HIGH COURT, KUMASI
Date: 8 JULY 1974
MENSA BOISON J
CASES REFERRED TO
(1) Asare v. Brobbey [1971] 2 G.L.R. 331, C.A.
(2) Oshodemirin v. Tetteh [1973] 1 G.L.R. 1, C.A.
(3) Ashanti Construction Corporation v. Bossman [1962] 1 G.L.R. 435, S.C.
NATURE OF PROCEEDINGS
INTERPLEADER SUIT by the plaintiff claimant that he had a better title to a house attached by the judgment creditors in execution of a judgment obtained against the judgment debtor. The facts are sufficiently set out in the judgment.
COUNSEL
John A. Ata for the claimant.
U. V. Campbell (with him Ate Puplampu) for the judgment creditors.
[p.135] of [1974] 2 GLR 134
JUDGMENT OF MENSA BOISON J
This is an interpleader proceeding in which the claimant Kofi Adu of Dichemso, Kumasi, claims that as between him and the defendant judgment creditors he should be declared to have a better title to house No. C.27, South Suntresu in Kumasi, seized in execution as being the property of the judgment debtor, one G. E. Asenso and it should therefore be released forthwith from execution.
The facts briefly are as follows: The defendant judgment creditors as bankers, granted overdraft facilities to the judgment debtor, i.e. Asenso. Some time in May 1971, the judgment creditors took out a writ to claim the balance of 09,908.70 then outstanding on the overdraft account, together with interest at the rate of ten per cent from a named date to the date of payment. On 5 July 1971 the judgment creditors obtained judgment for the claim stated together with costs.
It was to satisfy this judgment that the judgment creditors issued out a writ of fi. fa. dated 28 July 1972, to levy execution upon house No. C.27 at South Suntresu residential estate, Kumasi, alleged to be the property of the judgment debtor. When however that property was attached by the deputy sheriff, the claimant gave notice of his claim to the said property, resulting in the present interpleader proceeding pursuant to Order 57 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A).
It appears to be common ground that the judgment debtor was the lessee of the estate house in issue from the Ghana Housing Corporation and to possess it absolutely after full payment of the price on instalments. This is evidenced by a deed of demise exhibit 1. According to the case for the claimant, as set out in his amended statement of claim, he obtained an assignment of the property in issue from the judgment debtor on 21 April 1972, with the consent of the corporation, and forthwith went into possession. The deed of assignment was tendered as exhibit 2. Consequently it is his case that the judgment creditors committed trespass by the attachment as he contends that by the assignment of 21 April 1972 or by his possession of the said house as at that date, he obtained a better title to the property than the judgment creditors.
The judgment creditors deny any bona fide assignment and allege that the transaction on 21 April 1972, was a fraud on them as creditors aimed at defeating any execution on the said property. In the alternative the judgment creditors maintain that the property having been attached when the said deed of assignment was not registered under the Land Registry Act, 1962 (Act 122), the purported assignment had no effect in passing title to the claimant at the time of attachment.
This last point was set down in the statement of defence as a point of law. In the result there was no evidence called, the interpleader being dealt with on the point of law raised. Now section 24 (1) of the Act provides:
“24. (1) Subject to subsection (2), of this section, an instrument other than,
(a) a will, or
(b) a judge’s certificate, first executed after the commencement of this Act shall be of no effect until it is registered.”
[p.136] of [1974] 2 GLR 134
In Asare v. Brobbey [1971] 2 G.L.R. 331, the Court of Appeal laid it down that the effect of the subsection is that a document within the Act shall be of no legal effect until registered.
The undisputed fact is that the assignment of 21 April 1972, namely, exhibit 2, was not registered till 14 March 1973. It is therefore the stand of the judgment creditors that the attachment of 28 July 1972 was good, as at that date the assignment was of no effect, by absence of registration, and consequently the claimant had no legal title. This submission was unassailable and counsel for the plaintiff claimant honourably conceded the point.
