SALAMA vs. SHARANI [1973] 2 GLR 364

CASES REFERRED TO

(1) Appiah v. Buaman and Gatow, D.C. (Land) ‘48-’51, 222.

(2) R. T. Briscoe (Ghana) Ltd. v. Preko [19641 G.L.R. 322, S.C.

NATURE OF PROCEEDINGS

INTERPLEADER SUIT by the claimant plaintiff that a house attached by the judgment creditor in execution of the judgment was not the self

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acquired property of the judgment debtor. The facts are set out in the judgment.

COUNSEL

R. I. Quansah for the claimant.

S. K. Tetteh for the judgment creditor.

JUDGMENT OF ABBAN J.

In this interpleader suit, the claimant-plaintiff is contending that the house on plot No. 9, block 18, Aboabo No. 2, Kumasi, is the family property of the claimant-plaintiff, and cannot therefore be attached and sold in execution of the judgment debt of one Alhaji Zambo.

This Alhaji Zambo is a brother to the claimant-plaintiff. Judgment was given against him by this court and in execution of that judgment the house in dispute was attached. The claimant-plaintiff put in an interpleader, claiming as already stated, that the house is not the self-acquired property of the said Alhaji Zambo. In his evidence the claimant-plaintiff said apart from the judgment debtor, he has another brother called, Alhaji Salasu and three sisters-Manya, Hassana and Ajara. He alleged that their father originally owned a house at old Zongo, Kumasi. That house was pulled down by the Municipal Council, Kumasi, when the present Kumasi central market was about to be constructed. The claimant-plaintiff, his brothers and sisters were all living with the father in that house. But at the time of the acquisition of the said house by the Municipal Council, the father had died. So the compensation of £G70 which the said council had to pay for acquiring the house was received by the judgment debtor, he being the eldest of all the children who, according to their Moslem custom, succeeded to the properties left by their father.

The claimant-plaintiff further alleged that £G11s. out of the said compensation of £G70, was used by the judgment debtor in acquiring the plot of land on which the house in dispute was built. The plot was acquired from the Asantehene through one Asobonteng. He contended that all the children, including himself and the judgment debtor, contributed financially to put up the house which consists of twelve rooms; and although all the documents pertaining to the land and the house are in the name of the judgment debtor, the judgment debtor is not the owner of the house.

Alhaji Zambo (at times spelt Sambo), the judgment debtor, was the only witness called by the claimant-plaintiff. Alhaji Zambo denied that the house is his personal property. The judgment-creditor-defendant called the building inspector attached to the Kumasi City Council. This witness said from the records of the council, the plot on which the house in dispute was built was allocated to the judgment debtor, and the house itself is also in the name of the judgment debtor.

The issue then is who owns the house in dispute? That is, is the house the joint property of the judgment debtor and his brothers and sisters, and therefore family property, or is the judgment debtor the sole owner of that house? The letter dated 23 April 1952, exhibit 1,

[p.366] of [1973] 2 GLR 364 written by the Asantehene’s Lands Office and addressed to the Town Engineer, Kumasi, shows that the land was granted to Alhaji Zambo (Sambo), the judgment debtor, alone. The application for the building plan was made by the judgment debtor; and the building plans themselves, as well as the building permit for the house, were all in the name of the judgment debtor: see exhibit 2. Apart from the oral evidence, the claimant-plaintiff could not produce documentary evidence or any record from the Kumasi City Council (successor to the Municipal Council) to show that his father was among the persons whose properties were affected during the construction of the said central market and to whom the council paid compensation. Nothing was produced to show that the judgment debtor did collect £G70 or any money from the Kumasi Municipal Council.

On the consideration of the evidence as a whole, I do not believe that the land on which the house in dispute stands was purchased with money which formed part of the so-called compensation received from the Kumasi Municipal Council in respect of a house which the said council was supposed to have acquired from the father of the claimant-plaintiff. The said council never in fact acquired any house or land from the claimant-plaintiff’s father, and no compensation was received from the council by the judgment debtor in respect of any house. I believe that the plot on which the disputed house was built was acquired by the judgment debtor, Alhaji Zambo, and he paid for it from his own resources. The land therefore was his self-acquired property.

