Coussey, J. This appeal raises the question what relief should be granted in interpleader proceedings where the claimant establishes an equitable charge over the attached property but the judgment-creditors are held to have a prior equitable charge over the same property.
In considering what order should be made in these circumstances the learned Judge discussed the judgment of this Court in Isaac Asare Wilson v. Opoku Afriye Kwadjo (1) in which it was held that the relief which could be given in claims to attached property is that prescribed by Order 44, rule 25 (Cap. 4), namely that the property be released from attachment if the claim is proved and alternatively that the claim be disallowed.
In this case, which related to a used motor-vehicle the learned Judge observed that the position was unsatisfactory as there is no provision in the existing rules for making an order that would define the rights of the parties, and he proceeded:
“The existence of an equitable right to the property does not exempt the lorry from being sold in execution, and rule 36 of Order 44 clearly indicates that.
“All I will say is this, that the Sheriff can only seize and sell the right, title and interest of the judgment-debtor in the particular property. “Although the claimant has a good charge it is not such as to entitle me to order the property to be released from attachment, and I don’t think I can properly make such an order. I therefore dismiss the claimant’s claim, but in dismissing his claim I do not say he has no right.” The appeal is against the refusal of the Court below to order in simple form the release of the property from attachment.
It is argued with some force that once the claimant proved that the judgment- debtor was in possession of the lorry on account of or in trust for some other person (in this case for both the claimant and the judgment-creditors; according to the argument it does not matter which) under their respective charges, the Court had no alternative under Order 44, rule 25 but to make an order for releasing the property from attachment, leaving it to the judgment-creditors and the claimant to contest between themselves in a regular suit, the rights under their respective charges.
In support of this contention Khoury v. Teymani, James Colledge and Anor. claimants, etc., etc. (2) is referred to. But that case does not, in our interpretation of it, assist the appellant's argument. The claimants and the judgment- creditors. all had equitable charges by Bills of Sale in some form or other on the merchandise attached, the first claimants having priority. In those circumstances the property was ordered to be released from the judgment-creditors attachment but on terms of appointing a receiver to realise the property for the benefit pro rata and Pari pasou of the claimants, the judgment-creditors and all other creditors, not necessarily judgment-creditors of the debtor.
We think that case well illustrates the length to which the Court will go in interpleader proceedings to provide for competing interests between judgment- creditors and claimant. The position is rarely simple where equitable interests are in conflict. To release the property from attachment because the claimant proved some interest but without regard to a prior equity would, in the case before us, have resulted in multiplicity of suits and perhaps injustice to the judgment-creditors.
The claimant-appellant cannot really complain. In opening his case at the trial, Counsel submitted on his behalf that the lorry could only be sold subject to the claimant’s charge. It was proved, however, that the judgment-creditors had a prior charge. In dismissing the claim the Court gave effect to the principle that of the two equities that of the judgment-creditors was due to be paid off in priority ,to that of the claimant.
Reverting to Order 44, rule 25, it is true that there is no provision in the Gold Coast simi1ar to section 62 of the Indian Code of Civil Procedure which provides that:-
“Where the Court is satisfied that the property is subject to a mortgage or other charge in favour of some persons not in possession, and thinks fit to continue the attachment, it may do so subject to- such mortgage or charge” but it should be remembered that the Courts Ordinance is not exhaustive.
It is sometimes thought that it is sufficient to object to and reverse a decree that no particular section or rule of the Ordinance can be cited as an authority for it. But the law recognises in section 73 of Cap. 4 the duty of the Court to grant relief to which any of the parties may seem entitled in respect of every legal or equitable claim or defence so that multiplicity of legal proceedings may be avoided.
In this case justice required that the judgment-creditors should have priority in respect of the property attached. It would be strange if the Court could not provide for that as it did in dismissing the claim but declaring that the claimant was not without some rights. That right so fat as affects the lorry attached is, that on satisfaction of the judgment-creditors’ debt and charges out of the proceeds of sale any surplus in the hands of the Sheriff should be available for the claimant if the proper course is adopted by him.
“Procedure” said Lord Penzance in Kendall v. Hamilton (3), at p. 525, II is but the machinery of the law after all-the channel and means whereby law is administered and justice reached. It strangely departs from its proper office when, in place of facilitating, it is permitted to obstruct and even extinguish legal rights and is thus made to govern where it ought to subserve”.
The appeal is dismissed with costs assessed at £18 39. 0d.
Appeal dismissed.