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C. BRANDFORD-NETTEY
V.
THE GOLD COAST INDEPENDENT PRESS LIMITED AND OTHERS
WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST
23RD DAY OF NOVEMBER, 1936
2PLR/1936/29 (WACA)
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OTHER CITATION(S)
(1936) III WACA PP. 100 – 103
LEX (1936) – III WACA PP. 100 – 103
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
WEBBER, C.J., SIERRA LEONE
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BETWEEN:
C. BRANDFORD-NETTEY — Judgment-Debtor
AND
THE GOLD COAST INDEPENDENT PRESS LIMITED
F. V. NANKA-BRUCE,
C. J. REINDORF
D. C. WELBECK — Execution-Creditors-Appellants
AND
AKAI KOFI NETTEY (REPRESENTING THE CHILDREN OF NII NETTEY QUARSHIE, DECEASED) — Claimant-Respondent
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REPRESENTATION
Frans Dove with T. J. Whitaker — for the Appellants
Ofei Awere — for the Respondents
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
DEBTOR AND CREDITOR — ENFORCEMENT OF JUDGMENT DEBT:- Execution by attachment of realty — Interpleader action in alleged representative capacity that attached property is family property — Onus of proof thereto — Need to establish locus standi — Failure thereof — Legal effect
FAMILY LAW — FAMILY PROPERTY:- Interpleader action against sale of attached property in satisfaction of debt — Plea that attached property is family property — Locus standi to bring action — How proved
FAMILY LAW — FAMILY PROPERTY:- Status within a family affording locus to bring an interpleader action to protect alleged family property — Claim of being Head of family — Onus of proof thereon — Effect of failure thereto — Claim of being son of deceased owner of property — Where evidence discloses only an uncle-nephew relationship — Duty of court — Whether can excuse the perjury on ground of custom among “semi literate Africans” to “speak of all kinds of near relations as “father,” “brother” or “son”
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PRACTICE AND PROCEDURE ISSUE(S)
ACTION — REPRESENTATIVE CAPACITY:- Interpleader action brought in representative capacity to defend alleged family property — Onus of proof of capacity — Implication for locus standi — Relevant considerations
ACTION — LOCUS STANDI:- Proof of, entitling a litigant to bring an action in defence of alleged family property — Where litigant not family head and not a direct heir of judgment debtor — Legal effect
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held: Appeal allowed
1. The property attached was not family property, and the court was not shown any interest cognizable by native or any other law. The evidence shows quite clearly that Nii Nettey Quarshie gave this land to the judgment-debtor in absolute ownership.
2. The plaintiff showed no locus standi. His affidavit in support of his claim contained an untruth when he claimed to be the eldest surviving son of the late Nii Nettey Quarshie and the Head of the family.
3. It was never disclosed either in the affidavit supporting the application for an interpleader summons or at the hearing itself who exactly are the persons whom the claimant purports to represent.
4. The claimant is no better than a mere stranger and has no standing whatever, to put forward the claim. Apart from this the nature of the rights claimed is equally uncertain.
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MAIN JUDGMENT
The following judgments were delivered: per WEBBER, C.J., SIERRA LEONE.
In the Court below, an interpleader suit was brought by Akai Kofi Nettey as representing all the surviving children of Nii Nettey Quarshie, who claimed property seized under process of the Court in a suit between C. B. Nettey and The Gold Coast Independent Press Ltd., F. V. Nanka-Bruce, C. J. Reindorf and D. C. Welbeck, which property consisted of land with buildings at Horse Road, Ussher Town, Accra, bounded on the north by Horse Road, on the south by a land, on the east by a public latrine, and on the west by properties of J. Sackey and A. Adjin, and which property was so seized as the property of the judgment-debtor, C. B. Nettey.
In support of his claim, the plaintiff’s affidavit alleges that (1) he is the eldest surviving son of the late Nii Nettey Quarshie, and (2) that this property attached is the property of the children of the late Nii Nettey Quarshie—that is to say the claimant claims this property as his together with the other children – and in his evidence on cross-examination, he claims the property to be family property and states that he is the head of the family – yet he does not claim this property as head of the family nor does he claim it for himself and the children, but only as representing the children of the late Quarshie.
At the conclusion of the case the Court below, on the submission by Counsel for the execution-creditor that the claimant had no locus standi, decided that he had a right to interplead following the judgment in the case of Mahmudu v. Zenuah, W.A.C.A. 20th November, 1934*; and the Court further decided that the judgment-debtor was not in possession as sole owner and that the surviving children had an interest in the property and the Court thereupon ordered the release of the property from execution.
The appellants’ Counsel filed ten grounds of appeal, but his argument was based on two main points, namely: (1) that plaintiff has no right to come to the Court and (2) that this property admittedly not being family property, the claimants had no interest therein.
