1923
DIVISIONAL COURT (COLONIAL)
GHANA
CORAM
AI Generated Summary
Chief Justice Smyly considered an application by African & Eastern Trade Corporation Ltd. to be put in possession of property sold in execution following a judgment obtained against Elizabeth Botchway. After the June 1921 suit and June 25 judgment for African & Eastern, a writ of fi. fa. issued on October 17, seizing property on Derby Avenue, Accra. In interpleader No. 32/21, Botchway’s mother, Dedei Akanuah, claimed under a purported December 1920 conveyance and deed of gift to trustees for Botchway’s children; the court found the sale not genuine, set aside the deed as fraudulent, and directed execution to proceed. The property was sold to African & Eastern for £650, but occupants refused to vacate, prompting this motion under Order XLV, Rule 37. Smyly C.J. rejected arguments that only land (not buildings) was sold and that the legal estate revested after redemption, ordered possession to the purchaser, and stayed execution for seven days.
SMYLY, C.J.-This is an application by the African & Eastern Trade Corporation Ltd., for an order for delivery to be made of the property sold in execution of a decree in the above mentioned suit by order of the Court dated the 17th day of October 1921, by putting the said African & Eastern Trade Corporation Ltd., or their Agent, in possession thereof and, if need be, by removing therefrom any person who may refuse to vacate the same.
From the affidavits filed, it would appear that in June 1921, a suit was instituted by the Company, against Elizabeth Botchway, and, on the 25th June 1921, judgment was given for the Company for £1,472 2s. od. and £2175. od. costs.
On the 17th October 1921, a writ of fi. fa. was issued in execution of the said judgment, and property in Derby Avenue was seized thereunder, and, on the 9th of November 1921, an interpleader summons, No. 32/21 was issued at the instance of Dedei Akanuah and the mother of Elizabeth Botchway, trustees for the grandchildren of Dedei Akanuah. From the judgment in that case, it would appear that Elizabeth Botchway bought the land in question, on the 25th of January 1919, for the sum of f200. On the 8th of December 1920, she (Elizabeth Botchway,) purported to convey the property to her mother, Dedei Akanuah, at which date she had mortgaged the property, and had parted with the legal estate. By a deed of gift, dated the 8th December I920, Dedei Akanuah conveyed the property to herself and Botchway, as trustees to hold the property in trust for the children of Elizabeth Botchway, and, by deed dated 1st February 1922, a date subsequent to the seizure of the property by the sheriff, Dedei Akanuah and Elizabeth Botchway purported to mortgage the property to Edward Padu Nelson for £500, and interest at the rate of 50% per annum. The Court found that it was not satisfied on the evidence that the alleged sale by Elizabeth Botchway to her mother Dedei Akanuah was a genuine sale, and further that it was satisfied that the deed of gift of the 8th December 1920, was made with the object of defeating present or future creditors, and, as there was no consideration for it, set it aside on the ground of fraud, and directed the execution to proceed. The property was put up for sale, and
sold to the plaintiffs for the sum of £650; the people in the house have refused to move, and the present application is brought under Order XLV., R.37. The motion has been opposed by Mr. Kwatei Quartey-Papafio as Counsel for Dedei Aka