SELECTED JUDGMENTS WEST AFRICAN COURT OF APPEAL

SELECTED JUDGMENTS

OF THE

WEST AFRICAN

COURT OF APPEAL

FOR THE YEAR 1944

(~ethod ofCitation-10 W.A.C.A.]

VOL. X

PRINTED AND PUBLISHED BY THE GOVER,NMENT PRINTING

DEPARTMENT, ACCRA, GOLD COAST.

C"ief Kwabena Agyare of Asakraka v. Chief Koft Kwakye of Nteso 1

I

Privy Council Appeal No. 42 of 1940

CHIEF KWABENA AGYARE OF ASAKRAKA Appellrmt

v.

CHIEF KOFI KWAKYE OF NTESO .. ! Responaene .

FROM

THE WEST AFRICAN COURT OF APPEAL

JUDGMENT OF THE LORDS OF THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL, DELIVERED THE

2ND JUNE, 1943

Present at the Hearing:

LORD ATKIN

LORD THANKER TON

LORD RUSSELL OF KILLOWEN

LORD MACl'r{ILLAN

LORD WRIGHT

(Delivered by L,oRD ATKIN).

This is an appeal from a judgment of the West African Court of Appeal sitting in their Gold Coast Session, by which they reversed the decision of the Provincial Commissioner's Court, which in its turn had set aside a judgment given by the Native Tribunal of the Paramount Chief of Kwahu.

The claim was by one Stool Chief against another in respect of the boundaries of their respective stools.

The action was commenced in the year 1936 by a civil summons which related only to a small portion of the land which afterwards came in dispute ; but it appeared in May, 1937, that there was already another dispute pending between the parties, which had been commenced by proceedings on oath. What was the exact. nature of that dispute their Lordships have not been told; but they do know that by consent of the parties that pending proceeding was consolidated with the summons relating to the smaller claim and with the consent of both parties. the two actions proceeded together..

It appears to their Lordships, as it did" they think, to the West African Court of Appeal, to be fairly obvious that both parties must at that time .have been in a position, as they thought, to deal

With both cases or they would not have consented to go on at the.

time that they did go on.

, I I~-H

Chief Kwabena Agyare of Asakraka v. Chief Koft Kwakye of Nteso

Chief Kwa- bena Agyare of Asakraka

v. Chief Kofi Kwakye of NtelO

Lord Atkilt

The case proceeded before the Native Tribunal for some days and eventually the Native Tribunal, after having directed a, surveyor to mark ou t what were the disputed boundaries between the parties, in 1938 came to a conclusion, by which they delimited the boundaries over the whole of the land which was then in dispute.

That decision was reversed by the Court of the Provincial

Commissioner, but was restored by the West African Court of

Appeal.

The Court of Appeal, as their Lordships think quite rightly. founded itself upon a passage in the judgment of this Board in Abakah Nthah v. Anguah Bennieh (1931) A.C.75. The passage which they cited and which their Lordships repeat was this :-

.. By Colonial legislation all suits relating to the ownership of land held under native tenure are placed within the exclusive original jurisdiction of Native Tribunals, unless satisfactory reason to the contrary is shown. It appears to their Lordships that decisions of the Native Tribunal on IUch matters, which are peculiarly within their knowledge, arrived aj after- a fair hearing on relevant evidence, should not be disturbed without very clear proof that they are wrong; and their Lordships fail to find such proof in the present case."

Applying those principles, the West African Court of Appeal allowed the appeal and in their Lordships' opinion they were quite right in so doing.

The two points that were urged before that Court and were urged before their Lordships were these: First of all, it was said that the Native Tribunal had refused leave to the defendant, who

, is the appellant before their Lordships, to issue subpoenas for the purpose of calling two witnesses, the Native Tribunal holding

that, in their opinion, the application was made too late. The actual hearing had been proceeding for three days; the proceedings had been before the Court for a very long time and apparently the Native Tribunal saw no reason why the defendant should not have taken steps to have had the witnesses present.jf he had wished to call them, before that late date in the hearing.

That appears to their Lordships to be entirely a matter for the discretion of the Native Tribunal. There is nothing that their Lordships can find that is in any way contrary to natural justice in their decision. It has to be remembered that the case had been proceeding for a long time and that several adjournments had been made at the early stages of the smaller claim.for the express purpose of subpoenaing witnesses. Their Lordships think that it, is very likely that the Native Tribunal were a little tired of adjournments for the purpose of subpoenaing witnesses, but they were perfectly entitled to come to the conclusion to which they did' come. As is pointed out by the Court of Appeal, there was no material before them, and there is no material before their Lordships, to -show that the evidence of those witnesses was even material, but certainly none to show that it would be conclusive. Further, it is not irrelevant to remember that, while this decision

~;:~Ye.

Chief Kwabena Agyare of Asakraka v. Chief Kofi Kwakye of Nteso 8

was given on the 7th May, 1937, the defendant, having called some Chief Kwa-

evidenc~, then eIec~ed not .to c~ll further evidence and the ::;~~~ proceedings were adjourned svne die and were not resumed until v.

September, during which time, if the defendant had wished to Chief Koft

do so, he could have appealed against the refusal to allow him to of

call witnesses.

The other point arises on a suggestion that the Native Tribunal erred in drawing the boundary line which they did draw, on the ground that it was arbitrary and not based upon evidence and that it merely indicated that that was what the Native Tribunal thought would De a fair division between the parties.

Their Lordships are far from saying that, if the Native Tribunal had not purported to proceed upon evidence at all, but were merely proceeding on what they thought to be a reasonable settlement between the parties, that would not be outside their duty; but in this case it appears from a survey of the record, as was considered by the Court of Appeal, that the Tribunal founded themselves on the evidence before them and came to a right conclusion. At any rate, there is no evidence before their Lordships that they came to a wrong conclusion or that they acted in any respect otherwise than as they conceived to be in accordance with the evidence.

If that is so, this is-exactly a case within the rule as laid down previously by the Board. It is a decision of a Native Tribunal, on a matter peculiarly within its knowledge, arrived at after a. fair hearing on relevant evidence and without any demonstration that it is wrong.

In those circumstances, it appears to their Lordships that this appeal must be dismissed with the usual consequences. Their Lordships will humbly advise His Majesty accordingly.

JA.

Lord Atkin

Oke·Lanipektm Laoye ~ 01's. fl. Amao Oyetunde

Privy Council Appeal No. 28 oj 1942

OKE LANIPEKUN LAOYE AND OTHERS AppeUants'

v.

AMAO OYETUNDE ... Respondent.

FROM

THE WEST AFRICAN' COURT OF APPEAL JUDGMENT

OF THE LORDS OF THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL, DELIVERED THE

12TH JUNE, 1944


LORD THANKERTON

LORD WRIGHT

SIR MADHAVANNAIR

[Delivered by LORD WRIGHT]

This appeal raises an important question as to the customary and statutory law relating to the election of chiefs in the Protectorate of Nigeria. The policy of the British Government in this and in other respects is to use for purposes of the administration of the country the native laws and customs in so far as possible, and in so far as they have not been varied or suspended by statutes or ordinances affecting Nigeria. The Courts which have been established by the British Government have the duty. of enforcing these native laws and customs so far as they are not barbarous as part of the law of the land. In particulac-ehative laws and customs regulating the appointment and erection of chiefs 'have been recognised as having the force of law. This was pointed out in the judgment of this Board.in the case of Eshugbayi Eleko v. Nigerian Government [1931] A;{_. 662 at p. 673; In this way the dispute which had ariseR~ to the successor to the chieftainship of the town or district of Ogbomosho was brought for adjudication to the High Court of the Ibadan judicial Division of the Protectorate of Nigeria, to which it had been transferred from the Native Court of Oke Are Land Court, and' on appeal from the High Courtto the West African Court of Appeal held at Lagos, Nigeria .

.Ogbomosho is a town in the Protectorate of Nigeria, in the Province of Oyo. Its native authority consists of a head called the Bale and a Council. This is subordinated to the Olubadan and Council of Ibadan. the native authority appointed for the Ibadan Division in which Ogbomosho is situate. It is important

Olle Lanipekun Laoye e. Ors. v. Amao Oyetunde

to observe both that Ogbomosho is in the Protectorate of Nigeria Oke Laaipe-

an d not in the Colony of Lagos, and that the Bale of Ogbomosho kun Laove &: On. .

though a chief is not a head chief, within the definition of the Y.

Interpretation Ordinance 1939 Laws of Nigeria, No. 27, which ~m~ I

.apply to this. case. The material definitions are :-" Chief or y_e( e

Native Chief II means any native whose authority and control Lord Wright

are recognised by a native community, and " Head Chief II means

any' chief who is not subordinate to any other chief or native authority, and "Native authority" means a native, authority constituted under any ordinance authorising the constitution of native authorities. These definitions apply in the facts of the present case.

The subordination of the' native authorities of Ogbornosho to those of Ibadan is for purposes of administration and does not affect the rules as to the appointment of. the Bale of Ogbomosho which are regulated by the custom applying to it. What this custom.is was the subject of elaborate evidence at the trial before the Judge of the Ibadan Division. His finding on this matter was not questioned in' the West African Court of Appeal, but it was treated as irrelevant on the ground that it had been superseded in its operation by Nigerian Ordinances. Before. examining these issues in detail, their Lordships. will briefly explain how the dispute arose.

The Bale of Ogbomosho by. native law and custom is entitled to the use and occupation of a property in the town known as Sohun. This property contains shrines, furniture and paraphernalia Which it is part of the Bale's duly to keep up so that separation of the property from the office would be intolerable under native law and custom. The appellants who were plaintiffs in the action as representing their several families claimed that the respondent was illegally in' possession of the Sohun, which he held on the footing that he was the Bale, whereas he had not been elected in accordance with the relevant law and custom. The four families which the appellants represented, together with a further family, .' that of Ajibola were, it was alleged, entitled to elect the Bale according to the custom. That custom, so the appellants objected, had not been followed in the appointment of the respondent, which was thus invalid. The appellants accordingly claimed possession of the Sohun,

The custom alleged and. proved by the appellants, is that when the office of Bale became vacant, the five families in turn

are entitled to fill the vacant office, their eldest member, and if he was. unfit, their next eldest member being appointed to the office. The difficulty which led to the trouble was that on the previous vacancy Oyekola, of the family of Laoye, which 'was the

family whose turn it was, would have become Bale but he died . 4

before going to Ibadan for the approval of his succession by the Bale and Council of Ibadan. He thus died before his installation

Ohe Lanipekun Laoye & Ors. v. Amao Oyeiunde

Oke Lani- pekun Laoye & Ors.

v

Amao

Oyetunde

Lord Wright

:1

"

and never became Bale. The contest which arose was whether the vacancy should be filled by his son, the respondent, or by his brother Oke Laniperkun Laoye, who was the next eldest fit member of the same family. It was not disputed that the appointment remained in the family since it was the family's turn to appoint. The appellants alleged as a further ground of their claim that according to custom no one could be a Bale whose father had not been a Bale. Another element of the custom which was spoken to in the evidence was that the member of the family entitled to the right of selecting the Bale must have at least the general consent of the responsible members of the family. The trial Judge accepted the evidence called by the appellants and held that the custom which they alleged was proved. He summed up his conclusion as follows: "The result of my consideration of the evidence about the relevant native law and custom, is that if I thought the case had to be decided according to whether or not I find that the appointment of the defendant as Bale accorded in all respects with the relevant traditional law and custom, my finding would be that it did not so accord and I should give judgment in favour of the plaintiffs. I do not think that the case so falls to be decided. There are other relevant factors as it seems to me." His view,

J

which he goes on to explain, is in effect that the traditional law and custom in regard to this matter had been altered by the legislation, contained in the Native Authorities Ordinance, 1933. In virtue of that ordinance, the Baleship of Ogbomosho had become, in his opinion, "a cog in the machinery of Government and administration" : all native authorities being charged with the obligation to maintain order and good government. From this he seems to have deduced that the law and custom regulating the mode of appointing a Bale has been changed and that as there was a difference of opinion in the Council as to whether the first appellant in his personal capacity or the respondent should become Bale, this difference was properly put before the Olubadan and his Council at Ibadan. These authorities having made a recommendation in favour of the respondent, which was approved by the Resident, the Judge held that the respondent was in due course installed as Bale and entered into possession of the compound. The Judge also relied on General Order (e) which he held delegated to Chief Commissioners and Residents the executive power to approve appointments and dismissals of staff under the native administration, with exceptions not here relevant. This order he held, justified a letter from the Chief Commissioner approving the Resident's recognition of the respondent's appointment.

... Their Lordships are of opinion that the ordinance and general

orders on which the Judge relies furnish no ground for over-ruling the traditional law and custom in the matter. They agree in this respect with the decision of the Court of Appeal, who point out that the Native Authorities Ordinance "gives supplemeritary

Oke Lanipeku.n Laoye & Ors. v. Amao Oyetu.nde

powers to a Bale, but has nothing to do with the actual appoint- Oxe Lanipe-

ment." On this ground the Court of Appeal rightly in their kun Laoye

Lordships' opinion, held that the ordinance and the General Orders & Ors.

v .

did not change the native law and custom here in question. The Amao

Court moreover while they quote, with apparent approval, the Oyetuade

finding of the trial Judge as to the native law and custom, proceed Lord Wright

to dismiss the appellants' claim on a different statutory ground which they find in ordinance 14 of the Laws of Nigeria of 1930. The title of this is " An Ordinance to provide for the appointment and deposition of Chiefs in the Colony (sc Lagos) and Head Chiefs in the Protectorate." The Court base their decision on sec. 2 (2) of the ordinance which is in the following terms :-

.. (2) The Governor shall be the sole judge as to whether any appointment of a Chief or Head Chief as the case may be, has been made in accordance with native law and custom."

Those words, the Court holds, oust the jurisdiction of the Court and make conclusive the recognition by the Governor of the respondent as Bale.

Their Lordships are unable to agree with this decision. It is true that section 2 (2) does not contain the words" Chief of the Colony" or "Head Chief in the Protectorate" but these qualifications are clearly imported if the ordinance is read as a whole. The title quoted above forms part of the enacting statute and may be considered in deter.mining the scope of the enactment. This is now settled law for which if authority is needed reference

may be made to the clear statement of Lindley M.R. in Fielden v. Morley Corporation [1899] 1 Ch. 1. It is true that the title, much in the same way as the preamble, cannot be taken to override any clear and specific provision in the body of the statnte. The statute must be read as a whole. There is, however, in the ordinance now being considered, nothing to extend the particular scope defined in the title. Section 2 (1) uses the full phrases " Chief in the Colony" : "Head Chief in the Protectorate." The curtailed language of subsection (2) which is merely ancillary to

subsection (1) is in their Lordships' opinion not to be taken to refer to anything other than what is specified in subsection (1) or to go beyond the scope of the title.

It follows from this construction that since the Bale of Ogbomosho is, according to the definition quoted above, not a Head Chief being subordinate to Ibadan and is not a Chief in the Colony of Lagos but in the Protectorate of Nigeria, subsection (2) has no 'application to his office. This ordinance therefore cannot

any more. than the legislation relied on by t he trial Judge, serve to override or qualify, the relevant law or custom, which both Courts on evidence which their Lordships regard as conclusive, have accepted as established,

In the result their Lordships are of opinion that the appeal should be allowed and the judgment appealed from should be set aside, and that it should be 'declared that the possession of the

~uo;-oye

8 oke Lanipekun Laoye 6- Ors. v. Amao Oyetunae .

Olte LaDipe- Sohun is illegal and that the first appellant is entitled to be

appointed Bale and to be given possession of the Sohun with its ;". furniture and paraphernalia and that the case should be remitted

~fJlaD d to the Court in Nigeria to do what is necessary to carry out these y~~ declarations. The respondent will pay the appellants' costs of

Lord Wright the appeal and in the Courts below. They will humbly so advise

His Majesty.

Chief Secretary to the.Govt. tI. James George & Ors. 9

Lagos, 19th October, 1942

Cor. KINGDON, PETRIDES, GRAHAMPAUL, C.JJ.

CHIEF SECRETARY TO THE GOVERNMENT '" Plaintiff-Respondent.

JAMES GEORGE AND

AND

OTHERS

Defendants.

In re ONIKOYI CHIEFTAINCY FAMILY, Defendants-AppeUants.

Judgment.

In this case the Appellant asked the Court below and asks us to give a decision in direct conflict with the provisions of section 7 of the Ikoyi Lands Ordinance (Cap. 91) and with the decision of the Privy Council in the. case of Bakare Ajakaiye and Others 11.

Lieutenant-Governor Southern Provinces (29 A.C. 679). The Court below declined to do so, and we must also decline.

The Appeal is dismissed with costs assessed at 20 guineas in favour of the Plaintiff-Respondent;

13 guineas in favour of James George;

10 guineas in favour of P: H. Williams, T. K. E. Phillips and

Madam Barikisu Abebi jointly;

10 guineas in favour of Mrs. Remilekun Akinsemoyin, J. St. Mathew Daniel and N. S. Dedeke jointly;

10 guineas in favour Qf J. T. Nelson Cole, E. O. Moore, P. H. Williams and E. Ewumi Macarthy jointly;

all to be paid by the Defendants-Appellants.

10 Onikoyi Chieftaincy Family v; Chief Secretary to the Covt.

Privy Council Appeal No. 10 of 1943

ONIKOYI CHIEFTAINCY FAMILY Appellants

v.

CHIEF SECRETARY TO THE GOVERNMENT Respondent.

FROM

THE WEST AFRICAN COURT OF APPEAL

JUDGMENT OF THE LORDS OF THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL, DELIVERED THE

19TH DECEMBER, 1944


LORD THANKERTON

LORD MACMILLAN

LORD SIMONDS

SIR MADHAVANNAIR

SIR JOHN BEAUMONT

[Delivered by LORD SIMONDS]

This appeal is brought from a judgment of the West :African Court of Appeal given on the 19th October, 1942, affirming a judgment of the Supreme Court of Nigeria.

The appellants claim that the land, compulsorily acquired as hereinafter mentioned, formed in the year 1865 part of the family property of King Docemo, then Chief Onikoyi, and that they are his lawful successors according to. native law and custom and are accordingly entitled to. a part of the compensation payable upon the compulsory acquisition.

The relevant facts and the proceedings out of which this ap.peal

arises can be briefly stated.

On the 5th. April, 1941, a notice was issued on behalf of the Government of Nigeria under the provisions of the Public Lands Acquisition Ordinance (Chapter 88 of the Laws of Nigeria, 1923) that certain land at Ikoyi, Lagos, therein particularly described,

was required for public purposes absolutely. The notice required any person claiming to. have any right or interest in the said land to. send in a statement of his interest and claim in the manner therein prescribed, and gave other directions to. which it is not necessary to. refer.

It is not in dispute that the lands described in this notice are in that part of Lagos Island which was originally the property of the Onikoyi Chieftaincy. one of the land-owning families of

~=fJ~ncy

Onikoyi Chieftaincy Family v. ·Chief Secretary to the Govt. 11

Lagos, or that they were included in the tract of land which was Onikoyi

in the year 1865 given by King Docemo to Captain Glover, R.N., Governor of the Island, on behalf of her late Majesty Queen Victoria. v.

'Chief Secre- Divers Claims having been made to an interest in the lands tary to the

in question and in the compensation payable therefor, an originating Govt.

summons was, in accordance with the provisions uf the same Ordinance, issued on the 23rd February, 1942, in the Supreme Court of Nigeria upon the application of the Chief Secretary to the Government to determine the persons entitled to the lands in question and the amount of compensation payable therefor. It was therein stated that the Governor was willing to pay as compensation the sum of £6,800. No dispute as to the amount is raised in this appeal. The summons was addressed to 25 persons, among them the present appellants.

I t appears that at the hearing before the Supreme Court the appellants put their case in alternative ways, claiming in the first place that the gift to Governor Glover, to which reference has been made, was not an outright gift, but made for the limited purpose of providing farming land for Hausa ex-soldiers, and that the purpose of this gift having become exhausted on the death in 1916 of the last of these ex-soldiers, the land reverted to the family of the Onikoyi Chieftaincy, and claiming in the second place that in any case the gift had been made without the consent of the family and was therefore of no effect. The second ground of claim, which was summarily rejected in the Courts below, has

not been repeated before their Lordships. It is the first ground of claim upon which alone the appellants relied, and before this is examined it is necessary to refer to the Ikoyi Lands Ordinance, formerly cited as the Southern Nigeria Ordinance No. 16 of '1908, but now as Chapter 91, Laws of Nigeria, 1923. The title of that Ordinance is " An Ordinance to provide for the proper identification and demarcation of lands granted by the Crown to private owners and situated in that part of Lagos Island east of the MacGregor

Canal generally known as Ikoyi." It recites that by a Treaty dated the 6th August, 1861, Docemo, King of Lagos, on the part of himself and chiefs, gave and transferred unto the Queen of Great Britain her heirs and successors for ever His Sovereign rights over the port and island of Lagos with all the rights, profits, territories and appurtenances whatsoever thereunto belonging, that the Island of Lagos was then divided into two unequal portions by the cutting known as the MacGregor Canal, that the fee simple in possession of the greater part of the portion situate to the east of that Canal (generally known as Ikoyi) was granted to the British Crown in or about the year 1865, which fact was established. by a judgment of the Supreme Court of the Colony in the year 190~, that Crown grants had been made, or were alleged to have been made, from time to time of certain parts thereof, that the position. of the majority of the lands alienated by such grants was not

Lord Simonds

fhie\ s:~e-

,12 Onikoji Chieftaincy Family v. Chie/Secretary to'the Goot.

g:;::mncy sufficiebntly ddefineddanddthat the landfs themselves had in. many Family cases, een esette an abandoned or years, and that it was

. v. desirable that the boundaries of all private lands still occupied on that portion of Lagos Island should be defined and the areas

. G~. 0

Lord Simonds

It of Crown lands clearly ascertained.

The Ordinance then enacts by section 2 that all private persons claiming to be possessed of lands situated on that part of the Island of Lagos east of the MacGregor Canal should within the periods of six or 12 months therein mentioned establish their titles thereto to the Commissioner 'of Lands, by section 3, that all Crown grants (whether registered at the Land Registry or not) purporting to include any portion of the said land to wh ich no claim was made and no title exhibited as provided by s. 2 should lapse as from the end of the period of 6 or 12 months as the case might be, by s. 4 that all lands specified in every Crown grant produced should be resurveyed and a fresh Crown grant issued as therein mentioned,

and by s. 5 that all lands held under any other title than through an original grant from the Crown should have their boundaries demarcated as therein prescribed. By s. 6 provision is made for the determination of any unproved or disputed claims. Section 7 is in the following unambiguous terms: (f All lands situated within the limits above described to which no claim is made wi thin

th-e prescribed time shall be deemed to be Crown lands thenceforward: Provided always that any owner who shall not have submitted a claim thereto within that _period may nevertheless within the further period of one year, on satisfying the Supreme Court of the former validity of his claim recover the agricultural value of the land in question."

Two further facts niust be stated. First (as was found by

the learned Acting Chief Justice), in the years following 1865 a number of Crown grants were issued covering portions of the land acquired from King Docemo and purporting to convey an absolute interest to the grantees and the land, the subject of these proceedings, lies wholly within the area covered by five of these grants. Secondly, no claim was at any time made under the Ordinance by the Onikoyi Chieftaincy family.

The Acting C.]., upon a consideration of these facts and of

the Ordinance and of a decision of their Lordships in the year 1929, to which further reference will be made, came to the conclusion that from and after the date of the Ordinance owners of Crown grants approved under the Ordinance acquired an indefeasible title to the land covered by their grants and the Crown to any land which remained unclaimed, and accordingly held that the appellants had no interest in the land to be compulsorily acquired. His judgment was affirmed by the West African Court of Appeal.

