Appeal from the Court of the Chid Commissioner Ashanti

Interpleaded summons-alteration of title from personal capacity to representative.

Held: The amendment of the title of the suit was rightly allowed-the appeal is dismissed.

(2) There is nothing in the judgments of the lower Courts to prevent the appellant taking the proper steps to attach the equity of redemption vested in the judgment debtor if he thinks fit ..

The facts are fully set out in the judgment.

E. P. Asafu-Adjaye for Appellant.

E. O. Asafu-Adjaye for Respondent.

The following joint judgment was delivered.

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

The Appellant was a Judgment-Creditor in a suit by him against Chief Kwesi Addai and others in the Asantehene's Divisional Court " B ", Kumasi. He seized certain cocoa farms in execution and the Respondent issued in the same Court what was called an " Interpleader Summons" claiming that the property seized should be declared and adjudged his property by virtue of the document known throughout these proceedings as Exhibit" C " .

The Divisional Court" B " gave judgment in favour of the Appellant and directed that execution should proceed. The ground of their judgment was expressly that the Respondent through the clerk who represented him at the hearing had admitted that he was wrong in claiming priority against the Appellant's execution. That judgment was on the face of it a consent judgment and did not go into the merits.

Against that judgment the Respondent appealed to the Asantehene's Court" A ", his fourth ground of appeal being :~

,. That the judgment was otherwise erroneous, because the Court elected to rely upon the alleged admission of the Claimant-Appellant as appears un page 7 of the Appeal Record as the main factor of its judgment without considering the merit and the legal side of the case."

 When the appeal came before Court "A", that Court­ apparently without recording its reasons--decided to ignore" the alleged admission" of the Respondent's clerk and go into the merits of the case which they did, taking the evidence of the parties on oath and giving a considered judgment at some length allowing the appeal and reversing the judgment of Court" B." Their judgment concluded with the following passage :-

•• The farms must be released from attachment but if they have already been sold as ordered by the Court below the Kukuom Stool should re-enter and take possession of them as if they had never been sold."

Against the judgment of Court" A "the Respondent appealed to the Court of the Chief Commissioner of Ashanti. That Court decided to hear the case de novo and did so. In the course of the hearing it became clear that the Respondent was in reality claiming on behalf of the Kukuom Stool although in form he was suing in a personal capacity. The Court allowed the claim to be amended so as to embody the reality and gave judgment in favour of the " Stool of Rukuom per Rojo Boateng " (the Respondent).

Against that judgment the Appellant has appealed to this Court and has filed grounds of Appeal. It is possible to dispose of  these grounds of appeal quite shortly.           '

Ground 1 (a), (b) and (c) and ground 2 (a) and (b) involve questions of fact and we are not prepared to disturb the conclusions of the two Courts which went into the merits of the case.

Ground 1 (d) is as follows :-

•• The learned Chief Commissioner was wrong in allowing Respondent to alter the title of the suit from a personal capacity to a representative capacity. Respondent should have been non-suited."

There is no substance in this ground. It is quite clear from the terms of Exhibit" C " that the money advanced was the Kukuom Stool money. It is clear that from the outset of the enquiries into the merits the Respondent was claiming on behalf of the Kukuom Stool. His evidence in Court .. A " begins as follows :- .

•• The Execution-Creditor attached three cocoa farms which have been secured to the Kukuom Stool against a debt of £60 due by Kojo Adjaye of Nkasaim. The farms were secured to the Kukuom Stool about a year ago.'

In allowing the amendment the Chief Commissioner's Court was simply making the formal claim correspond with what was obviously the real claim before the Court throughout, and in our opinion the amendment was rightly made, though it would have been better if it had been made as soon as the evidence above quoted was given, or, at any rate, at the outset of the hearing in the Chief Commissioner's Court.

Ground 3 is: "That the Chief Commissioner was wrong in not allowing the Appellant to adduce further evidence in support of his case."

There is nothing in the record to suggest that the Appellant called a single witness whom the Court below refused to hear; no affidavit to that effect has been filed. What the Appellant's Counsel founds upon is the letter of 3rd June, 1940, written by the Appellant to the Chief Commissioner. The propriety of this letter is more than doubtful and in any case. it contains among the reasons given for the alleged refusal of the Elders of the Kukuom Stool to give a written authority to the Respondent to represent the Stool in this case the following :-

•• (c) That the Claimant-Respondent being the holder of the Stool might have sued in a representative capacity and that the judgment against him must be taken as binding all persons who hold the Stool,"

The letter was written not in regard to the merits of the case but by way of opposition to the proposed amendment of the capacity in which the Respondent claimed. The paragraph quoted made clearer than ever the propriety of granting the amendment. There is therefore no substance in this ground of appeal.

The fourth ground of appeal is as follows :-

•• Judgment is otherwise erroneous, in that the learned Chief Commis­sioner did not hold that the right, title and interest of the judgment-debtor, which is the equity of redemption, could be attached, and that the Claimant should have been non-suited.

There is no substance in this ground for the reason that it does not appear anywhere in the evidence that the Appellant ever attempted to attach in execution the judgment-debtor's equity of redemption. The whole case of the Appellant throughout the proceedings has been that no question of the equity of redemption arose for the reason that' he contended that his attachment of the farms was good because Exhibit" C "has no legal force and effect." Nothing in the judgments of the Court "A" or the Chief Commissioner's Court will prevent the Appellant taking the proper steps to attach the' equity of redemption of the judgment-debtor if he thinks that it ""ill be worth his while to do so.

There are proper steps to be taken to attach such an equitable right and it is clear that these steps have not been taken by the Appellant so far as the record shows.

For these reasons the appeal is dismissed with costs assessed at £38 5s. 6d.