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JUDGMENT
In this Interpleader suit, the
Claimant, Yaa Asa-Awuku, also
known as Yaa Oluhwehuje,
contends that the
Execution-Debtor has no
attachable interest in the
unnumbered house lying and
situate at Nnuakoomu, Mamfe,
Akwapem which has been attached
by the
Plaintiff/Execution-Creditor in
execution of the judgment of the
Court against the
Defendant/Execution Debtor. Her
case is that the said property
is not the personal property of
the Defendant/Execution Debtor.
Secondly, the Claimant who is
claiming to have a joint
interest with Defendant was not
a party to the suit between the
Plaintiff and Defendant.
From the documents attached to
the Affidavit of Interest,
namely; Indenture dated 29th
August 2000 between Opanyin
Kwabena Baah, Head and Lawful
Representative of Asona Family
of Mamfe in the Akwapim
Traditional Area on one side,
and Akosua and Yaa Asa Awuku on
the other; Application for
Building Permit and the Permits;
Bill of Quantities; and a copy
of the Contract Agreement
between Akosua and Yaa Asa Awuku
and the Plaintiff herein, among
others, I am satisfied that the
property in question is owned
jointly by the
Defendant/Execution-Debtor and
the Claimant.
When two or more persons become
entitled to simultaneous
enjoyment of land, co-ownership
of land arises. The common
feature of co-ownership is the
unity of possession. It means
that each owner is as entitled
to possession of every part of
the land as the other(s). No
co-owner can appropriate any
part of the land exclusively to
himself. Co-ownership may be
brought to an end either by
partition or by union in a sole
tenant. Co-ownership may be
partitioned either by the
voluntary act of all the tenants
or compulsorily by an order of
the Court. However, the actual
process of physical partition
could lead to absurd results
The English Partition Act of
1868 conferred on the court the
power to order a sale of the
property instead of partition.
Such an order is preferable to
an order for partition
especially where the property
involved does not lend itself to
a fair and practical partition
physically. Where the court
orders a sale, the tenants share
the proceeds of sale in the
requisite proportions. The
English Partition Acts of 1539,
1540 and 1868 have been
incorporated into the common law
of Ghana by section 119 (1) of
the Courts Act, 1993, Act 459.
It is my opinion that the fact
that Defendant has only half
share in the property in
question should not prevent the
attachment of the said property
in execution of the judgment. It
is obviously not practicable to
partition the property and share
it physically between the
Defendant and the Claimant. The
more practicable thing to do is
to sell the property and
Claimant’s share of the proceeds
given to her. I will rely on the
principle that equality is
equity. On the other hand, the
Claimant may offer to buy
Defendant out. By so doing, the
Claimant would then pay
Plaintiff the judgment debt.
Counsel for the Claimant
submitted that the attachment of
the property in question by
Plaintiff should be set aside
because the said property is not
the personal property of the
Defendant. I do not know what
principle of law Counsel is
relying on, and I do not
understand what he means that
Order 44 Rule 2 (5) of C.I. 47
indicates that only “personal or
private properties” of the
judgment debtor can be attached
in execution. I also do not
believe that the cases cited by
Counsel; National Securities
v Hegerty [1985] 1 QB 859,
and Thames Guaranty Limited v
Campbell [1984] 3 WLR 109
apply to the instant matter. In
the first case, the husband who
was a joint tenant with his
wife, alone applied for a loan
and signed the legal charge over
their joint property and forged
the wife’s signature on the
document. In the second case,
the husband used their
matrimonial home as security for
a loan and caused the documents
of title to the house to be
deposited with the plaintiffs
without the consent of his wife.
The facts are totally different
from the instant matter.
The correct statement of the law
is that the interest of
Defendant/Execution-Debtor can
be sold in execution, but the
purchaser acquires nothing more
than the interest of the
Defendant in the property.
This position was espoused in
the case of Lyall v. Dougan;
Yanba (Claimant) [1890]
Sar. FLR.56 which case was
cited with approval by Ollenu J
in the case of Dao v. Klu
(Dzaba- Claimant)[1961] 2 GLR
555.
Applying the law to the instant
case, I hold that the Claimant
has established her claim that
she is co-owner of the property
in question, but not that the
property cannot be attached. I
hold further that the
interest/share of the
Defendant/Execution-Debtor in
the property can be sold in
execution, and therefore the
claim must succeed to the extent
that the Claimant has an equal
interest/share in the property
and to that extent only.
The claim is allowed, the
Claimant is declared half owner
of the property. It is directed
that the sale should proceed
subject to the said right and
title of the Claimant.
There shall be no award as to
costs. Each party should bear
its own cost.
(SGD)
BARBARA ACKAH-YENSU (J)
JUSTICE OF THE HIGH COURT
COUNSEL
AKUSIKA DADZIE
- PLAINTIFF
GEORGE ABORGAH -
CLAIMANT |
