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C. E. ASANTE
V.
KOJO MENSAH AND OTHERS
WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST
17TH DAY OF MAY, 1941
2PLR/1941/27 (WACA)
OTHER CITATION(S)
(1941) VII WACA PP. 71 – 72
2PLR/1941/27 (WACA)
LEX (1941) – VII WACA PP. 71 – 72
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
GRAHAM PAUL, C.J., SIERRA LEONE
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BETWEEN:
C. E. ASANTE – Plaintiff-Judgment-Creditor-Appellant-Respondent-Appellant
AND
KOJO MENSAH, KWEKU KYERE, KOJO OTI AND OBENG – Defendants-Judgment Debtors
KOBINA WUSU – Claimant-Respondent-Appellant-Respondent
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REPRESENTATION
J. B. Danquah — for Appellant
Respondent in person
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW — LAND:- Land sold in execution of decree in Divisional Court of Asantehene — Application for Interpleader summons by person claiming to be owner made five days before sale — Summons issued twelve days after sale — Judgment for claimant — Decision based on Rules of Supreme Court re Interpleader suits — No provision making such rules applicable — Rules under Native Courts Ordinance do not cover Interpleader actions
DEBTOR AND CREDITOR — EXECUTION OF JUDGMENT DEBT:- Land sold in execution thereof — Application by third party in possession of land claiming ownership of land — Where court finds title rights proved — Proper order to make — Whether should extend to setting aside of the sale — Relevant considerations
PRACTICE AND PROCEDURE ISSUE(S)
COURT:- Form of action before a native/customary tribunal — Where the issue is clear — General principle enunciated by Smyly, C. J., in Abuagyi II v. Gyebu (1921) F. C. 20 – 21 p. 81 — ) — Duty of court thereto
DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held:
(a) Rules of Supreme Court relied on incorrectly but, on general grounds, provided issue clear, form in which action brought immaterial, and
(b) declaration and claimant’s ownership correct but not order setting aside the sale as neither vendor nor purchaser parties to the proceeding. With this variation order of Asantehene’s Court upheld and appeal dismissed.
Case referred to:
Abuagyi II v. Gyebu, (1921) F.C. 81.
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MAIN JUDGMENT
The following joint judgment was delivered:-
KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST, AND GRAHAM PAUL, C.J., SIERRA LEONE
In this case the claimant-respondent-appellant-respondent’s land, which he bought for £4 13s 0d in 1938, was sold in execution decree of the Divisional Court of the Asantehene (Grade B). The date of the sale was 28th December, 1938. Five days before that, on the 23rd December, 1938, the respondent had applied to the Court B for an interpleader summons claiming to be the owner of the land. The summons was issued on the 9th January, 1939, after the sale had taken place. On the hearing of what the Court B called the “interpleader action”, Court B gave judgment for the claimant, set aside the sale of the property and declared it to revert to the original owner the claimant.
Against that decision the judgment-creditor appealed to the Asantehene’s Court A, which upheld his appeal on the ground that the action of the claimant was not taken till after the sale. The claimant then appealed to the Court of the Chief Commissioner of Ashanti which upheld his appeal and set aside the sale on the ground that at the time of the sale the claimant was in possession.
All three lower Courts referred to Rules of the Supreme Court in regard to interpleader suits, and based their receptive decisions upon their interpretation of those rules, as though the rules governed the present case, but there is no provision which makes those rules applicable. Rules have been made under section 37 of the Native Courts (Ashanti) Ordinance (Cap. 80), but they do not cover procedure in Interpleader suits. This being so we are of opinion that a Native Court in Ashanti in which a man has come forward to claim land which has been seized and/or sold in execution of a decree should fall back not upon the Supreme Court Rules of procedure but on the general principle enunciated by Smyly, C.J., in Abuagyi II v. Gyebu (1921) F.C. 20 – 21 p. 81) when he said:
“Personally, I do not lay any stress on the form in which an action is brought before a Native Tribunal so long as the issue involved is clear.”
In the present case the real issue in the Asantehene’s Court B was clear, namely:
“Is the claimant the owner of the land?”
The Court held that he was and we are of opinion that having done so the Court was right to give him a declaration of ownership. The order setting aside the sale should not have been made in addition, since neither vendor nor purchaser were parties to the proceedings. With this variation the order of the Asantehene’s Court B, including the order as to the costs, is upheld and the appeal is dismissed with costs assessed at £5 16s. 0d.
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