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R U L I N G
OWUSU, (MS) J.S.C:
This is an application to invoke
the supervisory Jurisdiction of
the Supreme Court under Article
132 of the constitution, which
reads as follows:
“The supreme court shall have
supervisory Jurisdiction over
all courts and over any
adjudicating authority and may
in the exercise of that
supervisory Jurisdiction, issue
orders and directions for the
purpose of enforcing or securing
the enforcement of its
supervisory power.”
The Applicant is seeking an
order of certiorari directed to
the High Court presided over by
J. B. Benson J. to move into
this court for the purpose of
quashing that part of the ruling
of the court dated 10th
day of June, 2008, that “the
claimant has no interest in the
subject matter of this
application.”
Before we proceed to deal with
the application, we deem it
necessary to touch on the title
of the application as stated:
“ANTHONY KWABENA ANYAN
TRADING AS ANYAN ENTERPRISE
LIGHT INDUSTRIAL AREA, SOUTH
RING ROAD WEST
VRS
HIGH COURT, ACCRA
RESPONDENT
PLATINUM
HOLDINGS
INTERESTED PARTY ”
NO. 59 GRAPHIC ROAD, ACCRA
No issue has been raised in this
application on the title as
stated but all the same we feel
the need to have it corrected.
The title, as it is, is not
fatal to the application,
particularly as the court’s aim
is to do substantial justice
between the parties and either
party would suffer no hardship
if the heading of the
application is amended.
Accordingly, we are inclined to
amend the title in the exercise
of the court’s general
Jurisdiction under Art 129 (4)
of the constitution to conform
to the usual titles adopted in
applications of this nature.
Article 129 (4) of the 1992
constitution reads as follows:
“for the purposes of hearing
and determining a matter within
its jurisdiction and the
amendment, execution or the
enforcement of a judgment or
order made on any matter, and
for the purpose of any other
authority, expressly or by
necessary implication given to
the Supreme Court by this
Constitution or any other law,
the Supreme Court shall have all
the powers, authority and
Jurisdiction vested in any court
established by this constitution
or any other law.”
“The wrong heading of the
application for an order of
certiorari could not in any
material manner, derogate from
the nature of the application
itself. Since the supreme court
was a court of final resort, in
the absence of specific
prescriptions in the supreme
court rules, 1970 (C113) or any
other relevant statute, what was
more important was whether the
application had any substance
regardless of the form in which
it has been intituled”.
See the case of OKOFOH
ESTATES LTD VRS MODERN SIGNS LTD
(1996 -97) SCGLR P. 224 at 225.
We therefore alter the title to
read: THE REPUBLIC VRS HIGH
COURT; ACCRA EX –PARTE: ANTHONY
KWABENA ANYAN.
With the title thus amended, we
see our way clear in dealing
with the application on its
merits.
The events leading to the filing
of the instant application
before the court are briefly as
follows:
The Applicant and the Interested
Party are sub-lessees of Edward
Nassar and Co. Ltd, a lessee of
the Government of Ghana of a
piece of land in the light
Industrial Area, South of Ring
Road West.
Edward Nasser and Co. Ltd,
having taken a lease of the
property, sublet portions of it
to the Applicant and Interested
party.
On or about 24th day
of March 2004, the Interested
Party brought an action against
the Applicant for a declaration
of title to plot No. 1A and
marked “44” on a map attached to
the Applicant’s statement of
case in this application and
obtained Judgment against him.
It was not until 11th
November, 2005 that he applied
by motion ex-parte, for a writ
of possession which was granted
on 26th November,
2007.
In executing the Judgment, it is
alleged the Interested Party
entered another property of the
Applicant other than that in
respect of which judgment was
obtained and attached same. It
was against this execution that
the interpleader proceeding was
instituted in which the
Applicant herein claimed
interest in the attached
property.
It is the contention of the
claimant that the execution
Judgment Creditor had levied
execution on a property other
than plot No. 1A in respect of
which Judgment was obtained.
Counsel for the execution
Judgment creditor, in response
to the claimant’s submission,
had argued that the execution
debtor/claimant has no interest
in the property in respect of
which execution was levied
because his grantor i.e. Edward
Nasser and Company’s interest
had expired in October, 2007.
Edward Nasser and company Ltd
had by a leasehold agreement
been granted a lease of a larger
piece of land of which the
subject matter of the attachment
forms a part, for a term of
FIFTY (50) YEARS from the 1st
day of October, 1957 by the
Ghana Government. In his ruling,
the trial Judge found as a fact
that the property which was
attached in execution is not the
one in respect of which the
execution/creditor obtained
Judgment.
