Alfa Mahmudu V. B. H. Zenuah & Ors (1934)
LawGlobal Hub Judgment Report – West African Court of Appeal
Interpleader by person not being head of Annilyre*Peet otattachment of Family property for Private Irak of Head of Family–Ordinarily only Head of Family can sue but, under Order 44 rule 25 (1) of Supreme Court Rules, Court is empowered to hear claimant, notwithstanding any native customary law to the contrary–Section 19 of Supremo Court Ordinance applied.
The following judgment was delivered:—
GRAHAM PAUL, J.
This case was heard in the Police Magistrate’s Court, A.ecra, on an Interpleader Summons issued by one Tesala. Zenuah, claimant, who in her summons as amended claimed ” for Sid on ” behalf of herself and other members of the family and ” descendants of the late Native Officer Harry Zenualv deceased “.
The interpleader was in respect of a process of execution issued in the Police Magistrate’s Court by Alfa Mahmudu againgt B. H. Zenuah under which there had been attached in execution and advertised for sale ” All the right title and interest of B. H. ” Zenuah in all that piecasr–parcel of land with buildings thereon ” situate lying and being at Pagan Road Accra and known as ” the property of B. H. Zenuah . . .”
It is admitted that the judgment obtained by Alfa Malimudu against B. H. Zenuah was for a private debt; that the property attached in execution and advertised for sale under that judgment is family property, and that B. H. Zenuah is the head of the family in question.
The Police Magistrate in giving judgment said :—
” The proper person to bring an action of this nature is ” the head of the family. I am satisfied that claim” ant is not the head of the family. The claim is ” dismissed with costs “.
Against that judgment the elaimalit appealed to the Divisional AM’ Court. The appeal was eard– by Aitken, J. who has referred to Itaionude this Court the following point of law upon which he consideredv.
the appeal turned :–D. R.
” Is the rule of nature customary law to the,. effect that Te.d. ” only a Read of a family can sue on its belalf not z•nuah.
contrary to justice, equity and good conscience in
” a ease- like this and therefore not applicable Graham ” thereto?”Paul, J.
The learned Judge also say_s in his judgment that it id no longer open to a Judge_ of the Divisional Court to consider that question owing to previoils decisiens. I accept that statement of the learned Judge, but neither by him nor by counsel was it suggested that this Court was precluded from considering the question and I treat the question as open for consideration by this Court. –
In his judgment the learned Judge further says that ” it is a ” fundamental rule of native customary law throughout this ” Colony that no part of any family house or land can be seized ” or sold in satisfaction of the private_ debt of any member of the ” family. Thus, had the-judgment debtor in his capaeity of head
of the Barri Zenuah family interpleaded on their behalf, there ” can be no doubt that he would have been successful in obtaining ” an order releasing every part of the house and land in question, ” which are admittedly family property, from attachment. He ” refused, however, to take any such action and his refusal led ” the claimant, who is an elder member of the family, to sue out ” an interpleader Summons on behalf of herself and most of the ” other members of the family “. That statement of native customary law and of fact was in no way controverted by counsel before this. Court and I accept it.
The judgment-creditor seeks to invoke the native customary law upon which he relies <1) to allow a stranger to the family to use the machinery of the Supreme Court, in violation of- a fundamental rule of native customary law, to dispossess the family , of the family house and land, and (2) to stop any member of the family except the Head from- interfering by way of interpleader to prevent the machinery and officers of the Supreme Court being used to commit a breach of a fundamental rule of native customary law.
It is to my mind clear that such a native customary law is ” repugnant to justice, equity or good conscience ” and that it is therefore under section 19 of the Supreme Court Ordinance not a rule of native customary law which the ‘Supreme Court has the right to ” observe and to enforce the observance of
But it seems to rue that the matter does not end there. The native customary law in question is in my opinion certainly incompatible ” either in terms or by necessary implication ” with
Alfathe Supreme Court Ordinance Schedule II Order 45 rule 25 (1),
Alahmuchi and for that reason is not a native customer/ Jaw which the V.Supreme Court under section 19 can ” observe and enforce the
h. H.” observance of “.
TesalaThe words immaterial to the present point being omitted, that
2:ertuallsection reads as follows :—
In the event of any claim being preferred to, or
Graham” objection offered against, the sale of land or any
Paul, J.other immovable or movable property which may
” have been attached in execution of a decree . . . .
as not liable to be sold in execution of a decree ” against the judgmeut debtor, the Court shall. .
proceed to investigate the mune with the like ” powers as if the claimant had been originallrmtle ” a party to the snit, and if it shall appear to side ” satisfaction of the Court that the land or other ” immovable property was not in the possession of ” the party against whom execution is sought . . . ” 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 movable property was in ” possession of the party against whom execution is ” sought as his own property and not on.account of ” any other person . . . . the Court shall disallow ” the claim “.
In these interpleader proceedings an objection was ofiered against the sale of the house and land attached ” as not liable to ” be sold in execution of a decree against the judgment debtor “. The Court investigated the objection and it did appear to the satisfaction of the Court that the house and land attached were in possession of the party against whom execution was sought ” not ” on his own account, or as his own property, but on account of, ” or in trust for “, the family. And in my view the Court under Order 45 rule 25 (1) was in these circumstances bound to make an order releasing the property from attachment, and any native customary law incompatible with that section the Court was under section 19 hound to ignore.
It is also clear to my mind that the Court, by allowing execution and sale to proceed, was stultifying itself and its officers, because at any sale in execution of immovable property all that can be sold and all that a purchaser can acquire is ” the right ” title and interest of the judgment debtorin the property sold “. It is admitted that the judgment debtorThad no right title or interest in the property in question capable of being attached or
sold undue= a–PrOCOS8 Of eXeoutistn. It follows that by not malting Alfa
the order releasingproperty from attachment the Court is Mahmudu
allowing to continue a- the Court’s officers of 80InethingV
which has no eft ii in law. If the sale proceeds –the B H. Court would e_ventual limy,- to give to that purchaser a, certificate Zenuah‘ under Ottier–45–rule 34 that he had purchased something”latch esala the Court is ez hypothezi satisfied has no existence in fact lir in enush ” law, namely the attachable right title and interest of the judgment Graham debtor in the family house and land. It is clear to my mind that paw, j. such a result constitutes a reductio atl absurdum of the judgment creditor’s contention.
I am_ therefore of opinion that the question submitted to this Court should be answered in the affirmative.
In view, however, of some misunderstanding which appeared to arise in the arguments in this appeal I cannot make it too clear that I am not seeking in this judgment to decide that anyone other than the Head of the faMily could obtain from the Court a declaration of title to .a judgment for recovery of possession of, or a judgment for damages for trespass on, family land. Having said that, I think I have said enough to show that this judgment makes no real inroad into what I conceive to be the real meaning of the native customary law that only the Head of the family can sue in regard to family land.
KINGDON, C.J., NIGERIA. I concur.
YATES, ACTING0-01.4D COAST.