Is The Outcome of an Interpleader Proceeding Interlocutory or Final?
A person who holds a property to which he/she does not claim any legal or equitable interest may find himself/herself in a situation where other persons are laying adverse claims/interest to that property. Persons merely in possession of the property (such as tenants) or a Court Registrar/Sheriff (who may have attached the property in execution of a judgment debt) commonly find themselves in such a situation.
In such a situation, the non-interested person may seek relief in the form of an Interpleader Proceedings as provided for in the rules of court. A court’s determination in such interpleader proceedings scarcely ends the dispute; and losing party may opt for an appeal.
The purpose of this article is to ascertain whether the outcome of interpleader proceedings are final judgments or interlocutory judgments.
2.Nature of Interpleader Proceedings
The discussion will commence by discussing the nature of Interpleader proceedings. In Republic v High Court, Accra; Ex Parte Anyan (Platinum Holdings Interested Party) the Supreme Court, unanimously speaking through RC Owusu JSC, adopted the definition of interpleader given by the English Supreme Court Practice(1995 ed), Vol 1, Order 17/1/1 as follows:
“a proceeding by which a person, from whom two or more persons claim the same property or debt or land who does not himself claim the property or dispute the debt, can protect himself from legal proceedings by calling upon the two claimants to interplead – that is to say, claim against one another so that the title to the property or debt may be decided.”
Order 48 rule 1 of CI 47 provides that:
A person may apply to the Court for relief by way of interpleader where
(a) the person seeking relief, in this Order referred to as “the applicant” is under liability for any debt, money or goods for or in respect of which the person is or expects to be sued by two or more parties in this Order referred to as “the claimants” making adverse titles thereto; or
(b) the person seeking relief is a Registrar or other officer of the Court charged with the execution of process by or under the authority of the Court, and a claim is made to any property movable or immovable taken or intended to be taken in execution under any process or to the proceeds or value of any of the property by any claimant other that the person against whom the process is issued.
This rule makes room for two kinds of Interpleaders; each provided for under Order 48 (1) (a) and Order 48 (1) (b) respectively.
The first kind is generally referred to as Stakeholder’s Interpleader which is covered by Order 48 rule 1 (a). Here, someone who is in possession of a property is faced with adverse claims by two or more persons. The one in possession is entitled to bring an application to the court for the determination of the rightful owner of the property for the purpose of atoning tenancy, etc.
Attorney-General v Bank of West Africa illustrates this kind of interpleader. An Employer wrongfully paid money into the account of an Employee, a customer of the Defendant (i.e., Bank of West Africa). The Employer sued the Bank to recover the aforementioned sum of money. The Bank applied for relief by way of an interpleader to the Court. The Supreme Court opined that by applying for relief by way of an interpleader, the Bank took a wise step.
Order 48 rule 1(b) presents another kind of interpleader known as Registrar’s interpleader or Sheriff’s interpleader. This kind of interpleader arises where in executing a judgment, the Registrar attaches or intends to attach a property in the belief that it is the property of the Execution-Debtor but a third-party, referred to as the Claimant, makes an adverse claim to the property. In this situation, the Registrar applies to the court to determine the true owner of the property. The detailed procedure for such interpleaders is provided for under Order 44 rule 12 of CI 47.
Martin Alamisi Amidu v Attorney-General & 2 Ors. (UT Bank Ltd – Claimants) is a case where this kind of interpleader proceedings arose. In that case, the Attorney-General, the Judgment-Creditor attached certain properties in the belief that they belonged to Alfred Agbesi Woyome, the Judgment-Debtor. UT Bank Ltd, the Claimants, put in a claim of interest in respect of those properties. In determining the party on whom the burden of proving collusion lied, the Supreme Court per Benin JSC opined that this case fell within the scope of Order 44 rule 12 of CI 47 rather than Order 48 rule 1(a) of CI 47 contrary to the contention of the Attorney-General, the Judgment-Creditor.
Whereas the Registrar’s Interpleader avails a party only after judgment or during execution, the Stakeholder’s interpleader, however, may not always ensue after a judgment or from an execution of a judgment as illustrated by the Attorney-General v Bank of West Africa case. This is a point worthy of note and we will refer to it later on in this paper.
Having discussed the nature of interpleader proceedings, we will now proceed to briefly explain the difference between final and interlocutory Judgments.
3.Nature Of Interlocutory and Final Orders or Judgments
Orders and judgments are the two kinds of decisions the court may make in a matter or cause. Unlike in other jurisdictions, the Rules of Court in Ghana do not provide elaborate statutory definition of the terms.
Order 82 rule 3 of CI 47 defines an “interlocutory decision to mean a decision which is not a final decision in any cause or matter.”
The question whether a decision of the court is interlocutory or final is thus one which has been the subject matter of copious academic and judicial commentaries.