This is what His Lordship said
in his ruling:
“That in terms of area and
dimensions in the view of this
court and from the exhibits
annexed to the various
affidavits clearly showed that
the land is different in
dimension and size. The
location is also different. We,
therefore hold as such that the
execution was not in respect of
the property for which Judgment
was obtained. ----------”
The trial Judge did not stop at
ruling that the and, the subject
matter of the execution, had
been wrongly attached but went
further to pronounce on the
claim by the
execution/Judgment/debtor that
he has interest in the attached
property.
In this regard, he examined the
lease document of Edward Nasser
and company which was for fifty
(50) years effective 1st
October, 1957 and that of the
claimant which was for 99 years,
effective 1st
October, 1991 and declared that
the grant of 99 years by Edward
Nasser and Company Ltd to the
claimant was wrong in Law as the
company could not alienate any
interest in the property more
than what it had at the time it
sublet part of the land it
acquired in the Head lease to
the claimant. The company’s
lease was to expire on the 1st
of October 2007 and by that date
the claimant’s interest under
his lease had also automatically
expired.
This is what led the court to
pronounce on the claimant’s
interest in the subject matter
of the application.
The grounds on which the present
application is based are:
“Want of and or excess
of Jurisdiction.”
Arguing the application, counsel
relies on the opinion of Bamford
Addo JSC in the case of BRITISH
AIRWAYS VRS ATTORNEY-GENERAL
(1996-97) SCGLR 547 at 553 where
the learned Judge opined as
follows:
“The supreme Court’s supervisory
Jurisdiction under Art. 132 and
161 of the 1992 constitution
ought to be exercised in
appropriate and deserving cases
in the interest of Justice
(therefore) whenever in the
course of any matter brought
before this court, it is found
that there exists in one of
lower courts any matter which
would in the long run result in
injustice or illegality it is
the duty of the court to at once
intervene and issue orders and
direction with a view to
preventing such illegalities or
injustice even before they
occur.”
Counsel also referred to the
case of the REPUBLIC VRS THE
COURT OF APPEAL; EX-PARTE:
TSATSU TSIKATA reported in
(2005-2006) SCGLR in which Her
Ladyship Wood JSC (as she then
was) reading the lead ruling of
the court said –
“The clear thinking of this
court is that our supervising
Jurisdiction under article 132
of the 1992 constitution should
be exercised on in those
manifestly plain and obvious
cases where there are patent
errors of law on the face of the
record, which errors either go
to Jurisdiction or
are so plain as to make the
impugned decision a complete
nullity. It stands to reasons
that the reason than that the
errors of law alleged must be
fundamental, substantial,
material, grave or so serious as
to go to the root of the matter
---”
It is the contention of counsel
that if the learned Judge had
not strayed into a discussion of
the Applicant’s title when that
was clearly not an issue before
him, particularly after he had
held that the execution was
wrongful, he would not have
dismissed applicant’s
application.
Regrettably, a copy of the
application before the high
court was not attached to the
instant application and the
court is therefore disabled from
knowing the nature of interest
the Applicant herein claimed.
Was he an applicant or a
claimant?
“Interpleader is a proceeding by
which a person, from whom two or
more persons claim the same
property or debt, land who does
not himself claim the property
or dispute the debt, can protect
himself from legal proceedings
by calling upon the two
claimants to interplead – that
is to say, claim against one
another so that the title to the
property of debt may be
decided. Interpleaders may be
divided into two types; the
first is where a sheriff seizes
or intends to seize goods by way
of execution and a person (other
than the Judgment debtor) claims
them. Here the sheriff initiates
the proceedings to determine
whether the property belongs to
the Judgment debtor (and
therefore can be seized) or to
the claimant. --------- ”
[Order
17/1/1, the Supreme Court
Practice, 1995 (edition Vol. 1)
]
For purposes of this
application, we will limit
ourselves to this type of
Interpleader which is known as a
sherrif’s interpleader as the
circumstances do not fall under
the other type of interpleader
known as stakeholder’s
interpleader.
Under Order 48 1 (b) of the High
Court (civil) procedure Rules
C.I. 47, a person may apply to
the court for relief by way of
interpleader where “the
person seeking relief is a
Registrar or other officer of
the court charged with the
execution of process by or under
the authority of the court, and
a claim is made to any property
movable or immovable taken or
intended to be taken in
execution under any process or
to the proceeds or value of any
of the property by any
Claimant other than the person
against whom the process is
issued” (emphasis
mine)
From the ruling, in the
application before the High
Court, counsel for the
Judgment/executioner had
resisted the claim by the
Applicant herein on the grounds
that being a defendant in the
suit he cannot bring an
interpleader action. Secondly,
that the defendant/claimant has
no interest in the property
against which execution has been
levied because his grantor’s
interest had expired in October
2007.