Counsel, however, countered by relying on the possession of the claimant on 21 April 1972, as giving the claimant a better title over the debtor. The submission is founded on these facts. The judgment debtor’s lease, exhibit 1, from the Housing Corporation dated 7 October 1968, was not registered till 14 March 1973 — the same date when the assignment, exhibit 2, was registered. So it is argued that on 21 April 1972, by reason of non-registration, neither the judgment debtor nor the claimant had effective legal title; but as the claimant went into possession on that date, namely, 21 April 1972, he had by possession gained a better title than the judgment debtor. When therefore on 28 July 1972 the judgment creditors attached the property, the judgment creditors stood in the shoes of the debtor; consequently, the claimant’s title derived from possession prevailed over the creditors as at 28 July 1972 when the property was attached. For this submission learned counsel relied on Oshodemirin v. Tetteh [1973] 1 G.L.R. 1, C.A. That was a case where the plaintiff, a licensee of a plot of land from the Tema Development Corporation sued for a declaration of title and trespass to land, when the defendant without the plaintiff s consent or the licence of the Tema Development Corporation, went into occupation by erecting buildings on the said plot. It was found as a fact that the plaintiff ‘s licence by non-observance of the terms of the grant had lapsed or had been revoked. It was also found as a fact that the defendant had no licence from the Tema Development Corporation and consequently was a trespasser as against the corporation. The Court of Appeal by its judgment held that neither the plaintiff nor the defendant had good title to the land, but as the defendant was the one in physical possession at the commencement of the action, her condition as the one in possession was the better. The plaintiff s action was thus dismissed.
In my view this case has no application to the instant case. What the claimant now puts forward amounts to a challenge of his grantor’s (i.e. the judgment debtor’s) title. But in the Tetteh case (supra) the title of the Tema Development Corporation was not in question. The contest was between two trespassers. Here the judgment debtor is not such a trespasser.
It seems to me a direct authority on the present issue is the case of Ashanti Construction Corporation v. Bossman [1962] 1 G.L.R. 435, S.C. relied on by learned counsel for the judgment creditors. That was a case where the judgment debtor, an allottee of a building plot in Kumasi, on which he had an uncompleted building, then under construction, caused an assignment of the land to the defendant claimant, prior to an attachment
[p.137] of [1974] 2 GLR 134
in execution of a judgment, upon a writ of fi. fa. issued by the plaintiff creditor. The purported assignment was made on 13 December 1957 to the defendant claimant, and he forthwith took possession. On 9 March 1959, the plaintiff creditor obtained judgment against the judgment debtor and upon a fi. fa. filed on 10 March 1959, attached the property on 24 April 1959. On the previous day, 23 April 1959, a lease of the land was executed in favour of the judgment debtor, and was duly registered on 13 May 1959.
Now the Kumasi Lands Ordinance, Cap. 145 (1951 Rev.), s. 23 (1) as amended by the Ashanti Stool Lands Act, 1958 (No. 28 of 1958), s. 7 (3) provided as follows:
“No lease, transfer, devolution, mortgage, whether legal or equitable, assignment, underlease or surrender of land vested in the Governor-General in trust for the Golden Stool and the Kumasi State, shall be of effect until the same is registered by the Commissioner of Lands, and the fees payable in respect of any such registration shall be the fees set forth in the Eighth Schedule.”
As the lease executed on 23 April 1959 was not registered until 13 May 1959, i.e. subsequent to the attachment of 24 April 1959, it was held that the judgment debtor, not having an assignable interest at the date he purported to assign, the attachment by the judgment creditor was good as against the claimant.
In my view section 24 (1) of the Land Registry Act, 1962 (Act 122), has the same effect as section 23 (1) of the Kumasi Lands Ordinance (supra). The possession by the present claimant does not in my opinion override the prior interest created by the attachment of 28 July 1972, as the registration by the claimant under the Land Registry Act (supra) was subsequent to that attachment.
For the above reasons I dismiss the plaintiff claimant’s action, and enter judgment for the defendant judgment creditors and order that the said property, house No. C.27, South Suntresu, Kumasi do remain attached for execution.
Having regard to all the circumstances there will be costs of 0200.00 to the defendant judgment creditors in this interpleader suit.
DECISION
Judgment for judgment creditor.
Claim dismissed.
Execution to proceed.
S.Y.B.B.
