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ISAAC ASARE WILSON
V.
OPOKU AFRIYE
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST
5TH DAY OF MAY, 1943
LEX (1943) – WACA 104 – 105
OTHER CITATION(S)
2PLR/1943/26 (WACA)
(1943) IX WACA PP. 104 – 105
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BEFORE THEIR LORDSHIPS:
KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
GRAHAM PAUL, C.J., SIERRA LEONE
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BETWEEN:
ISAAC ASARE WILSON – Plaintiff-Judgment-Creditor-Appellant
AND
OPOKU AFRIYE – Defendant-Judgment-Debtor
OKYEAKE KWAFO KWADJO – Claimant-Respondent
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REPRESENTATION
C. C. Lokko for Appellant
A. W. Kojo-Thompson for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW – LAND:- Claim for declaration of title – Evidence of the description of land – Need for same to be sufficient to identify the land with sufficient particularity – Distinction from standard of evidence that would satisfy the issuance of an order releasing land from attachment
DEBTOR AND CREDITOR – JUDGMENT DEBT:- Land attached in satisfaction of judgment debt – Description of land – Standard of particulars needed for an order releasing land from attachment – Distinction from standard required to sustain a claim for declaration of title
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PRACTICE AND PROCEDURE ISSUE(S)
ACTION – INTERPLEADER:- Form of relief to be ordered – Rules of Court, Cap. 4, Schedule 3, Order 44, Rule 25 (Gold Coast) — Inconsistency therewith of form of summons, ibid., Appendix A, form 23 — Description and identification of land to be released.
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CASE SUMMARY
Order 44, rule 25, of the Rules of Court, Cap. 4, Schedule 3 (Gold Coast) provided that the relief to be granted on an Interpleader Summons was the release of the property from attachment. In the form of Summons prescribed under the rule the relief claimed was that the property should be declared and adjudged the property of the claimant.
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held,
1. that the relief given should be that prescribed in the rule, not that claimed in the Summons.
2. that it was impossible from the evidence and the description in the claim to identify the land with sufficient particularity to give a declaration of title, but
3. that the land was sufficiently identified for an order releasing it from attachment to be made.
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MAIN JUDGMENT
The following joint judgment was delivered:- per KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL, C.J., SIERRA LEONE.
There is no substance in any of the grounds of appeal in this case and the judgment in favour of the claimant must be substantially upheld; but it must be altered in form and clarified in regard to the land to which it relates. In regard to the form it is to be regretted that in the rules of Court there is an inconsistency in the terms of the form of summons set out at pages 194 and 195 of Volume 1 of the Laws for use under Order 44, rule 25 as compared with the terms of the rule itself.
By the rule the relief which should be given is release of the property attached from attachment but in the form of summons the relief claimed is that the property seised should be declared and adjudged the property of the claimant a very different thing. Pending an amendment of the form – which is obviously desirable— we are of opinion that in this and similar cases the relief which should be given is that prescribed by the rule, instead of, as was done in this case, judgment merely being given for the claimant, which, in this case, presumably means that the property seised was adjudged to be the property of the claimant.
As regards the description of the land to which the claim relates, it is clear that the land in dispute was that in the hands of Alfred Robina Dade as Manager and Receiver and that it lies between the land of Ofei Kwabena and Kwame Tete. It would be impossible from the description in the claim (which is probably inaccurate), the documentary evidence and the testimony of the witnesses to identify the land with sufficient particularity to give a declaration of title, but we think that the land attached is sufficiently identified for an order releasing it from attachment to be made.
We accordingly order that the judgment of the Court below shall be varied by substituting for the judgment for the claimant an order that the land attached, namely the land in the hands of Alfred Kobina Dade as Manager and Receiver, be released from attachment.
The order of the Court below as to costs stands good. As to costs in this Court, we have considered whether in view of the alteration to the judgment which we have directed we should deprive the respondent of his costs, but we have decided that, as he has substantially succeeded, there is no justification for doing so.
The respondent is awarded costs in this Court assessed at £33 1s.
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