, or as his own property, but on account of, or in trust for some other person, the Court shall make an order for releasing the said property from attachment. But if it shall appear to the satisfaction of the Court that the land or other immovable or movable property was in possession of the party against whom execution is sought as his own property and not on account of any other person the Court shall disallow the claim.
In these interpleader proceedings an objection was offered against the sale of the house and land attached is not liable to “be sold in execution of a decree against the judgment debtor”. The Court investigated the objection and it did appear to the satisfaction of the Court that the house and land attached were in possession of the party against whom execution was sought, not on his own account, or as his own property, but on account of, or in trust for, the family. And in my view the Court under Order 45 rule 25(1) was in these circumstances bound to make an order releasing the property from attachment, and any native customary law incompatible with that section the Court was under section 19 bound to ignore.
It is also clear to my mind that the Court, by allowing execution and sale to proceed, was stultifying itself and its officers, because at any sale in execution of immovable property all that can be sold and all that a purchaser can acquire is “the right title and interest of the judgment debtor in the property sold”. It is admitted that the judgment debtor had no right title or interest in the property in question capable of being attached or sold under a process of execution. It follows that by not making the order releasing the property from attachment, the Court is allowing to continue a sale by the Court’s officers of something which has no existence in truth or in law. If the sale proceeds, the Court would eventually have to give to that purchaser a certificate in under Order 45 rule 34 that he had purchased something which the Court is ex hypothesi satisfied has no existence in fact or in law, namely the attachable right title and interest of the judgment debtor in the family house and land. It is clear to my mind that such a result constitutes a reductio ad absurdum of the judgment creditor’s contention.
I am therefore of opinion that the question submitted to this Court should be answered in the affirmative.
In view, however, of some misunderstanding which appeared to arise in the arguments in this appeal I cannot make it too clear that I am not seeking in this judgment to decide that anyone other than the Head of the family could obtain from the Court a declaration of title to a judgment for recovery of possession of, or a judgment for damages for trespass on family land. Having said that, I think I have said enough to show that this judgment makes no real inroad into what I conceive to be the real meaning of the native customary law that only the Head of the family can sue in regard to family land.
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KINGDON, C.J., NIGERIA
I concur.
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YATES, ACTING C.J., GOLD COAST
I concur.
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