Onikoyi Chieftaincy Family v. Chief Secretary to the Goot,

In their Lordships' opinion this decision is clearly right. The

language of the Ordinance, and particularly of section 7, does not admit of any doubt. Its validity and effect have been challenged on the ground of an alleged inaccuracy in the recitals. There appears to their Lordships to be no substance in the allegation. But even if there were any such inaccuracy, the result could not be different: the enactment must still take effect according to its terms. If land was situate within the prescribed limits, then from the date of the Ordinance it belonged either 'to claimants who established their title or, failing such persons, to the Crown.

It was' further contended by the appellants .that the Ordinance ha:d no application to such an interest as that which, as they alleged, lay in them, viz., a reversionary interest which, subject to the occupancy of the land by the Rausa ex-soldiers, for whose benefit the original grant was made, was, according to native law and custom, conserved for the appellants' family. But here again the language of the Ordinance is fatal to the appellants' contention. It is.unnecessary to consider what might, apart from the Ordinance, have been the legal effect of the cession made in 1865 or whether any reversionary right or interest remained in the appellants' family. For the provisions of the Ordinance are comprehensive and conclusive and leave. no room for the assertion of any such outstanding right or interest.

The view which"their Lordships take of the meaning and effect of the Ordinance is in accord with that previously expressed by them in Bakare Ajakaiye v. The Lieut-Governor oj Southern Nigeria ((1929J A.C. 679). In that case, in which the question was whether s. 7 applied to lands held under a native title not acquired by or through any grant from the Crown, the provisions of the Ordinance were exhaustively examined, and it was determined that, since the lands there in question were within the described limits and the prescribed time had elapsed without any claim to ownership having been established, the title of the Crown was unchallengeable thereafter. Their Lordships then observed, "<Such an interpretation of words, sufficient in themselves, completes the scheme of the Ordinance, for it clears up all ambiguities of title." So in this case it would be clearly inconsistent with the language and scheme of the Ordinance to hold that there is some outstanding right or interest to which it does not apply. Their Lordships will for these reasons humbly advise His Majesty that this appeal should be dismissed with costs.

13 Onikoyi Chieftaincy Family

v.

Chief Secre- tary to the Govt.

Lord Simonds

14 Rex v. Theodore Kalla Quan

Lagos, 24th January, 1944

Cor. KINGDON, GRAHAM PAUL, C.JJ. AND BAKER, J.

REX Respondent

v.

THEODORE KALLA QUAN Appellant.

Criminal Lam=Fraudulent false accounting and stealing=-Freuduient

false accounting proved-Loss due to false accounting proved- not necessarily inference of theft by accused-where alternative possibility.

On seven charges of fraudulent false accounting and seven charges of stealing the appellant pleaded that he falsified the books on orders of his superior officer and did not steal the goods the stealing of which was made possible by the false accounting.

Held: 1. Abundant evidence that he knew the false entries were for purpose of defrauding his employers. Convictions for false accounting confirmed (except one which was bad for duplicityj.

2. Proof of fraudulent false accounting does not necessarily follow that the person who falsified the accounts is the thief. On six "charges there was a possibility that his superior officer did reap the benefit of the fraud. Accused must be given the benefit of the doubt and the convictions must be quashed. On the 7th charge of stealing which was made possible by a different and more ingenious "form of false accounting the Defence was the same as in the other charges of stealing but had 'no more than appellant's 'mere ipse dixit to support it. Appeal dismissed on this charge.

3. It matters nothing that accused reaped no benefit from the fraudulent false accounting and that it merely made stealing possible by another. Nor that he did it under instructions if he knew the intent was to defraud. Although it is an inference which is generally properly drawn that the person who rendered the stealing possible by his false accounting was also guilty of the theft it is not always so. If an alternative explanation is put forward and supported by evidence and" there is a possibility that the explanation is true the accused must be given the benefit of the doubt.

The facts are fully set -out in the judgment.

N. G. Hay for Crown.

E. E. E. Anwan for Appellant.

The following joint judgment of the Court was read by

Kingdon, C.].:-

The Appellant was charged in the Calabar-Aba Division of the High Court sitting at Victoria in the British Cameroons upon

Rex fl. Theodore Kalla Quan

fourteen counts, seven for fraudulent false accounting contra- Rex

section 438 of the Criminal Code and seven for stealing contra- Th~~re

section 390 (6) of the Criminal Code, all between the 3rd August, Kalla QUaD

1942 and the 1st July, 1943, inclusive. He was convicted on all Kingdon

counts and sentenced to terms of imprisonment varying from c.j. . three years to seven years, all to run concurrently. He now appeals against his convictions on all fourteen counts. Learned Counsel for the Crown has sought to support all the convictions except that upon count 11 which he admits is bad for duplicity. since it charges more than one, offence of fraudulent false accounting' in the same count. We agree that this count is bad and that the conviction upon it cannot stand. Appellant's counsel has submitted that count 12 is also bad for duplicity. but we do not agree as to this since the count may refer to only one act .of stealing made possible by two acts of false accounting.

Counts numbers 1, 3. 5, 7 and 9 each charge the Appellant with making a false entry in a store-ledger belonging to his employer, the Custodian of Enemy Property, with intent to defraud.

In each case the Appellant admits making the entry. and that it is false, but alleges that it was not made with intent to defraud, but was made innocently on the instructions of the European under whose orders he was working. Some colour is .Ient to the suggestion that the false entries were made upon the instructions, or at any rate with the knowledge, of the European by the fact that it was the duty of the European to check monthly the entries made in the ledger with the corresponding entries in the Store Issue Vouchers and with the relevant Delivery Notes, and that if he carried out this duty, the false entries must have been immediately apparent. As to this there ate two possibilities, namely:-(a) that the Appellant realized that the European, whether through pressure of work, illness or any other cause, was not performing his duty of checking and so felt safe to carry out a series of frauds of the most bare-faced description, or (b) the European was in fact the prime moverin the perpetration of the frauds and the Appellant did in fact act under instructions; but even if (b) is the truth it is abundantly clear that the Appellant must have known that the false entries were being made with the object of defrauding his employers; there could be no other object. So that, in any case, the Appellant's defence to these charges of fraudulent false accounting must fail and the convictions be upheld.

Counts numbers 2, 4, 6, 8, 10 and 12 each charge the Appellant, an assistant storekeeper in the employment of the Custodian of Enemy Property, with stealing articles (in the .case of counts .2, 4 and 6 nails and in the case of counts 8, 10 and 12 matchets) the property of his employer. Each of these six counts has reference to the same transaction to which the count immediately preceding it numerically has reference. ~

~

16

Rex v.

Theodore l{aUa Quan

l{ingdon. C.J.

Rex v. Theod01'e Kalla Quan

. For instance courit 2 charges a theft of 64 lb. of nails, and it

is the prosecution case that that theft was made possible by the false accounting charged in count 1, arid that the false accounting charged in count 1 was perpetrated for the purpose of the theft charged in count 2. Now, though it is in many cases, a legitimate inference that, when goods are stolen as a result of fraudulent false accounting, the person making the false entry is also the thief, it does not necessarily follow that that inference must be drawn in every case, and we think that this is a case where there is an alternative possibility, and we say no more than that it is a possibility, namely that the European in charge was the actual thief and the Appellant merely the cats-paw (though, as already indicated, not an innocent one). Additional weight is added to this possibility by reference to an extraordinary letter written by the European in question, viz. Exhibit EEE, the last sentence of which reads " It is most necessary that this change. should take .

place at once owing to the pending visits of the auditors and, with your approval, Mr. Bassey will take over to-day, and as soon as the books have been checked he will take stock· under my supervision, and any shortages discovered will be the responsibility of Mr. Quan" (the Appellant).

There seems here a clear inten tion to saddle the Appellant with responsibility for shortages without giving him a fair chance to exculpate himself. Added to this there is the point that stock was not taken either when Appellant took over the store or when he relinquished it.

For these reasons we think it impossible to hold that it was

proved beyond doubt that it was Appellant who stole the goods in question, and that the convictions on counts 2, 4, 6, 8, 10 and 12 cannot be allowed to stand.

There remain counts 13 and 14. These relate to a false entry in the Petrol Store Ledger and to a theft of petrol made possible by such .false entry. The facts on these two counts differ from the facts in the other cases in that the system of false entry was most ingenious and would not be apparent on the face of the accounts; a careful check and scrutiny is required to discover it. To the charge of fraudulent false accounting the Appellant puts up the same defence as in the other cases, i.e. he admits making the entry and that it is false, but alleges that he made the entry under instructions from the same European. But here there is

nothing to support the Appellant's mere ipse dixit. We think the only. possible inference is that the Appellant made the false entry with intent to defraud and' further that as regards count 14 it was a legitimate inference drawn by the trial Judge that the Appellant stole petrol and covered up his theft by making the false entry charged under count 13. The convictions under counts, 13 and 14 must therefore be upheld.

Rex u. Theodore Kalla Quan 17

- In the result the appeal is allowed against the convictions Rex ,

on counts 2, 4, 6, 8, 10, II and 12; the convictions -and sentences Theod:"re

on those counts are quashed and it is directed that in respect ot Kalla Quan

each of those counts a judgment and verdict of acquittal be entered; Kin d the appeal against the convictions on counts I, 3, 5, 7, 9, 13 and c.].g on,

14 is dismissed and the convictions on those counts are upheld.

2 The sentences passed upon the counts upon which the convictions are upheld are as follows :-

Coun t I three years Count 3 three years Count 5 three years Count 7 seven years To run concurrently. Count 9. five years Count 13 three years Count 14 three years

So that no practical benefit accrues to the Appellant as the result of this appeal against conviction; he has not filed an appeal against sentence but ground 5 of the amended' grounds of appeal indicates a desire to appeal against sentence and if he now applies for extension of time within which to apply for leave to appeal against sentence we will consider his application.

Anwan for Appellant applies for extension of time within which to appeal against sentence and for leave to appeal against sentence.

Hay does not oppose.

Both applications are granted and the Court will hear the appeal forthwith.

ANWAN,

I ask Court having regard to all the circumstances to say that there is a possibility that Appellant made the false entries with the mere object of, trying to keep his job. There is nl:?proof that he derived any actual benefit. I ask for leniency. He is a young man .and a first offender.

HAY,

I do not oppose a reduction. Judge took into consideration large amount stolen. There was also lax supervision.

I ask for sentence to be a deterrent.

Anwan, nothing to add.

Judg_ment.

Having regard to the considerations and possibilities which we have set out in our judgment in the Appeal against conviction,

we are of opinion that the sentences of seven years I.H.L. and five years I.H.L. passed upon counts 7 and 9 respectively are excessive and that the Appellant will be adequately punished by being sent to prison with hard labour for three years.

z

Chief Winoko Ekpe, etc. v. Head Chief Esin Antai, etc. 1-9


Cor. KINGDON, GRAHAMPAUL, C.J]', AND BAKER, J.

CHIEF WINOKO EKPE SUBSTITUTim

FOR HEAD CHIEF ESEMANAON BEHALF OF HIMSELF AND THE PEOPLE OF ATAYARA Plaintiff-Respondent

v.

HEAD CHIEF ESIN ANTAl SUBSTITUTED FOR HEAD CHIEF BASSEY OKON ON BEHALF OF HIMSELF AND THE PEOPLE OF UDA Defendant-Appellant.

Estoppel-res judicata-prior judgment in part ultra vires-Defendant relying on that part of the [udgmen; which was not ultra vires. Prior [udgmen! a default judgment.

Plaintiff-Respondent sued Defendant-Appellant for damages for trespass to land and an injunction. At the trial Defendant- Appellant pleaded res judicata, relying upon a judgment by default in respect of the same land for damages for trespass, an injunction, and demarcation of boundaries, given in his favour in 1931 against Plaintiff-Respondent, who had not appeared at the hearing. It was admitted that the land in dispute in both cases was the same.

The trial Judge held that the plea of res judicata could not succeed, on the ground, inter alia, that the court which gave the 1931 judgment had no jurisdiction in real actions, and the claim for demarcation of the boundary was a claim in the nature of a real action.

Held: there was no force in this ground, because any lack of jurisdiction in the court which gave the 1931 judgment was in respect of the order for demarcation of boundaries only; the judgment, in so far as it dealt with trespass, had been within the jurisdiction of the court, and Defendant-Appellant's plea of res judicata was based on that part of the judgment which dealt with trespass. and on that part only. since there was no dispute as to the identity of the land.

In the Appeal Court it was contended on behalf of Plaintiff-Respondent that the 1931 judgment, being a judgment by default, could not be pleaded as a bar to the action.

Held: the 1931 judgment was a bar to the action.

Cases cited :-

Henderson v. Henderson 18433 Hare 114.

Humphries v. Humphries (1910) 2 K.B. 531.

Hoystead v. Commissio~ler of Taxation (1926) A.C. 165.

C. W. Clinton. (with him]. E. David) for Appellant.

E. E. E. Anwan for Respondent.

ZA

22

Chief Winoko Ekpe, etc.

v. Head Chi.:' Esin Ant.1.i. etc.

Kingdon, C.J.

Chief Winoko Ekpe, etc. v. Head Chief Es'n Antas, etc

special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of yes judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point wbich properly belon~ed to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.

"This authority has been frequently referred to and followed, and is settled law."

The case of Humphries v. Humphries (1910) 2 K:B. p. 531 takes the law even further for the purposes of our present case. In this case :-

" The plaintiff brought an action for arrears of rent alleged to be due under an agreement for a lease. The defendant relied on the defence that no agreement had been concluded, but did not raise any defence under sA of the Statute of Frauds. Judgment was given for the plaintiff.

" Further arrears of rent having accrued due, the plaintiff brought a second action. In this action the defendant raised the defence that there was no memorandum or note in writing ot the agreement for .the lease sufficient to satisfy the requirements of s.4 of the Statute of Frauds :-

" Held, that the defendant, -not having raised this defence in the former action, was precluded from raising it in the second action."

For these reasons we are of opinion that the plaintiff is estopped from bringing this action. The appeal is allowed; the judgment of the lower Court, including the order as to costs, is set aside and any costs paid thereunder are to be refunded; it is ordered that a judgment in lieu thereof be entered dismissing the plaintiffs claim. The Appellant is awarded costs in this Court which we assess at 50 guineas and costs in the Court below which we assess at 20 guineas.

Chief Akinlolu Oloto v. VictOr Williams ~: Anbr.


Cor. KINGDONG, RAHAMPAUL, C.JJ., ANDBAKER, J. CHIEF AKINLOLU OLOTO ... '" Plamtiff-Resdonpent.

v.

1. VICTOR WILLIAMS } ... 2. CHARLES WILLIAMS

Defendants-Appellants

Pleading-Lan4-Claim: for declaration of ownership-Claim that land had never been alienated and was free of any customary tenancy under native law-Defence that land had been alienated- Facts found for defendants-Judgment for plaintiff as owner of reversion-Existence of reversionary right not in issue-N on- suit.

The Plaintiff-Respondent claimed a declaration that he and his family were the owners' of certain land; in the writ he stated that the land had not been alienated to any other party; and in the statement of claim he alleged that the ownership of the land was free of any tenancy under native law and custom. The Defendants-Appellants in.their defence alleged that their ancestor was a grantee in respect of the land and that their family had been in possession ever since the date of the grant.

The trial Judge was satisfied that the defendants' statement of these facts was correct, and that the plaintiff's statement of the facts was incorrect; but he gave judgment for the plaintiff, on the ground that the right enjoyed by the defendants under the grant was a right of occupation under native law and custom which left a reversionary right of ownership in the plaintiff.

Held: The trial Judge, having found as a fact that the defendants-appellants were correct in their allegations that a grant of the land had been made to their ancestor, could not then give judgment for the plaintiff-respondent in respect of a claim containing expressly contrary allegations; and the finding that there was a

'reversionary right in the plaintiff-respondent should not have been made because the question of the existence of such a right had not been in issue.

01010 v. John (Suit No. 115/1942 W.A.C. 179'1, 19th October, 1942.not reported) distinguished.

Appeal allowed. judgment 0.1the Court below set aside. and judgment 01 nonsuit entered in lieu.

~. AZakija (with him ]. E. David) for Appellant.

P. Oddie for Respondent.

The following joint judgment was delivered:-

The claim of the plaintiff in this case as stated in his writ of summons, as amended, is that he and his family are the owners by native law and custom of the land in question. The writ further

Chief Akin- lolu Oloto·

v. Victor Wil- liams&: Anor.

Kingdon. C.J.

I'

Cine! Akinlolu 01010 v. Victor WiUiams e- An~.

states " that this land forms part of the stool land of the Oloto Chieftaincy and the Oloto Family and has not been alienated to. any other party." Pleadings were ordered and the plaintiff's claim was further particularised by his Statement of Claim. Paragraphs I to 6 of the Statement of Claim set out the facts of the case for the plaintiff in the following terms :~

. " 1. The plainti1l states that the land in dispute which,is known 'as 86 'Cemetry Street, Ebute Metta, Lagos, Nigeria, as described in the writ of summons but therein wrongly described as having been the subject matter of a suit, C. and V. Williams versus The Chiej Oluwa, but the abuttals and 'dimensions of which are particularly described in the .plan filed with this Statement of Claim, ·has been from the time immemorial part of the stool land of the Oloto Chieftaincy and the Oloto family who have not alienated the" same to any other party with the exception -mentioned in the next following.paragraph.

. " 2. Many years ago at the request of the late Governor, Sir John Hawley Glover, an area was demarcated in Ebute Metta fOI the people then known as the Egba refugees, but the whole area so demarcated by. the plaintiff's predecessor in title for the purpose of settling these refugees was not used for that purpose; there were certain areas which were never taken

'up for settling these refugees. The area in dispute was such an area and therefore the full ownership reverted to the then Chief Oloto and the Oloto family and was free of any tenancy under native law and custom.

"3. Instead of this area being alloted to the Egba refugees at the

request of the said late Governor Glover the then Chief Oloto granted it for the use of some people known as Efon people who had migrated to the Ebute Metta area of Lagos for farming and. other purposes. .

"4. The grant was made to them on the usual and well-known terms of native law and custom.

" 5, Some years later these same Efon people left this 'area having found other places in which-to settle, giving up any rights of occupancy which they may have bad according to native law .and custom as aforesaid and the full title in the land thereupon reverted to the then Chief Oloto and the O1oto family,

"6. For many years after the departure of the Efon people as aforesaid the land remained vacant and unoccupied by anyone who had any right there as deri ..'ing any title f~om ~he Chief Oloto o~ the Oloto family."

The defendants by their amended Statement of Defence,

which it is unnecessary to quote in full categorically denied the -allegations in paragraphs 1 to 6 of the Statement of Claim and set out quite definitely their case which was that their ancestor was in regard to the land in question a grantee, as an Egba refugee, of Governor Glover, and that he and' his family, descendants and successors of the original grantee, had been in possession of the land ever since.

At the trial the rdefendants satisfied' the learned Judge tliat

their statement of the facts was COrrect and, that the plaintiff's statement of the facts in his Statement of Claim was incorrect.

Having come to that definite conclusion .Qf fact .the learned Judge thenproceeded. to give" judgment for the plaintiff ", That means judgment for the plaintiff for what he claimed, and to

Chief Akinlolu Oloto v. Victor Williams <& Anor.

discover what the plaintiff claimed one must, of course, look at the claim as stated in the writ and Statement of Claim.. Looking at the writ one finds that" judgment for the plaintiff" invloves a finding that the land in question had .. not been alienated to any other party". Looking at the Statement of Claim, and particularly at the last sentence of paragraph 2 of the Statement of Claim ·it is clear that" judgment forthe plaintiff" meant that the " ownership by native law and custom" of the plaintiff" was free of any tenancy under native law and custom".

But it is clear from the findings of the learned Judge in his judgment that he found as a fact that there had been alienation to another party, namely to Governor Glover for .the Egba refugees. It is also clear that the learned Judge in his judgment found as a fact that the defendants' ancestors and the defendants had respectively acquired and inherited" a right of occupation under native law and custom", which is a " tenancy under native law and, custom ". It follows therefore that in giving' judgment for the plaintiff" the learned Judge was in terms deciding the case before him in a way which was quite inconsistent with his express findings of fact.

Furthermore in his judgment the learned Judge held in respect of the grant to Governor Glover "that no consideration of any kind was given to the Chief", but there was no evidence before the learned Judge at the trial justifying such a finding.

It is manifest that neither party attempted to show in evidence what were the terms and conditions of the grant to G.overnor Glover or what precisely were the terms and conditions of Governor Glover's .grants to the Egba ancestors of the defendants.

The learned trial Judge found that" the plaintiff's right of reversion remained", and that this right of reversion was the same thing as the ownership by native law and custom claimed in the writ. We are of opinion that these findings as to the reversionary right should not have been made in this suit since the very important question of whether or not the plaintiff has such a reversionary right was not in issue on the pleadings and the defendants therefore did not necessarily put forward the full defence which might be made to such a claim if it had been definitely put in issue. We therefore set aside these findings, leaving entirely open the questions whether after the grants to" Governor Glover and by him to the defendants' ancestor any reversionary interest in the land remained in the plaintiff's family and if so what the nature and. extent of such reversionary interests were and are.

The case is fundamentally different from that of Oloto v. John (Suit No. 115/1942 W.A.C. 1791 decided by this Court on the 19th October, 1942 and not yet reported) because in that case the defendant was a .. squatter" and not a representative of an Egba grantee of Governor Glover.

25

Chief Akin- lolu Oloto

v. Victor Wil-

liams& Anor.

Kingdon,

C.J.

Chief Akinlolu Oloto 11. Victor Williams <& Anor.

Chief Akin- lolu Oloto

v, Victor Wil- liams ct Anor.

Kingdon, .

C·l·

For these reasons we are of opinion that the learned Judge was wrong to give judgment for the plaintiff and that instead. he should have non-suited the plaintiff's claim. That judgment would upon the judge's findings of fact have been in conformity with the evidence of Ashafa Tijani, the principal member of the plaintiff's family and his representative and first witness who said: ..If the Egbas had been still there we should not have tried to reclaim it". The learned Judge has held as a- fact that "the Egbas ", in the persons of the defendants are .. still there". The plaintiff has accepted that finding of fact and obviously can have no complaint that his attempt to " reclaim" the land has failed.

The appeal is allowed, the judgment of the Court below, including the order as to costs, is set aside and it is ordered that ill lieu thereof judgment of non-suit be entered with costs to the Defendants-Appellants and further that if any sum has been paid in pursuance of the said judgment of the Court below it shall be refunded. Tile appellants are awarded costs in this Court assessed at 30 guineas and in the Court below assessed at 45· guineas.

Chief Duke 0- Ors. v. Etubom George Duke Henshaw Etubom 27


Cor. KINGDON, GRAHAMPAUL, C.]J., AND BAKER, J.

1. CHIEF EFIONG ENEBIET EFIOM DUKE

2. CHIEF OKON ENE EKPE AND 3. EDET ASUQUO EKANEM '" Plaintiffs-Respondents

v.

ETUBOM GEORGE DUKE flENSHA W ETUBOM OF CALABAR

HENSHAW TOWN,

Defendant-Appellant.

Claim to Headship-Effect of Repeal of by Ordinance No. 15 of 1914 of Native House Rule Ordinance (Proclamation No. 26 of 1901 and Cap. CXXL of 1908 Edition Laws of Colony oj Southern Nigeria) considered-Effect of Repeal of .. Slauery " of House Rule considered-Appellant $fling in his own name for protection of the Rights of the House-Use of expression .. trustee" to denote duties of Head of House deprecated.

