NUAMAH vs. FRIMPONG [1973] 2 GLR 37

CASE REFERRED TO

Kwami v. Parkinson Howard Ltd. [1960] G.L.R. 60.

NATURE OF PROCEEDINGS

APPEAL against the ruling of a trial magistrate that a judgment debtor who lived in a house as a tenant at sufferance had a life interest in the house capable of being sold under a writ of fi. fa

COUNSEL

P.K. Owusu-Sekyere for the appellant.

W.K. Ackun for the respondent.

JUDGMENT OF KORANTENG-ADDOW J.

The plaintiff sued the defendants herein for failing to make good expenses he incurred on their behalf when at their request he engaged a lawyer to defend a relation of theirs who was involved in a criminal case. Since they failed to pay the expenses he brought an action against them claiming ¢200.00 damages.

He succeeded in that action and was adjudged to recover that amount from the defendants. As the defendants did not satisfy that judgment debt he sued out a fieri facias to sell the property involved herein.

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When the property, a dwelling-house, was attached the claimant interpleaded. And this appeal arose out of the suit. The claimant claimed the property to be his own. He said that he built it and allowed the fourth defendant, a relation of his who is an invalid, to occupy it during her infirmity. The trial magistrate would seem to have accepted the evidence adduced by the claimant about the status of the property but held that the fourth defendant then had a life interest in the property which could be sold in satisfaction of the judgment debt. He therefore ordered that the fourth defendant should be ejected and the premises let for the purpose of defraying the debt.

Before coming to his conclusion the trial magistrate referred to a passage from Odgers on Pleading and Practice (18th ed.). p. 375 which says that:

“The sheriff can sell under a fi. fa. a lease or term of years belonging to the debtor, and execute an assignment of it under his seal of office to the purchaser. But he cannot sell an estate in fee, or for life, or an equitable interest such as an equity of redemption, or things which . . . would pass on death to the heir, and not to the executor, of the owner,”

and would seem to have drawn his inspiration from it. The conclusion he came to from that premise would seem to me, however, to be a non sequitur. For as observed from the passage, a life interest was not saleable under execution.

But that is not the main point in this matter. The primary question which to my mind had to be resolved by the trial magistrate was whether or not a life interest in the sense contemplated by the passage quoted from Odgers is an African concept-a concept known to the customary law. I personally do not think it is. A life interest within the contemplation of the passage is a recognized concept of English law. It is one of the three legal estates of English land law.

The law is now firmly settled that in their dealings between or among themselves it must be presumed that the natives of this country intended that the customary law shall apply unless the contrary intention appears. And this is more true when the subject-matter is land or an interest in land. This principle was once embodied and spelled out in section 87(1) of the now repealed Courts Ordinance, Cap. 4 (1951 Rev), of this country. Therein it was stated that in all suits between Africans or persons of Africa descent on one hand and persons not of African decent on the other, and particularly where the suit relates to the tenure and transfer of real property, customary law is deemed to be the law applicable for the determination of the suit: see Ollennu J.’s judgment in the case of Kwami v. Parkinson Howard Ltd. [1960] G.L.R. 60 at p. 61.

Although the Courts Ordinance has been repealed there is no doubt that this salutory principle still subsists and is relevant. It is my considered view that when a Ghanaian allows an infirm relation to live rent

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free in house is not his intention to carve out a “life interest” for him in the property. He allows him to live there at sufferance. He does not grant him an estate in the property which is saleable. The person enjoying that bounty cannot sell or mortgage the property or any interest in it. And he cannot let it. Although as Mr. Ackun, learned counsel for the judgment creditor, argued, that at such sales it is the right, title and interest of the judgment debtor which is sold. I would hold that in this instant case there is no interest whatsoever of the fourth defendant which could be sold. I would therefore allow this appeal and set aside the judgment and any order or orders made thereunder.

The claimant will have his costs assessed at ¢30.00.

DECISION Appeal allowed.

S.E.K.