I am of opinion that both these submissions are sound. It seems clear to me that the learned Judge treated the interpleader as a claim by members of a family to family land seized in execution, and he relied on the judgment in the case quoted above. In that case the property attached was in fact family property, and the learned Judges held that any member of a family could interplead if the head of the family neglected to do so. In the case now before us, it is admitted by respondent’s Counsel that the property attached was not family property, and when asked what was the nature of the interest claimed by the surviving children he was unable to show us any interest cognizable by native or any other law. As most aptly put by Counsel for appellants “the only interest of children is in family property – what other possible interest have they?”
To return to the submissions by appellants’ Counsel, the plaintiff has shown no locus standi in this case. His affidavit in support of his claim starts with an untruth when he says that he is the eldest surviving son of the late Nii Nettey Quarshie. In his evidence he states that Nii Nettey Quarshie is his uncle, that the property belongs to himself, his half brothers and sisters and the rest of the family, although his Counsel laboured at length to persuade this Court to believe that the interest claimed was a joint ownership by the surviving children of Nii Nettey Quarshie. Then to strengthen his own claim to an interest in the property the plaintiff says it is family property and he is head of the family. Not so, says his witness Ocquaye: “We had put the judgment-debtor as head of the family.” Charles Nettey in his evidence also stated that “the family at Accra and Gbese have elected the judgment-debtor as head of the family.”
As to Counsel’s second submission I agree that when Counsel for respondent could not support the contention of the plaintiff that the property was family property, he sought, in vain, to induce us to believe in a new kind of tenure. The evidence shows quite clearly that Nii Nettey Quarshie gave this land to the judgment-debtor in absolute ownership. Nettey Quarshie gave other lands to various Nettey individuals.
As to rents, the only room in respect of which rent is paid is a store let to tailors and built by Nii Nettey Quarshie himself, and this rent is paid to the judgment-debtor. The children of Quarshie did not succeed to this property, it not being family property, and had no right to these rents.
On these submissions by Counsel for the appellants, I am of opinion that the judgment of the learned Judge was wrong, that the property was attachable, and that the interpleader action should be dismissed.
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KINGDON, C.J., NIGERIA.
Whilst entirely agreeing with the judgment which has just been delivered by my learned brother the Chief Justice of Sierra Leone, I desire to add a few remarks.
I consider that all claims of this nature where the plaintiff professes to sue in a representative capacity require to be scrutinised most carefully, and the present claim is a very good example. The more one examines it, the clearer does it become that the whole claim is a barefaced attempt to impose upon the Court.
The claimant put forward his claim as “representing all the surviving children of Nii Nettey Quarshie of Gbese, Accra,” and, to found his right to bring the claim, he swears that he is the eldest surviving son of the late Nii Nettey Quarshie. This is plain perjury, for he is not a son of Nii Nettey Quarshie at all, but only the son of Nii Nettey’s Quarshie half-brother. In thus stigmatising the statement, I am fully aware of the loose manner in which semi literate Africans speak of all kinds of near relations as “father,” “brother” or “son”; but that is a very different matter from deliberately founding a claim in the Courts upon a false relationship.
Apart from this it was never disclosed either in the affidavit supporting the application for an interpleader summons or at the hearing itself who exactly are the persons whom the claimant purports to represent. And in fact neither he nor his Counsel seem to know themselves, far less does the other side or the Court.
In cross-examination the claimant said:
“I am claiming for myself, Narku Adusei another Akai Tettey, Okaitei, Nieboye, Allotey, Tetteh Buah-Netteley, Nettelei II, Korkoi, and others.”
But he did not give the vital information as to which of these persons are children of the late Nii Nettey Quarshie. I asked his Counsel and his Counsel did not know.
But some time later after consulting his client, Counsel said that of the persons named Netteley, Nettelei II and Korkoi are Ni Nettey Quarshie’s children and that there are other children living, including the mother of Ocquaye. Not a single one of these gave evidence or appeared before the Court to associate themselves with the claimant in any way; the Korkoi who gave evidence is a different Korkoi. There was, however, one of the claimant’s witnesses who professed to be a son of Nii Nettey Quarshie and to have authorised the claimant to take out the summons. This was Charles Nettey, but he is not one of those named by the claimant as persons on whose pendent behalf the claim is made. I have said enough to show the completely “fishy” nature of the claim so far as the party claiming is in concerned.
In fact the claimant is no better than a mere stranger and has no standing whatever, to put forward the claim. Apart from this the nature of the rights claimed is equally uncertain.
Nowhere either in the evidence or the judgment of the lower Court does this appear.
Early in the course of this appeal the claimant’s Counsel in answer to the Court said that his contention was that the property is the joint property of the children of Ni Nettey Quarshie – not family property, whilst later he contended that claimant has a right because as a nephew of the original owner he has a real interest in the property. How is it possible to reconcile the two contentions?
I consider that this appeal should be allowed.
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PETRIDES, C.J., GOLD COAST.
I concur.
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