LEMANU vs. DUALA (YAKUBU-CLAIMANT) [1962]DLHC1489

Date	1962-02-07
Suit No.
Citation No.	[1962]DLHC1489

OLLENNU J.

T. K. AGADZI FOR THE CLAIMANT.

M. T. AFUTU-NARTEY FOR THE PLAINTIFF-JUDGMENT-CREDITOR.

[1962]DLHC1489
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">LEMANU<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">&nbsp;vs. <o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">DUALA (YAKUBU-CLAIMANT) <o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1962] 1 GLR 60<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:31.0pt 31.0pt 1.0pt 31.0pt;mso-border-shadow:yes">

DATE:<span style="font-size:10.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0"> 7TH FEBRUARY, 1962.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

T.
K. AGADZI FOR THE CLAIMANT.<o:p></o:p>

M.
T. AFUTU-NARTEY FOR THE PLAINTIFF-JUDGMENT-CREDITOR.<o:p></o:p>

</div>CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 6.0pt 0in">

OLLENNU J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF
OLLENNU J.<o:p></o:p>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:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“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.”<o:p></o:p><o:p>&nbsp;</o:p>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 &amp; 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.<o:p></o:p>In the present suit, the claimant based his claim upon a document
exhibit A dated the 28th&nbsp; 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.”<o:p></o:p><o:p>&nbsp;</o:p>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.<o:p></o:p><o:p>&nbsp;</o:p>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 </main>