Messrs F. & M. Khoury Of Nsawam V. Ohene Kwaku Amoah II And Others All Of Asamanxese (1942)
LawGlobal Hub Judgment Report – West African Court of Appeal
Procedure—Execution—Change of parties—Order 43. rule 27.
There was an application for an order substituting another defendant after judgment which was granted. The applicants moved under Order 43 rule 27.
Held: That the application under the rule ‘merely for substitution was misconceived.
Appeal allowed.
Dr J. B. Danquah for Appellant.
K. A.’ Boss•an, for Respondents (S. A. Attoh with him). The following joint judgment was delivered :—
KINGDON, C.J., NIGERIA, PET_RIDES, C.J., GOLD COAST, AND POORLY, 3.
In this case the plaintiffs-respondents made application to the Divisional Court for an order substituting the name of NANA KwAxtr Amolat II, .the present OHENE of Asamangkese, for NANA Aim DARKU II, formerly OHENE of Asamangkese, now deetooled, and was granted an order as prayed. NANA Aim DARKU II Was One of the original defendants against whom the plaintiffs-respondents had obtained judgment in the suit which was undefended.
The respondents moved under Order 43 rule 27 of Schedule 3 to the Courts Ordinance, the relevant parts of which read:—
” In the following cases, viz: :—
” (a) Where any change has taken place by death .or ” otherwise in the parties entitled or liable to ” execution;
the party alleging himself to be entitled’ to execution may apply to the Court for leave to issue execution ” accordingly “..
yIt is clear that the application under that rule merely for
of Nsawam substitution was misconceived. Apparently the idea of plaintiffs-
Ohen!respondents’ counsel was that he would first apply for substitution,
Kwakuwithout raising upon the motion the question of whether he could
Amoah n& successfully go to execution. Raving gothis–substitution H–AVO–tdd
others.be for the defendants to stop him from going-to =exeeution-if they
Kingdon,could by virtue of sectioi 6 (2) of the Asamangkese Division
Pericles,Regulation Ordinance (Cap. 78), the relative provisiona of which
C.Jj. and
Doody, J. read :—
” From and after the date of the commencement of this ” Ordinance. . . . no execution shall issue or be enforceable ” against the revenues of the Stool or any Stool property in ” respect of any debt or liability incurred- whether before or ” after the commencement of this Ordinance by a person on ” behalf of the Stool, unless such debt or’liability if incurred ” after the commencement of this Ordinance was incurred ” with the consent of the prescribed officer “.
But that, in our view, was the wrong procedure, he should have applied in the first. instance for leave to issue execution against NANA KWAKU AIMAII II; then when he had shown the change which had taken place it would have been open lo the present appellant to oppose the granting o_f the leave by invoking the aid of section 6 (2) of Chapter 78, and the whole question really in issue would have been threshed out,
For these reasons the appeal is allowed, the Order of the Court below is set aside, and in lieu of that order it is ordered that the application to the Court below do stand &mimed.
Inasmuch, however, as this decision is ,based upon a gTound neither taken by the appellant in the Court -below nor fanning a ground of appeal, there will be no order as to cats= either in this Court or in the Court below.
