Action for trespass and for an Order to set aside a sale under writ of Fi. Fa.---proposal of an alternative security which did not materialise.

Held: There had been no unconditional release of the security held by the Respondent-the appeal is dismissed.

The facts are fully set out in the judgment.

H. A. H. Benjamin for Appellant E. C. Quist for Respondent.

The following joint judgment was delivered :-

KINGDON, CJ., NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL, C.J., SIERRA LEONE.

The Plaintiff-Appellant-Respondent-Appellant (hereinafter referred to as the Appellant) and her husband pledged their respective adjoining farms to Defendant-Respondent- Appellant Respondent (hereinafter referred to as the Respondent) to secure a debt of Appellant's husband, by a document dated the 4th June, 1937. The Respondent sued on the document, obtained judgment and the issue of a writ of Fi. Fa. against the property. There were two attempts, each of them abortive, to avoid execution of the writ. The first was by the execution of another document on the 5th September, 1938. This document concerns identically the same land as the first and its purport was that payment of the capital sum due should be postponed for three years during which the Respondent should receive the proceeds of the farms as interest. It obviously required the Appellant's consent and signature before it was complete since her farm was included in the arrangement. She was away when the document was prepared and on her return refused to execute. The document was therefore incomplete and worthless and this attempt to avoid execution under the Fi. Fa. failed. The second attempt, which was quite distinct, was a proposal that the Appellant's farm should be released upon her husband or his relatives providing a different farm as security in lieu of the Appellal1t's. The Respondent agreed to this proposal and the parties went on the Appellant's farm to ascertain the size of it, so that the size of the substituted farm could be determined. And now arises what is really the substantial dispute in the case.

The Appellant says that there and then her farm was uncondi­tionally released by the Respondent, and that all the Respondent had in lieu of his security on her farm was the promise of the husband and relatives to find a new farm as security, that his remedy when they did not do so was to proceed against them to compel compliance and that the subsequent execution of the writ of Fi. Fa. against her own farm was unlawful. She accordingly sued for damages for trespass and an order setti1Jg aside the sale of her farm.

The Respondent, on the other hand, contends that his release of the Appellant's farm was conditional upon a fresh farm being provided by the husband or relatives in substitution. The Asantehene's Native Court "B" at Kumasi, which heard the case, correctly understood the position and found the facts in Respondent's favour-

•. The 2nd arrangement alleged to have been made with the Defendant was conditional but those conditions were not fulfilled by the Plaintiff's husband and therefore the portion of the farm said to have been released to the Plaintiff was made in theory and not in practice .. The Court holds that so long as the conditions precedent was not fulfilled, the Defendant was justified in selling the farm in satisfaction of his money in terms of Exhibit' B '."

and gave judgment for the Respondent.

On appeal to the Asantehene's Court" A," that Court obviously misunderstood the whole position. It confused the two abortive attempts to avoid the writ of Fi. Fa. and regarded Exhibit" A" as a valid document. It held that Appellant's farm had been released by Respondent and allowed the appeal. On further appeal to the Court of the Chief Commissioner of Ashanti, whilst the confusion as to the two distinct attempts to avoid the writ of Fi. Fa. was not cleared up, the Acting Assistant Chief Commissioner, who constituted the Court,held that the release of Appellant's farm was conditional, and that the condition had not been fulfilled; he consequently restored the judgment of the Asantehene's Court " B." It is abundantly cleal' that the judgment of the original Court of trial, the Asantehene's Court ., B," is founded -JpO~ evidence which it accepted, and that that judgment must be upheld. So far from it having been shown to be wrong, ,it has been proved to demonstration that it is correct.

The appeal is accordingly dismissed with c6sts assessed at £18 7s.