Appeal by Plaintiffs-Appellants
against refusal by lower Court
of an interim injunction to
restrain Defendants-Respondents
from execution of writ of Fi.Fa-procedure
as to execution considered
right to apply to restrain a
threatened invasion of legal or
equitable rights. Appeal
allowed.
Held: The statutory provisions
as to Interpleader only come
into effect when goods or land
are seized. Order 45 of the
Rules of the Supreme Court
leaves unimpaired a person's
right to come to the Court to
prevent a threatened seizure
which is unlawful. The Court
below is accordingly directed to
hear the application.
There is no need to set out the
facts.
K. A. Korsah
for Appellants.
C. F.
H. Benjamin
for Respondents.
The following joint judgment was
delivered :-
KINGDON, C.J., NIGERIA, PETRIDES,
C.J., GOLD COAST, AND GRAHAM
PAUL, C.J., SIERRA LEONE.
The plaintiffs, alleging in
their affidavit in support that
the defendants were threatening
to attach the canoes of all the
fishermen of winneba whom they
represent in this action,
applied in the Court below for
an interim injunction to
restrain the defendants from
executing a writ of
Fi. Fa.
on all the canoes on the beach
at Winneba, except those
belonging to the late Kojo Edu
and Kobina Donkoh, on the ground
that they (plaintiffs) were not
parties to the suit in respect
of which the writ of
Fi. Fa.
was issued. In other words they
claimed they were not judgment
debtors.
This application was refused for
the reasons given by the learned
trial Judge in the following
part of his Ruling :-
.. I have given this matter very
careful consideration and in my
opinion the answer to the
question is as follows :-1
consider that where a
Fi. Fa.
has been issued, and it is
intended to contest the
ownership of the various
properties affected by the
Fi. Fa.,
the proper and only legal
procedure is for the properties
affected by the
Fi.Fa.
to be seized, and, after such
seizure for resort to be had to
interpleader proceedings. I do
not consider that once a writ of
Fi. Fa.
has been issued, any legal means
exist of contesting it except by
interpleader proceedings after
seizure of the property, I these
circumstances I refuse to grant
the application for an interim
injunctionl and the
Fi. Fa.
will now have to be executed as
desired by the defendant,"
The defendants do not, in their
affidavit in reply, deny that they
threaten to attach all the canoes.
On the contrary the: allege that
the plaintiffs are bound by the
judgment in respect 0 which they
(defendants) have obtained a writ
of
Fi.Fa.
and appeal' to claim that they are
entitled to levy execution on all
the canoes!
The procedure as to execution
affecting property is govern 'by
Order 44 of Schedule 3 of the
Rules of the Supreme Court. Some
of the rules in this Order are
designed to provide an expeditious
method of trying claims asserted
by any person other than the
.
judgment debtor to property seized
in execution. Under Rule
1
of this Order any person'
dispossessed of land may apply b
interpleader proceedings to the
Court within two months fro the
date of such dispossession. Under
Rule 26 the claim must preferred
at the earliest possible
opportunity. If claimant delay:
designedly and unnecessarily with
a view to defeat the ends
0
justice he " shall be left to
prosecute his claim by a regular
suit ' to quote from the last line
of that rule. It is clear
therefore that there are means,
other than by interpleader
proceedings, 0 recovering property
seized under writ of Fi. Fa.
In 18 Halsbury, 2nd Edition page
28 paragraph 42 it is state an
interlocutory judgment will be
granted to restrain an apprehended
or threatened injury where such
injury is certain 0: very
imminent, or mischief of an
overwhelming nature is likely to
be done.
It is quite clear that Rules made
under the Supreme Court:
Ordinance cannot deprive a person
of his right to apply to a Court
to restrain a threatened invasion
of his legal or equitable right
unless that Ordinance expressly
deprives a person of that right
Neither that Ordinance nor Order
45 purports to do so.
The provisions of Order 45 as to
interpleader only come into effect
when goods - or land are seized
and these are merely
,supplementary to other rights a
person ~ay have to claim property
which has been wrongfully seized
In execution. It leaves unimpaired
a person's right to come to the
Court to prevent threatened
seizure which is unlawful.
We allow the appeal and set aside
the judgment of the Court below
and direct that Court to hear the
application in the light 0 this
judgment.
The plaintiffs to {have the costs
of this appeal which we as, at £46
17s. 2d. and the taxed costs of
the hearing in the Court below.
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