At common law, two different tests have been adopted to determine whether a decision is interlocutory or final. The tests are the “application” and “order” tests. According to the application test, the question whether a decision is interlocutory or final, can be determined from the nature of the application made to the court. An order is deemed to be final by the proponents of this test if the action determines whether the application or other proceedings succeeds or fails. The contrary is also true.
The application test can be traced back to the dictum of Lord Esher MR in Standard Discount Co v La Grange.The English Court of Appeal has adopted and applied Lord Esher’s application test in Salaman v Warner, Salter Rex & Co v Ghosh and White v Brunton.
The order test, on the other hand, was espoused by Lord Alverstone CJ in Bozson v Altrinchan Urban District Council. In distinguishing an interlocutory order from a final one, Lord Alverstone CJ opined thus:
“It seems to me that the real test for determining this question ought to be: Does the judgment or order, as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order; but if it does not, it is then, in my opinion, an interlocutory order.”
This test looks at the nature of the order made by the court. Where the order finally disposes of the rights of the parties, the order is final but not interlocutory. No regard, whatsoever, is had to the nature of the application or proceedings.
In Ghanaian jurisprudence, the order test espoused by Lord Alverstone CJ appears to be have been well-received and has been applied in a number of cases.
In Pomaa v Fosuhene, Taylor JSC, when confronted with the opposing application and order tests, reviewed the position which the Ghanaian courts have taken and opined thus:
“I agree entirely with that description which is consistent with Lord Alverstone’s test…’For Ghana then the test is not to look at the nature of the application but at the nature of the order made. This is one area where the courts of Britain and Ghana have already parted ways and the Ghanaian courts have shown remarkable consistency.’ I agree entirely with the views of the Ghanaian judges and I hold that they are right. I will accordingly approve the Alverstone test so consistently followed by the lower courts of this country.”
Again, Dr. Twum JSC emphatically stated in Attorney-General v Faroe Atlantic Co. Ltd that:
“My lords a judgment is final because it puts an end to the action by making an award of redress to a party, or discharge the other, as the case may be. That a summary judgment is a final judgment is too inverterate to be disputed today.”
By extension, Dr. Twum JSC’s statement would invariably apply to an order as well.
In Republic v. the High Court (Fast Track Division); Ex parte State Housing Co Ltd, the Supreme Court per Georgina Wood CJ pronounced concerning the time-honoured Alverstone test that:
“an order which does not deal with the final rights of the parties, but either (1) is made before judgment, and gives no final decision on the matters in dispute but is merely on a matter of procedure; or (2) is made after judgment, and merely directs how the declaration of right already given in the final judgment are to worked out, is termed interlocutory.”
Thus, in Ghana, an order or judgment which finally determines the rights of the parties in an action is considered a final order or judgment and one which does not finally determine the rights of the parties in an action is considered an interlocutory one is a question well-settled in case law.
Now, the question whether or not a decision of a court of competent jurisdiction is final or interlocutory is relevant for two (2) main reasons:
- The time limit for filing appeals: Generally, appeals against final decisions can be filed within 3 months from the date of the decision whereas appeals against interlocutory decisions can be filed within 21 days from the date of the decision.
- Whereas interlocutory decisions are not deemed to operate as res judicata unless the parties have approbated same, final decisions are deemed to operate as res judicata and the same subject matter, or related subject matter, cannot be litigated again in the courts.
The relevance of determining whether a decision is final or interlocutory will be emphasized when discussing why the Author is of the opinion that the current position of the Court in Ghana on the subject is erroneous.
4.What Has Been Said by The Court Concerning Interpleader Proceedings?
The Courts have consistently held that orders or judgments which emanate from such proceedings are interlocutory and not final. This was so held first in R. T. Briscoe v Amponsah by the Court of Appeal. Then, it was followed by the Court of Appeal in Agoti v Agbenoku, a case which has received the approval of the apex court of this country in several cases, the most recent of which is Apro Ghana Ltd v Akuffo and Others.
Facts of Agoti v Agbenoku
The Respondent issued an interpleader summons under L.I. 208, reg. 163 against the Appellant which was dismissed by the trial court. When the Respondent appealed to the High Court, the Appellant raised a preliminary objection to the appeal on the ground that the Respondent ought to have sought leave to appeal in accordance with L.I. 208, reg. 185 since the decision appealed from was interlocutory.
The High Court omitted to pronounce on the preliminary objection but decided the case on its merits against the Appellant. The Appellant appealed to the Court of Appeal contending inter alia that the Respondent ought to have sought leave to appeal from the trial court. The issues for determination before the Court of Appeal turned primarily on the question – whether an interpleader proceeding is interlocutory.