Appellant was the Head of Ekpo Offiong House'. Yellow Duke House was a sub-house. Appellant had been blind for a number of years and certain representative members of Yellow Duke House purported to remove him from the Headship by Public Notice.

Held: that although Proclamation No. 26 of 1901 and Cap. CXXL of 1908 Edition of Laws of Colony of Southern Nigeria was repealed, "it did not remove incidents of House Rule pre-existing in Native Law and Custom, thus incidents relating to duties of headship and rights in land differ as between: (I) The Head of the House, (2) Blood relatives and (3) Slaves and descendants of slaves. The latter enjoy land during good behaviour and cannot call the Chief to account or depose him as the original Yellow Duke was a slave his descendants cannot depose appellant. The Head of the House can sue in his own name for the protection of the rights of the House and sub-houses. Where rights and duties are governed by Native Law and Custom it is unwise to apply the expression" trustee" to the Head of the House.

The facts are fully set out in the judgment.

C. W. Clinton (with him]. E. David) for Appellant.

T. E. Nelson-Williams for Respondents.

The following joint judgment was delivered :-

The Appellant in this case, Etubom George Duke Henshaw, claims to be paramount Head of the Yellow Duke House which he alleges js a sub-house of the Ekpo Offiong House. of which he claims also to be the head: The Respondents are members of the Yellow Duke House which they contend is a distinct house and

28

Chief Duke .t OrB.

v. Etubom

. Gt!9rge Duke Henshaw Etubom

Kingdon. C.].

Chief Duke eo O'S. tI. Etubom George Duke Hens~'llJ EluOOm not a sub-house of Ekpo Offiong. The Appellant has been blind for a number of years, and in consequence there has been dissatis- faction as to his management of the affairs of the Yellow. Duke House. This resulted in the issue of a Public Notice (Ex. 1) dated the 31st August, 1939, in the following terms :-

" Public Notice

" Yellow Duke House ·Memorandum No.2 of 11th November, 1939 (amended).

" INSTRUMENT OF DECLARATION OF REMOV.'L OF HEADSHIP OF YELLOW DUKB

HOUSE FROM ETUBOM GEORGE DUKE HENSHAW

" Whereas Etubom George Duke Henshaw of Henshaw Town, Calabar,

has assumed the Headship of Yellow Duke's House in the year 1919, after

the demise of his mother Madam Offiong Asibong Asibong who was not a blood relation of any member of the House.

" And whereas the Headship of 'the House exercised by his said mother was founded on the Native House Rule No. 211 of 1001 which has since been repealed by Ordinance No. 111of 1014.

. .. And whereas the Headship of a House is now founded on blood relationship and subject to the approval and consent of all the members of the families who comprise a House .

.. Be it resolved that we the Representatives of all the families which comprise the said House of Yellow Duke, assembled at a meeting at White House Street, Calabar, do hereby revoke all powers vested in the Said Etubom George Duke Henshaw as the Head of the House, and by this instrument protest, reject and remove him from the Headship of the House .

..It is hereby further resolved that on and after the 30th day of September, 19:19,the said Etubom George Duke Henshaw is precluded from and forbidden to interfere with the management and control of all interests in the affairs and estates of the said Yellow Duke's House pending the appointment of an accredited Head of the House at a representative meeting of all the families which comprise the said Yellow Duke House .

.. Representatives of-

ETOMKPE YELLOW DUKE FAMILY I I

1. Efiong Enebiet Efiom 2. Etim Emakenyin ... .n :I. Okon Ekoborninso 4. Atim Inameti

(Sgd.) II. Etim Ikpong. G. Okon Efiom,

." Representatives of-

USUNIDIM YELLOW DUKE FAMILY

7. Okon Ene Okpo ... 8. Efiong Etiin Mkpan 9. Okon Asibong ...

" Representatives of-

EFOT-OBIO YELLOW DUKE FAMILY

10. Edet Asquo Ekanem. (Sgd.) 11. Elizabeth Archibong.

12. Efiong Adam Y. Duke. 13. E. E. Yellow Duke. 14. Daniel Duke. 15. Etim Bassey Asuquo. 16. Orok E. Yellow Duke.

Their

X X X X

marks .

Their

X X' X

marks.

Chief Duke e. Ors. v. Etubom George Duke Henshaw Etubom

(Sgd.) 17. Edet A. Efiom. 18. Archibong Bassey Eke her mark. 19. J. S. Ballantyne. 20. J. O. Archibong. 21. Odo Okedv Y. Duke. 22. Willie A. Archibong.

.. On behalf of ourselves and members of Yellow Duke House whose signatures and marks, over 500, are on the original copy of this Memorandum.

.. Witnesses to marks: JEROMEE. ETIM AND O. E. BASSEY.

.. N.B.-This Resolution serves as a notice addressed to the said Etubom l.eorge Duke Henshaw of Family, and a' period of 3() days from the date of issue of this notice is hereby given him to take step to defend his right, in the law Court."

It will be observed that all three Respondents signed this Notice, the first Respondent being first on the list of representatives of the Etomkpe Yellow Duke family, the second Respondent being first on the list of representatives of the Usunidim Yellow Duke family, and the third Respondent being first on the list of representatives of the Efot-Obio Yellow Duke family. Before going any further we think it advisable to remove misapprehensions which apparently exist as to the effect of the repeal by Ordinance No. 15 of 1914 of the Native House Rule Ordinance (Proclamation No. 26 o.f 1901 and Cap. CXXL of the 1908 Edition of the Laws of the Colony of Southern Nigeria). One of the most important' effects of the repeal was to deprive the Head of a House of the right to take the members of the house to court on a Criminal Charge, if they refused or neglected to submit themselves to his control, authority and rule in accordance with Native Law and Custom (section 5 of Cap. CXX.L). For this reason the repeal is often loosely ami wrongly referred to as the abolition of slavery. But the repeal did not alter the Native Law and Custom as to the duties owed by members of a family to its head; it didriot give members of the family any greater rights to the land they occupied tlf'an they had before, i.e. ordinarily, in th~ case of members the descendants of slaves, the right to occupy during good behaviour; it did not alter the customary relations inter se of (I) the, Head of the House, (2) his blood relatives and (3) the descendants of slaves; it gave to the last class no more right to depose the head of the house than they had before, and no more right to call dn him to account than they had before.

To return to the incidents leading up to the present case . .On the 20th November, 1939, the three Respondents followed up the issue of the public Notice (Ex. 1) by issuing a writ on behalf of themselves and as representing the Yellow Duke House in the High Court against the Appellant, claiming the return of books and records belonging to the House. This c1aim was subsequently discontinued, but not before the Appellant had on the 12th July, 1940, filed a counter-claim for a declaration that the Respondents had forfeited their interests in the House land on account of conduct which was regarded as disgraceful by Native Law and Custom namely proceedings purporting to depose the Appellant from the Headship of the House.

29

Chief Duke & Ors.

v. Etubom George Duke Henshaw Etubom Kingdon, C.].

30

Chief Duke &Ors.

v. Etubom George Duke Henshaw Etubom

Kingdon, C.].

Chief Duke <5- Ors. v. Etubom George Duke Henshaw Etubom

This counter-claim was subsequently amended to a claim

under the following four heads, viz :- .. l. A declaration that plaintiffs arc not entitled to remain or to live

on Ekpo Offiong Janel.

.. 2. A declaration that plaintiffs are not entitled to collect rents in respect of Ekpo Offiong land.

.. a. In the alternative an order that the plaintiffs if they remain on the Ekpo Offiong land will pay to the defendant one-third rents received in respect of the Ekpo Offiong land .

.. 4. An order that if the plaintiffs remain on the Ekpo Offiong land. they shall pay to the defendant tribute ill accordance with Native Law and Custom in respect of the Ekpo Offiong land."

It is the judgment upon this counterclaim which is now under appeal. At this point it should be explained that throughout his judgment (from which the above four heads are quoted) the learned trial Judge refers to the Respondents' as " Plaintiffs" and to the Appellant as Defendant", whereas in the pleadings it is the Appellant who is called" Plaintiff" and who filed a Statement of Claim and the Respondents who are called "D~fendants" and who filed a Statement of Defence. In this Judgment the term " Appellant" is used to designate Etubom George .Duke Henshaw and the term" Respondents" applies to his opponents.

Of the four heads quoted, the first two were abandoned by Appellant's counsel in the course of the trial in the lower Court, leaving numbers 3 and 4 as the claim before the Court and as the claim for which the Appellant is asking judgment in this Court. These heads refer to t r the Ekpe Offiong land" but from all the evidence in the case it is abundantly clear that' that description includes Yellow Duke land. It should also be mentioned that in the course of the trial in the lower Court the capacity in which the Respondents were sued was altered by order of the Court from a representative to a personal capacity, although by a curious series of oversights the necessary alteration does not appear to have been made in the headings of the documents subsequently filed. The learned Judge, misled no doubt by the errors in the headings of papers filed, omitted to notice that by order of the court the capacity of the Respondents had been altered. We now order that the title of the case on appeal shall be altered to comply with the order of the lower Court, No alteration was made in the capacity in which the Appellant sued. The learned trial Judge held that the Appellant claimed in his personal capacity and dismissed the claim on the sole ground that the Appellant had failed to show that he had any cause of action in his personal capacity against the Respondents. We think that he was wrong to do so. It is clear that the original claim of the Respondents was brought against the Appellant as head (or as they contended, deposed head) of the Yellow Duke House (a position which headship of the Ekpo Offiong House carried with it), and it was in that

same. capacity, viz. as Head of the Ekpo Offiong House, and ipso facto head of the Yellow Duke House, that the Appellant counter-

CTtiej Duke eo Ors. v. Etubom George Duke Henshaw Etubo1!f 31

claimed. That is abundantly clear from the wording of his Chid Duke

statement of claim. Moreover there is judicial authority which, .t Ors.

v.

in our view, confirms the Appellant's right to sue in his own name Etubom

for the protection of the rights of the House. In the case of Nkoyo HGeorshDaugkee

Yellow Duke v. Efana Ita Efana and others-G. D. Henshaw en .."

'Etubom

(counter-claimant)-(Divisional Court, Eastern Division dated .

the 6th March, 1922) Webber J. entering judgment for G. D. ~J~don,

Henshaw (the present Appellant) said-

" I declare George Duke Henshaw to be the rightful successor to the house' of Yellow Duke and that he is entitled to control and manage the property and to receive all rents and profits of the -Iands belonging to the house."

That this was a correct statement of the Appellant's rights at that time had not been seriously questioned, and we think that there can be no doubt that the Appellant had then and has now the right to bring in his own name an action to protect the rights and property of the house (for Counsel for the Respondents in this Court was unable to contend that the Appellant had in fact been deposed from his Headship). This in our view is exactly what the Appellant has done by his counter-claim in the present case, and as we have said, we think that the dismissal of his claim on the ground that he had failed to show any cause of action against

the Respondents in his personal capacity was wrong. It. remains to consider whether on the facts and the law he should be granted either or both of the last two Heads of his amended claim. We are of opinion that he should be given both. They really do no more than set out the well-known and a long-established Native Law and Custom as exemplified by District Officer Murray's Order dated the 25th November, 1922 made on review in suit No. 822 of the Native Court of Calabar in the case of George D. Henshaw

as the Head of late Yellow Duke's House v. Asuquo Inyang (Ex. 7.)

.. Defendant .should be permitted to occupy and use the land so long as he recognises the proper Head of the House of Yellow Duke and conforms with the House regulations."

As has already been pointed out the repeal of the Native House Rule Ordinance did not confer any rights of property which did not exist before. Below the surface of the particular controversy in the present case there is undoubtedly the question as to the status of the original Yellow Duke. The Appellant in paragraph 3 of his statement of claim avers that the original Yellow Duke was a slave member of Ekpo Offiong. The Respondents in paragraph 3 of their statement of Defence deny that he was

ever a slave at all.

This is an old question apparently but from the judgments in evidence it appears to be perfectly clear that the original Yellow Duke was a slave, that for a time the Duke family claimed that he was their slave (a claim which appears to be still founded upon by the fitst Respondent in his evidence) but that ultimately it was decided that the original Yellow Duke was a slave member

Chief Duke ~ Ors. v. Etubom George Duke Henshaw Etupom

Chief Duke & Ors.

v, Etubom George Duke Henshaw Etubom

Kingdon,

,C.].

not of the' Duke Family but of the Ekpo Offiong House. In particular the judgments Exhibit 4 (Native Council of Calabar in ] 903) and Exhibit 8 (Supreme Court in 1926) show this to be the case. It is perhaps desirable to quote from the judgment in the latter case. In his judgment Webber, J. said" it has been laid down, definitely that Yellow Duke was a member of the H01Jse, of Ekpo Offiong and as long ago as 1903 when on that very issue the Obon and Chiefs of Calabar decided so ". It is clear that in the present case the Respondents seek to reopen this long-decided question, which explains much of their attitude. As the descendants of Yellow Duke the Respondents inherited no higher or other rights of property than their ancestor who was a slave and a member of Ekpo Offiong House. And it is quite definitely stated by the Appellant's witness Etubom Ededem Archibong- who is uncontradicted on this point-that it was not possible for a slave to own land. Neither Yellow Duke nor his descendants could own the land. In the judgment Exhibit 7 (Native Court of Calabar 1922) the Appellant's claim of right to control and exercise authority over all landed property of late Chief Yellow Duke situated at Efut was recognised by the Native Court which found that" the land in question belong to plaintiff" (the present Appellant) as Head of Yellow Duke's house", and the review by District Officer Murray upheld that finding. The issue of the Public NoticeIlix. 1) and the bringing by theRespondents of their original claim were a direct challenge to the constitutional rights of the. Appellant, as Head of the House. He was, in duty bound, compelled to bring this counterclaim to protect the right and duty of the Head of the family to control the family land. He asks no more than, if indeed as much as is justified by Native Law and Custom. '

The only other point which need be mentioned is the reference, to the learned trial Judge to the position and duties of the Appellant as Trustee. All we need do in regard to this, is to point out that the rights of the parties in this suit are governed by Native Law and Custom, 'and not by the English equitable doctrines relating to trustees.

The appeal is allowed, the judgment of the lower Court upon the Appellant's counterclaim, including the order as to costs, is set aside, and it is ordered that if any sum has been paid in pursuance thereof it shall be refunded; it is directed, that the. Appellant be granted a. declaration against the Respondents personally that the Respondents, if they remain on the Ekpo Offiong land (which description includes Yellow Duke land) are liable to pay to the Appellant, in his capacity as head of the Yellow Duke family, (a) one-third of the rents received by them in respect of the said land and (b) tribute in accordance with Native Law and Custom in respect of the said land.

The Appellant is awarded costs in this Court .assessed at 60 guineas and in the Court below assessed at US,guineas. '

"

Belo Adedubu 0- Ano1'. v. A. O. Makanjuola 33


Cor. KINGDON, GRAHAMPAUL, C.J]., AND BAKER, J. BELO ADEDUBU AND RAJI AJIBADE

FORTHEMSELVESANDOTHERMEMBERS OF THE LATE BASHORUN OLUYOLE (EXCLUDINGSUBERU ADEDIRAN AND

3 TWO OTHERS) ... plaintiffs-Appellants

v. A. O. MAKANJUOLA Defendant-Respondent.

Injunction to restrain Defendant from interfering with Plaintiffs' family land.

Ibadan Native Law and Custom considered.

Defendant bought family land from present head of family. It was not shown that all the members of the family consented thereto. It was argued that in Ibadan the Mogaji or Head possessed the power of sale without the consent of all members of the family or even against their will. This argument was accepted by the Judge in the Court below.

Held that such a startling proposition could not be entertained and that the consent of all the members of the family is necessary to such a sale.


A. Soetan for Appellants.

A. Majekodunmi for Respondent.

The following joint judgment was delivered ;-

This case started in the Ibadan Native Land Court, the plaintiffs there claiming an injunction to restrain the Defendant from interfering with the Plaintiffs' Family land and also for damages for trespass committed on the said land. This suit was by order under Section 25 (c) of the Native Courts Ordinance (No. 44 of 1933) transferred to the High Court Ibadan. The order of transfer was made at the instance of the Plaintiffs for the reason that the President of the Native Land Court had an interest in the result of the suit.

In the High Court pleadings were ordered and a statement of Claim and statement of Defence were filed. From the statement of claim it appeared that the 'Plaintiffs sued on behalf of themselves and the other members of Bashorun Oluyole Family of Ibadan. The trespass alleged against the Defendant was that he, his agents workmen and or servants dug a portion of the Plaintiffs'. family land, made bricks thereon and generally carried on building

operations on the said land in defiance of Plaintiffs warnings.

3 10-1

Belo Ade- dnbu &

Anor. v.

A.O.Makan- juola

Kingdon, C.J.

Belo Adedubu <5- Anar. v. A .. O.-Makanjuola

The Plaintiffs further say in their statement of claim that the Defendant alleged that the portion of land in question was sold to him by Suberu Adeniran, the Mogaji of the Plaintiffs" family and two junior members of the said family. The kernel of the Plaintiffs' case is contained in paragraph 5 of the statement of claim which is in the following terms :-

"That the alleged sale if true is contrary to Native Law'and Custom and invalid as it was made without the knowledge and consent of the Plaintiffs! and other principal members of the said Bashorun Oluyole's Family." .

The substance of the Defendant's case on the pleadings is contained in paragraphs 5, 6 and 7 of the statement of Defence which are as follows :-

" 5. The Defendant admits paragraph 4 of the Plaintiffs' Statement of Claim and says that he bought the said portion of land from Oluyole Family under a Deed of conveyance dated 20th day of August, 1941 signed by Adeniran the present Mogaji, Tella, Laoye, Oyeniran, and Adeoye, ail senior and principal members of the family after the consent of all members of the family was obtained including the 'plaintiffs who are junior and unimportant members."

.. 6. The Defendant denies paragraph 5 of the Plaintiffs' Statement of Claim and puts the Plaintiffs to the strict proof

-thereof."

.

.. 7. The Defendant states that the sale of the said portion of land was with the full knowledge and consent of the Plain~ and of the other principal members of the Family, and that the Plaintiffs only objected to the salt'

and instigated some other junior members to do the same when it came to the distribution among. members of the family of the consideration paid by the Defendant for the portion of land."

Evidence was led by both patties 'at, the trial and in his . judgment the learned Judge .defines the issue to be 'determined by him as follows :-

"Tt is common ground that the land in dispute-part of th"eBashorun Oluyole Family land situa.ted on tile Ijebu Bye Pass in Ibadan-s-was on 20th August, 1941, sold to the Defendant. by Suberu Adeniran, the present Mogaji or Head, and certain members of thefamily, . It is.however contended. by the Plaintiffs that this-sale was contrary to Native Law and Custom and it is therefore invalid as it was effected without -the knowledge and consent of the Plaintiffs and certain other principal' members of the f~~y. The following issue arises for determination by this Court viz. Was the sale to Defendant effected in apcordance with the Native l..aw and Custom? Briefly, the Plaintiffs' case is that Native Law and Custom requires that before any family land may be disposed of the consent of all. the principal members of the family be obtained, -and in this case; the Plaintiffs and other members, on behalf of whom they' are suing, were not consulted before -the sale was effected."

"On the other hand the :Defendant asserts that Native'Law and Cu;tom in Ibadan requires only the sanction and approval of the Head of the family' to a sale of family land and in any event before this particular transaction was concluded a family meeting was called at which all tlie princip,al members including the Plaintiffs were present and approved of the sale. '

Upon-that issue the learned Judge found as follows:-

.. The preponderance of evidence however undoubtedly supports the Defendant's contention. Apart altogether from the testimony- of those members of the family called by Defendant the evidence .of Mr. Akande Iyalode one of the Judges of the Native Land Court of Ibadan manifestly supports the- contention that by. Native Caw and Custom the Mogaji or H~ of ail Ibadan family has the power to dispose of family land even

dubu & I

36 Bela Adedubu e- Anor. v. A. O. Makanjuola

Bela Ade- are matters for the legislature and not for the Courts. The native Anor. aw and custom throughout West Africa in regard to the alienation

v. of Family land quite naturally has as its basis the interest of the ~. °l·1,bkan- Family and not the interest of strangers who may wish to acquire juoia Fialml Kingdon

yan. d

C.]. We must further point out that the conveyance in this case does not in its terms even profess to convey Bashorun Oluyole Family land but only certain hereditaments of which the Vendors,

a number of individuals, not in any representative capacity, were "seised in fee simple". In this respect the conveyance differs from the sale agreement on which it was supposed to follow. The conveyance was ineffectual to convey to the Defendant the legal estate in the Family 1and and the question which still has to be decided in this suit is whether the agreement of sale of the Family land had the consent- of the Family and so gave to the Defendant an equitable right of occupation which would prevent the Court granting the injunction sought or awarding damages for trespass.

The appeal is allowed and the judgment of the Court below set aside, including .the order as to costs and it is ordered that any costs paid thereunder shall be refunded.

The case is sent back to the Court below for further consideration on the basis that the Court was bound by the express admission of the Defendant that no Mogaji can sell Family land without the consent of the Family, and for judgment.

The appellants are awarded costs in this Court assessed at 55 guineas; and it is ordered that the costs in the Court below, both as to the trial and as to the further hearing shall be costs in the cause.

1. JEMINATU ESU TADEYO}

Surakatu Lawani v. jeminatu Esu Tadeyo 0- Ano,.. 37


Cor. KINGDON, GRAHAMPAUL, C.JJ. AND BROOKE, J.

SURAKATU LAWANI Plaintiff-Appellant

v.

2. LAWANI AYO ... Deferr-dants-Respondents.

Action for recovery of possession-Native Law and Custom applicable.

" A" acquired the interest of Chief Akinlolu Oloto as a result of a judicial sale of No. 40 Coates Street, Ebute Metta.

" A" claimed that the interest purchased .included the right to forfeit defendants' interests.

Held .' the right bought did not include a power to dispossess for misbehaviour .persons who had acquired a right of occupation during good behaviour as the Chief's right of forfeiture is not an attachable interest,


J. I. C. Taylor for Appellant.

A. L. johnson for Respondents.

Cases cited ;- Ashogbon v, Oduntan 12 N.L.R 7.

Onisiwo and Othcf's v. Gbamgboye and Others 7 W.A.C.A. 69.

Eshugbayi Chief Oloto v. Dmuudu and Others 1 N.L.R 58.


The Plaintiff-Appellant sued the first Defendant for recovery of possession of premises situate at No. 40 Coates Street, Ebute Metta. The second Defendant was joined on his own application.

In his Statement of Claim the Plaintiff set out :- .. 2. That on the 6th August, 1941 the property situate and being at

No. 40 Coates Street, Ebute Metta was at the instance of the Plaintiff in re Amodu Tijani Chief Oluuia us. Chief Akinlolll 01010 and tuo others-Suit No. 331/40 sold by public auction .

.. 3. That at the said sale of the said property the Plainti1l in the present suit Surakatu Lawani was the highest bidder and was declared the purchaser of the said property for the consideration of £30. (Thirty pounds sterling) .

.. 4. That further the first Defendant in the present suit, J eminatu

Tadeyo, in re J. E. Tadeyo vs. Amodw Tijani Oluwa and Surakatu Lawan; Suit No. 103/1942 instituted the said proceedings to set aside the sale mentioned in paragraphs 2 and 3 above, but that the said action was struck out with costs to the Defendant assessed at £5. 5s. (Five guineas) .

.. 5. That the Defendants in the present suit are in possession of the said premises and, though frequent requests have been made by the PlaintUf for delivery up of possession persistently refused to comply with the Plainti1l'. requests."

38

Surakatu Lawani

v. Jeminatu Esu Tadeyo & Anor.