I also find that neither the claimant-plaintiff nor any of his brothers and sisters contributed, financially or otherwise, towards the construction of the house. At the time of the construction of the house, the younger brother, Alhaji Salasu, and the three sisters of the claimant-plaintiff were even at school and were not earning any income. The claimant-plaintiff under cross-examination said the construction of the house started five years after their father’s house had been compulsorily acquired by the said Municipal Council, and it took two years to build the house. In other words, by seven years after the acquisition, the house in dispute had been built. At the time of the so-called acquisition, Alhaji Salasu was at school and he completed school or left school seven years after the said acquisition. After leaving school, he became an apprentice to a tailor for another two years. Salasu is older than all the sisters, and the sisters were also attending school at the time Alhaji Salasu was at school. It is therefore clear that the construction of the house was completed before Alhaji Salasu and the sisters left school. To be precise, it was completed for more than two years before Alhaji Salasu even started earning his living. I do not, in the circumstances, see how a school boy and school girls could have made financial contribution towards the construction of that house. I find that Salasu and the sisters, as well as the claimant-plaintiff, never contributed anything financially or otherwise towards the erection of that house.

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The claimant-plaintiff categorically asserted that the house was built about ten years ago and he repeated this statement in re-examination. But when pressed further by his own counsel, the claimant-plaintiff changed that assertion and said, “I now say I cannot remember when the house was built.” Again, the claimant-plaintiff in re-examination said he never lived in the house. This is what he said: “I have never lived in that house before, even though I have been living in Kumasi. The reason why I did not live in that house is that my wife and my brothers do not agree.” This evidence conflicts with that of the judgment debtor who, in his evidence-in-chief said: “After the completion of the house I and my brothers and sisters went and lived in the house with our children.” He was emphatic about this under cross-examination, where he said: “We are all living in the house at present. We have all been living there.” The question then is, who is telling the truth? I think the claimant-plaintiff and his brothers and sisters have never lived in this house. The judgment debtor lied to the court when he said the house is being occupied by him, his brothers, sisters and their children. I find as a fact that those persons have never in their lives lived in the house in dispute. I am also satisfied that the judgment debtor is the sole owner of that house, and he was the person in occupation and possession thereof at the time the house was attached. In my opinion, the claimant-plaintiff interpleaded, purposely, to assist the judgment debtor to get his house released from attachment.

A point of some procedural interest was raised by learned counsel for the claimant-plaintiff in the course of his address. He contended that the court ought to have made the judgment creditor the plaintiff in the proceedings herein, since the burden of proof lay on him and it was for him to show that the house he has caused to be attached belongs to the judgment debtor. Learned counsel relied on the judgment of the High Court, Kumasi, and Appiah v. Buaman, D.C. (Land) ‘48-’51, 222, in support of his contention. In his reply, learned counsel for the judgment creditor submitted that the onus rather lay upon the claimant because the judgment debtor was in possession at the time of the attachment.

I think it is important to make clear the nature and the exact purpose of interpleader proceedings such as the present. Interpleader proceedings should not be confused with an ordinary action. The most important object of these interpleader proceedings is to enable the deputy sheriff, who has seized the property and is now in possession thereof, to obtain a relief and to get a decision of the court as regards the person to whom he has to release the property. The claims in respect of the property seized are made against the deputy sheriff and he is, in the technical sense, the defendant since the rival claims are being made against him. So that in a way the interpleader proceedings are intended for the benefit of the deputy sheriff, inasmuch as the decision of the court in the proceedings, as I have stated, would give him a relief and would also enable him to know the right person to whom he

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should release the property. The deputy sheriff therefore issues out the interpleader summons to compel all the parties making the claims against him to come to court to establish the validity of their respective claims; and since he has no title himself, he drops out of the subsequent proceedings altogether.

It is after the parties have obeyed the summons of the deputy sheriff, that the court will have to apply the provisions of Order 57, r. 7 of the Supreme [High] Court (Civil Procedure) Rules 1954, (L.N. 140A). The rule provides as follows:

“If the claimants appear in pursuance of the summons, the Court or a Judge may order either that any claimant be made a defendant in any action already commenced in respect of the subject-matter in dispute in lieu of or in addition to the applicant, or that an issue between the claimants be stated and tried, and in the latter case may direct which of the claimants is to be the plaintiff, and which defendant.”

(The emphasis is mine.) Under this rule the court has to exercise its discretion as to whether an issue should be directed and also to say which of the claimants should be in the position of a plaintiff or a defendant. The words plaintiff and defendant in this rule are used not in their technical sense, because it is not an action. The court will, normally, direct that the claimant who has to make out his claim against the other claimants should be the plaintiff, and in that case the burden of proof will be on him.

In the instant case, was the court right in making the claimant the plaintiff, and the judgment creditor the defendant? I think the answer should be in the affirmative. Contrary to the submission of the learned counsel for the claimant-plaintiff, the court was perfectly right in directing that the claimant should be the plaintiff in the suit. Because, as I have found, the house in dispute has been in the sole occupation and possession of the judgment debtor all the time, and he was still in possession thereof at the time it was attached by the deputy sheriff. In such a case, the burden should be on the claimant to prove his title to the said house or his right to possession thereof. It is only where the claimant was in possession of the property at the time of the seizure that the judgment creditor will, generally, be made the plaintiff.

