HIGH COURT, ACCRA
DATE: 7TH FEBRUARY, 1962
BEFORE: OLLENNU, J.
CASES REFERRED TO
Hutchful v. African & Colonial Company (1924) P.C. ‘74-’28, 76.
INTERPLEADER action in respect of a house.
COUNSEL
T. K. Agadzi for the claimant.
M. T. Afutu-Nartey for the plaintiff-judgment-creditor.
JUDGMENT OF OLLENNU J.
A claim in an interpleader suit, objecting to the sale of property in execution amounts to an averment that the execution-debtor has no right, title or interest in the attached property. The principle by which our courts have been guided in dealing with interpleader suits was embodied in Order 45, rule 25 (1) of the rules of procedure which was Schedule 2 to the Courts Ordinance1(1) now repealed. Those rules of procedure still apply to the district courts. The principle is as follows: “25. (1) . . . if it shall appear to the satisfaction of the Court that the land or other immovable or moveable property was not in the possession of the party against whom execution is sought, or of some person in trust for him, or in the occupancy of persons paying rent to him at the time when the property was attached, or that, being in the possession of the party himself at such time, it was so in his possession not on his own account, or as his own property, but on account of, or in trust for some other person, the Court shall make an order for releasing the said property from attachment: but if it shall appear to the satisfaction of the Court that the land or other immovable or moveable property was in possession of the party against whom execution is sought as his own property, and not on account of any other person, or was in the possession of some person in trust for him, or in the occupancy of persons paying rent to him at the time when the property was attached, the Court shall disallow the claim.”
Thus where the execution-debtor happens to be in possession, the claimant takes upon himself the onus of proving his title to the property in the same way as a plaintiff in a suit for declaration of title takes it upon himself; if he fails to discharge that onus satisfactorily his claim will be dismissed: Hutchful v. African & Colonial Company.2(2) That was an interpleader suit in respect of a house. The evidence showed that the execution-debtor was in possession of the house at the date of its attachment. It was held that the possession by the execution-debtor threw upon the claimant the burden of showing, as against the execution-creditors, that real ownership of the property was vested in him.
In the present suit, the claimant based his claim upon a document exhibit A dated the 28th May, 1955, whereby the execution-debtor purported to transfer ownership in the said property to him absolutely, “to collect rents and profits without interception whatsoever.”
It does not require much imagination to see that the alleged conveyance is fraudulent. Its contents are contradicted in material respects by the oral evidence which both the claimant and the execution-debtor gave of the transaction of which the said document purports to be a record. For example, both the claimant and his witness, the execution-debtor, maintained that one house and one house only was sold, while in the said exhibit A it is stated that two houses were sold. Again while the execution-debtor said that he had two loans of £G50 each from the claimant making a total of £G100, and conveyed the house to the claimant for that sum, the document says that he took an amount of £G200 made up of £G150 and £G50.
[p.62] of [1962] 1 GLR 60
But quite apart from the inconsistencies between the oral evidence and the contents of the document, there is the stubborn fact that the execution-debtor’s dealings with the attached property are consistent only with his ownership, and inconsistent with the claimant’s ownership. Although the claimant alleged he purchased the house in 1955, he has never taken possession of it. The execution-debtor has been in possession of it exclusively and exercised full rights of ownership thereof without let or hindrance. The claimant has never demanded any rents from the execution-debtor. There are seven rooms in the house. The execution-debtor occupies one. The claimant does not know who are the persons who occupy the remaining six, and does not know whether or not those occupants pay rents to the execution-debtor. The town rates in respect of the house have always been paid by the
execution-debtor in whose name the property is registered as owner with the city council for purposes of rates. A scheme of development is affecting the area and will result in the demolition of all houses in the area including the one in dispute. Only five days ago an officer went round the various houses to ascertain the owners who are entitled to receive compensation for the demolition of this particular house. The execution-debtor gave his name as the owner and the proper person entitled to receive the compensation in respect thereof.
The claimant has failed to prove his ownership of the property. I am satisfied that the execution-debtor is in possession of the house in his own right as owner, exercising therein all the rights of an owner. That being so the claim must be disallowed.
The claim is dismissed, the execution is to proceed. The execution-creditor will have his costs fixed at 25 guineas inclusive.
DECISION
Claim dismissed.
