Land sold in execution of decree
in Divisional Court of
Asantehene - Application for
interpleader sum7nons by person
claiming to be O1One'r made five
days before sale-Summons
issued twelve days after
sale-Judgment for
claimant--Decision based on
Rules of Supreme Court re
lnterpleader .suit.- No
provision making such rules
applicable-Rules under Native
Courts Ordinance do not cover
lnterpleader actions.
Held: (a) Rule's of
Supreme Court relied on
incorrectly but, on general
grounds, provided issue clear,
form in which action brought
immaterial, and (b)
declaration of claimant's
ownership correct but not order
setting aside the sale as
neither vendor nor purchaser
parties to the proceedings. With
this variation order of
Asantehene's Court upheld and
appeal dismissed.
There is no need to set out the
facts. Case referred to:-
Abuagyi II v. Gyebu,
(HI21) F.C. 8l.
J. B. Danquah
for Appellant. Respondent in
person.
The following joint judgment was
delivered:-
KINGDON, C.J., NIGERIA,
PE'fRID.ES, C.J., GOLD COAST,
AND GRAHAM PAUL, C.J., SIERRA
LEONE.
In this case the
claimant-respondent-appellant-respondent's
land, which he bought for £4 13s
Od in 1938, was sold in
execution of ~ decree of the
Divisional Court of the
Asantehene (Grade H). The date
of the sale was 28th December,
1938. Five days before that, on
the 23rd December, 1938, the
respondent had applied to the
Court B for an interpleader
summons claiming to be the owner
of the land. The summons was
issued on the 9th January, 1939,
after the sale had taken place.
On the hearing. of what the
Court B called the" interpleader
action", Court B gave judgment
for the claimant, set aside the
sale of the property and
declared it to revert to the
original owner the claimant.
Against that decision the
judgment-creditor appealed
to the Asantehene's Court A,
which upheld his appeal on
the ground that the action
of the claimant was not
taken till after the sale.
The claimant then appealed
to the Court of the Chief
Commissioner of Ashanti
which upheld his appeal and
set aside the sale on the
ground that at the time of
the sale the claimant was in
possession. All three lower
Courts referred to Rules of
the Supreme Court in regard
to interpleader suits, and
based their respective
decisions upon their
interpretation of those
rules, as though the rules
governed the present case,
but there is no provision
which makes those rules
applicable. Rules have been
made under section 37 of the
Native Courts (Ashanti)
Ordinance (Cap. 80), but
they do not cover procedure
in Interpleader suits. This
being so we are of opinion
that a Native Court in
Ashanti in which a man has
('ome forward to claim land
which has been seized and
I
or sold in execution of a
decree should fallback not
upon the Supreme Court Rules
of procedure but on the
general principle enunciated
by Smyly,
C J.,
in
Albuagyi II v. Gyebu
(1921) F.C. ' 20-' 21 p. 81)
when he said:
" Personally I do not lay
any stress on the form in
which " an action is brought
before a Native Tribunal so
long as " the issue involved
is clear,"
In the present case the real
issue in the Asantehene's
Court B was clear, namely:
-" Is the claimant the owner
of the land? " The Court
held that he was and we are
of opinion that having done
so the Court was right to
give him a declaration of
ownership. The order setting
aside the sale should not'
have been made in addition,
since neither vendor nor
purchaser were parties to
the proceedings. 'With this
variation the order of the
Asantehene's Court B,
including the order as to
costs, is upheld and the
appeal is dismissed with
costs assessed at £5 16s 0d.
