MESSRS F. & M. KHOURY OF NSAWAM V. OHENE KWAKU AMOAH II AND OTHERS

KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST, AND DOORY, J. In this case the plaintiffs-respondents made application to the Divisional Court for an order substituting the name of NANA KWAKU AMOAH II, the present OHENE of Asamangkese, for NANA ADU DARKU II, formerly OHENE of Asamangkese, now destooled, and was granted an order as prayed. NANA ADU 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”.

It is clear that the application under that rule merely for substitution was misconceived. Apparently the idea of plaintiffs respondent counsel was that he would first apply for substitution, without raising upon the motion the question of whether he could successfully go to execution. Having got his substitution it would be for the defendants to stop him from going to execution if they could by virtue of section 6 (2) of the Asamangkese Division Regulation Ordinance (Cap. 78), the relative provisions of which 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 AMOAH II; then when he had shown the change which had taken place it would have been open to the present appellant to oppose the granting of 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 dismissed.

Inasmuch, however, as this decision is based upon a ground neither taken by the appellant in the Court below nor forming a ground of appeal, there will be no order as to costs either in this Court or in the Court below.