It is in respect of the second
leg on which the claim was
resisted that the trial Judge
ruled that the claimant has no
interest in the property,
subject matter of the
interpleader proceedings.
The law is settled that the
supervisory Jurisdiction of the
court under Art.132 of the 1992
constitution is exercised only
in those manifestly plain,
obvious and clear cases where
there are patent and obvious
errors of law on the face of the
record which error must go to
the Jurisdiction of the court so
as to make the decision of the
court a nullity.
The authorities are now many on
this proposition but to mention
a few, let us refer to the cases
of REPUBLIC VRS HIGH COURT,
ACCRA; EX-PARTE APPIAH AND OTHER
[2000]
SCGLR 389, REPUBLIC VRS HIGH
COURT, ACCRA; EX-PARTE:
INDUSTRIALIZATION FUND FOR
DEVELOPING COUNTRIES AND ANOTHER
[2003-4]
SCGLR 348 AND THE TSATSU TSIKATA
case already referred to in
which the proposition has been
clearly set down.
It is therefore the contention
of counsel for the Interested
Party that in pronouncing on the
claim of the Applicant, the
court acted within its
Jurisdiction and therefore there
is no error of law on the face
of the record to warrant
invocation of this court’s
supervisory Jurisdiction.
The question then is, was that
part of the ruling of the High
Court which the Applicant is
seeking an order of the court to
quash made without Jurisdiction
or in excess of Jurisdiction?
In an interpleader proceeding,
the claimant puts his interest
in issue. In the affidavit of
interest, he states the
particulars of his claim and the
grounds on which he relies.
Regrettably, the Applicant’s
affidavit of interest in support
of his claim was not exhibited
in this application but attached
is Exhibit “1” the leasehold
agreement on which he relies.
By this agreement, he was
granted ninety-nine (99) year
leasehold, effective 1st
October 1991 by Edward Nasser &
Company. Edward Nasser’s lease
under which the Applicant took
his lease was for a term of 50
years with effect from 1st
October 1957.
So that at the time when the
Applicant sought to support his
claim with the lease, same was
not valid as his grantor’s Head
lease had expired.
If the Applicant’s application
before this court is premised on
the ground that the trial Judge
lacked Jurisdiction or exceeded
his Jurisdiction in pronouncing
on the Applicant’s title because
same was not in issue, we will
say that same is a serious
misconception. Indeed by the
very nature of the relief he
sought, he put his title in
issue and that is the essence of
an interpleader proceeding.
If by the application, the
claimant’s title was in issue,
then the trial Judge was
perfectly acting within his
Jurisdiction when he pronounced
on it. Under these
circumstances if he commits any
error which is not patent on the
face of the record, certiorari
will not issue by way of
remedy. Under those
circumstances, the aggrieved
party’s remedy lies in an
appeal. See the case of REPUBLIC
VRS HIGH COURT, ACCRA. EX-PARTE:
COMMISSION ON HUMAN RIGHTS AND
ADMINISTRATIVE JUSTICE (CHRAJ)
(ADDO Interested Party)
[2003-2004]
SCGLR.312
Consequently, the application is
ill-conceived and same is
therefore dismissed.
Having dismissed the
application, we are tempted to
comment on the relief sought for
by the Applicant in the
Interpleader proceedings.
Looking at the Applicant’s case
before the High Court, did his
relief lie in an interpleader
action? His complaint was that,
the land the subject matter of
the interpleader action was
wrongfully attached, thus making
the execution wrongful. An
execution is wrongful when it is
not authorized or justified by
the writ of execution or by the
Judgment under which it is
issued. In this case, the High
Court having ruled that the
property attached was not
justified by the writ of
execution, the execution was
wrongful.
Unlike property seized in
execution of a Judgment debt by
writ of fieri facias (fI:fA),
the property seized under a writ
of possession covers a
particular property, subject
matter of the Judgment in
respect of which the Judgment
was obtained. It is when
property had been attached
normally under a writ of fieri
facias that a person other than
the defendant who claims an
interest in it interpleads.
In cases where the execution is
wrongful or irregular, the
relief available is to have the
writ of execution set aside.
R. C. OWUSU (MS)
(JUSTICE OF THE SUPREME COURT)
S. A. B. AKUFFO (MS)
(JUSTICE OF THE SUPREME COURT)
DR. S. K. DATE-BAH
(JUSTICE OF THE SUPREME COURT)
S. O. A. ADINYIRA (MRS)
(JUSTICE OF THE SUPREME COURT)
J.V.M. DOTSE
(JUSTICE OF THE SUPREME COURT)
COUNSEL
KWAKU BAAH FOR THE APPLICANT
BENARD AHIAVOR FOR THE
INTERESTED PARTY
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