Manche Tete Kpeshie II V. Manche Ahuma Koji II (1946)

LawGlobal Hub Judgment Report – West African Court of Appeal

Interpleader—Consent arders—Limitation of Actions-3 & 4 William IVChapter 27, section 40.

Facts

On 24th July, 1918, a sum of costs was awarded to respondent’s predecessor by the Divisional Court. A writ of fieri facias was issued on 25th April, 1924. but execution was stayed owing to an application for an interpleader summons having been made. No further step was taken to prosecute this interpleader suit.

On 2nd August, 1927, a further sum of costs was awarded to respondent’s predecessor by the Privy Council. A writ of fieri facias for these costs was issued on 30th September, 1927. The two sureties interpleaded and interpleader suits were begun, but eventually settled by consent orders not referring to the Divisional Court costs or to the projected interpleader suit in regard thereto.

The trial Judge held that the consent orders constituted a sufficient general acknowledgment of the Divisional Court costs to take them out of the limitation statute and granted leave to issue execution in respect thereof.

Held

On appeal, that the interpleader suits did not relate to the Divisional Court costs and therefore the consent orders could not be an acknowledgment thereof, and that the leave given must be limited to the issue of execution in respect of the Privy Council costs only.

Judgment of trial court varied.