Kingdon. C.J.

'Surakatu LawatJi v. Jeminatu Es« Tadeyo & Anor.

The Defendants admitted paragraphs 2, 3 and 5 of the

Statement of Claim and pleaded to paragraph 4 as follows :- " 2. As to paragraph 4 of the said Statement of Claim however the

Defendants say that Suit No. 103 /42 was withdrawn because the first Defendant could not be reached being prevented access to Lagos by reason

of the war in the Dahomey" (Vichi France)."

They also pleaded long and undisturbed possession, laches, acquiescence, stale claim and the Statute of Limitations. Actually the first Defendant has taken no part in the proceedings either in the lower Court or in this appeal, in which she has not been served. It was the second Defendant who defended the case in the lower Court and is now contesting this appeal.

The learned trial Judge after hearing the evidence dismissed the Plaintiff's claim saying :-

". In this case however plaintiff claims possession of the premises by virtue of his purchase and it is accordingly necessary to consider what in fact he purchased or what in fact was sold under the writ of Fi. Fa. in Suit No. 331/1940. The Notice advertising the Public ;\uction has been filed and marked SL2 and it follows the usual form in sales of this type of land and. advertises" The Right Title and Interest of Chief Akinlolu Oloto in the premises". (Chief Oloto defended the action for Defendant in his capacity as Head of the Ol<;>tofamily). One of the Plaintiff's witnesses has deposed that the present tenants and presumably their predecessor have never been dispossessed and the Oloto family have not been in possession of the buildings. It therefore follows that all that could be sold to the purchaser and a II he could purchase was the right of reversion of stool or family land to the family or their Chief and what has been described as usufructuary title .

.. Accordingly Plaintiff's claim for possession fails." .

The Plaintiff now appeals to this Court, contending first that the right, title and interest of Chief Oloto, which the Plaintiff purchased, included the right to forfeit the Defendants' right of occupation for misbehaviour, so that he, the Appellant, now possesses that right, secondly that to the defendant having impugned his overlords title committed a breach of his tenure under native law and custom and thereby forfeited all his rights in the property: the learned Judge was therefore wrong in holding the plaintiff's claim for possession fails,"

As to these contentions, in the. first place the Plaintiff's Statement of Claim set out no claim to have vested in him a right of forfeiture, nor did it aver that any actual forfeiture had in fact taken place. Plaintiff's Counsel contended that the claim in the writ to recovery of possession coupled with the averment in the Statement of Claim that frequent requests had been made for delivery up of possession and refused was sufficient to entitle him to ask theCourt to declare that Defendants' rights were forfeited and grant the prayer in the writ. We do not agree. It is obvious that the omission to plead forfeiture, if it is relied upon, violates the first principle of pleading that all material facts relied upon must be averred. It may be pointed out that if a party to a suit intends to rely upon a particular native law and custom, as for instance, the native law and custom as to forfeiture, that is a material fad which must be pleaded.

Surakatu. Lawani v. Jeminatu Esu Tadeyo 6- Anor. 39

In the course of his argument Counsel referred us to three i~r:::;u reported cases, viz.: Ashogbon v. Oduntan 12 N.L.R. p.7 Onisiwo v. and others v. Gbamgboye and others 7 W.A.C.A. p. 69, Eshugbayi Jeminatu

Chief Oloto u, Dawudu and others 1 N ..L.~. p. 58 .. In both t~e first ~s~:r~eyo

two of these three cases the plaintiffs specifically clauned a' _ declaration of forfeiture. The third was an action to recover Kingdon

possession. The pleadings (if there were any, and there probably c.j. were not) do not appear from the report, but the decision in plaintiff's favour was based on the findings" that the successors of the grantee" required to get permission from plaintiff to continue the use and that they never got such permission". Therefore even if there were any substance in the Appellant's contentions we should hold that he could not succeed on them since no issue as to forfeiture arose upon the pleadings.

But we are of opinion that there is no substance whatever in the contentions. So far as we are aware it is the first time that -it has ever been contended that sale of the right, title and interest of a Chief in land carried with it the right of the Chief to dispossess for misbehaviour those persons who had acquired a right of occupation during good behaviour. That would be carrying the matter far beyond the native law and custom governing it; it would, in fact, be entirely contrary to the fundamental ideas upon which native law and custom is based, namely the duty of the occupier to recognize the rights of his Chief. It is obvious that the Chiefs right of forfeiture is not an attachable interest. Further there is no such thing as automatic forfeiture; misbehaviour does not automatically involve forfeiture, it merely makes the CUlprit liable to forfeiture at the will of the overlord, which, nowadays, if resisted can only be enforced by reference to the Courts.

For these reasons we hold that there is no substance whatever in this appeal and it is dismissed with costs assessed at 15 guineas.

40 Akpan Udo Obong Inyang v. Akpan Akpan Udo Udo


Cor. KINGDON, GRAHAMPAUL, C.JJ. AND BAKER, J.

AKPAN UDO OBONG INYANG (SUB- STITUTEDFOR GEORGEINYANG OF IKOT OKU NSIT DECEASED) ... Plaintiff-Respondent

v.

AKPAN AKPAN UDO UDO (SUBSTITUTED FOR AKPAN UDO UDO OF IKOT ASAT DECEASED) ... Defendant-Appellant.

Civil Procedu1'e-Claim f01' decla1'ation of title and injunction- Reference to arbitratOl' to fix boundaries between two villages- ArbitratOl' not taking evidence but reviewing evidence before Native Courl-N 0 record of arbitration proceedings-Judgment as to boundarie« on arbitrator's report, including land not in claim- Judgment not dealing with issues in claim-Appeal.

In an action claiming a. declaration of title to certain land and an injunction the High Court made a consent order appointing an arbitrator to find the boundary between the respective lands appurtenant to two villages. The arbitrator without hearing evidence, reviewed the evidence given before a Native Court, visited the area' and checked plans; he submitted these with a report but without any record of proceedings before him. The High Court declined to determine the issue of ownership but gave judgment as to the boundary based on the arbitrator's report and an injunction regarding certain land shown on the plan attached thereto. On appeal :-

Held, that the consent order of reference did not limit the claim to fixing the boundary of the land in dispute.

Held also that the arbitrator's failure to take evidence and send a record of the proceedings before him was fundamentally wrong and vitiated the trial.

Held further, that subject to amendment of claim, the issues should be those appearing in the writ. .

Quaere whether it is appropriate to order arbitration 01), a ma.~ter in an action where it throws the burden in a land case on the arbitrator of taking a large part of the evidence for the trial of the action.

Appeal from a judgment of the High Court of Calabar.

L. N. Mbanefo for Appellant (Defendant).

C. W. Clinton for Respondent (Plaintiff).


This is an appeal from a judgment of the High Court delivered at Calabar on the 1st of December, 1942. The Plaintiff in this action sued as head chief of and representing the members

Akpan Udo Obong Inyang v. Akpan Akpan Udo Udo

of Nunubon Okukpa of Ikot Oku Nsit and the Defendant is the head chief of and represents the members of the Nunokubo house of Ikot Asat. The claim, which is of importance, reads thus :-

" The Plaintiff claims a declaration of title to all that piece and. parcel of land at Ikot Oku Nsit known as Ekpene Ukim and shown on the plan to be filed; also an injunction to restrain the defendant from building or otherwise using the said land and an order that the defendant do remove from the said land all buildings thereon put llP by them and or for such other order as to the Court may seem fit. II. The plaintiff also claims a declaration that for the reason that the review judgment of the Magistrate, Full Powers Magisterial Area, CaIabar, dated 24th day of September, 1937,being a nullity for want of jurisdiction and by virtue of the judgment of the Clan Couft.of Western Nsit dated .15th day of July, 1936 and the judgment of the said Magistrate dated the 1st day of July, 1937 the people of Ikot Oku Nsit are the owners of all that piece or parcel of land above described."

The course of the proceedings is a curious one. The action originated in the Native Court of Western Nsit No.1 in the Uyo Division of Calabar Province and on the 6th July, 1938, the suit was transferred to the High Court by the District Officer under section 25 of the Native Courts Ordinance. Plan and pleadings were ordered and on the 8th of March, 1940, when the case came up for hearing before Pearson, Assistant Judge, argument was heard 'with reference to a previous case before the Clan Court of Western Nsit between the same parties as a claim for possession of the same parcel of land in which judgment was given for the Plaintiffs on the 15th of July, 19.36: there was an appeal to the Magistrate Calabar who first upheld that judgment but subsequently reviewed his judgment and entered a nonsuit. The learned Judge held that the Magistrate could properly review his judgment, and the question of res judicata did not arise. The' record 'then reads ;-

.. Court: by consent of counsel, case is referred to the District Officer Uyo as arbitrator to find the boundary between the lands appurtenant to the village of Ikot Oku Nsit and Ikot Asat ".

The order was drawn up in these terms and the words " and

to make a full report on his investigation to this Court" were added.

We are not called on to decide whether or not this order was an appropriate one but it should be pointed out that it throws the burden in a land case upon the District Officer as arbitrator of taking a large part of the evidence for ,the trial of the action.

The report of the District Officer was dated the 3rd September, 1940, but for some reason which does not appear on the record it was not filed until the 14th of September, 19-i2. Two plans Exhibits " A" and "B" -the former put in by the Defendant the latter by the Plaintiff-and a full copy of the original proceedings of the case heard in the Asang Native Court were attached, but it does not appear that any record of the proceedings before the arbitrator was forwarded and no record of those proceedings has been before this Court or the High Court.

When the case next came up for hearing before Jackson .• Assistant Judge (Pearson, Assistant Judge, having left Nigeria) there was argument of Counsel as to the issue and upon what is

41

Akpan Udo Obong Inyang

v. Akpan Akpan Udo Udo Kingdon. C.J.

42 Akpan Udo Obong Inyang V. Akpan Akpan Udo Udo

Akpan Udo Obong Inyang

v. Akpan ' Akpan Udo Udo

Kingdon,

C.J.

I'

'called the Referee's Report ; Counsel for the Plaintiff claimed. .that the order made by consent determined the new issue and-asked for judgment in accordance with that Report. Counsel for the Defendant however contended that the order did not alter the ~sue and that the proceedings. before the Referee were irregular OR the grounds that :-

" (a) proceedings of Native Court upon which he relies had .been declared a nullity by the Magistrate's Court. .

"(b) for purpose of determining boundary it was necessary not only to read proceedings but to form an opinion on the veracity by examining the witnesses.'" '

No counter argument was offered to the submission with regard to' the- latter point in the Court below. .

The Court in giving judgment arrived at the conclusion that the order narrowed the issue to the question of what is the boundary between the 'two villages and held that there was nothing in' the report to suggest that the findings were arrived at other than by a careful and judicial consideration of the evidence. The learned Judge, who had previously held that upon the Referee's report he

~ was precluded without the hearing of further evidence' from , determining the issue of ownership of the Iand described in. the

plan, goes on to say:- .

" Upon the evidence before me, I, clearly, cannot grant any. declaration in the terms prayed for in the writIn 1:he absence of any evidence as to the limits of the whole perimeter of the land now in issue. But I can, and do enter judgment for the plaintiffs in the terms that the boundary between the villages of Ikot Oku Nsit and Ikot Asat is along a straight line drawn from point 'L' to point . B' and thence along the path to the point • K ' (as shown by the Arbitrator on the plan filed in Court and marked as • B '). I· do further grant to the plaintiffs an injunction to restrain the defendants, their agents or servants from entering into that land described on the plan

.as Ekpene Ukim. The plan. ' B' is to be filed in the Registry as a part of t1ti~record."

The grounds of appeal-are that the Court on its finding should have dismissed the claim as the writ had not been amended, and could not grant an injunction as the .boundaries had not been determined; that the learned Judge was wrong in accepting and in basing his judgment on the report of the Arbitrator as the

provisions o,f rule 9 of Order XXXVII of the Supreme Court Rules. had not been complied with. That rule applies by virtue of the'

provisions of Order XXVIII rule 2 of the Protectorate Courts Rules, 1934: Counsel for the Respondent sought to support the decision on the ground that it settled the whole. issue between the parties, that the proceedings before the referee were in order and that the area was sufficiently determined for an injunction to be granted.

It is clear that there was no' amendment of the writ and tliat the order by consent did not operate to limit the claim to the fPQng of the Northern boundary of the land in dispute: the claim remained one for a declaration of ownership of the land in dispute. and an injunction.

?nt;~g

Akpan Udo Obong Inyang v. Akpan Akpan Udo Udo

The proceedings before the Referee whose report shows the Akpan Udo

infinite trouble with which he investigated the matter, appear, so far as appears from tbe report, to have been limited to" reviewing" v.

the evidence adduced in the Native Court, visiting the area, and Akpan Akpan Udo

checking the plans and there was no other record before the lower Udo

Court of any evidence taken though the learned Judge accepted . the Plaintiff's word that the arbitrator heard evidence and recorded ~Jngdon.

it in writing. There are differences in detail between the two plans ..

Exhibits " A " and " B " which have not been reconciled and the declaration of the boundary granted involves areas not included in the claim.

We regard the manner in which the referee conducted his inquiry, namely his " reviewing" the evidence given by the witnesses in the Native Court instead of himself b.earing and recording their evidence in full and his failure to forward to the Court a record 9£ the proceedings before him and of any evidence he may have taken, as so fundamentally wrong that it vitiates the whole trial.

The appellant is entitled to attack the proceedings before the .referee, but he has not been able to do so, because they are non- existent. It is the duty of this Court to examine those proceedings in order to form an opinion as to whether or not the judgment of the Court below should be supported. This it has not been able to do.

These facts, coupled with the other unsatisfactory features of the case, namely the discrepancies between the two plans and the mistaken idea of the learned trial Judge that the _terms of reference changed the issues, make it impossible' to allow the judgment of the lower Court to stand.

The Appeal is accordingly allowed, the judgment of the Court below, including the order as to costs, is set aside, and it is ordered that if any sum has been paid in pursuance thereof .it shall be refunded. The case is remitted to the Court below to be reheard by a different Judge. At the rehearing the issues should be those appearing in the writ, subject to any amendment which may be allowed, and it is desirable that a fresh plan which satisfies the Court that it accurately shows the land in dispute should be filed. We can see no necessity for another reference. In our opinion, it is preferable that the Court should itself see and hear the witnesses and, if necessary, view the land and so form its own opinion on the facts.

The Appellant is awarded costs in this Court assessed at 35 guineas; the. co.sts hitherto incurred in the Court below shall be in the discretion of the trial Judge at the rehearing.

Appeal allowed. Judgment set aside. Case remitted for rehearing.

Okwara Eke Kalu 7 Ors. v. Rev. John Ijoma <5- -90rs.

Lagos, 31st January, 1944

Cor. KINGDON, GRAHAM PAUL, C.JJ., AND BAKER, J. 1. OKWARA EKE KALU

2. OKEREKE ONU

3. OKEREKE OCHA FOR THEMSELVES

AND FOR THE MEMBERS OF UTUTU

CHURCH OF SCOTLAND MISSION,

ARO DISTRICT Plaintiffs-Respondents.

v.

1. REV. JOHN IJOMA (PASTOR-IN-

CHARGE OF UTUTU CHURCH OF

SCOTLAND MISSION, (J;rUTU) AND

THE FOLLOWING ELDERS OF THE

SAME CHURCH, NAM'EI.Y:

2. KALU OKORI

3. NTO OKORI

4. NJOKU UKWEM

5. ELEM UKUM

6.IKPO KANU

7. GEORGE OKON

8. KORI MBORI

9.0KEREKE IKPO

10. ABA ADA Defendants-Appellants.

Claim for an Account-Rules 6 and 7 of Order XIII Protectorate Court Rules 1934 considered-Observations re final and Interlocutory Orders.

Held: An Order that an " Account be taken" is interlocutory.


A. Alakija for Appellants.

E. A. Akerele for Respondents.


The Plaintiffs by their Writ of Summons as amended claimed

in Hie High Court :-

1. That an account be taken of all monies received annuallv since 1927,

by the defendants on behalf of the' Ututu Church of Scotland Mission,

Utu tu, Aro District.

2. Payment of the' amount found (Itie to till' said Ututu Church on the taking

of such account.

The Plaintiffs made their claim expressly .. for themselves

and for the members of Ututu Church of Scotland Mission."

Okwara Eke Kalu 7 Ors. v, Rev. John Ijoma <5- 90rs,

There were no pleadings, but the very first plea of Defendants- Appellants' Counsel to the claim was" We dispute the Plaintiffs' right to sue." The contention was not upheld by the learned trial Judge in the Court below. The same contention is put forward in ground 6 of the grounds of appeal, and it is on this ground only that we have found it necessary to hear the parties. .

The Rules of the High Court provide how such a claim may be brought. The material rules are Rules 6 and 7 of Order XIII which are in the following terms :-

"6. Where a person has jointly with other persons a ground for

instituting a suit, all those other persons ought ordinarily to be made parties . to the suit."

"7. Where more persons than one have the same interest in one suit,

one or more of such persons may be authorised to sue or to defend in such

suit, for the benefit of or on behalf of all parties so interested."

The Plaintiffs have not disclosed -to the Court or to the Defendants either in their Writ of Summons, in their evidence, or in any other way a single name of a member on whose behalf the Plaintiffs sue. It is clear therefore that the Plaintffs are not proceeding under Rule 6. To bring their action within that Rule the other persons with whom the Plaintiffs claim to have a joint ground for instituting the suit must be made parties to the suit either by themselves or by their definitely and properly authorised agents or attorneys. .

Only one of the Plaintiffs gave evidence and he did not depose to being authorised by anyone to bring this action. Only two other witnesses were 'called by the Plaintiffs, neither of whom deposed that he had ever authorised the bringing of this acfion on his behalf. On the other hand Counsel for the Plaintiffs stated that nine elders (viz. Defendants Nos. 2-10) had refused to join the Plaintiffs. .

It is clear therefore that when the Plaintiffs' right to sue was challenged they failed to show any authorization to sue given either by the Court or by anybody else, so as to bring them within the scope of Rule 7 above quoted.

We hold therefore that this action brought in a representative capacity was misconceived in that the Defendants-Appellants' contention that the Plaintiffs could not sue in a representative capacity must be upheld more especially as the three Plaintiffs are not claiming the same interests as the other members whom they profess to represent. They are claiming that they-the three Plaintiffs-are entitled to receive the payment and therefore the control of all the Church moneys while the interest they claim for the other members is quite different and practically much less. The three Plaintiffs seek to get the money into their hands and each of the other members whom they profess to represent is to get, if the Plaintiffs succeed, only a somewhat vague and elusory right as some sort of a beneficiary with very undefined rights and powers as such.

Okwara Eke Kalu 7 Ora.

v. Rev. John Ijoma It 90rs.

Kingdon,

C.].

Okwa,a Eke Kal1~7 Drs. fl. Rev.John Ijoma 0- 90,s.

Okwara Eke Kalu 7 Ors.

v. Rev. John Ijoma &

Ors.

Kingdon. C.].

There is one other aspect of the case which should be mentioned, namely, the extraordinary position arising from the curious procedure adopted by' the Court below as regards the last nine Defendants. Before the trial of the suit began the Court below struck out these nine Defendants, awarding each of them costs, " as the claim disclosed no cause of action against them." Then, after the conclusion of the trial, the Court, by order apparently

ex proprio motu, rejoined these nine Defendants and in the same order the Court straightaway found that the Plaintiffs were.entitled to an account from the ten Defendants.

We may add, having regard to the learned Judge's ruling on the application for leave to appeal, that in our view the Defendants- Appellants were right to treat the Judge's Order as an interlocutory

one and to- appeal against it as such. The order did not at all deal with the claim in the writ for payment so for that reason it was not a final judgment in the suit. Moreover the claim as regards the account was not that the Defendants "do file an account" but that "an account be taken," so that the order to "file an account" was not "final" even on that part of the claim. Final judgment on a claim that an account be taken can be given only where the account has been filed and either agreed by the parties or settled by the Court if parties disagree.

,

The appeal is allowed, the judgment or Order appealed from set aside and in lieu thereof it is directed that a judgment of nonsuit be substituted: The Appellants are awarded costs in this Court assessed at 40 guineas and in the Court below to be taxed.

I

"

Chief Walter Bob Manuel, etc. v. Fred Quaker Dokubo

Lagos, 31st January, ~944

Cor. KINGDON, GRAHAMPAUL, C.JJ., AND BAKER, ].

CHIEF WALTER BOB MANUEL ON BEHALF OF HIMSELF AND THE BOB

MANUEL FAMILY OF ABONNEMA ... Plaintiff-Appellant.

v.

FRED QUAKER DOKUBO Defendant-Respondent.

Trespass to land-What is included in the purchase of a house.

Gladstone Bob Manuel bought at public auction right title and interest of Quaker Bob Manuel in a house.

Held: To say that he acquired a whole area of land thereby was wrong, the purchase of the house carries with it the right to occupy the area covered by the house at any rate so long as the house stands and the right of access to the house but was not effective to cancel other rights of occupancy to various parts of the whole area. 0

The facts are sufficiently set out in the judgments.

S. B. Rhodes for Appellant.

T. E. Nelson-Williams for Respondent.

The following judgments were delivered :-

KINGDON, C.]., NIGERIA.

There is a long history of litigation between the parties to this appeal. The Plaintiff-Appellant is the Paramount Chief of the Bob Manuel Family of Abonnema and the Defendant-Respondent is the Chief of one of the Bob Manuel sub-houses, namely, the Quaker "Bob Manuel House. The land with which the present appeal is concerned is a small area of Owusari land with a frontage of 118 feet to the Sombriero River shown edged red on the plan (Ex. B1 otherwise WBl) put in by the Plaintiff in the suit. This plan was not made for the purposes of the present suit, but for an earlier one in 1938 when the position of the parties was reversed. Sometime between 1902 and 1904 Owusari land was partitioned out, for sanitation purposes, amongst six Bob Manuel Houses. The area iTmv concerned fell to the Quaker Bob Manuel House.

The first litigation took place between 1918 and 1922 when Gladstone Bob Manuel (present Appellant's predecessor) representing the Bob Manuel Family sued Quaker Bob Manuel (present Respondent's predecessor) representing the Quaker Bob Manuel House in the Supreme Court. The case was heard by Green, J. and in his judgment of 23rd March, 1920 (hereinafter referred to

48

Chief Walter Bob Manuel, etc.

v. Fred Quaker Dokubo

Kingdon,

C.J.

Chief Walter Bob Manuel, etc. v. Fred: Quaker Dokubo

as "the Green judgment ") he sets out the dispute as being II whether Plaintiff or Defendant is entitled to the site upon which " Defendant has erected a large brick building".

He held" that no such right or title as defendant alleges was given to him by plaintiff or the Bob Manuel house when the Division of the land for the purpose of apportioning the duties to keep Owusari land clean was g-vi en.'

and the latter part of his judgment is as follows :- .. I am satisfied that plaintiff with full knowledge that defendant was

erecting the brick house in exercise of a right of building on the la?d in question which he claimed unreasonably stood by whilst defendant conb?ued to do so, and in equity is liable to compensate defendant for the expenditure which he incurred in building the house in question."

.. In the event of the parties not being able to agree, there must be an enquiry as to the amount reasonably expended to this date by defendant Quaker Bob Manuel in building the brick house erected by him on the land in question, and there will be leave for either party to apply to the Court to appoint a referee or referees with or without an umpire, and to fix the terms of reference for such an enquiry."

.. In the event of an amount being agreed upon in writing between the parties as compensation, or of the amount of expenditure of defendant as above mentioned being ascertained by the referees, then on payment of the sum so agreed or ascertained, the plaintiff shall be entitled to a declaration ill the terms claimed by him in the action and to recovery qf the said site together with all buildings thereon."

