Appeal Court. Supreme Court exercising Appellate jurisdiction.

 

This case was heard in the Police Magistrate's Court, Accra, on an Interpleader Summons issued by one Tesala Zenuah, 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 agaiIl9t B. H. Zenuah under which there had been attached in execution and advertised for sale "All the right title and interest of B. H. " Zenuah in all that piece or 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 M ahmudu against R. 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 tl1at claim­" ant is not the head ~f the family. The claim ill " 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 a 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 id 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, had the judgment debtor in his capacity of Head " of the Harri Zeuuah 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 elder 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 controverter 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 25 (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 .... " 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 " as not liable to " be sold in execution of a decree against the judgment debtor". '1'he Court investigate 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 wit11 that section the Court was under section 19 bound to ignore.

It is also clear to my mind that the Court, by allowing execution an(] sale to proceed, was stultifying itself and its officers, because at any sale in execution of immovable property all that can be sold and a1l 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 old 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 fact or in law. If the sale proceeds the Court would eventually have to give to that purchaser a certificate under Order 45 rule 34 that he had purchased something which the Court is ex hypothcsi: 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 l'eductio ad absurdum of the judgment creditor's contention.