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A. F. AND M. KHOURY
V.
SHARANI BROTHERS
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
13TH DAY OF MARCH, 1953
APPEAL NO. 31/52
2PLR/1954/63 (WACA)
OTHER CITATION(S)
2PLR/1954/63 (WACA)
(1953) XIV WACA PP. 279 – 280
LEX (1953) – XIV WACA 279 – 280
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
COUSSEY, J.A.
WINDSOR-AUBREY, J.
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BETWEEN:
A. F. AND M. KHOURY – Appellants
AND
SHARANI BROTHERS – Respondents
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ORIGINATING COURT(S)
Appeal from the Supreme Court
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REPRESENTATION
K. Adumua-Bossma — for Appellants
N. A. Ollennu — for Respondents
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
DEBTOR AND CREDITOR LAW:- Order of Interim Attachment — Whether distinguishable from “Execution” — Civil Procedure Rules: Order 13, rule 3; Order 43, rule 16 in review
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PRACTICE AND PROCEDURE
INTERPRETATION STATUTES:- Civil Procedure Rules: Order 13, rule 3; Order 43, rule 16 — Proper construction of
WORDS AND PHRASES:- “Interim Attachment” — “Execution” — Meaning and difference between
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CASE SUMMARY
The respondents sued X for the price of tyres sold and took out under Order 13, rule 3, an order of interim attachment of the tyres “pending the hearing and determination of the suit”, under which order the tyres were seized by the Sheriff. Later they obtained judgment against X and applied for a writ of fi. fa., but the writ was not issued as the appellants sued the respondents claiming delivery up of the tyres, which the appellants claimed were mortgaged to them under a bill of sale by X and which they alleged the respondents had wrongfully caused to be attached for sale by the Sheriff. The trial Judge held that the respondents in fact had not proceeded to execution, and could not be ordered to deliver as they were not in possession of the tyres. The plaintiffs appealed, arguing that the Sheriff had seized and possessed the tyres as the agent of the respondents, and pointed to Order 43, rule 16, which provides that “in every case of execution, all steps therein shall be taken on the demand of the party executing the decree, etc.”. (The relevant part of Order 13, rule 3, on interim attachment is given in the judgment infra.)
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the Appeal) that:
Order 43, rule 16, deals exclusively with execution of a decree and has no application to interim attachment under an order made under Order 13, rule 3, which is made for the preservation or safe custody of property pending judgment and under which the property attached is placed “at the disposal of the Court” and is not in the possession of either party to the suit.
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MAIN JUDGMENT
The following Judgment was delivered:
FOSTER-SUTTON, P.
In this case the appellants sued the respondents claiming delivery up of certain motor lorry tyres, specified in the writ of summons, which the appellants claimed were mortgaged to them under a bill of sale by W. Baksmaty Limited, Accra, and which they alleged the respondents had wrongfully caused to be attached for sale by the Sheriff.
Shortly put the facts are that the respondents sold W. Baksmaty Limited the tyres in dispute in this case and having failed to obtain payment therefor they brought an action against them for the amount owing, and obtained judgment. During the course of that action the respondents applied for, and obtained, an Order for Interim Attachment of the tyres in question which was duly executed. The Order, exhibit “B”, was made under Order 13, rule 3 of the Civil Procedure Rules and it provides for the attachment of the tyres “pending the hearing and determination of the suit”, The judgment in that action was delivered on the 14th March, 1949, and in or about February or March, 1951, the respondents applied for a writ of fieri facias, which was not, however, issued because the appellants, hearing of the application, immediately filed the writ of summons in the case now before us. The tyres in dispute are still held in the custody of the Court under the Interim Order to which I have already referred.
The learned trial Judge held, as was the fact, that the respondents had not proceeded to execution, and he further held that they were not in possession of the tyres and could not, therefore, be ordered to deliver possession of them to the appellants. In effect he held that, whatever other remedy might be available to the appellants, the present action was misconceived, and he accordingly gave judgment for the respondents.
It was submitted, on behalf of the appellants, that when the tyres were seized by the Sheriff pursuant to the Interim Order of Attachment, he did so as agent of the respondents and that his possession or custody of them was at all material times the possession and custody of the respondents. It was further submitted that in arriving at his decision the learned trial Judge overlooked the provisions of Order 43, rule 16 of the Civil Procedure Rules which provides that, “In every case of execution, all steps therein shall be taken on the demand of the party executing the decree, and he shall be liable for any damage arising from any illegal or irregular proceeding taken at his instance …”.
In order to arrive at a correct determination of this matter it seems to me important to bear in mind that an Order of Interim Attachment under Order 13, rule 3 is not made for the purpose of enforcing a decree. The rule merely empowers the Court, in certain circumstances, to order a defendant “either to furnish security in such sum as may be specified in the Order, to produce and place at the disposal of the Court when required the … property, or the value of the same, or such portion thereof as may be sufficient to fulfil the decree, or to appear and show cause why he should not furnish security”, and it goes on to provide that the Court “may also in the warrant, direct the attachment until further order of the whole, or any portion, of the property specified in the application ” for the Order.
An Order of interim attachment of property under the rule is made for the preservation or safe custody of the subject-matter of the litigation pending judgment, and, in my view, the officer of the Court who executes the Order is not the agent of the person upon whose motion the Order is made. Property so attached is placed at “the disposal of the Court”, until further Order and I do not think it can be said to be, in any sense, in the possession of either party to the suit.
It follows that, in my opinion, Order 43, rule 16, which deals exclusively with execution by a party prosecuting a decree, has no application to a case where attachment of property is effected pursuant to an Order of a Court made under Order 13, rule 3.
Having regard to the view I take of this aspect of the case it is unnecessary to deal with the other points raised during the hearing of this appeal.
For the reasons I have given I would affirm the judgment appealed from and dismiss this appeal with costs, fixed at £16 3s. 0d.
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COUSSEY, J. A.
I concur.
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WINDSOR-AUBREY, J.
I concur.
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Appeal dismissed.
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