.. But if no amount can be agreed' upon between the parties and no· application for the ·appointment of a referee or referees has been' made to this Court within three months from this date, or if within three months from the date when an amount has been agreed between the parties or ascertained by the referees or within such further time as this Court may order-plaintiff has not paid into Court the sum so agreed or ascertained then in such case defendant shall assume or resume occupation of the said site of the brick house erected by him together with the portion 'in front of the house as far as the river and the appurtenances thereto belonging and hold the same upon the same terms and conditions of native law and customs as if he had applied to and received from plaintiff permission to occupy and build upon the same site for the use of himself; his house members and successors.

No amount was agreed upon as compensation, and no referee was ever appointed and. no sum was ever paid by way of compensation, so that the Defendant resumed occupation in accordance with the terms of the judgment. The Defendant however appealed against the Green judgment to the Full Court. That Court dismissed the appeal on the 18th January, 1922, pointing out that the Defendant Appellant II has been well treated and has got the right to occupy the land in dispute subject to Native Law and Custom and will be able to complete his building thereon which was all he could possibly claim."

In 1924 Quaker Bob Manuel became a judgment debtor and his right title and interest in a building was sold by public auction and bought by Gladstone Bob ~anuel. The Public Notice advertising the sale was in the following terms :-

.. IN RE COMPANY OF AFHlCAN MERCHANTS, ABONNEMA

versus

CHIEF QUAKER BOB MANUEL OF ABONI\EMA

.. Notice is hereby given that the two storied brick building situate in Abonnema and belonging to Chief Quaker Bob Manuel, will be sold by public auction after fourteen da ys from the date of this Notice in execution:


of the decree of the Supreme Court against the above-named Chief Quaker Chief Walter Bob Manuel. in accordance with Supreme Court Ordinance Order 45 Section Bob Manuel. 27, etc. Sequitur. etc.

.. Dated this 15th day of May, 19:?-l .

.. DRGEM.-\."

Sgd. J. COOK

Acting A.D.O. for District OfficI'T.

v. Fred Quaker Dokubo Kingdon, C.J .

and the certificate given by the District Officer was as follows :-

., This is to certify that under a Writ of Fi. Fa. granted by His Honour J udge Webber in the Divisional Court one house built of brick and corrugated iron situated at Abonnema waterside and immediately outside the land occupied by the Company of African Merchants was sold on June 2nd to Chief Gladstone Bob Manuel for two hundred pounds.

4 .. The said Chief Gladstone Bob Manuel has thereby acquired all the right title and interest therein formerly held by Chief Quaker Bob Manuel the Judgment debtor.

DEGEMA

16th June, 1924.

(Sgd.) F. B. ADAMS

District Office,."

Subsequently the house was transferred to Anthony Karibi Bob Manuel.

Early in 1938 the house was blown down in a tornado, whereupon Anthony Karibi Bob Manuel started to rebuild it. The present Defendant-Respondent (who had by that time succeeded the deceased Quaker Bob Manuel as head of the Quaker Bob Manuel House) thereupon, in his capacity as such head, commenced a suit in the Native Court of the Judicial Council of Kalabari against Anthony Karibi Bob Manuel and Chief Walter Bob Manuel (the present Plaintiff-Appellant) as head of the Bob Manuel House in which position he had succeeded Gladstone Bob Manuel. That suit was transferred to the High Court and tried by Pearson, Asst. J., in 1939. In that suit Fred Quaker Dokubo clearly laid claim to the land edged red in Ex. B1 as his and Pearson, Asst. J., in a judgment dated the 8th March, 1939 (hereinafter called the Pearson judgment ") gave him judgment. Against that judgment the two Defendants in the case appealed to this Court. On the 2nd November, 1939, this Court (constituted entirely differently from its constitution today) allowed the appeal and entered judgment for the Appellants stating that the effect of the Green judgment was to give Fred Quaker Dokubo a right of occupancy under native law and custom only. That judgment is hereinafter referred to as the West African Court of Appeal judgment.

That dictum of course is not strictly accurate; it should have said "to give Quaker Bob Manuel, the privy of Fred Quaker Dokubo, a right of occupancy," etc.

4

52


'Chief Walter Bob Manuel, etc. v. Fred Quaker Dokubo

Again he says "The shed is the only building on the land

now" and immediately afterwards refers to one shed built by the

v.

Fred Quaker Dokubo

. Kingdon, c.j.

Defendant and to other sheds from which he alleges the Defendant is still collecting rents. Small wonder that the learned trial Judge attached little credence to his evidence. But apart from the contradictions it is noteworthy that the Plaintiff-Appellant gives not a little of evidence to support either of the two allegations in paragraph 4 of his Statement of Claim viz.: (1) that the Defendant had erected a house on the land, and (2) that the Defendant had collected land rents from wood splitters on the said land, instead he introduces a fresh alleged act of trespass, viz.:-The collection from traders of rents for sheds. Since this alleged act is not pleaded it cannot be founded upon.

Apart from his own unconvincing evidence the Plaintiff-Appel- lant called only one other witness to give evidence as to the alleged acts of trespass, namely his predecessor Gladstone Bob Manuel. He said:-

.. There is now one shop on the plot owned by one Sokari. It was built after the sale of the t>uilding, I bought. Sokari went to Chief Walter (the plaintiff) and f(ot his permission. Quaker defendant's father lived about eight years after his house which I bought at the auction was sold. During these eight years he never came back and exercise rights of occupancy over the land. The present defendant Quaker's son, started to exercise rights of occupancy six years after Quaker died. The defendant instituted proceedings against the present plaintiff claiming the land. He also put up a long building of bamboo near the brick building; he was prosecuted and fined and the building demolished.

.. By COUl't: It was demolished and he was fined because the defendant did not comply with the Township Building Regulations. After Pearson, l:s judgment he also started to collect rent from three sheds erected by the present plaintiff. At times the plaintiff collected £1 or £1 5s. The defendant himself put up sheds and rented them. The rent which plaintiff has been collecting belongs to the Family. Quaker never lived in the house I bought; it is still uncompleted.

and in cross-examination :-

.. Karibo is a son of Quaker; he built a shop on the land; it was erected long before Green, ]'s. judgment. Sokari is a member of Quaker's house; he was given permission from the Plaintiff to build. There were not any bamboo sheds besides the shop on the land Quaker built his house on. Defendant collected rents from persons who brought wood for sale to the land. I can't remember Quaker, defendant's father, collecting rents".

He also failed to give any evidence as to the Defendant erecting a house on the land" acting under" the Pearson judgment. And now what is the evidence of the Defendant-Appellant and his witnesses. The Defendant-AppelJant himself says :-

"Under Green, l.'s judgment my father had the right to occupy the area on \V.B.l edged in red. He allotted portions of it to Karibo Quaker, Sokari Quaker and myself; Karibo and I are his sons, and Sokari a member of his house. He did this in about 1916. Karibo put up a shop and store on his portion; he also erected a wharf; he was a big trader, Sokari built a bamboo house on his portion; he demolished it and put up a brick building. I also put up bamhoo sheds which are still there. I did not give Sokari permission. The shop Karibo put up was erected on the site 'which was later used for the brick building which figures in the case before Green, 1. This building was also put up by Quaker. The house was sold; my buildings

Chief Walter Bob Manuel, etc. v. Fred Quaker Dokubo-

and Sokari's buildings were not sold. The house was bought by plaintiff and another shop was bought by one Wariwest. After the sale of the house and the shop. I and Sokari continued to occupy our portions. I was never disturbed in my enjoyment of my portion by the plaintiff nor was Sokari ; the plaintiff' never demanded rent from me, I never paid rent to anyone .

.. All buildings marked green in W.B.l were put up by Karibi ; I have never collected rents from the ferry house (N.\V. of W.B.l). I put up some bamboo sheds before 1931}and I've been collecting rents for them and still do so i.e. those on S.W. corner of \V.B.l. The plaintiff never interfered with Sokari's house or plot up to 1939; his house is the one opposite the Ferry house. The plaintiff has never disturbed me in my ferry service which I started before ] 932 nor tried to stop me.

.. Paragraph 4 of Statement of Claim is not right; I never put up any house. I collected rent from my tenants and from wood splitters .

.. I started school in 1911: I am 42 years old. I first put a building on this plot in 1916 about. I spent most of my t ime in Lagos. In 1916 J was 16. I left school in J 919; I then traded in Abonnerna. I went back again to school in 1922 and left in 11124; I again traded. I then joined the Government in 1927 and resigned in 1930. My father paid my school fees. On the plot now there are only one shed erected by Karibi, the uncompleted building which was bought by plaintiff. and Sokari's shop. The latter was built before Quaker, my father died. These are the only three permanent buildings on the land ".

It does not appear that there is any inconsistency between his statement that he put up bamboo sheds which are still there and his subsequent statement that three other buildings are the only three permanent buildings on the land. He evidently regards bamboo sheds as non-permanent. It will be seen that the Defendant-Respondent claims to have been in possession and occupation of a certain portion of the area edged red in Ex. B 1 ever since it was allotted to him by his father in pursuance of the Green Judgment i.e. after 1920. His claim to have first erected a building on the plot in 1916 cannot be taken seriously.

He admits putting up bamboo sheds before 1939 and collecting rents from them and that he is still so collecting, and he admits collecting rents from wood splitters; but denies putting up a house. He denies ever having been disturbed in his enjoyment of his portion by the plaintiff (i.e, of course, till this action was brought).

In support of his evidence Sokari Quaker Bob Manuel stated :-

.. I know the land in this case. Quaker built on it and gave a portion to his son Karibo : and a portion to me. and also the defendant in this case. I built a house on my share: the first was of bamboo: J lived in it: later I removed it ann put up a brick building: it is now rented by me; and I collect rents. I did not go and get permission from plaintiff. 1 was never disturbed by any member of the plaintiff's family. I remember a case in ] 920: I had built my house before then. There is a shed erected by defendant: it is now rented. Karibo built the brick house which was sold and bought by plaintiff: the latter never interfered with me, and never asked me to quit. I pay him no tribute ...

and in cross-examination :-

.. I never attended a meeting of the plaintiff's family at which 1 asked for permission. If a man wants land belonging to Bob Manuel family. he must ask the permission of the Head of the Bob Manuel family. I would sell it now for £300: I did have money before 1920 to put up the bouse. I was not a canoe boy.

53


v, Fred Quaker Dokubo Kingdon. C.].

ClUe! Walter Bob Manuel, etc. v. Fred, Q~aker Dokubo


" An incompleted building is now on the plot Karibo was given by Quaker.


Kingdon, C.J.

" Fred, the defendant has gat sheds on his portion of the land given him by Quaker. .

" There is nothing on the 'land now which belonged to Quaker except the uncompleted brick building."

It is abundantly clear that according to the evidence of the Defendant-Respondent and his witness, Sokari, any acts. done upon the land or in connection with the land were done before the Pearson judgment in 1939 or are a mere continuance of acts done before that date. There is a repudiation of any fresh act done" under" the Pearson judgment. The learned trial Judge accepted the evidence of Defendant-Respondent and his witnesses, . and, so far as it is possible to judge only from the record and from argument of Counsel, I should certainly have done the same.

That appears to me to decide the case, the Plaintiff-Appellant failed to prove his case and his claim was very properly dismissed

But since we have listened to argument at some length upon matters which appear to me to be not strictly relevant to the issues in this case, I think it desirable to place on record my views as ~iliem. .

In his argument in this Court, Plaintiff-Appellant's Counsel, realizing, no doubt, that he could not possibly succeed upon the terms of his pleading namely to establish a trespass committed under the Pearson judgment, fell back upon the contention. that the Defendant-Respondent had long been a trespasser on the land and never had any right of occupation: This in my view is merely a belated attempt to re-open a very old question, long decided in Defendant-Respondent's favour. The whole of the Appellant's grounds of appeal, are in my opinion, irrelevant to the real issues before the lower Court and before this Court.

To establish the Defendant-Respondent's right of occupation,

it is unnecessary, I think, to go back further than the -Green judgment of 1920, though if the pleadings alleged acts of trespass prior to the Pearson -judgment no doubt the Defendant-Respondent would seek to show that he or- his privy was'in lawful occupation long before 1920, It is perfectly clear that upon the expiration of three months from the date of the Green judgment, when no agreement had been reached and no referee appointed, Quaker Bob Manuel became ill lawful occupation of the whole area edged red in Ex. Bl. The suggestion of Ap.pellant's Counsel that the purchase of the building at a public auction some four years later was payment of compensation under the Green judgment is too absurd to be taken seriously. In the 1938-39 suit it was" common ground that no compensation was in fact paid,", (the West African Court of Appeal judgment). From the 23rd June, 1920, at any rate; Quaker Bob Manuel had the right to occupy and build upon

~~-auakor

Chief Walter Bob M,anuel, etc. v. Fred Quaker Dokubo

the site and to enjoy it for the use, of himself, his house members ~-bfMWa1~

and successors. The present Defendant-Respondent is within etc.- anu,

those- categories. But as to this I agree with the .view that the v. Green judgment does not of itself give to the present Defendant- Respondent any rights of which Qu~ker Bob Manuel could not 0_

be divested during his life-time and I 'agree with ground 1 of the KingdoD,

grounds of appeal that- C.] .

.. The learned trial Judge has wrongly interpreted the words" for the use of himself, his house members and successors ,. .Jn Mr. Justice Green's judgment ".

The particular passage in' this judgment to which I and ground 1 refer is as follows :-, '

..It is plain from Green ]'S judgment that Quaker .was not the sole grantee, if one may use th'at word: (and much of the evidence given and called by the plaintiff, is relevant only if the grantee were {he sole grantee) the site of the building and the land appurtenant were to be held and enjoyed as if they had been granted-In accordance with native law and custom" for

the u~e oJ himself, his house-members and successors," The defendant claims to be Quaker'S successor-he is in fact his son-and in consequence has 'his own right of occupancy quite distinct from his father's and that this right has not' been lost because a house on the land has been sold, and that he is still entitled to occupy in accordance with Kalabari native law and Custom."

But, although' the Green judgment did not of itself give the Defendant-Respondent rights of occupancy, it did .enable Quaker Bob Manuel to confer rights upon his house members and successors,

and the evidence, accepted by the learned trial Judge is definite that Quaker .Bob Manuel !( allotted portions" to Karibo Quaker, Sokari Quaker, and the Defendant-Appellant. J~ my view it is beyond question that when the Defendant-Appellant went into occupation of the portion allotted to him he did so lawfully, and that nothing has happened since. to deprive him of his right of occupation. -

I do not accept the contention that he lost his right when Gladstone Bob Manuel bought at public auction the right, title and interest of Quaker Bob Manuel in the house; I think the view that that purchase bought out, as it were, all the rights of Quaker Bob Manuel not only to the house but also to the whole area of land edged red in Ex. Bl (rights which he had acquired by virtue of the Green judgment) is wrong. Pearson Asst. J.'s view of the effect of the sale was expressed in the Pearson judgment as follows :-

"In West Africa, buildings-fabric-do not attach to the realty, but remain distinct from it. as chattels. I hold that on that sale, only the fabric passed to the Defendants and not the ,land. or any property therein."

and he was not overruled on appeal on this point.

The view' of Manson, Asst. J., the trial Judge in the present case, is the same. He says" it was the house and the house alone which was sold and any" existing rights over. the land were unaffected ".

Chief Walte, Bob Manuel, etc. v. Fred Quake, Dokubo

~:fMWal~r I think that this view expressed in the last two quotations etc. anue, goes too far in the opposite direction. The purchase of the house

v. must have carried with it at least the right to occupy the area ~~auaker covered by the house (at any rate, so long as the house stood) and

o the right of access to the house, though not, in my view, effective Kingdon, to cancel other rights of occupancy to various parts of the whole C.J. area.

However this may be, it is now for the first time that the contention is put forward that Defendant-Respondent owing to the sale in 1924, lost any right of occupancy he may have had whether as allottee of Quaker Bob Manuel or as successor of Quaker Bob Manuel. The Plaintiff-Appellant did not put forward such a contention in his defence in the 1938-39 litigation, and the evidence is overwhelming that it is only now that he has sought to interfere with the Defendant-Respondent's quiet enjoyment of the portion of the property in his occupation. The Plaintiff- Appellant did not even treat the action brought by the Defendant- Respondent in 1938 claiming ownership as a cause for forfeiture; he was content to establish his own ownership (which the Defendant- Respondent does. not now contest) and to rebut the present Defendant-Respondent's claim to possession of the whole area, even the area then in occupation of the present Plaintiff-Appellant, a claim which the Defendant-Respondent no longer makes. So far as appears the Plaintiff-Appellant has never before complained of the use the Defendant-Respondent has made of the portion in his occupation, not even of his collecting rents from tenants and wood-splitters. Obviously if the question of the lawfulness of the Defendant-Respondent's occupation and acts prior to the Pearson judgment had been put in issue by the Statement of Claim in this case, the Defendant-Respondent could properly have pleaded long possession, laches and acquiescence, and, in view of the trial Judge's acceptance of the evidence for the defence, those pleas must have been upheld.

I think, however, that the learned trial Judge goes too far in his judgment when he says" As I hold that the defendant has a right to occupy this land (edged red in Ex. Bt), no question of trespass can arise," and again, " The plaintiff must allow defendant free and uninterrupted access to and full enjoyment of this land." That is to give to the Defendant-Respondent more than he is entitled to, and more than-he alleges he is entitled to.

The Defendant-Respondent does not now claim a right of occupancy to the whole land edged red in Ex. Bl but only to a portion thereof and he denies that he has been guilty of any act of trespass by the use to which he has put the portion of which he is in occupation. It is sufficient for the purposes of this suit to uphold this denial and to hold that the Defendant-Respondent has not committed trespass as alleged by the Plaintiff-Appellant and that consequently the Plaintiff-Appellant is not entitled either to damages or to an injunction and his claim fails and is dismissed.

etc.


For these reasons, and subject to the observations in the last Chief Walter

two preceding paragraphs, I am of opinion that the appeal should Bob Manuel.

be dismissed.

GRAHAM PAUL, CHIEF JUSTICE, SIERRA LEONE.


As I find myself in respectful disagreement with the learned Graham

trial Judge and with my learned brethren in this Court I find it Paul .. C.J. necessary to express my views at considerable length.

The Plaintiff-Appellant is the head of the Bob Manuel Family and sued as such on behalf of the family. The Defendant- Respondent belongs to a branch of sub-house of the Bob Manuel Family known as the Quaker Bob Manuel Family which has its own land separate from that of the Bob Manuel Family's. This suit was brought in the Kalabari Native Court but was transferred to the High Court where pleadings were ordered. The Appellant by his writ and Statement of Claim claimed damages for trespass committed by the Respondent on the Bob Manuel Family land; the trespass alleged being the erection of a shed or house and collecting land rents from wood splitters on the land in question. The Plaintiff-Appellant also claimed an injunction.

TJIf~Defendant's case by his Statement of Defence paragraph 5 is as follows :-

.. Defendant will plead he is rightfully possessed of the portion of the

land in dispute occupied by him and that such occupation was previous to

the judgments referred to by plaintiff and is in accordance with the judgment

of the Supreme Court of the 23rd March, 1920 in a suit between Gladstone Bob Manuel uersus 9uaker Bob Manuet, defendant's predecessor."

By his Statement of Defence the defendant also pleaded that the plaintiff was not the head of the Bob Manuel Family and that the suit which started in the Kalabari Native Court was not by the order of transfer properly before the High Court, but both these points were abandoned by the defendant at the outset of the trial.

It is clear from the evidence at the trial that the origin of the dispute about this land was a Government-inspired sanitation scheme of about forty years ago under which the Bob Manuel Family land for the purpose of clearing bush, etc., and for that purpose alone, was divided into six parts so that each sub-house would attend to the Government health requirements in regard to a portion of the Bob Manuel Family land.

~he land now in question is ~ithin the portion for the clearing of which the present Respondent s sub-house was made responsible under that scheme. Some 17 or 18 years after that sanitation scheme the present Respondent's father Quaker Bob Manuel built on this portion of the Bob Manuel land, and in consequence in 1920 the then head of the Bob Manuel House on behalf of the Bob

Manuel Family brought an action in the Supreme Court against Quaker Bob Manuel for a declaration of title and recovery of possession of the land in question.

&8


v.

Fred Quaker Dokubo

Graham Pa.ul, C.J.


In that suit Quaker Bob Manuel pleaded that the terms of

the health scheme division of land were that each of the Chiefs of the sub-houses should acquire on behalf of himself and his own members an absolute title to the piece of land apportioned to him, it having been given to him outright. He further pleaded that if no such absolute right to the land had been given to him by the head of the Bob Manuel House yet that the head of the Bob Manuel House stood by and allowed him to go to the very great expense incurred in erecting the building in question; and that it would be inequitable that the head of the Bob Manuel House should reap the benefit of this expenditure and that he was estopped in equity from recovering the land unless he recompensed the then defendant.

The Court in that case was satisfied on the evidence that no such right or title as Quaker Bob Manuel alleged was given to him - by the Bob Manuel Family by the health scheme division, but the Court was also satisfied that the head of the Bob Manuel Family with full knowledge that Quaker Bob Manuel was erecting the building then in question, in exercise of a right claimed by him of building on the land in question, unreasonably stood by whilst Quaker Bob Manuel continued to do so, and that the head of the Bob Manuel House was by English principles of equity liable to compensate Quaker Bob Manuel for the expenditure' which he incurred in building the house in question. .

Upon that basis the judgment ofthe Supreme Court (Green, J. on 23rd March, 1920) proceeded as follows :-

In the event of the parties not being able to agree, there must be an enquiry as to the amount reasonably expended to this date by defendant Quaker Bob Manuel in building the brick house erected by him on the land in question, and there will be leave for either party to apply to the Court to appoint a referee or referees with or without an 'umpire, and to fix the terms of reference for such an inquiry .

.. In the event of an amount being agreed upon in writing between the parties as compensation, or of the amount of expenditure of defendant as above mentioned being ascertained by the referees, then on payment of the sum so agreed or ascertained, the plaintiff shall be entitled to a declaration in the terms claimed by him in the action and to recovery of the said site together with all buildings thereon .

.. But if no amount can be agreed upon between the parties and no application for the appointment of a referee or referees has been made to this Court within three months from this date. or if within three months from the date when an amount has been agreed between the parties or ascertained by the referees or within such further time as this Court may order-

.. Plaintiff has not paid into Court the sum so agreed or ascertained then in such case defendant shall assume or resume occupation of the said site of the brick house erected by him together with the portion in front of the house as far as the river and the' appurtenances thereto belonging and hold the same upon the same terms and conditions of Native law and customs as if he had applied. to and received from plaintiff permission to occupy and build upon the same site for the use of himself, his house members • and successors."

Chief Walter Bob Manuel, etc. v. Fred Quaker Dokubo 59

Quaker Bob Manuel appealed to the Full Court against the Chief Walter

judgment of Green, J. The Full Court dismissed the appeal on eBtoc.b Manuel,

19th January, 1922 and the judgment of Green, J. therefore stands v.

and is founded upon by both the present parties who are respectively Fred Quaker

the successors of the parties in the 1920 case. Dokubo

I find myself in agreement with the learned Judge when he ·~:ttJ. said in his judgment: "This case is decided, as it must be, upon the particular words of the grant in Green J. 's judgment where house members are mentioned specifically" but I regret that I must definitely part company with the learned Judge in his construction of that judgment of Green J. and I therefore find it necessary to consider that judgment at some length.

