SUPREME COURT, ACCRA
DATE: 4TH JUNE, 1962
BEFORE: VAN LARE, SARKODEE-ADOO AND ADUMUA-BOSSMAN, JJ.S.C.
CASE REFERRED TO
Khoury v. Azar (1952) 12 W.A.C.A. 268, P.C.
NATURE OF PROCEEDINGS
APPEAL from a judgment of Crabbe, J., (as he then was) sitting in the Land Court, Kumasi, granting the claimant-plaintiff-respondent a declaration that certain property attached under writ of fi. fa. was his property and could not be sold in satisfaction of debts due by the judgment-debtor to the judgment-creditor and ordering the property to be released from attachment forthwith. The facts, which are taken from the judgment of the Supreme Court, are set out in the headnote.
COUNSEL
D. S. Effah for plaintiff-appellants.
E. Akufo-Addo for the claimant-plaintiff-respondent.
JUDGMENT OF SARKODEE-ADOO J.S.C.
Sarkodee-Addo J.S.C. delivered the judgment of the court. This is an appeal from a judgment of Crabbe, J., (as he then was) sitting in the Land Court, Kumasi, in proceedings consequent upon the issue of interpleader summons on the 11 th May, 1959, by the sheriff in pursuance Order 57 of the Supreme Court (Civil Procedure) Rules, on an application by William Joseph in relation to property seized under a writ of fieri facias in respect of: “All the right title and interest of Dr. Jonathan Emmanuel Bossman the judgment-debtor herein, in all that piece or parcel of land with one single storey building and boys’ quarters on plots Numbers 1, 2, 13 and 14 situate lying and being at Dechemso, Kumasi or howsoever the same may be known described as the property of Dr. Jonathan Emmanuel Bossman.”
Upon the matter coming up for investigation, pleadings were ordered with the claimant as plaintiff and the judgment-creditors as defendants.
The facts briefly stated are that in May, 1956, the judgment-creditors defendants who are building contractors were employed by Dr. Jonathan Emmanuel Bossman the judgement-debtor to build a house on plots Numbers 1, 2, 13 and 14 of Block D, Dechemso Extension Kumasi, on certain agreed terms of instalment—payments. The judgment-debtor defaulted and terminated the agreement early in 1957. In consequence the contractors sued him for work done and obtained judgment on the 9th March, 1959, and filed an application for a writ of fieri facias on the
[p.437] of [1962] 1 GLR 435
10th March, 1959, but the property was attached on the 24th April, 1959. The judgment-debtor was a mere allottee of the plots until the 23rd April, 1959, when a lease was executed in his favour acting by the claimant — plaintiff as his attorney and registered on the 13th May, 1959.
The judgment-debtor had been guaranteed early in 1956 by the claimant — plaintiff at the Bank of West Africa and it was after obtaining the loan that he engaged the contractors to build; upon default in December, 1956, to pay the instalment due to the contractors, coupled with his failure to meet his liability with the bank, he purported by a deed of assignment to assign the uncompleted house to the claimant-plaintiff on the 13th December, 1957, and the latter took possession thereof and completed the house about June 1959.
Upon attachment of the property, the claimant-plaintiff applied that he was in possession of the property and therefore claimed by his statement of claim: (1) a declaration that the said property belongs to him, and cannot be sold in satisfaction of the debt due by the judgment debtor to the judgment-creditors-defendants; and (2) an order of the court releasing the said property from attachment.
The learned trial judge granted the declaration sought by the claimant — plaintiff, and ordered the property to be released from attachment forthwith. On appeal to this court the material questions in issue raised are:
(1) Had the judgment-debtor an assignable interest when he purported to assign the property to the claimant-plaintiff on the 13th December, 1957?
(2) Had the judgment-creditors-defendants an attachable interest upon attachment of the property on the 24th April, 1959?
(3) Had the claimant-plaintiff a claimable interest entitling him to the declaration sought and granted by the court decreeing that the said property belongs to him ?
In short, these questions are clearly resolved by the provisions of the Kumasi Lands Ordinance1(1) vesting the Kumasi lands in the Asantehene as amended by the Ashanti Stool Lands Act, 1958,2(2) which came into force on the 10th September, 1958, whereby “the Governor-General in trust for the Golden Stool and the Kumasi State” was substituted for the Asantehene. Section 23 (1) of the Kumasi Lands Ordinance, is in the following terms: “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.”
[p.438] of [1962] 1 GLR 435
As already indicated, the lease (exhibit D) executed on the 23rd April, 1959, in favour of the judgment-debtor acting by his attorney the claimant-plaintiff, was not registered until the 13th May, 1959. The registration was subsequent to the purported assignment and also after the attachment of the property.
In the premises the answers to the questions posed are clearly in the negative as the lease was not registered pursuant to the said Ordinance. At the same time, whereas the learned judge was right in ordering the release of the property from attachment, it is clear that the reasons which he gave when he said as follows: “In my view the purported assignment by the defendant was of no effect. But equity looks on that as done which ought to be done, and I hold that the claimant only acquired an equitable interest in the uncompleted building on the plots alloted to the defendant.” Are, in our view, not sound.
In this case the question does not arise whether or not the claimant— plaintiff’s equitable interest ranks in priority to the judgment-creditors defendants’ legal interest as neither party acquired any such interest whatsoever, and as such the learned trial judge’s finding that the claimant plaintiff’s equitable interest ranks in priority to the judgment —creditors—defendants’ legal interest was misconceived.
The effect of non-registration pursuant to the Kumasi Lands Ordinance, was fully discussed by the Privy Council in the case of Khoury v. Azar3(3) where it was held that an unregistered equitable mortgage or transfer of land was ineffective. A fortiori in the instant case, the alleged claimant-plaintiff’s equitable interest was of no effect under the said Ordinance, and he was not entitled to the declaration he sought.
Therefore that part of the judgment decreeing ownership of the property to the claimant-plaintiff must be deleted, and it is hereby accordingly deleted.
Subject to the above the appeal is dismissed. As to costs in view of the fact that that part of the judgment decreeing ownership of the property to the respondent has been deleted, the respondent must be deprived of his costs of this appeal and there will be no order as to costs in this court but the order for costs made by the trial court will stand.
Court below to carry out.
DECISION
Judgment of the High Court varied by deleting declaration of ownership.
Subject to variation, appeal dismissed.
No order as to costs of appeal.