The judgment of Jackson J. in Appiah v. Buaman, (supra) cited by learned counsel for the claimant-plaintiff, cannot be relied upon in every interpleader summons. In that case, it was held as appearing in the headnote, at p. 223 that, “In an interpleader summons the burden of proof of title was on the judgment-creditor.” At p. 224 of the report, the learned judge said:

“When the trial was resumed on the 22nd instant Mr. Attoh, Counsel for the judgment-creditor submitted that the burden of proof lay upon the claimant. Mr. Heward-Mills for the claimant

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replied that the onus lay upon the judgment-creditor to show that the lands which he had caused to be attached were the property of the judgment-debtor.

It would, in my opinion, be intolerable if a judgment-creditor were permitted to set the Sheriff in motion and attach lands which he averred were the property of the judgment-debtor and then expect any person in possession of these lands to prove his title of possession. In my judgment in such proceedings the issue between the judgment-creditor and the claimant is that the former avers that the property is that of the judgment-debtor, an affirmative proposition in its entirety. The claimant denies that averment and sets up a plea of possession by right of title, and I am of the opinion that the burden of proof rests upon the judgment-creditor.”

I must say at this stage that the said judgment of Jackson J. is only persuasive and it is not binding on me. However, with due respect to the learned judge, I think his dictum referred to supra, should not have a general application. It cannot be a general proposition of law that in every interpleader summons the judgment creditor must have the burden of proving that the title to the property attached is in the judgment debtor. Possession at the time of attachment determines who is to be the plaintiff and must therefore undertake the burden of proof. Whoever happens to be in possession of the property, at the time of seizure, is supposed to have nine-tenths of the law and therefore has a lighter burden; and if he happens to be the claimant, then he is made the defendant in the issue, and the judgment creditor the plaintiff. On the other hand, if the judgment debtor was in possession at the time of the seizure, as in the present case, then the onus of proof will be on the claimant, and he will have to be made the plaintiff.

In The Annual Practice (1960 ed.), Vol. 1, p. 1638, the learned editors stated as follows:

“Where the applicant for relief is the sheriff, who (as is usually the case) has seized under a writ of execution goods in the possession of the judgment debtor, the claimant is generally made plaintiff, and the execution creditor-defendant, in the issue (Chase v. Goble (1841), 2 M. & G. per Tindal C.J. at p. 935). In such a case the burden of proof is on the claimant to prove his title to the goods or to the possession thereof at the time of seizure.”

The instructive judgment of Apaloo J.S.C. (as he then was) in the case of R. T. Briscoe (Ghana) Ltd. v. Preko [1964] G.L.R. 322, S.C. is worth mentioning. In that case some of the properties seized, during the process of attachment by the sheriff, included goods of the claimant and which goods were found at the building site of the claimant. The claimant, who was the respondent in the appeal, claimed that the said goods belonged to her. When the matter came before the then SupremeCourt, Apaloo J.S.C. (as he then was) in the course of his dissenting judgment, at p. 329, said:

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“There can be no doubt that at the date when these goods were seized at the building site at Abetifi, they were in possession of the claimant. She said in evidence ‘I was in possession on behalf of myself and not the judgment-debtors.’ The trial judge found this to be so. The position therefore is that the claimant was entitled to remain in possession unless and until the judgment-creditors who were asserting title in the judgment-debtors, proved a better title. This, I think, accords with the principle that a person in possession is deemed to be the owner against the whole world save the true owner. It follows therefore that in my judgment, the learned judge ought to have ordered the judgment-creditors to be plaintiffs and the claimant the defendant.”

It must be observed that here the learned judge is saying that the judgment creditors, R. ‘T. Briscoe (Ghana) Ltd., ought to have been made plaintiffs, since it was the claimant, and not the judgment debtors, who was in possession at the time the goods were seized by the deputy sheriff in satisfaction of the judgment debt.

In the case herein, the judgment debtor, Alhaji Zambo, as I have said before, was in possession at the time the house was attached and so the claimant, on the principles enunciated above, was properly made the plaintiff, and the onus was therefore on him to establish that the house in dispute is his family property and not the self-acquired property of the judgment debtor. This he has failed to do. Consequently, I hold that the house in dispute is the property of the judgment debtor, Alhaji Zambo, and neither the claimant-plaintiff nor any of his brothers and sisters has or had any interest in it.

In the circumstances, the claim will be and is hereby dismissed, and judgment entered for the judgment creditor. The deputy sheriff can now proceed with the execution. The judgment creditor is awarded costs of ¢200.00, inclusive.

DECISION

Claim dismissed.

Judgment for judgment creditor.

Execution to proceed.

S. E. K.