The first point to note about that judgment is that it is based fundamentally not on native law and custom at all but expressly on the English principles of equity. Quaker Bob Manuel in that case had a two-fold defence: (1) that he, was the absolute owner by virtue of the health scheme of division. That part of his defence did involve native law and custom but it was completely rejected by Green, J. in his.judgment so that Quaker had to fall back on (2) that the plaintiff was "estopped in equity from recovering the land unless he recompenses the defendant." This part of the defence was not based on native law and custom at all but on English principles of equity and Green, J.' upheld this part of the defence which was the basis of his judgment.

It is important to observe that apart from the English principles of estoppel (which have no place in native law and custom) as applied in the Green judgment neither Quaker, nor any member of his family, nor any of his house members, nor any successor could claim any right title or interest whatever in the land in question. What then was the effect of the Green judgment as regards Quaker, his children, his house members and his successors ?

First of all, as to the children or house members. To my mind it is absurd to suggest that by virtue of the Green judgment any separate individual right title or interest in the land vested in any one of Quaker's children or his house members. That would be contrary to the whole tenor and reasoning of the judgment. Under the judgment, if the owners of the land, the Bob Manuel Family, paid to Quaker what he Quaker had spent on the land they were to get an order for possession of the land " together with all the buildings thereon." It was never suggested that any of Quaker'S children or any house members had any right title or interest in

the land for which compensation was to be paid. It was never suggested that anyone other than Quaker himself - was entitled to the benefit of the English principles of estoppel; and Quaker claimed and obtained from-the Judge the benefit of these principles in regard not only to the structure of the house he built but also

60 Chief Walte, Bob Manuel, etc. v. Fred Quaker Dokubo

Chief Water, as an incident of his right title and interest in the house, these Betoc.b Manluel

~re: aUaker

prm. Cl.p Ies were exten ded b. y t h e J udge to cover' "ht e por tiIOn 1. 0

That defined the right title and interest of Quaker

v. front of the house as far as the river and the appurtenances thereto belonging." in the house he had built at his own expense. It is most important

o u

Graham to note that it was only because of, and in respect of, Quaker Paul, C.J. having built the house that Green]. gave him any right title or

interest at all, that is to say that the right title and interest of Quaker as defined in the Green judgment were his right title and interest in the house.

It is true that Green, ]. said that Quaker was to " assume or resume possession" of all that land .. as if he had applied to and received from the plaintiff permission to occupy and build upon the said site for the use of himself, his house members and successors." In adding that to his " grant" Green, ]. was in my view simply ensuring that Quaker would not get any higher right over the land than that given by the ordinary well-known and judicially recognised tenancy under native law and custom, namely that the occupation was to be confined to himself, his family, his house members and successors and that he could not put strangers on the land-the right to put strangers on the land or collect rents being the well-known right of the absolute owner and not of the tenant under native law and custom. This is fundamental and recognised throughout West Africa.

After the Green judgment there was nothing to prevent Quaker moving himself, his family and his house members away from the land. He could sell his buildings subject again to the condition that if he sold to a stranger such stranger would get only the structure of the buildings, which he would have to remove unless he got permission of the Bob Manuel Family to occupy them. If he sold his rights to the Bob Manuel Family of course that point would not arise.

Here I may say that I disagree with the learned Judge when he said: "It is plain from Green]. 's judgment that "Quaker was not the sole grantee if one may use that word." In my view Quaker was the sole" grantee" under the Green judgment, and the learned] udge was in my opinion wrong to reject as he expressly did, "much of the evidence. given and called by the plaintiff" as irrelevant on the ground that it was relevant only if Quaker was the sole grantee." Quaker in my view was under the Green judgment the sole grantee of the ordinary tenancy under native law and custom, the" grant" being restricted in the usual way.

I find it impossible to accept the suggestion that by virtue

of the Green judgment a schoolboy son of Quaker acquired any right title or interest in this land separate from or independent of his father's right. That however is one of the suggestions put


forward by the present Respondent, and the Judge-wrongly Chief Walter

in my view-accepted it, though at the same time apparently eBtco.b Manuel,

accepting the inconsistent suggestion that the Respondent was a v .

.. successor" of Quaker. ~~~auaker

So much for the children and house members of Quaker. But G h- what of the" successors"? The learned Judge in his judgment p~~/t.J. said :-

.. The defendant claims to be Quaker's successor-he is in fact his son- and in consequence has his own right of occupancy quite distinct hom his father's and that this right has not been lost because a house on the land has been sold, and that he is still entitled to occupy in accordance with Kaiahari native law and custom ".

To my mind that passage shows a serious confusion of thought. The Respondent, as his father'S successor, manifestly could not acquire any right title or interest until his father's death. If his father, instead of allowing his creditors to attach and sell all his right title and interest in this land as given to him by the Green judgment had retained that right title and interest up to his death the Respondent would 9'~/doubt have succeeded to such right title and interest. I

It is the moment of Quaker's death which is the material time for investigating what, if anything, there was for Quaker's successors to succeed to. In my opinion the learned Judge was wrong in holding as he did in the passage just quoted that the Respondent as his father's successor obtained a " right of occupancy quite distinct from his father's. On the contrary, as the " successor" of his father he could take no other right than his father's. And if, as I propose to show, Quaker before his death had been divested of all the right title and interest which by the English principles of equity he had obtained under the Green judgment (as expressly defined in the Green judgment) then there was no right title or interest left in Quaker for the Respondent to succeed to.

In 1924, when the Respondent was still a schoolboy; by a sale by public auction under a writ of Fi. Fa. and Certificate of Purchase Gladstone Bob Manuel on behalf of the Bob Manuel Family acquired all the right title and interest formerly held by Quaker (the judgment debtor) in the house which he built. Quaker at this time was still alive so nothing had then passed to his " successors ".

It is perhaps relevant here to emphasize that what was sold under the Writ of F i . Fa. was all the right title and interest formerly held by Quaker in the building. Sale of real property under a writ of Fi. Fa. is not of course possible under English law, and in Nigeria such a sale is governed by our Rules of Court under which it is the right title and interest of the -judgment debtor in the property which is sold. This fundamental fact is continually being overlooked and cannot be too emphatically stated.

!:~

62 Chief Walter Bob Manuel, etc. v, Fred Quaker Dokubo

Chief Walter The learned Judge clearly in my view misdirected himself Manuel, on this very point when he said in his judgment :- v.

Fred Quaker Dokubo

Graham Paul, C.J.

.. There has been argument in this action as to what exactly w~ &ild-' whether the whole site of the house and the house or the house only. I have no doubt at all that it was only the house, the structure, which was sold. This is plain from the Certificate of Sale of the District Officer and the receipt for the money" .

From that passage it is apparent that the 'learned Judge ignored altogether that it was all the right title and interest of Q~aker in the house that had been sold.

It is to my mind absurd to suggest that where the titular

owners of the land bought at the Fi. Fa. sale all the right title and interest of Quaker they did not acquire all that right title and interest as the same had been expressly defined in a suit to which

. both they and Quaker were the parties. I cannot bring myself to agree that when they bought all the right title and interest of . Quaker they acquired only a right to the t t structure," that is to say to only a small part of the right title and interest of Quaker as defined in the judgment to which Quaker and they were parties. In fact in estimating the value of Quaker's right title and interest and buying at the Fi. Fa. sale the' Bob Manuel Family were entitled to rely on the definition of that right title and interest in the Green judgment.

The next important part in the history 'was the death of

Quaker which happened in 1932, that is eight years after the Bob Manuel Family had acquired all the right title and interest which Quaker had obtained on 'this site by the operation of the English principles of equity against them in the Green judgment.

The next step was a most important one, the importance of which was in my opinion not adequately realised by the learned Judge. The present Respondent in 1938 brought a suit against one Anthony Karibi Bob Manuel and the present Appellant, claiming damages for trespass and an injunction in regard to the same land., The ease was brought in' the Kalabari Native Court but was transferred to the High Court by the District Officer "Since the plaintiff states (1) the title was determined in a judgment of the Supreme Court in 1920 and confirmed by the Full Court therefore the case is too full of legal points for the Native Court to settle satisfactorily".

In that suit by his Statement of Claim the present Respondent quite blatantly resuscitated the false' elaim of title based on the. 1904 health scheme division. It is clear that the' plaintiff claimed to be titular owner (and as successor in title of his father as head of the Quaker Bob Manuel House) of all the land marked with a red border in the plan W.B.I. In spite of the fact that the defendant in that suit pleaded res [udicata 'and that both parties expressly relied on' the 1920 judgment of Green, J. the High Court (Pearson, J.) gave judgment for the present Respondent in that


suit. On appeal that judgment was very properly set aside by this Court which held that Pearson, J. had completely misunderstood the nature of the plaintiff's claim which was based 'on the assertion that the land in question was the absolute property of his branch of the family. This is precisely the same issue as was 'litigated in 1920 ".

In giving judgment this Court said :-

" It is common ground that no compensation was in fact paid and the effect of the judgment was therefore to give the defendant (the present plaintiff) a right of occupancy under native law and custom only".

63

Chief Walter Bob Manuel. etc,


Graham Paul. C.].

As the question of the" right of occupancy II was not in issue before Pearson, J. that passage of this Court's judgment was <1f course obiter dictum. But it was also most materially inaccurate as it expressly proceeded upon a serious mistake of fact namely that the defendant in the 19~O suit was the plaintiff-respondent in the 1938 appeal. In the passage quoted the words It (the present Plaintiff) II were just absolutely wrong. No one doubts that the defendant in the 1920 suit-got It a right of occupancy under native law and custom only" but that defendant was Quaker Bob Manuel and not the present Respondent. In my respectful opinion that inaccurate obiter dictum was most misleading and unfortunate

and by its mistake of fact begged the whole question in the present case. '

The important point about the 1938 suit brought by the Respondent is that in it he based his claim to all the land edged red in W.B.l on the title acquired by his predecessor Quaker

Bob Manuel as head of- and representing the Quaker Bob Manuel House to which he the Respondent had succeeded on Quaker'S death-not a hint or suggestion that any right to any part of the land 'had been acquired. by the Respondent as an individual during the lifetime of Quaker Bob Manuel. The learned Judge in the Court below in considering the evidence did not, I think, fully appreciate the significance of the Respondent's express attitude in the 1938 suit which to my mind 'makes it impossible to believe in the truth or bona fides of the story he now puts forward.

I find myself quite unable to accept or even to treat seriously, the suggestion, now for the first time put forward by the Respondent, that before the sale in 1924, at a time when he was a school boy, he acquired for himself individually any right title

. or interest whatsoever in any. of the Bob Manuel Family land or that he is now rightfully' in occupation of the Bob Manuel Family land. He does not plead in his defence ownership by long possession, acquiescence by the Bob Manuel Family, or estoppel in any form. He bases his defence on his rights under the judgment of Green, J. in his Statement of Defence, and in his evidence he seeks to eke out that plea with the inconsistent statement that at some unspecified time after the Green judgment Quaker

64: Chief Walter Bob Manuel, etc. v. Fred QlI,aker Dokubo

Chief Walter .. allotted" a portion of the land to him. This extraordinary Bob Manual, etc. statement is corroborated only by one of the Respondent's house

v. members whose interest to do so is obvious. If the learned ~re~ auaker Judge had properly appreciated the inconsistency between the

o _u _ Respondent's claim in 1938 and his present story I cannot think Graham that he would have accepted the present story. Paul, C.].

If the judgment now under appeal stands it means that the Respondent is given the right to occupy part of the Bob Manuel Family land and to put rent-paying strangers on it, a right which even Quaker Bob Manuel himself was certainly not given by the Green judgment or by the Bob Manuel Family and could not .' allot" to his schoolboy son.

If in the present case the Respondent had pleaded acquiescence, or standing by, on the part of the Appellant, or any other estoppel, the Court might perhaps have done as was done by Green J. by holding on the English principles of equity (not, be it noted, by native law and custom) that the Bob Manuel Family could only get the injunction claimed on payment of compensation to the Respondent for the shed built by him. But the Respondent put forward no such plea so that the point does not arise.

The Appellant's Statement of Claim founded upon trespass committed by the Respondent "acting under a judgment . . . . of 8th March, 1939." It is to my mind not an adequate defence to that claim for the Respondent to show (and in my view this was all he even attempted) that the trespass alleged did take place but that it started before and continued and continues after the date of the judgment of 8th March; 1939. Trespass is in its nature a continuing tort. Even if the Appellant had brought action and obtained judgment for the full damages suffered by the Respondent's trespass up to 8th March, 1939 he could still bring another action for the continuation of the trespass after that date.

When it is analysed and stripped of the nonsense of his being a .. grantee" under the Green judgment, a " schoolboy squatter," or an "allottee" of his father, the Respondent's present case appears to be substantially that he is and has been on the land in question by leave or licence of the undoubted and admitted titular owners, the Bob .Manuel Family. Even accepting that as the real position, anything done by the Respondent in excess of the rights given by the leave or licence is in law a trespass. J can find no suggestion in the pleadings or in the evidence or in the judgment 'of the learned trial Judge that the Bob Manuel Family ever gave to the Respondent, to Quaker himself, or to anyone else leave or licence to put rent-paying strangers on the land or collect the rents. Nor could Respondent's Counsel refer to any evidence of this, Yet the Respondent in his sworn evidence expressly admits that he does collect rents -in respect of this land and that in my view is an admission by the defendant of the trespass alleged.


It may be that in spite of the misdirections to which I have Chief Walwr

drawn attention and in spite of the obvious and inconsistent lying ~~ Manuel,

of the defendant about his schoolboy squatting, It allotments," v.

and succession, the findings of fact of the learned trial Judge as Fred Quaker

to t he occupation by the Respondent (other than his putting wood- Dokubo

splitters on the land and collecting tents) must stand. Although Graham

I am not myself satisfied with these findings on the evidence as Paul, C.].

recorded, there is no doubt that the plaintiff's evidence as to the building by the defendant was unsatisfactory.

As regards that part of the trespass which consists of putting tenants on the land and collecting rents from them I am however very definitely of opinion that upon the express admission of the defendant the judgment of the learned trial Judge ought not to stand.

To allow the Respondent to put tenants on this land or to collect land rents from tenants on it would be to give him the important practical right of the titular owner ana so at last, to an important extent, enable this Quaker Bob Manuel House quite wrongly to get what Quaker wrongfully tried to get in 1920 and what the Respondent wrongfully tried to get in 1938. With all respect to the learned trial Judge and to my learned brethren in. this Court I cannot bring myself to agree to what I regard as a deliberate, persistent, unscrupulous, and ingenious attempt by members of this sub-house to get rights to which they are not entitled. The learned Judge did not to my mind.deal at all with this point. All he says jn disposing of the whole claim of the plaintiff is :- .

. " As I hold that the defendant has a right to 'Occupy this land (edged red in Ex. W.B.I) no question of trespass can arise".

From that passage it is clear that he completely ignored the well-established difference between a right of occupation of a tenant under native law and custom (by himself and his family and servants or house members). and the right to put strangers on the land and collect rents from them. Very many cases have come before the Courts in which persons given a tenancy under native law and custom have fraudulently attempted to extend that right to include things which are well-known to be excluded from a tenancy under native law and custom. In this case we have in my opinion just such an attempt by the Respondent and it ought in my opinion to be stopped.

In my opinion, which is of course not the judgment of this Court, the appeal should be allowed, the judgment set aside, including the order as to costs, and the case sent bacx to the Court below to assess the damages in respect of the Respondent's collecting rent from wood-splitters on the land and to give judgment for the Appellant for such amount and for an injunction to restrain the Respondent from puttingvany strangers on the land or collecting any rents in respect of the land and from extending in any way his occupation of Bob Manuel Family land.

5 I~J

66 Chief Walter Bob Manuel, etc. v. Fred Quake, Dokubo

~~f~~~l; The Appellant would in my opinion be entitled to half the etc. costs in the Court below.

Fred Quaker BAKER, J. DoJrubo

Graham Paul. C.J.

I concur with the judgment delivered by the learned President.

Order

The appeal is dismissed, but it is ordered that the following two passages shall be expunged from the judgment of the lower Court, viz. :-

(a) "As I hold that the defendant has a right to occupy this land (edged red in Ex. W.B.l) no question of trespass can arise".

and (b) .. The plaintiff must allow defendant free and uninterrupted access to'

and free enjoyment of this land".

The Respondent is awarded costs in this Court assessed at 35 guineas.

The Wholesale Colonial Trading Co. iJ. The Ikorodu Trading Co. 6-.1


Cor. KINGDONAND GRAHAMPAUL, C.J]., AND BROOKE,].

THE WHOLESALE COLONIAL TRADING

COMPANY Appellants.

v.

THE IKORODU TRADING COMPANY Respondents.

Trade Marks-Trade Marks Ordinance, s. 10, s. 13, s. 42-Registra- lion oj Trade Mark-Party aggrieved thereby.

The Wholesale Colonial Trading Company (hereafter called " the Appellants ") ·sued the Ikorodu Trading Company (hereafter called " the Respondents") in connexion with the former's registered trade mark "Oridara" and in regard to razor blades bearing the word " Orida " sold by the latter. And the Respon- dents sued the Appellants claiming that" Oridara " be expunged from the Register as not registrable. The two suits were consolidated and the judgment was that" Oridara " be expunged; hence the appeal. It was agreed that the marks are so similar as to be confused. The words are Yoruba meaning luck and good luck.

" Orida " blades began to come to Nigeria from Germany from about 1933 and were popular. As after the war broke out they stopped coming from there, Respondents imported blades from England bearing" Orida " and in a similar get-up. On 14th October, 1941, " Oridara " was, in spite of Respondents' opposition, registered by Appellants as a trade mark; they had begun getting them from England early in 1941, in a similar get-up. An application to register" Orida " in January, 1941, had been refused on the ground that it was not an invented word selected by Respondents.

The Appellants were bound to succeed in their suit unless Respondents succeeded in having" Oridara " expunged from the Register; so the two questions were (1) whether" Oridara " should not have been registered, and (2) whether Respondents had a locus standi to sue for it to be expunged.

Held, that as at the time and for years before" Oridara .. was registered there was a wide user of " Orida " signifying a make of blades. in view of the similarity of the two marks. " Oridara " would be calculated to deceive and was therefore unlawfully registered.

Held also. that as both parties were taking advantage of the abandoned German mark and .their rights to use it were the same. neither had the right to stop the other from. using it. as Appellants sought to do by the registration of the mark .. Oridara ".; therefore Respondents were entitled to coma to Court as a party aggrie-ved by such registration.

SA

68 T~ WholesaleColonial Trading to. v. The lkorodu Trading Co.

'!3: ~~~ Appeal by the Wholesale Colonial Trading Company from T din the decision of the Supreme Court in Suit No. 171 /1942 (in which

~~pa!y they were Plaintiffs) and Suit No. 213/1942 (in which they were

The Ik~~odu Defendants) which were consolidated.

Trading I. F. Cameron for Appellants.

Company. J. I. C. Taylor forRespondents.

g!~~J. The facts and arguments appear fully from the judgment.

The judgment of the Court was delivered by Graham Paul, C.J.. (Sierra Leone) :- '

This is an appeal from a judgment of the Supreme (ourt in two consolidated suits in which the parties were the Wholesale Colonial Trading Company (hereinafter called" the Appellants ") and the Ikorodu Trading Company (hereinafter called "the Respondents ").

The Appellants were the Plaintiffs in the first of these two suits and the Respondents were the Defendants.

The claim in that suit may be summarized as follows:-

(1) An injunction to restrain the Respondents from infringing the Appellants' registered Trade Mark "ORIDARA";

from passing off goods bearing the same Trade Mark or any colourable imitation thereof; from importing, selling, etc., razor blades not being those manufactured for the Appellants in any form calculated to pass off such razor blades as and for the goods of the Appellants; and from using the word " ORIDA " or any other word imitating the Appellants' Trade Mark "ORJDARA"

in any form calculated to pass off such razor blades as or for the goods of the Appellants.

(2) An account of the profits made by the Respondents in selling any razor blades, not being those manufactured for the Appellants, sold under the trade mark" ORIDA ".

(3) Delivery of all razor blades marked with the word "ORIDA " and of all price lists, etc., in the Respondents' possession bearing the word "ORIDA" for erasure or destruction.

The Respondents then issued a writ of summons against the Appellants claiming that the Trade Mark" ORIDARA" registered in name of the Appellants be expunged from the Register on the ground that the word" ORIDARA " is not a registrable Trade Mark.

The two suits were consolidated. In giving judgment in the Court below the learned Judge in effect dismissed the claim -of the Appellants and upheld the claim of the Respondents, ordering the Appellants' registered Trade Mark" ORIDARA " to be expunged from the Register. From that judgment in the consolidated suits the Appellants have appealed to this Court.

The Wholesale Colonial Trading Co. v. The Ikorodu Trading Co. 69

There are three grounds o! appeal. At the hearing in this ~ ~~

Court Appellants' Counsel abandoned ground No.1 which leaves ~ for consideration grounds 2 and 3 which are as follows :- Company

v .

.. 2. Even if the learned trial Judge was right in findingthat the mark The Ikorodu .. ORIDARAi"s not in fact an invented word, he was wrong in not giving Trading properconsiderationto the questionwhetherthe mark containedor consisted Company. of any other of the alternative essentialparticulars set out in section 10 of the Trade Marks Ordinance(Cap. 142) and particularly in not finding that Graham

the mark having been registered as a distinctive mark in England under Paul, C.J. the Trade Marks Act 1905 it is deemed to be a distinctive mark for the purposeof the Trade Marks Ordinanceand as such was, ipso facto, properly registeredthereunder.

.. 3. The learnedtrial Judgewas wrongin orderingthe mark" ORIDAR.A. to be expungedfrom the registerand having found that" if the registration of the trade mark" ORIDAR.A. had not been attacked and an action brought to expunge it from the Registry I should have no hesitancy in saying that defendants' mark and get-up did infriuge plaintiffs' mark in that it was capable of producing confusion and calculated to deceive purchasers." He should have given judgment in favour of the Plaintiffs-Appellantsin terms of the writ of summonsin Suit 171 of 1942."

(

Fortunately in this appeal there is no difficulty as to the facts which are not materially in dispute. The parties are even agreed that the two marks in question are so similar that the use of one is calculated to deceive people dealing in razor blades into thinking they are buying tl ORIDARA" blades when they are really getting " ORIDA " blades and of course vice versa.

The history of the present controversy may be shortly stated. Some. time before the beginning of the present war, apparently from 1933, razor blades were manufactured and imported into Nigeria by a German firm under the Trade Mark " O.RIDA". The German firm did not register that Trade Mark in Nigeria. On the outbreak of the war the import of these" ORIDA " blades into Nigeria was of course discontinued by the German firm.

It would appear however that those razor blades imported under the mark" ORIDA " must have acquired certain goodwill in Nigeria for, soon after the outbreak of war, there being no German firm to interfere, the Respondents imported razor blades made in England but bearing the mark" ORIDA " and to all intents and purposes with the same get-up as the original German firm had used but without .the German inscriptions. or the statement

that they had been madein Germany.

The learned Judge has found as a fact that before the war these razor blades with their get-up and the word " ORIDA " had become common to the Nigerian Trade. That finding is not attacked in the grounds of appeal and it is accepted. There seems to be no possible doubt that the German firm, if it had still been functioning in Nigeria, could have taken steps to stop this most blatant passing-off by another firm. It is also clear that if any firm had tried to register as a trade mark the word "ORIDA" (or on the admitted hypothesis of this case "ORIDARA ") the

70

The Whole- sale Colonial Trading Company

v. The Ikorodu Trading' Company.

Graham Paul, C.J.

The Wholesale Colonial Trading C. v. The I korod« Trading Co.

