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Aponyimpa Kwow Mbonyi & Ors V. Kweku Dadzie Of Mumford & Ors (1940) LJR-WACA

Aponyimpa Kwow Mbonyi & Ors V. Kweku Dadzie Of Mumford & Ors (1940)

LawGlobal Hub Judgment Report – West African Court of Appeal

Appeal by Plaintiffs-Appellants against refusal by lower Court of an interim injunction to restrain Defendants-Respondents from execution of writ of Fi. Fa—procedure as to execution considered—right to apply to restrain a threatened invasion of legal or equitable rights. Appeal allowed.

Held : The statutory provisions as to Interpleader only come into effect when goods or land are seised. Order 45 of the Rules of the Supreme Court leaves unimpaired a person’s right to come to the Court to prevent a threatened seizure which is unlawful. The Court below is accordingly directed to hear the application.

There is no need to set out the facts.

K. A. Korsah for Appellants.

C. F. H. Benjamin for Respondents.

The following joint judgment was delivered :—

KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST, AND GRAHAM PAUL, C.J., SIERRA LEONE.

The plaintiffs, alleging in their affidavit in support that the defendants were threatening to attach the canoes of all the fishermen of winneba whom they represent in this action, applied in the Court below for an interim injunction to restrain the defendants from executing a writ of Fi. Fa. on all the canoes on the beach at Winneba, except those belonging to the late Kojo Edu and Kobina Donkoh, on the ground that they (plaintiffs) were not parties to the suit in respect of which the writ of Fi. Fa. was issued. In other words they claimed they were not judgment debtors.

See also  Salawu Atunde V. COP (1952) LJR-WACA

This application was refused for the reasons given by the learned trial Judge in the following part of his Ruling :–

” I have given this matter very careful consideration and in my opinion the answer to the question is as follows :—I consider that where a Fi. Fa. has been issued, and it is intended to contest the ownership of the various properties affected by the Fi. Fa., the proper and only legal procedure is for

Mbonyi& anor., etc.v.Dadzie, etc.& anor.the properties affected by the Fi. Fa. to be seized, and, after such seizure, for resort to be had to interpleader proceedings. I do not consider that, once a writ of Fi. Fa. has been issued, any legal means exist of contesting it except by interpleader proceedings after seizure of the property. In these circumstances I refuse to grant the application for an interim injunction, and the Fi. Fa. will now have to be executed as desired by the defendant.”

Kingdon,

Petrides andThe defendants do not, in their affidavit in reply, deny that

Grahamthey threaten to attach all the canoes. On the contrary they

Paul, cll.

allege that the plaintiffs are bound by the judgment in respect of
which they (defendants) have obtained a writ of Fi. Fa. and appear
to claim that they are entitled to levy execution on all the canoes.

The procedure as to execution affecting property is governed by Order 44 of Schedule 3 of the Rules of the Supreme Court. Some of the rules in this Order are designed to provide an expeditious method of trying claims asserted by any person other. than the judgment debtor to property seized in execution. Under Rule 6 of this Order any person ‘dispossessed of land may apply by interpleader proceedings to the Court within two months from the date of such dispossession. Under Rule 26 the claim must be preferred at the earliest possible opportunity. If claimant delays designedly and unnecessarily with a view to defeat the ends of justice he ” shall be left to prosecute his claim by a regular’suit ” to quote from the last line of that rule. It is clear therefore that there are means, other than by interpleader proceedings, of recovering property seized under writ of Fi. Fa.

In 18 Halsbury, 2nd Edition page 28 paragraph 42 it is stated an interlocutory judgment will be granted. to restrain an apprehended or threatened injury where such injury is certain or very imminent, or mischief of an overwhelming nature is likely to be done.

See also  Rex V. Hammar Dangar (1944) LJR-WACA

It is quite clear that Rules made under the Supreme Court Ordinance cannot deprive a person of his right to apply to a Court to restrain a threatened invasion of his legal or equitable rights unless that Ordinance expressly deprives a person of that right. Neither that Ordinance nor Order 45 purpoits to do so.

The provisions of Order 45 as to interpleader only come into effect when goods – or land are seized and these are merely supplementary to other rights a person may have to claim property which has been wrongfully seized in execution. It leaves unimpaired a person’s right to come to the Court to prevent a threatened seizure which is unlawful.

We allow the appeal and set aside the judgment of the Court below and direct that Court to hear the application in the light of this judgment.

The plaintiffs to have the costs of this appeal which we assess at £46 17s. 2d. and the taxed cbsts of the hearing in the Court below.

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