9

Practice-Writ of Possession-Rules of Supreme Court, Order XLv rule 5, Schedule 2-Interpleader.

The Appellant had been succc3sful in a land dispute and obtained a writ ( possession from the Court. The Respondent claimed that he occupied certain land included in the writ and applied to the Court under Order XLV, rule 5, 2n Schedule, Rules of Supreme Court. The Court ordered a suit to be registered between the parties, and dismissed a motion on demurrer by the Appellant.

The Appellant appealed, and his appeal succeeded on the ground that tt Respondent had not been dispossessed of any land at the time of his application under Order XLV, rule 5, and that his application was therefore premature an should not have been acceded to.

K. A. Korsah for the Appellant. The Respondent in person.

The following judgment was delivered by Hall, ]. and concurre in by Deane C.]. the Gold Coast Colony and Kingdon, C.~ Nigeria :-

HALL, ].

This is an appeal from a ruling of Gardiner-Smith, ]. date 7th April last whereby he declined to accede to a motion b defendant under Order XIX Schedule II of the Rules of the Sup rem Court.

I t is necessary in order to make the matters herein clear t give a brief history of previous proceedings relating thereto.

On the 1st of November, 1925, a judgment was delivered i the Divisional Court Cape Coast in a suit between Chief Kuturk Yardom representing the Akoti tribe as plaintiff and Chit Kurankyi Minta III representing the Abuabu tribe as defendaIl1 In that judgment it was held that the boundary between plaintiff and defendant in their representative capacities was the centre ( a line drawn on Exhibit "D " and initialled by the Court. I other words the plaintiff was successful in his action.

This Divisional Court judgment was upheld on appeal by th Full Court on the 9th February, 1926. Subsequently Chief Minta II took out a writ of summons against Chief Kuturka Yardom an Henry Haran, Surveyor, on 9th March, 1927, claiming that th boundary line cut pursuant to the above mentioned judgmen be set aside on the grounds of fraud, etc., etc.

On the 10th December, 1927, this case was settled. Shortl it was agreed that the Survey Department of the Government should carry out the survey of the boundary line, that such survey should be a final determination of the said boundary and that the action should be discontinued on the signing of the settlement by Counsel for the parties concerned. The settlement was so signed, and as a result of the arrangement the Survey Department produced the plan showing the boundary signed by Capt. Hallahan the Provincial Surveyor on the 30th of April, 1928.

On the 13th of February, 1930, a writ of possession was signed by Gardiner-Smith, J. It is headed as between Kurankyi Minta III, Chief of Assin Yankumassi as plaintiff and Kuturka Yardom, Chief of Assin Akropong and another as defendants, and the body thereof reads :-

"Whereas lately by the judgment of the said Court Kurankyi Minta III Chief of Assin Yankumassi was ordered to deliver to Kuturka Yardom Chief of Assin Akropong possession of all that piece or parcel of land situate between the division of Assin Appimayim and Assin Attendasu and more particularly described in the plan made by the Provincial Surveyor of the Central Province by an order of this Honourable Court in the above matter, etc., etc."

It will be seen therefore that the writ of possession includes the whole area of land dealt with by the original Divisional Court judgment in this matter.

On the 22nd of March, 1930, a motion ex parte was filed on behalf of Chief Kweku Danso of Odumase (whose village, it should be mentioned, fell on the Akoti side of the boundary line though he is or professes to be a sub-chief of Chief Minta III praying for an order under Order XLV rule 5 of Schedule II of the Rules of the Supreme Court or for any other order that the CQurt might see fit to make.

In his affidavit in support Chief Danso swore that he was claiming in a representative capacity, that he had received a notice from the Deputy Sheriff in connection with the aforesaid writ of possession ordering him to quit, and that he disputed the right of the decree holder to disposses " my people and myself of the lands which we occupy." He then went on to show why he disputed the right of Kuturka Yardom to eject him.

The learned Judge having heard the evidence of Applicant ex parte made the following order :-

"It appears to me that the applicant has shown probable cause. I direct that this application shall be numbered and registered as a suit between the applicant as plaintiff and the decree-holder as defendant, and that copies of the motion and affidavit be served upon the decree-holder or his Solicitor together with a copy of this order and hearing notice for 28th March. Meanwhile let execution of the writ of possession be stayed till further order."

