C. E. ASANTE V. KOJO MENSAH & 3 ORS

KINGDON, C.J.. NIGERIA, PETRIDES, C.J., GOLD COAST. AND GRAHAM PAUL., C.J., SIERRA LEONE. In this case the claimant-respondent-appellant-respondent’s land, which he bought for £4 13s 0d in 1938, was sold in execution of a decree of the Divisional Court of the Asantehene (Grade B). The date of the sale was 28th December, 1938. Five days before that, on the 23rd December, 1938, the respondent had applied to the Court B for an interpleader summons claiming to be the owner of the land. The summons was issued on the 9th January, 1939, after the sale had taken place. On the hearing of what the Court B called the “interpleader action”, Court B gave judgment for the claimant, set aside the sale of the property and declared it to revert to the original owner the claimant.

Against that decision the judgment-creditor appealed to the Asantehene’s Court A, which upheld his appeal on the ground that the action of the claimant was not taken till after the sale. The claimant then appealed to the Court of the Chief Commissioner of Ashanti which upheld his appeal and set aside the sale on the ground that at the time of the sale the claimant was in possession. All three lower Courts referred to Rules of the Supreme Court in Graham Paul regard to interpleader suits, and based their respective decisions upon their interpretation of those rules, as though the rules governed the present case, but there is no provision which makes those rules applicable. Rules have been made under section 37 of the Native Courts (Ashanti) Ordinance (Cap. 80), but they do not cover procedure in Interpleader suits. This being so we are of opinion that a Native Court in Ashanti in which a man has come forward to claim land which has been seized and I or sold in execution of a decree should fall back not upon the Supreme Court Rules of procedure but on the general principle enunciated by Smyly, C.J., in Abuagyi II v. Gyebu (1921) F.C. ‘20-‘ 21 p. 81) when he said: “Personally I do not lay any stress on the form in which “an action is brought before a Native Tribunal so long as “the issue involved is clear,"

In the present case the real issue in the Asantehene’s Court B was clear, namely :- “Is the claimant the owner of the land? “The Court held that he was and we are of opinion that having done so the Court was right to give him a declaration of ownership. The order setting aside the sale should not have been made in addition, since neither vendor nor purchaser were parties to the proceedings. With this variation the order of the Asantehene’s Court B, including the order as to costs, is upheld and the appeal is dismissed with costs assessed at £5 16s 0d.