AMOAH AND OTHERS vs. WEST AFRICAN EXAMINATIONS COUNCIL AND OTHERS [1970]DLHC2075

Date	1970-11-13
Suit No.
Citation No.	[1970]DLHC2075

ANNAN J.

K. ABEYIE FOR THE PLAINTIFFS.

C. QUIST FOR THE DEFENDANTS

[1970]DLHC2075
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													<main id="main" class="content" style="min-height: 60rem" >AMOAH AND OTHERS <o:p></o:p>vs. <o:p></o:p>WEST AFRICAN EXAMINATIONS COUNCIL AND OTHERS <o:p></o:p>[HIGH COURT,
KUMASI]<o:p></o:p>&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;[1971] 1 GLR 63<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
13 NOVEMBER 1970.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

K. ABEYIE
FOR THE PLAINTIFFS.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

ANNAN J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF TAYLOR J.<o:p></o:p>On 20
December 1969 I gave a decision dismissing the motion filed on behalf of the
applicant and I reserved the reasons for the said decision. I now proceed to
give the reasons for my so dismissing the motion.<o:p></o:p><o:p>&nbsp;</o:p>On 12
January 1963 the respondent by a writ of summons commenced an action against
Joseph Amo-Mensah in this court. The defendant entered an appearance on 26
January 1963 and after the pleadings and summons had been taken, the case dragged
on for almost six years mainly due to adjournment after adjournment granted at
the instance of the defendant. At last on 28 January 1969, almost six years
exactly after the defendant had entered his appearance, the plaintiff obtained
a judgment against the defendant, the court adjudging that the respondent
recover against the defendant the sum of N¢39,296.54 with N¢2,000 costs. I am
not aware of any appeal lodged by the defendant. Apparently on 5 November 1969
the respondent caused a writ of fi. fa. to issue for the attachment of the
properties of the defendant and the said properties were accordingly attached.
The properties attached are alleged to be house No. C 1, extension block 4,
plot 11 at Kumasi and goods in a store. The applicant who claims to be in
partnership with the said Joseph Amo-Mensah applied to this court by motion on
notice to the respondent praying for an order, “(1) removing the attachment
levied on the property of Amo-Mensah Brothers and (2) setting aside the
judgment irregularly obtained against Amo-Mensah Brothers on 27 June 1969.”<o:p></o:p><o:p>&nbsp;</o:p>At the
hearing of the motion counsel for the applicant abandoned the prayer to set
aside the judgment, and no argument was therefore advanced, and rightly so, for
this was a rather extraordinary request by an applicant who was an obvious
stranger to the suit. Counsel however argued very vigorously in support of an
order removing the attachment on what is described as the property of
Amo-Mensah Brothers. In his affidavit in support of the motion the applicant
deposed: “The property attached belongs to a partnership.” In his supplementary
affidavit in opposition the respondent averred on oath as follows: “All the
properties attached are not partnership properties as averred to by the
applicant. They are the properties of Amo-Mensah the
defendant-judgment-debtor.”<o:p></o:p><o:p>&nbsp;</o:p>I find it
rather strange that the applicant did not obtain and file an affidavit from his
partner denying ownership of the properties alleged to belong to him, but this
is of little consequence. Having sworn that the property is partnership
property, the applicant rested his prayer for the order removing the attachment
on the peremptory provision of section 20 (1) of the Incorporated Private
Partnerships Act, 1962 (Act 152), which states that, “A writ of execution shall
not issue against the property of a firm except on a judgment against the
firm.” The provision is as reasonable as it is understandable.<o:p></o:p>At common
law the property of a partnership was liable to be taken in execution for the
debts of one of the partners. The sheriff was in duty bound to sell the
debtor’s interest in the property seized despite the fact that in the absence
of proper accounts it was impossible to know precisely the interest to be sold.
The provision of section 20 (1) of our Act 152 is almost identical with the
provision of section 23 of the English Partnership Act, 1890 (53 &amp; 54
Vict., c. 39), a provision adopted in England to circumvent the inconvenience
of the common law practice on the advice of Lord Lindley. Counsel for the
applicant has argued quite forcefully that the applicable provision of our
rules of court under which the respondent should have proceeded is Order 48A,
r. 10 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A).
With the utmost respect, I think that that order applies to actions between
co-partners as the side notes so clearly show. In my view Order 46, r</main>