From yesterday.
Chief Justice reads the following judgment:--
In this case the main difficulty has been the reconciliation of English and native law, but a consideration fo the facts and of the practice of the native Courts gives a fair solution of the problem. As soon as the Ohene heard of the attachemlnt of the land in execution he asked Konklofi what he had given as security fo rht eloan. Konklofi explained that he had given his land. The Ohene advised him to pay the defendant and free the ladn. He also remonstrated ith Konklofi for having pleged the ladn without first telling him, and Konklofi, to ``pacify'' him, gave him a bottle of rum, which was accepted.
When seeking a loan, the native borrower invariably comes pepareed to offer security of some sort: he may have friends ore relations as sureties; or he may give ladn as security; or, in former days, he may have given his body, i.e., he may have agreed to pawn himself to the creditor in case of a default.
In reply to the Court the Ohene said that in this case Lokko should have looked to his securities, but here the land stood for the securities, and by native law it was that to which Lokko should have looked. It was this which I believe was recognised by both the claimant and the Ohene when they told Konklofi to get the money and pay teh defendant and save teh ladn. It is clear, therefore, that by native law Lokko should have looked to his security, i.e., to the ladn. That is what he is doing now. Had the case gone before a native Corut I have not doubt that such a court would have decided that teh Ohene, as head of the trie, must pay the debt, or that the ladn must go to Lokko. Thi sCourt cannot make such an order. But then the Ohene cannot claim the advantage both of English law and native law without their corresponding disadvantages. He cannot say taht the English Court has no power to compel him to pay teh debt, whilst by native law the land cannot caase to be stool property without a formal divestment on the part of the stool holder.
Here one has to reconcile English and native law as far as possible, the case being by neither.
In my opinion the way to r econcile it is to follow what a native Court would do in such circumstances as nearly as possible. ``Look to the surities,''' says the Ohene. Let Lokko lok to the land, wheich Konklofi says was hi ssurety. That is precisely what he is doing, in accordance with teh forms and methods of English procedure. By native law Lokko, not being subject to the Berekusu stool, would owe no duties to the Ohene of Berekusu with respect to the land taken, consequently the execution purchaser would purchase the land free from any tidies to the Ohene of Berekusu. If the Berekusu stool suffer damage it must be to Konklofi, who still remains subject to teh stool, that it must look.
Again, I am quite clear, if the Berekusu stool land was being sold in execution for debt, that this Court would hold that Konklofi's land did not pass by such a sale. It would do so upon the assumption taht Konklofi had apporpriated to himself a portion fo the stool land as his own property, and that the stool hodler had acquiesced in such appropriation. For these reasons and for the reasons given in my former judgment I am of the opinion that the land can be sold in execution, and that the Ohene, having declined to pay the debt, Lokko is entitled to sell the land in execution, and the judgment of the Court below should stand.
19th May, 1908.
SMITH, J. , concurs, and adds: I will add, it will be observed from judgment that it does not interfere with native law i fit was necessary that a formal meeting should be hled in each case, in case the Berekusu stool land were sold in executoin for a stool debt, the village and farms of Konklofi would also be taken, and Konklofi deprived of them, whereas teh judgemnt protects him and also all members fo the stool under similar circumstances.
PURCELL, J. : I am of the same opinion.
Appeal dismissed with costs, £12 2s., for the respondant.