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Appeal Court. 8th May, 1936. Appeal from Divisional Court.

Attachment of person of judgment debtor under writ of Ca. Sa. when suing in representative capacity-Distinction between person representing stool and one suing as head of a family-In native law and custom head of family is personally liable. -

Held: Appeal dismissed. Attachment of person of Judgment Debtor was lawful.

The facts are sufficiently set out in the judgment.

A. G. Heward-Mills for Appellant.

K. A. Bossman for Respondents.

The following joint judgment was delivered :-

KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND WEBBER, C.J., SIERRA LEONE.

On the 3rd February, 1936, Yates, Acting Chief Justice, ordered that a writ of Ca. Sa. should issue against the appellant for non· payment of. costs of an appeal, but suspended issue thereof for four· teen days. He subsequently granted a stay of execution conditional on appellant paying the amount of costs, £98, into Court withiI1 fourteen days. This sum having been duly paid the writ of Ca. Sa. lapsed.

Appellant has appealed against the issue of the writ. The only ground of substance relied on is that the costs in question were ordered to be paid by him in an action in which he sued in, as shown on the writ, a representative capacity, i.e. as head of the Kreshil family. His Counsel contended that appellant having sued in tha1 capacity his person could not be attached by a writ of Ca. Sa. He cited, in support of that contention, the judgments in the habeas corpus proceedings, Angwah Bennieh v. Abakah Kangah and the case of G. D. Oluyemo v. OheneAgyemfra IV and another. In the first 0 these cases Howes, J., held that the arrest and imprisonment of Bennieh, who represented a stool, for non-payment of costs arising out of a suit brought in a representative capacity was illegal am ordered his immediate release. In the other case attachment of the two judgment-debtors was refused by Michelin, J .• on the ground that the debt was due by the stool and that the other members of corporation were not before the Court.

Respondent's Counsel has not contested the soundness of these decisions, but pointed out that they were both given in cases where the party mulcted in costs represented a stool. He argued that stool property is on a different footing to family property and that the ~:~:e: & members of a family and the head thereof are jointly and severally responsible for any family liability. In support of that proposition

" Not only does the customary law render the person or persons who defray the burial expenses of any person liable and responsible for the debts of the deceased, but, as Bossman states, the members of a family are jointly and severally liable for any family liability. If a member of a family contract debt which benefits the family or commit a wrong for which he is liable to pay damages or give satisfaction, the other members of his family are bound to pay, or such member must be given up by the family to the person making the claim."

He submitted that the position of a head of a family was analogous to that of a partner and pointed out that by Order 43, Rule 10, where the judgment is against partners in the name of the firm execution may issue against any partner.

As showing that formerly a person could by native law and custom be imprisoned (panyarred) for debt until the family came forward and paid the debt, he quoted Sarbah, pages 146 and 96, and the judgment of Sir W. Brandford Griffith, C.J., in the case of Lokko v. Konkloji, Vol. I, Part II of Renner's Gold Coast Reports, at page 451.

We are of the opinion that where a person sues as head of a family he thereby renders himself personally liable, according to native law and custom, for any costs that may be awarded against him. Having come to that conclusion we consider that the person of the appellant was liable to attachment by writ of Ca. Sa.