German firm, if it had been still functioning in Nigeria, could have successfully opposed such registration under section 13 of the Trade Marks Ordinance (Cap. 142) which is in the following terms :-

" It shall not be lawful to register as a trade mark or part of a trade mark any matter the use of which would, by reason of its being calculated to deceive or otherwise, be disentitled to protection in a Court of justice, or would be contrary to law or morality, or any scandalous design."

Clearly the registration of ,t ORIDA " .or "ORIDARA" as a Trade Mark was calculated to deceive in that purchasers of goods with that mark would be or might be deceived into thinking that it was the German brand of razor blade which they were getting.

The Appellants at a time when " ORIDA " blades were being imported by the Respondents, on 14th October, 1941, succeeded in getting registered in Nigeria as their Trade Mark the word. " ORIDARA". The Respondents opposed' that application unsuccessfully. This is rather curious in view of the fact that the Respondents in January, 1941 had applied to register the word It ORIDA" as their Trade Mark in Nigeria and the Registrar commented on their application as follows :-

.. I have been informed that you are not rightly the Prorrietor of " ORIDA .. Trade Mark in that you neither selected or invented nor caused to be selected or invented the mark. Further, I understand that" ORIDA ..

blades have long been in the market and had been freely sold by various Lagos Trading Houses."

Clearly from the results of these two rival applications the Registrar of Trade Marks did not then appreciate what it now common ground that the two marks tt ORIDA " and " ORIDARA" are so similar as to be calculated to deceive. They are both Yoruba words meaning " luck " or It good luck".

It appears from the evidence that the Appellants imported into Nigeria large quantities of razor blades marked" ORIDARA", their first consignment being received by them according to their own evidence about the beginning of 1941, and they commenced selling them at once. It also' appears that before the war both parties dealt in the original German" ORIDA" blades, and that in 1941 the Respondents began to import tt ORIDA " marked blades made by an English firm to orders given by the Respondents in 1940. These orders by the Respondents specified that the blades ordered were to be marked " ORIDA " and to have a get-up copied from a sample of the original German firms get-up which accompanied the order. Judging by the resulting get-up of the " ORIDARA" blades similar instructions must have been given by the Appellants to their manufacturers.

That exhausts what need be said as to the facts, and the questions of law may now be approached.

There is no doubt upon the evidence, and the learned Judge has expressly so held, that the Appellants must succeed in their suit unless the Respondents succeed In theirs.

The Wholesale Colonial Trading Co. 11. The Ikorodu Trading Co. 71

In that state of the matter two questions of law arise :-

(1) Has a case been made out for expunging the Appellants registered mark "ORIDARA" as a mark wrongly or

The Whole- sale Colonia) Trading Company

unlawfully registered ? The v.

Ikorodu

and (2) Have the Respondents locus standi to bring the action for expunging this mark?

Trading Company.

As to (1) it is difficult to see how this question can be answered Graham

otherwise than in the affirmative. At the time " ORIDARA" was Paul, c.j,

registered it is common ground that there was and for many years had been a wide user in the Nigerian market of the mark" ORlDA" as signifying a particular make of blades, and on the admitted similarity of the two marks it is obvious that the mark" ORIDARA" would be calculated to deceive and was therefore unlawfully registered by virtue of the terms of section 13 of the Ordinance already quoted. In this connection it must be 'pointed out that section 10 of the Trade Marks Ordinance does not provide that trade marks coming within any of the descriptions, or the proviso, of that section can necessarily be registered, section 10 is entirely subject to section 13. That disposes of the second ground of appeal and gives an affirmative answer to the first question. It seems to be beyond argument that the original German firm could have opposed successfully the application -of the Appellants to register " ORlDARA" on the ground that such registration was not lawful under section 13.

The first question having been answered in the affirmative the whole decision of this appeal now depends on how the second question is to be answered. Upon this point Appellants' Counsel

founded very emphatically on the decision in Paine <5- Co. v. Daniells and Sons' Breweries (1893 2 Chancery 567). In that case the facts bore some resemblance to the facts of the present case. Paine & Co. in 1879 had registered a trade mark for their beer, the distinctive feature of which was " John Bull Brand". At that time another firm L. & Co. in another part of the country were using a mark" John Bull Beer" for their beer, but abandoned that mark in 1890. Paine & Co. did not know of the mark \being used by L. & Co. at the time they applied for registration. Daniells & Sons in 1884 started using a mark for their beer" John Bull Registered ". Paine & Co. brought their action in 1891 to restrain Daniells & Sons from infringing their Trade Mark and from passing off. In that suit Daniells & Sons moved to expunge Paine & Co.'s registered Trade Mark from the Register but the Court of Appeal held that L. & Co. could in 1879 have successfully opposed the registration of Paine & Co.'s trade mark but as they never did so Daniells & Sons could not attack the registered trade mark on the ground of the prior user by L. & Co.

That decision is applied to the present case by Appellants' Counsel in this way. He does not dispute that the original German users of "ORIDA" could have successfully opposed his clients' application for registration of "ORIDARA" but as the German

l. R. O. NZIMIRO }

J. M. Aouad v. R. O. Nzimiro & M. N. Nzimiro 73


Cor. KINGDON AND GRAHAMPAUL, C.J]., AND BAKER, J.

J. M. AOUAD Plaintiff-A ppellant

v.

2. M. N. NZIMIRO Defendants-Respondents.

.Joint Adventure-Absence of accounts-Absence of notice to terminate-Practice on appeal regarding amendment of claim.

Plaintiff sued Defendants claiming (a) £207 15s. 4<1., balance of goods supplied for sale on basis of profit-sharing, (b) £129 15s. share of estimated profit, and (c) £22 shop rent. The rent was admitted but not the other items. There had been an agreement for a joint adventure for ten years subject to termination on three months' notice. No such notice had been given. Stock was taken on 29th September, 1941; but neither party produced accounts. Claims (a) and (b) were dismissed apparently on the ground that Defendants' version of how the loss had occurred was as probable as Plaintiff's; and Plaintiff appealed. On appeal Plaintiff aba:ndoned claim (b) for share of profits; and when it appeared that claim (a) for balance of goods included £155 Is. relating to items in other transactions, Plaintiff applied to amend his claim to £52 14s. 4d. for shortage of stock and include the other items.

Held (1) that an amendment which changed the subject matter of the action would not be allowed in the appeal ;

(2) that once plaintiff established a shortage, the onus was on Defendants to account for the shortage;

(3) that no notice to terminate having been given as agreed upon, the joint adventure was still in existence ;

(4) that in the absence of provision for an account to be taken during the term of the adventure, the law would imply an agreement to account at reasonable periods, which, account WOUld,however have to cover the whole adventure;

(5) that there being no claim in the writ for an account and no proof of anything due to Plaintiff, the claim for balance of goods supplied could not be sustained.

A ppeal dismissed.

C. W. Clinto« for Appellant.

S. B. Rhodes for Respondents.

The judgment of the Court was delivered by Baker, J. ;- The claim of Plaintiff in this case as stated in his Writ of

Summons is "for \the' sum of £359 10s. 4d. being £207 15s. 4d. balance of stock of goods supplied to the Defendants for sale and return on the basis of sharing the profit between cost price and sale of goods supplied. £129 15s. the Plaintiff's share of estimated profit on the goods supplied by the Plaintiff to the Defendants after deducting the estimated profit to the Defendants on the goods

74 J. M. Aouad v. R. O. Nzimiro G M. N. Nzim1'I'O

J. M. Aouad v.

R.O.Nzimiro &M.N Nzimiro.

Baker. j.

returned by the Defendants to the Plaintiff and £22 shop rent." Particulars of the value of the goods supplied by Plaintiff, the cash received and the balance of goods alleged to remain and the estimated profit thereon are set out on the Writ of Summons.

There were no pleadings but upon the hearing of the case at the outset Counsel stated that his defence was "1. Not indebted. " "2. Partnership which is to run for ten years and not liable to account yet, no such provision for accounting now". "3. Plaintiff has not given six months' notice as agreed upon to terminate the partnership." "4. Plaintiff by his own act has made it impossible for Defendants to say whether there has been a profit or loss." The claim for rent was admitted.

There was an agreement entered into between the parties, the material part thereof for the purposes of this action being that the partnership business should be valid for a period of ten years and that three months' notice should be given by either side in case of discontinuance.

Neither party produced any books of account but on the 29th September, 1941, the parties took stock of the balance of goods supplied by Plaintiff and then with Defendants.

Plaintiff said that stock was taken because he saw few goods in the shop and no money was being paid to him. Defendants denied this and said that " sales were dull and that Plaintiff, due to his experience during the last war when certain goods soared in price, suggested' that certain of these goods should be sold under cost price and with the money realized goods purchased which were not likely to be imported during the war, viz., Dutch Prints, and stored until prices advanced." According to Defendants, it-was after these goods had been purchased that stock was taken to ascertain their position:

When stock was taken goods were discovered amongst the stock chiefly Dutch Prints which Plaintiff admitted he had not supplied and Defendants stated that it was on account of the sale of goods below cost price and the purchase of the prints that an adverse balance of stock was caused and all previous profits liquidated.

The learned trial Judge gave judgment for the Plaintiff for.£22 rent and dismissed the rest of the claim. Apparently the reason he dismissed the claim for the balance of goods supplied was that he considered that the Defendants' version as to how the loss occurred was at least as probable as the Plaintiff's. That reason appears to us to be inadequate since once the Plaintiff established the shortage, the onus was upon the Defendants to account for it. The reason for the dismissal of the claim for share of profits is given in the following passage from the judgment :-

"But the plaintiff by his act of entering ioto this unbusinesslike arrangement without any agreement about the details as to how he was to protect his own interest in 'the profits on the sale, and the defendants, by their obstinacy in asserting that they kept no accounts, have between them

J. M. Aouad v. R. O. Nsimiro & M. N. Nzimiro 75

made it quite impossible for me to say if there were any profits on the sales J. M. Aouad or not, much less to say how much. unless I were to make a blind guess, v. which I cannot be expected to do." R. O. Nzi-

miro&M. N.

The Appellant has appealed against the dismissal of the claim for balance of goods supplied and of the claim for share of profits. But at the hearing of the appeal his Counsel abandoned his claim for share of profits leaving only the question of balance of goods supplied in issue, i.e. the sum of £207 15s. 4d. But in the course of the hearing of the appeal it was pointed out to Appellant's Counsel that from this sum three items in his particulars amounting to £155 Is. had been found to relate to entirely different transactions and should be deducted from the said sum of £207 15s. 4d. making a total of "shortages" amounting to £52 145. 4d. only. Whereupon Counsel applied to amend his statement of claim to the sum of £52 14s. 4d. for shortage of stock and to include the other three items relating to different transactions. An amendment of this nature would change the whole subject matter of the original action and the application was refused.

Nzimiro

Baker, J.

That leaves the sum of £52 14s. 4d. for balance of goods supplied as the most that Appellant could hope to recover on this appeal. As to this, we have already said that, in our view, the reason given by the learned trial Judge for dismissing 'this part of the claim was inadequate, since he failed to appreciate that the onus of proof had shifted. If therefore the decision of the case depended upon the truth or otherwise of the Defendants' story, the defence failed.

In our opinion, however, the decision of the case does not depend at all on that question. There was a joint adventure between the Appellant and the two Respondents started by the written agreement put in evidence. That agreement was vague in certain important respects but one thing upon which it was quite definite was that the joint adventure was to continue for ten years subject to the condition" that when the parties shall deem it necessary to discontinue this document a notice of not less than three months will be given and all settlement made."

No such notice has ever been given and the joint adventure

has never been discontinued. It still is in existence. It did not come to an end when the Appellant took over the goods found to be still in stock when the stock was taken. It continued, the only change being that the Appellant had taken charge of the whole stock and he, instead of the Respondents went on with the selling of the goods-at much enhanced prices in at any rate some lines of goods. That this was so is clear from the evidence of the Plaintiff himself in cross-examination :-

.. Q. When Mr. Nzimiro was ill and going to Enugu for operation he gave you the key so that you could see the condition of the goods?

.. A. No, it was given to me to sell the goods and pay the balance."

76

]. M. Aouad

v. R. O. Nzi- miro&M.N. Nzimiro.

Baker, ].

}. M. Aouad fl. R. O. Nzimiro & M. N. Nzimiro

The written agreement between the parties made no provision for any account of the joint adventure being taken during the ten years but in the absence of such provision the Court below was in our view right in holding that" the law will imply an agreement to account at reasonable periods", Furthermore we consider that the date of the Writ was a reasonable time for any of the parties to ask that an account be taken but such account would have to be an account of the whole joint adventure to date, that is to say an account covering the joint adventure trading during the period when the Respondents had charge of the stock and the selling of it and also during the period after the Appellant took over the joint adventure stock and the selling.

The Appellant however did not sue for an account to be taken and obviously his action as taken was completely misconceived.

It is equally impossible to name a figure as the value of goods short returned to Plaintiff as it is to determine whether or not there was any profit on the sales, and if so how much. The Plaintiff entirely failed to prove that the sum of £52 14s. 4d. or any other sum was due to him for balance of stock of goods supplied to the Defendants for sale and return.

In these circumstances, we are of opinion that the trial Judge had no option but to dismiss the claim other than for the rent of £22 paid by Appellant for premises in which the goods were kept and which is not contested by Respondents.

We therefore dismiss the appeal and award the Respondents the costs of the appeal which we assess at 25 guineas.

K. Chellaram <5- Sons v. G. B. OUivant, Ltd. 77


Cor. KINGDON AND GRAHAr.1PAUL, C.J]., AND BROOKE, J.

K. CHELLARAM AND SONS Plaintiffs-AppeUants.

v.

G. B. OLLIVANT, LTD. Defendants-Respondents.

Pleading and Practice-Estoppel-Cause of action arising after last proceeding in previous suit.

In another action brought by G. B. Ollivant, Ltd. against K. Chellaram and Sons for infringement of a trade mark, the latter delivered up as ordered 1,300 pieces of shirting, but on 6th April, 1943, a consent order was made for their return, which was n it obeyed and gave rise to a. motion for contempt of Court against- G. B. Ollivant's agent; but this was withdrawn on 31st May, 1943, on their undertaking to hand over 432 pieces unsold and pay over the price received for the remainder. When Chellarams were later informed of the prices they were dissatisfied and brought this action (the subject of the appeal) claiming £180 for loss sustained. The trial Judge held that G. B. Ollivant, Ltd. having implemented the consent order of 31st May, 1943, Chellararns were estopped and .gave judgment in G. B. Ollivant's favour, and Chellarams appealed.

Held, that estoppel not having been pleaded in Respondents' Statement of Defence, the judgment could not have been grounded on estoppel.

Held also, that as their claim for damages only arose after 31st May, 1943, when Appellants received the statement of prices, their claim could not have been barred by the agreement recorded on that date.

J. I. C. Taylor for Appelants.

A. L. Johnson for Respondents.

The judgment of the Court was delivered by Graham Paul, C.J., (Sierra Leone) ;-

The Defendants-Respondents sued the Plaintiffs-Appellants in the Supreme Court claiming an injunction to restrain the Plaintiffs-Appellants from infringing a certain trade mark. In that action on 21st November, 1942 judgment was entered under which the Plaintiffs-Appellants were ordered to deliver up to the Defendants-Respondents 1,300 pieces of shirting with the infringing trade mark, and delivery was made in accordance with that judgment.

On 6th April, 1943 the said order of 21st November, 1942 was varied and the Defendants-Respondents by consent were ordered to redeliver the 1,300 pieces of shirting to the Plaintiffs-Appellants. The Defendants-Respondents failed to comply with this order and a motion was filed by the Plaintiffs-Appellants to commit the Agent of the Defendants-Respondents for contempt of Court.

K .. Chellaram 6- Sons v. C. B. Ollivant, Ltd.

K. Chell a-

ram & Sons

v. G. B. OlH- vant, Ltd.

Graham

Paul, C.].

On that motion coming before the Court on 31st May, 1943 the following was recorded by the Court :-

"\Vithdrawn on Plaintiffs undertaking to hand over the 432 pieces

remaining unsold for obliteration of the offending marks and to pay over to . Defendants the price received for the balance of the 1,300 pieces delivered.

under the order dated 29th November, 1942.

W. B. Lloyd

Judge".

Thereafter the Defendants-Respondents delivered to the Plaintiffs-Appellants the 432 pieces of shirting remaining unsold and paid to the Plaintiffs-Appellants the amount which they had received for the balance of the pieces of shirting, thereby implementing their part of the Court-recorded agreement in respect of which the Plaintiffs-Appellants withdrew their motion to commit.

The Plaintiffs-Appellants however, when they were later informed of the prices at which the Defendants-Respondents had sold the said balance of the pieces of shirting were dissatisfied with such prices and after some correspondence they brought the action which is the subject of the present appeal. In this action the Plaintiffs-Appellants claimed that they had suffered damage by the Defendants-Respondents converting to their own use and wrongfully depriving the Plaintiffs-Appellants of their goods, i.e. the 868 pieces of shirting. The Plaintiffs-Appellants claimed the sum of £180 being the loss sustained by them as a direct consequence of the wrongful sale by the Defendants-Respondents.

The learned Judge in the Court below has held that by reason of the implementing by the Defendants-Respondents of the Court- recorded agreement of 31st May, 1943 the Plaintiffs-Appellants are estopped from bringing the present action and has on that ground entered judgment for the Defendants-Respondents. From that judgment the Plaintiffs have appealed to this Court.

For two reasons we are unable to agree with the judgment of the Court below. In the first place where Defendants wish to rely on estoppel they must plead it and there was no such plea in the Statement of Defence in this case. In the second place the claim in the present action was not before the Court in any form in the previous suit. The Appellants filed a motion in the previous suit for the committal of the Agent of the Respondents for contempt; but withdrew that motion on certain conditions. The implementing of these conditions would, no doubt, operate to bar any subsequent motion to commit the Respondents' Agent for contempt on the same grounds but it cannot possibly be regarded as a bar to the present claim which is an entirely different matter and has never been the subject of judicial investigation or decision between the l?arties.

The present claim is one for damages, the basis of it being that instead of delivering the 1,300 pieces to the Appellants as ordered by the Court the Respondents sold 868 of them at prices which

K. Chellaram <5- Sons v. G. B. Ollivant, Ltd. 79

represent £180 less than the Appellants would have realized if the said 868 pieces had been delivered in accordance with the order of the Court. That claim was not, and could not be, made until the Appellants had received from the Respondents a statement showing at what prices they had sold; and that statement was not received by the Appellants until after 31st May, 1943, which "is the date of the Court-recorded agreement which the learned Judge has found to operate as estoppel to bar this claim.

For these reasons, the judgment of the Court below is set aside including the order as to costs and any costs paid thereunder are to be refunded. The case is sent back to the Court below to take evidence upon and decide the issues raised on the pleadings on their merits. The Appellants are entitled to costs in this Court assessed at 35 guineas and the costs in the Court below are to be costs in the cause.

K. Chella- ram & Sons

v. G. B. om- vant, Ltd.

Graham Paul. C.].

80 Aminu Jinadu <5- Ors. l'. Salami Akiyele


Cor. KINGDOM AND GRAHAM PAUL, C.JJ., AND BROOKE, J. 1. AMINU JINADU I 2. SANUSI MOSURO L

3. AMUSA AYENI r 4. BRAIMAH ALA YA J

v.

Plaintiffs-A ppellants

SALAMI AKIYELE Defendant-Respondent.

Claim to property belonging to Chieftaincy-Defence relating to

Defendant's status-The Appointment and Deposition of Chiefs Ordinance, 1930, s. 2 (1) and (2). Jurisdiction-Procedure.

Plaintiffs as representing the four houses of the Ejilu Malaki Chieftaincy of Lagos alleged in their Statement of Claim that after 1907 no Chief was appointed; that following a dispute in 1940 regarding the selection of a Chief, the management was vested in a committee, of which they were members; that recently Defendant had unlawfully taken possession of the Chieftaincy residence and paraphernalia and was wearing the family head's emblem; and that he refused to give them up. Their claim was for their return and a declaration that Defendant had no right thereto.

Defendant alleged that he had been lawfully elected by the Prince Shokun family to be the Ogboni Iduntafa of Iga Oduntafa founded by the late Prince Shokun, his ancestor; that he had been so installed and capped by the Oba Falolu of Lagos, and that he was therefore entitled to possession. His Counsel raised the point of the Court's jurisdiction in view of s. 2 (2) of the above Ordinance.

The Judge decided that the possession of the property claimed by Plaintiffs could not be separated from the title of the Chieftaincy, which was the only issue before him-an issue he could not try in view of s. 2 (2) of the Ordinance.

On appeal Plaintiffs (Appellants) argued that subsections (1) and (2) should be read together and that jurisdiction was not ousted where it was only alleged that a person was the nominee of the community and that no appointment had been approved by the Governor; also that their claim did not raise the. question of appointment of a Chief.

Held, that su bsection (2) of s. 2 of the Ordinance was not dependent on subsection (1) or limited to cases where the Governor had approved a successor or made an foppointment under subsection (1) ;. and that the trial Judge was right in deciding that he had no jurisdiction to·try the issue whether Defendant's alleged appointment as Chief had been made in accordance with native law and custom; but that he was wrong in holding that that was the only issue before him, as there was also the issue regarding possession, OD which Plaintiffs were entitled to a decision in due ceurse.

I

8

Aminu Jinadu & Ors. v. Salami Akiyele

Adanji v. Hunvoo (1 N .L.R. 75) distinguished.

A. Alakija (with him J. I. C. Taylor) for Appellants.

Jibril Martin for Respondent.

The judgment of the Court was delivered by Brooke, ]. :_.

The claim of the Plaintiffs-Appellants was :- ... Delivery of the keys of the Iga and the paraphernalia of the

Ejjlu-Malaki Chieftaincy known as Iga Iduntafa which are improperly and unlawfully in the possession and control of the defendant .

••A declaration that the defendant has no right to control the Iga or to the exclusive use thereof and that he has no right to wear any emblem of the headship of the family and lor to have possession of the key of the Iga. Value of the properties claimed is £60."

The Statements of Claim and of Defence are both important and read as follows :-

81

Aminu Jma- du cl Ora.

v. Salami Akiyele.

Brooke, J.

•• Statement of Claim

.. 1. The plaintiffs are the representatives of the four houses of the Ejilu- Malaki Chieftaincy family namely: (i) Ogunmade House (ii) Adamu House (iii) Sogba House (iv) Onilegbale House and they sue for themselves and other members of the family .

.. 2. The Ejilu-Malaki Chieftaincy is one of the Chieftaincies of Lagos of the Akarigberi class.

.. The last Chief was called Braimah Akilagun and was of the 4th House known as the Onilegbale House .

.. 4. The said Braimah Akilagun died about the year 1907 and since then no Chief has been appointed.

" 6. ,The affairs of the family were in the hands of the elder members of the family for many years since the death of ~he said Braimah Akilagun.

.. 6. In 1940 there was a dispute among the members of the family about the selection of a Chief and when no. agreement could be reached by the descendants of the Chieftaincy family the matter was postponed and the management of the family affairs was vested in a Committee appointed by the members 9f the family .

.. 7. The plaintiffs are all members of that Committee .

.. 8. About nine weeks ago the defendant improperly and unlawfully occupied and still occupies the Iga (official residence) of the Chief and took possession of the keys thereof including the paraphernalia of the Ejilu-Malaki Chieftaincy .

.. 9. The defendant has assumed the control of the Iga of Ejilu-Malaki Chieftaincy with no shadow of right thereto and is improperly and unlawfully using the same .

.. 10. The defendant unlawfully wears and is sti!) wearing the emblem which belongs to the head of the family of the plaintiffs.