The Court of Appeal answered the question in the affirmative by citing Order 57 rule 11(4) of LN 140A and the decision of the High Court in R. T. Briscoe v Amponsah which had decided earlier that interpleader proceedings are interlocutory. Order 57, rule 11(4) of LN 140A provided that “any appeal under this Rule shall be to the West African Court of Appeal and shall be deemed to be interlocutory.”
Sowah JA (as he then was), who delivered the decision of the Court of Appeal, opined that the rationale for declaring interpleader proceedings as interlocutory is that even though it substantially determines the questions between the parties, interpleader proceedings arise out of other matters. Hence, the Respondent’s failure to obtain leave of the trial court to appeal was adjudged to be fatal to his appeal. Therefore, the judgment of the High Court was set aside.
More recently, the Supreme Court in Apro Ghana Ltd v Akuffo and Others affirmed the ratio in the Agoti case. Avril Lovelace-Johnson JSC citing the decision of the court in Agoti v Agbenoku with approval said thus concerning interpleader proceedings:
“While interpleader proceedings may determine the rights of the parties in relation to the ownership of the items seized in execution, such proceedings have been held to be interlocutory ‘since it arises out of some other matter.’”
The Author is of the respectful opinion that the decision in the Agoti case, was not supported by the provisions of the LN 140A and the accepted distinctions at common law between interlocutory and final judgments. Again, with respect, the Author is also of the opinion that the decision of the Supreme Court in the case of Apro Ghana Ltd, supra is also not supported by the provisions of CI 47 and the accepted definition of interlocutory and final judgments.
5.Interpleader Proceedings Under LN 140A.1
As stated earlier, the Agoti case was decided under LN 140A. For ease of reference, we will reproduce the relevant parts of LN 140A.
Order 57 rule 8 of LN 140A provided as follows:
“The Court or a Judge may, with the consent of both claimants or on the request of any claimant if, having regard to the value of the subject-matter in dispute, it seems desirable so to do, dispose of the merits of their claims and decide the same in a summary manner and on such terms as may be just.”
Order 57 rule 11 provides as follows:
- The decision of the Court or a Judge in a summary way under Rule 8 of this Order and the decision of the Court or Judge on a question of law under rule 9 thereof shall be final and conclusive against the Claimants and all persons claiming under them unless leave to appeal is given by the Court or Judge or by the West African Court of Appeal.
- Where an Interpleader issue is tried by a Judge with or without assessors, an appeal shall lie from any decision arrived at or any judgment directed by the Judge.
- Where the Court or a Judge tries an interpleader issue and finally disposes of the whole matter under Rule 13 of this Order, an appeal shall lie from the decision or judgment.
- Any appeal under this Rule shall be to the West African Court of Appeal and shall be deemed to be interlocutory.”
A reading of the provisions of Order 57 of LN 140A as reproduced above will indicate that a Judge seised with interpleader proceedings has the jurisdiction to make orders and deliver himself of a judgment which will finally dispose of all the rights of the parties to the property which is the subject matter of the interpleader proceedings.
It is the contention of the Author that the phrase in Order 57 rule 11 (4) thus “…. and shall be deemed to be interlocutory” is only in respect of the time frame for filing appeals against such decisions. In other words, the Author contends that even though the framers of LN 140A intended interpleader decision to be final judgment with respect to whether or not it finally disposes off the rights of the parties, the framers however intended that for the purposes of the time for filing the appeal, the number of days ascribed to filing appeals in interlocutory decisions is what should be applicable in interpleader matters. This contention is fortified by the relevant provisions of CI 47 which will be discussed below.
The Court of Appeal in the Agoti case, with respect, erred when they interpreted the phrase in Order 57 rule 11 (4) thus “…. and shall be deemed to be interlocutory” to mean that the nature of the decision in interpleader proceedings will not be to finally dispose of the rights of the parties before the court and hence, same ought to be an interlocutory decision to all intents and purposes.
6.Interpleader Proceedings Under CI 47
We have stated elsewhere in this article the relevant provisions of CI 47 relating to interpleader proceedings.
Order 44 rule 12 (1) provides as follows:
“A person who makes a claim to or in respect of a property taken or intended to be taken in execution under process of the Court, or to the proceeds or value of any such property, shall give notice of the claim to the Registrar and shall include in the notice a statement of the person’s address for service.”
Order 44 rule 13 (1) also provides that:
Where on the hearing of proceedings pursuant to an order made under rule 12(4) all the persons by whom adverse claims to the property in dispute, in this rule referred to as “the claimants” appear, the Court may
(a) summarily determine the question in issue between the claimants and execution creditor and make an order accordingly on such terms as may be just; or
(b) order that any issue between the claimants and the execution creditor be stated and triedand may direct which of them is to be plaintiff and which defendant.
Order 44 rule 13 (4) further provides that:
“For the purposes of this rule the Court may give such judgment or make such order as may finally dispose of all questions arising between any claimant and the execution creditor.”