Here with all respect to the learned Judge I pause to consider what was the application which was to be registered as a suit. As I have said above the writ of possession referred to the whole of the lands dealt with by the judgment of 1st November, 1925, and the applicant Danso was referring to the lands" which we occupy." No boundaries and no description of the land alleged to be occupied by applicant and his people were given. Surely a somewhat vague foundation for a suit between the parties.

When the above motion came before the Court on 28th March on notice, Mr. Korsah for Chief Kuturka Yardom submitted, inter alia. that under Order XL V rule 5 the applicant could not come before the Court. After hearing Counsel the Court gave the following ruling :-

"In my opinion the submission is premature. Without the judgment under which the Writ of Possession was issued, and apparently without certain evidence to supplement and explain that judgment, and possibly without reference to a m'ap (which learned Counsel for Kuturka Yardom was unrolling and preparing to show the Court) it is in my opinion impossible to decide adequately upon the merits of the application in the present proceedings or of the objection now taken to it. The proceedings must continue."

The next step was taken by Mr. Korsah on behalf of Chief Kuturka Yardom when on 31st March he filed the motion under Order XIX already referred to. After hearing argument the learned Judge dismissed the motion and hence this appeal.

In arguing before this Court Mr. Korsah grouped grounds of appeal 1, 2, 4 and 6 together and was not called upon as to the remainder.

These grounds read :-

"1. Because no Writ of Summons was issued in accordance with :aw .

.. 2. Because the papers filed in the ex parle application by the plaintiff-respondent and alleged to form the basis of this suit, do not disclose a cause of action.

"4. Because the Court below was wrong in making the order of the 24th day of March, 1930, which order is said to have initiated the suit.

"6. Because the Court below erroneously assumed and exercised jurisdiction under Order XLV rule 5 of the Rules of Supreme Court.

It may be well at this stage to set forth rule 5 of Order XL V at length.

I t reads as follows :-

" If any person other than the judgment debtor shall be dispossessed of any land or other immovable property in execution of a decree, and such person shall dispute the right of the decree-holder to dispossess him of such property under the decree on the ground that the property was bona .fi.de in his possession on his own account, or on account of some other person than the judgment debtor, and that it was not included in the decree, or if included in the decree, that he was not a party to the suit in which the decree was made, he may apply to the Court within two months from the date of such dispossession; and if, after examining the applicant, it shall appear to the Court that there is probable cause for making the application, the application shall be numbered and registered as a suit between the applicant as plaintiff, and the decree-holder as defendant, and the Court shall proceed to investigate the matter in dispute in the same manner and with the like powers as if a suit for the property had been instituted by the applicant against the decree-holder."

In the marginal notes to the rule the words " Interpleader" and" Appendix A. Form 45 " appear.

It is perfectly clear that in the present case the applicant was never dispossessed at all so that he was premature in making any application under Order XL V rule 5. It follows therefore that the learned Judge was wrong in acceding to the application. Apart from that I am of opinion that if there had in fact been good cause shewn it was the duty of the Court to order an Interpleader Summons to issue.

Hayes Redwar in his Comments on Gold Coast Ordinances says in this connection :-

"Moreover in rules 5 and 25 of Order XLV provision is made for Interpleader proceedings in the case of land ... The Interpleader proceedings in rule 5 would seem to apply to cases where land is delivered by writ of possession and not , attached' under a writ of fi.fa. in execution of a degree, as is the case in the procedure under rule 25."

. Whilst I am on this point I would like to mention that rules 1 to 4 of Order XLV have been referred to both in the Court below and in this Court. A careful reading of these rules will make it clear that they only refer to proceedings taken at the instance of a decree holder, whilst rule 5 alone refers to a proceeding taken at the instance of a possessed person.

I am satisfied that the learned Judge erroneously assumed jurisdiction when he ordered a suit to be registered between the parties, and cannot conceive why an appeal was not taken from the order of 28th March when the whole question of Order XLV rule 5 was raised. In the result therefore Chief Kururka Yardom must succeed but I fail to see why Chief Danso should have to pay for the whole of these expensive record, costing £17 12s. each when appeal might have been taken, as I have said above, from the order of 28th March which appears on page 14 of the record. I think only half of £17 12s. should be allowed for each record.

The appeal must therefore be allowed with costs assessed at £50195.

Court below to carry out.