DAO vs. KLU (DZABA—CLAIMANT) [1961]DLSC887

Date	1961-10-03
Suit No.
Citation No.	[1961]DLSC887

OLLENNU

E. D. KOM FOR THE CLAIMANT

D. Y. OSEI FOR THE EXECUTION-CREDITOR

[1961]DLSC887
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DAO vs.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;KLU (DZABA—CLAIMANT)

[1961] GLR 555

DATE: 3RD OCTOBER, 1961.

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COUNSEL:&nbsp;&nbsp;

E.
D. KOM FOR THE CLAIMANT.

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OLLENNU, J.

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&nbsp;

In this interpleader suit, the claimant contends that the
execution-debtor has no attachable interest in the land with buildings thereon
which have been attached by the execution-creditor in execution of a decree of
the court against the execution-debtor. His case is that the land is the
property of his family, that the execution-debtor built on it with his, the
claimant’s permission on terms that he should give him two bottles of schnapps
each year in acknowledgment of his title, and that at any time he required the
land for own purposes, he, the execution-debtor, would give him vacant
possession and either pull down his said building or leave it intact.

The evidence led by the claimant in support of his said case was
corroborated by his witness Asafoatse Kai Ameboe. That evidence was not shaken
in any way in cross-examination or by the evidence tendered by the
execution-creditor. On the contrary, the line of the cross-examination pursued
an implied admission on behalf of the execution-creditor that the land is the
property of the claimant’s family, but that by accepting two bottles of
schnapps from the execution-debtor, the claimant must be deemed to have parted
with his family’s said title absolutely to the execution-debtor.

I am satisfied upon the evidence that the land in dispute is the
property of the claimant’s family, the Dzaba family, and that the
execution-debtor is a mere licensee occupying it.

Next, counsel for the execution-creditor submitted that the claim
must be dismissed because the evidence shows that this property belongs to the
family, whilst the claimant put in the claim in his individual capacity. In
determining suits of this nature the court has to look at the real issue raised
as can be gathered from the whole proceedings, pleadings and all and not merely
at the form. It would be observed from paragraph 5 of his statement of claim
that the claimant pleaded that he owns the property as his ancestral property.
Again, in his evidence in chief he deposed that he is the person in charge of
the said family property; and his witness deposed that he, the claimant, is the
head of the family in control of the property. Even without the evidence that
the claimant is the head of the family, the uncontradicted evidence that he is
the person in charge and control of the family property means that the claim he
has made is on behalf of the family, and not on his own behalf as his
individual, self-acquired property. The submission on this point therefore
fails.

It was further submitted that the failure of the claimant to call
any member of the family to testify that the grant made by him to the
execution-debtor was made with the knowledge and consent of the principal
members of the family is fatal to the case of the claimant. It is difficult to
appreciate the purpose of this submission, because if it is sustained, its
effect would be that the grant to the execution-debtor is null and void, and he
acquired no interest whatsoever in the property which can be attached. If the
grant was made by the claimant, the head of the family, without the necessary
customary consent, the proper person who should have the grant declared null
and void would be the family. It is certainly not in the interest of the
execution-creditor who claims through the execution-debtor to take that point
as it is dead against his interest.