Instructively, Order 44 rule 13 (5) provides that “An appeal against any judgment or order given or made under subrule (4) shall be filed within fourteen days from the date of the judgment or order.”
Again, just like the provisions in LN140A, it is obvious that the framers of CI 47, intended that the nature of the decision in interpleader proceedings should be one which will finally determine the rights of the parties who have appeared before the Court in respect of the interpleader proceeding.
Now, the most important difference between the provisions of LN 140A and CI 47 in respect of interpleader proceedings can be seen in the treatment of appeals from the interpleader decisions. Whereas LN 140A merely states that appeals from interpleader decisions should be treated as “interlocutory,” CI 47 provides that such appeals should be filed within 14 days from the date of the decision.
Juxtaposing these two provisions, one can conclude that because in CI 47, the number of days has been specifically provided as 14, the use of “interlocutory” in LN 140A in respect of appealing against the decision arising from interpleader proceedings can only be interpreted to mean the number of days within which one can appeal against such interpleader decisions.
Avril Lovelace-Johnson JSC justification for classifying decisions from interpleader actions as interlocutory in the Apro case which was decided under CI 47, is as follows:
“While interpleader proceedings may determine the rights of the parties in relation to the ownership of the items seized in execution, such proceedings have been held to be interlocutory since it arises out of some other matter.”
With respect to the learned justice of the apex Court of the Land, the test for whether or not a decision is final or interlocutory has long been settled as not arising from the “nature of the application” (i.e. whether or not it arises out of some other matter), but from the “nature of the decision” (i.e. whether or not it finally disposes of the rights of the parties). Decisions arising from Interpleader proceedings can thus not merely be deemed to be interlocutory because such proceedings arise from another action. That will be using the “nature of application approach” instead of using the “nature of order/decision” approach to ascertain that because the decision from the interpleader proceedings finally determines the rights of the parties before the court, such decisions should be deemed in final and not interlocutory.
From the nature of order made approach, which has been wholly accepted in Ghana, the decision of a judge in an interpleader proceeding can therefore not be deemed to be an interlocutory decision. To all intents and purposes, the framers of both LN 140A and CI 47 intended that, decisions in interpleader actions would finally determine the rights between the parties before it. Whether or not interpleader proceedings arise from other actions should not make same interlocutory.
There may, however, be good reasons why though a final decision, appeal against interpleader decisions, must be filed within 14 days under CI 47 and not 21 days under CI 19, but which reason is not the subject of the current article.
The Author has taken a dissentient view from the position the courts have taken consistently. We have so done whilst agreeing with the words of the erstwhile Justice Ruth Bader Ginsburg of the United States Supreme Court:
“Dissents speak to a future age. It’s not simply to say, ‘My colleagues are wrong and I would do it this way.’ But the greatest dissents do become court opinions and gradually over time their views become the dominant view. So that’s the dissenter’s hope: that they are writing not for today, but for tomorrow.”
  SCGLR 255 at page 261-262
  GLR 245
 See Salama v Sharani  2 GLR 364 and Republic v High Court, Accra; Ex parte Anyan  SCGLR 255
 (J7/10/2014)  GHASC 47 (27 June 2019)
  3 CPD 67
  1 QB 734
  2 All ER 865
 (1984) 2 ALL ER 606
  1KB 547 CA
 Ibid, at page 548-549
 State Gold Mining Corporation v. Sissala  1 G.LR. 359, Tawiah & Ors v Brako & Ors  1 GLR 483, Okudzeto v Irani Brothers  1 GLR 96 CA, Atta Kwadwo & Ors. v Badu  1 GLR 1, Karletse-Panin v Nuro  GLR 194, Morkor v Kuma [1998-99] SCGLR 620, Attorney-General v Faroe Atlantic Co. Ltd. [2005-2006] SCGLR 271
 [1987-88] 1 GLR 244
 [2005-2006] SCGLR 271, at 288
  SCGLR 185
 Rule 9 (1) of Court of Appeal Rules, 1997, CI 19
 In Re Mensah (Decd) Mensah & Sey v Intercontinental Bank (Gh) Ltd SCGLR 118
 Unreported, digested in (1969) CC 100
  GLR 14
 (J4/60/2019 )  GHASC 46 (22 July 2020)
 Emphasis ours
 On the application of the relevant principle of interpretation of statute, because the provisions of the CI 47 is specific/special on time for appeal against an interlocutory decision, the 14 day time line will take precedence over the 21 day time line provided for in CI 19, which will be deemed to be a general provision.
The Writer is the Lead Consultant with Robert Smith Law Group, a boutique law firm based in Accra and assists with the teaching of Civil Procedure at the Ghana School of Law, Makola Campus-Accra. He is also Fellow of the Chartered Institute of Arbitrators.