.. 11. The defendant has been asked to give up possession of the key. of the Iga and. other paraphernalia belonging to the family but the defendant refused and still refuses to give them up."

.. Defence

.. L The defendant denies each and every allegation of fact contain\Jd in t paragraph 1 of the Statement of Claim, and puts the plaintiffs to the strict

proof thereof. .

.. 2. The defendant denies paragraph 2 of the plaintiffs' Statement of Claim.

.. 3. The defendant denies paragraph 3 of the Statement of Claim, and states that the said Chief Braimah Akilagun was the last Ogboni Iduntafa of Iga lduntafa founded by the late Prince Shokun, the ancestor of the defendant .

.. 4. The defendant admits paragraph 4 of the, Statement of Claim.

.. 5. The defendant denies each and every allegation of fact contained in paragraphs 5, ti and 7 of the Plaintiffs' Statement of Claim.

6

82

Aminu Jina- du & Ors.

v.

Salami Akiyele.

Brooke, J.

Aminu Jinadu & O,S. v. Salami Akiyele

.. 6. The defendant denies paragraphs 8 and 9 of the Statement of Claim,

and says that he has been properly and lawfully elected as the Ogboni Iduntafa by the said Prince Shokun family who have the right so to do.

H 7. With further reference to paragraphs 8 and 9 of the Statement of Claim the defendant says that he is a direct descendant of the said Prince Sho- kun (deceased), and has been duly installed and capped by Alaiyeluwa the Oba Falolu of Lagos as the Ogboni Iduntafa, according to Native Law and Custom.

" 8. With reference to paragraphs 10 and 11 of the Statement of Claim, • the defendant says that having been elected, installed and capped as Ogboni Iduntafa and virtually the present head of the said Shokun Chieftaincy Family, he is the only person lawfully entitled to wear the emblem, and to be in possession of the said Iga Iduntafa as well as the paraphernalia of the said Shokun Chieftaincy Family .

.. 9. The defendant states that the plaintiffs' are not entitled to the relief sought, and will contend that the action is misconceived and should be dismissed with costs."

The learned trial Judge states in his judgment that " after hearing the case for the Plaintiffs and their witnesses Counsel for Defendant raised the question of jurisdiction submitting that by virtue of the Appointment and Deposition of Chiefs Ordinance (No. 14 of 1930) this Court had no jurisdiction to try the case. Owing to the importance of the case I decided to reserve my opinion with regard to the question of jurisdiction until such time as I had heard Defendant's case with a view to ascertaining if there were other issues in the case which could be disassociated with the question of the Chieftaincy and I could make some decision which would settle the controversy one way or the other. Having heard Plaintiffs' and Defendant's case I am satisfied that the only issue before me is whether the Defendant's appointment to the title or dignity of Ogboni Iduntafa has been made in accordance with Native Law and Custom. The occupation of the Iga, the wearing of the emblems and the possession of the paraphernalia I am satisfied cannot be separated from the title or dignity of the Chieftaincy but are part of, and wedded to the title or dignity", and held that his jurisdiction was ousted by section 2 (2) of the Appointment and Deposition of Chiefs Ordinance, 1930 (No. 14 of 1930) as under that section the Governor is now the sole judge of the issue whether or not the appointment of a Chief has been made in accordance with native law and custom.

The contention of Counsel for the Plaintiffs both in the Court below and in this Court is that subsections (1) and (2) of section 2 of the Ordinance should be read together and that where it is only alleged that a person is the nominee of the community and that no appointment has been approved or made by the Governor the Court's jurisdiction is not ousted. We are of opinion that subsection (2) of section 2 should not be interpreted as dependent on subsection (1), or as limited to cases where the Governor has approved a successor or made an appointment under subsection (1). The wording of subsection (2) is as wide as it possibly can be " as to whether any appointment of a chief", and we see no r.eason why the words should not be given their ordinary meaning. If the legislature had intended to limit the scope of the subsection as

Aminu jinadu & Ors. v. Salami Akiyele

t suggested the obvious wording would have been " as to whether any such appointment as aforesaid" Of similar words; but no such words were used.

We were informed by learned Counsel for the Crown, speaking on behalf of the Attorney-General, from the Bar of the Court, that at the time when these proceedings were instituted the Commissioner of the Colony, on behalf of the Governor, was actually conducting an inquiry under subsection (2) of section 2 of the Ordinance as to whether the alleged appointment of the Defendant as Chief had been made in ac-cordance with native law and custom, but desisted upon the institution of these proceedings in Court; and we see no reason to doubt this to be the case.

We hold that the learned trial Judge was correct in his decision that his jurisdiction to try the issue as to whether or not the alleged appointment of the Defendant as Chief was made in accordance with native law and custom was ousted by the Ordinance. But we think that the learned trial Judge was wrong in holding that that issue was the only issue before him. In our view it was only one of the issues raised in the case and we are of opinion that the learned trial Judge was wrong to hold that his jurisdiction over the whole case was ousted so that he dismissed the Plaintiffs' claim altogether. Such dismissal clearly operates unjustly against the Plaintiffs; for, if the Governor, upon inquiry, decides against the Defendants' claim to be properly appointed, the Plaintiffs are obviously entitled to a decision of the Court upon some such claim as they are now making; but if the present judgment of the lower Court stood

I they would be met by a plea of res judicata.

The claim, as has been pointed out by Appellants' Counsel, did not raise any question of appointment of a Chief, it is the Defendant in his defence who alleged the proper appointment of himself as Chief. When' he did so, two courses were open to the Plaintiffs; they could either admit it or put it in issue, They put it in issue. Thereupon the Court's jurisdiction upon that particular issue was ousted and in our view the proper course was to adjourn the hearing to give the Defendant an opportunity of discharging the onus, which was upon him, of proving his contention; which he could do by leading evidence that the Governor had decided the particular issue in his favour. The order of adjournment should of course make it clear that an inquiry by the Commissioner of the Colony could proceed without infringing the privileges of the Court. Upon resumption of the hearing in Court, with the necessary evidence before the Court as to the Governor's decision (or, if after a reasonable time, no such evidence was forthcoming, with the position that the Defendant had failed to discharge the onus of proving his contention) the Court would be in a position to decide the other issues raised by the claim and give judgment accordingly.

It may, perhaps, be pointed out that the present case is materially different from that of Adanji v. Hunuoo (1 N.L.R. 75) which decided (before the enactment of the Appointment and

6A

88

Aminu Jina- du ct Ors.

v. Salami Akiyele.

Brooke, J.

84 A",inu Jinadu & Ors. o. Salami Akiyele

Aminujina- Deposition of Chiefs Ordinance, 1930) that the Supreme Court had du & o~~. no jurisdiction to entertain a claim which is merely to establish a

Salami title to. a Chieftaincy. Here the claim is to recover possession of Akiyele. property, both real and personal, from a person alleged to have

Brooke, J . seized it unlawfully.

If during the necessary adjournment, the Appellants have qualms as to what. use the Respondent may make of the Iga and the paraphernalia of the Chieftaincy, that is a matter that can be adequately and properly dealt with upon an application for an interim injunction or other order.

The appeal is allowed, the judgment of the Court below, including the order as to costs, is set aside, and the case is remitted to the Court below for the hearing of the suit to be continued in the manner already indicated in this judgtnent.

Inasmuch as the Appellants have failed in their main contentions upon appeal, the parties will bear their own costs in this Court; the costs already incurred in the Court below will he costs in the cause.

•

Commissioner of Police v. Theodore Asare

Accra, lOth February, 1944

Cor. KINGDON AND GRAHAMPAUL, C.J]', AND DOORLY, AG. C.J.

COMMISSIONER OF POLICE Respondettt~

v.

THEODORE ASARE Appellant.

Criminal Law and Evidence-s. 4 (1) of the Survey Ordinance (Cap. l11)-Extent of onus of proof on prosecution.

The Defendant (Appellant) was charged with surveying and preparing a plan of certain land for the purpose of attachment to an instrument of transfer and was convicted and sentenced under s. 4 (1) of. the Survey Ordinance. No evidence was given that

the preparation of any document requiring the attachment of a plan was in contemplation. His appeal to the Supreme Court was dismissed. On appeal to the West African Court of Appeal:

Held, that the onus was on the prosecution to prove that the preparation of the plan was for the purpose of attachment to an instrument of the nature mentioned in the section, and as there was no proof upon this point, the convictiof could not be sustained.

Appeal by the Defendant from the decision of the Supreme Court, Gold Coast, dismissing his appeal from the District Magistrate.

The judgment of the Court was delivered by the President :-

In this case the Appellant was convicted in the Court of the District Magistrate, Swedru of an offence contrary to section 4 (1) of the Survey Ordinance (Cap. 111) and fined £20 which he has paid.

81S

The particulars of the alleged offence were stated on the charge as follows :-

.. Theodore Asare, clerk of Agona Duakwa in or during the month of March, 1943, at Budu Atta in the Swedru Magisterial District and within the jurisdiction of this Court being a person other than an official surveyor or a licensed surveyor or a public officer in the course of your duties as such, did survey a certain land, to wit: Kotokum.lying at Budu Attafor the purpose of preparing the plan of such land for attachment of transfer."

It is to be observed that the particulars do not set out, as they should, the particular transfer to which the plan was to be attached.

In fact no evidence was given that the -preparation of any document requiring the attachment of a plan was in contemplation and there was no evidence in proof of one of the matters which the prosecution had to prove in order to justify a conviction, viz. that the preparation of the plan was for the purpose of attachment

to an "instrument of conveyance, leases, assignment, charge or

86

Commis- sioner of Police

v. Theodore Asare.

Kingdon, C.].

Commissioner of Police v. Theodore Asare

transfer." Instead the prosecution asks that the inference be drawn that that was the purpose for which the plan was prepared. The learned Judge in the Supreme Court, to which the Appellant appealed against his conviction, upheld this submission on the part of the prosecution saying :-

.. There is ample evidence to prove that document required for purpose set out in section 4 (I) of Cap. Ill, e.g. attachment to document of title. The inference as to purpose drawn by the Magistrate can be inferred from the evidence as a whole and I am unable to interfere with his discretion in this matter."

We are unable to agree as to this. As we have already said there was no proof whatever upon this point, although the man who might have supplied the necessary evidence, if it were available, viz. the purchaser K wao Buawumah, was a witness for the prosecution. It is significant that he was not apparently asked the all-important question as to purpose for which he required a plan. An inference adverse to an accused person and on which his guilt or otherwise depends can only be drawn if it is inescapable; here this is far from being the casco

For these reasons the appeal is allowed, the conviction and sentence are quashed and it is directed that a judgment and verdict of acquittal be entered. The fine must. be refunded.

t

Emmanuel Osei v. E. S. Asiedu-Ofei 87

Accra, nth February, 1944

Cor. KINGDON AND GRAHAM PAUL, C.J]., AND DOORLY, AG. C.J.

EMMANUEL OSEI Appellant (Defendant)

v.

E. S. ASIEDU-OFEI Respondent (Plaintiff)

Ci-pil Procedure-Representation of Plaintiff by relative-Judgment for. Defendant-Appeal by Plaintiff not heard because of relative giving evidence-Native A.dministration (Colony) Ordinance, Cap. 76, s. 64, second proviso.

The action was begun in the Native Tribunal and Plaintiff was there represented by his nephew, who produced a power of attorney in that behalf, and gave evidence. The Tribunal gave judgment for Defendant, and Plaintiff appealed to the Provincial Commissioner's Court, but this Court ordered a retrial on the ground that it was irregular for a third party to give evidence on his behalf. From this order Plaintiff appealed.

Held. that the representation was in order under the second proviso to s. 64

of Cap. 76, although it was not in order for the representative to testify as if he were Plaintiff, but this could not operate to deprive Defendant of his judgment.

Appeal allowed and case remitted to the Provincial Comrnis- sioner's' Court to hear the appeal to it on the grounds before it .

.Appeal by Plaintiff from order of Provincial Commissioner's Court made an appeal from the Native Tribunal.

1 K. A. Bossman for Appellant.

A. O. Larbi for Respondent.


In this case on the appeal coming before the Provincial Commissioner's Court from the Tribunal of the Paramount Chief of Akyem Abuakwa the Acting Deputy Provincial Commissioner did not hear it on its merits but gave the following judgment :-

" The question of representation is involved in the case. Dr. Asiedu- Ofei, the Plaintiff-Appellant, did not appear in the Tribunal to give his statement. A third party gave evidence on his behalf. This is irregular and the case is referred back to the Tribunal of the Omanhene of Akim Abuakwa for retrial.

" Costs to abide the ultimate result' of the case."

We do not agree that there was any irregularity in the Tribunal on account of the Plaintiff appearing by' a representative instead of in person. The Tribunal's record of the representation is as follows ;-

" Plaintiff not in Tribunal in person represented by his nephew ]osiJ..ua Darko Asiedu who produces Power of Attorney dated 15-2-40 in that behalf. Defendant has no objection to the representation of the Plaintiff by ] oshua Darko Asiedu but only asks that the case be heard-it having been on the list a long time."

88

Emmanuel Osei

Emmanuel Osei v. E. S. Asiedu-Ofei This appears to us to be quite in order under the second proviso

v. E. S. Asiedu- Ofei.

Kingdon, C.].

to section 64 of the Native Administration (Colony) Ordinance (Cap. 76) ; although it was not in order when the representative proceeded to give evidence as though he were the Plaintiff. This, however, merely affects the evidence on behalf of the Plaintiff

and cannot operate to deprive the Defendant of his judgment in

the Tribunal. The Provincial Commissioner's Court has therefore ordered a retrial on inadequate grounds and has not yet considered on their merits the other grounds of appeal to it. The appeal is allowed the judgment of -the Provincial Commissioner's Court is set aside- and the case is remitted to the Provincial Commissioner's Court for that Court to hear the appeal to it upon the grounds before it. The Appellant is awarded costs in this Court assessed at £34 3s. The costs in the lower Courts are to abide the ultimate issue.

Mate Nono, per Tetter Okuma v. Tsutst« 89

Accra, Ifith February, 1944

COR. KINGDON AND GRAHAMPAUL, C.J]', AND DOORLY, AG. C.J.

MATE NONO PER TETTER OKUMA ... Plaintiff-Appellant.

v.

TSUTSU Defendant-Respondent.

Judgment of Native Tribunal not in terms of claim-Appeal.

Plaintiff sued Defendant claiming £~5 damages for selling Plaintiff's land for the debt of another, before the Paramount Tribunal. Instead of giving him judgment for damages, the Tribunal set aside the sale. Defendant appealed to the Provincial Commissioner's Court, where the appeal was upheld on the ground that the judgment was uttra vires having regard to the fact that the claim was for damages. Plaintiff then appealed to the West African Court of Appeal:

Held, that what matters in proceedings in Native Tribunals is the substance and not the mere form; and that as the Tribunal and the parties throughout the trial regarded as the issue in the case the questiou whether or not the sale was valid, and its judgment on that issue was justified, that judgment should not have been disturbed on a point of form.

Appeal by Plaintiff from the Provincial Commissioner's Court sitting on appeal from a Native Tribunal.

N. A. Ollennu for Appellant.

Respondent absent and not represented.

The judgment of the Court was delivered by Graham Paul, C.J., j Sierra Leone :-

The Appellant brought an action in the Paramount Tribunal

of the Manya Krobo State, his claim being as follows :- .. The Plaintiff claims £25 damages for causing the land of Plaintiff

to be sold in Public Auction whilst the Plaintiff did not owe the Defendant:"

The Tribunal made a very full investigation of the facts relating

to the Appellant's claim and atthe dose of the trial gave judgment as follows :-

.. In this matter Plaintiff claims. £25 damages for that Defendant caused his land to be sold for a debt which was not his (Plaintiff's) debt. Evidence shows that this land in question was attached at the instance of Defendant as Judgment Creditor as against Mohiade, Judgment Debtor since 1939. In October, 1939 when Notices were filed under Writ of Fi. Fa. Plaintiff notified both the Tribunal of Wetso Mantse of Pianguah and Defendant that the land is his property and not that of the Judgment Debtor, Mohiade. He also swore to an Affidavit and the Tribunal withdrew the attachment. About two months ago the land was re-attached at the instance of Defendant without due publicity and sold a day after the Auction Notice was filed on the land .

.. There is evidence that the Plaintiff was at the time away from this District. The Tribunal is satisfied that the land is in fact th~ property of Plaintiff and has never been alienated to Mohiade, Judgment Debtor and also that the sale was most irregular.

90 Mate Nona, per Tetter Okuma v. Tsutsu

Mate Nono per Tetter Okuma

v. Tsutsu.

Graham Paul, C.J.

i

:r I

" j udgrnent for Plaintiff with costs to be taxed. " Damages are not awarded in this case but the sale is set aside.

From that judgment the Respondent appealed to the Provincial Commissioner's Court at Koforidua and that Court found that " the Judgment of the Tribunal is bad in that the judgment is that the pleadings which are for damages according to the writ were subjugated to the issue of the sale of land. This is borne out by the Order of the Tribunal. "Damages are not awarded in this case but the sale is set aside." This finding regarding the sale is ultra vires, and I accordingly uphold the Appeal with costs to be taxed."

The Appellant now appeals to this Court from that judgment of the Provincial Commissioner's Court. The Respondent -has not appeared in this Court to oppose the appeal.

In our opinion the judgment of the Provincial Commissioner's Court is wrong. It has been frequently pointed out that in considering proceedings in Native Tribunals it is the substance and not the mere form that matters. This Court has frequently quoted with approval the following dictum of Chief Justice Smyly in the case of Ohene Kwesi Abuagyi II v. Ohene Amua Gyebu-

"Personally I do not lay any stress on the form in which an action is brought before the Native Tribunal so long as the issue involved is clear." (III. W.A.C.A at page 66).

In the present case it is abundantly clear that the parties and the Tribunal throughout the trial regarded as the issue in the case the question whether the sale was valid and effective or not. The sale was attacked on two definite grounds: (1) that the land in question was not the property of the judgment debtor and therefore could not be lawfully attached and sold under the judgment and (2) that the sale was invalid for irregularity, namely insufficiency of notice. Both these grounds were matters of fact peculiarly within the capacity of the Tribunal to decide and after a fair and thorough investigation the Tribunal found for the Appellant on both points and gave judgment for the Appellant accordingly, not for damages, as the claim expressly asked, but setting aside the sale.

A more formal Court no doubt before giving such a judgment would have amended the claim to one for the setting aside of the sale but whereas here the parties and the Tribunal were quite clear as to the real issue and that issue was fully and fairly investigated it is not right that a more formal Court on appeal should interfere with the judgment of the Tribunal. In this connection we may quote once more from the judgment of the Privy Council in 1930 in the case of Nthah versus Bennieh as follows:

" Decisions of the Native Tribunal on such matters which are peculiarly within their knowledge arrived at after a fair hearing on relevant evidence should not be disturbed without very clear proof that they are wrong."

Mate Nono, pel' Tetter Okuma v. Tsuts«

In the present case we certainly cannot find very clear proof that the judgment of the Tribunal was wrong. On the contrary there was in our opinion ample relevant evidence to justify the Tribunal's findings on both the points which formed the basis of their judgment.

We may mention that in appealing to the Provincial Commis- sioner's Court the Respondent filed grounds of Appeal which included other gro.unds than that on which the Provincial Commissioner actually decided the appeal. We have considered these grounds and found no substance in any of them.

The appeal is allowed, the judgment of the Provincial Commissioner's Court is set aside including the order as to costs and any costs paid thereunder are to be refunded. The judgment of the Tribunal is restored and confirmed. The Appellant is awarded costs in this Court assessed at £31 3s. and costs in the Provincial Commissioner's Court to be taxed.

91

Mate Nono per Tetter Okuma

v. Tsutsu.

Graham Paul,C.].

92 Adu Kofi v. Chief Kwesi Brentuo, etc.

Accra, 21»t February, 1944

Cor. KINGDON AND GRAHAMPAUL, C.JJ., AND FUAD, J.

ADU KOFI Defendant-Appellant

v.

CHIEF KWESI BRENTUO FOR AND ON BEHALF OF THE STOOL OF ADOKWAI Plaintiff-Respondent.

Jurisdiction of the Supreme Court in Ashanti-Courts Ordinance, s. 14, s. 17 (b); Nali'Ce Courts (Ashanti) Ordinance (Cap. 80) s. 35--Practice-Supreme Court Rules, o. 34, R. 5--Reviewed- " Ex parte II judgment.

Plaintiff sued for £114 as cocoa tribute due by Defendant for farming on Stool land under an oral agreement, and obtained judgment by default (described as " ex parte ") in the Divisional Court of the Supreme Court. Defendant applied for review of the judgment but as the Judge went on leave, fie dropped that application and asked for leave to appeal. On appeal it was argued for him that that Court had no jurisdiction, there being a competent Native Court (to which the parties should have been referred) with jurisdiction in suits "relating to the ownership, possession or occupation of land", the present suit being of that nature. The Plaintiff-Respondent's reply was that it did not "appear to the Divisional Court II that the suit was one properly cognisable by a Native Court.

Held that the-Supreme Court will decline to entertain a suit only where some issue of fact or law is raised for the Court's decision as to the ownership. possession or occupation of land, and that it is to the issues to be tried that one must look and not merely the wording of the writ.

Held also that where the Court is given general jurisdiction subject to a direction not to exercise it where it appears that are certain facts existing in the suit, a party omitting to bring ·them to the notice of the Court cannot complain if the Court comes to a conclusion without reference. to such facts.

Obiter: (1) Only the Judge who gave the judgment can be asked to review it.

(2) Where judgment is given by default, the proper application is under 0.34, R.5, of the Supreme Court Rules, which may be made not only to the Judge who gave the judgment but also to the Court.

(3) It is incorrect to describe a judgment as ex parte where the Defendant had been given notice.

Appeal by Defendant from decision of Supreme Court.

J. H. Coussey for Appellant.

H. A. Hayfron-Benjamin for Respondent.

Adtl Kofi v. Chief Kwesi Brentuo, etc. 93

The judgment of the Court was delivered by Graham Paul, C.J. Adu xea

(Sierra Leone) :- Chief i:wesi This appeal is within a very small compass but it raises a point

of considerable general importance. The Respondent took action against the Appellant in the Ashanti Divisional Court of the Supreme Court, the claim in the Writ being as follows :-

" The Plaintiff's claim is for the sum of £114 being cocoa tribute for six at the rate of £19 a year due and owing by the Defendant to the Plaintiff for farming on land known as Doduodwima belonging to the Stool of Adokwai as per verbal agreement with toe Stool of Adokwai."

The case was heard in ,default of the Defendant-Appellant's appearance and the only evidence given was that of the Plaintiff- Respondent himself. As his evidence is short and of importance in the consideration of the main issue raised in this appeal it may be quoted at length :-

" I am the Odikro of Adokwai and have the authority of the Stool to bring this section on their behalf. The Defendant owes the Stool £114 for cocoa-tribute for 6 years at £19 a year. My predecessor entered into the agreement with Defendant. Defendant'comes from Abodom and is a subject of the Omanhene of Adansi as Adokwai is. The money has been demanded many times but Defendant refuses to pay. He denies liability. Defendant paid tribute at one time, but then stopped."

Upon that evidence the Court below gave judgment for the Respondent in terms of his claim and from that judgment the appellant appeals to this Court.

It may be mentioned that prior to the application for leave to appeal there was a motion by the Appellant for a review but that motion was dropped in favour of the present appeal, apparently for the reason that the application for review was delayed and the Judge who tried the case had gone on leave. It is of course true that only the Judge who gave the judgment could be asked to review it, but an examination of the application for review shows that it was misconceived. The grounds put forward for a review were not grounds for a review at all, but grounds for an .application under Order 34 Rule 5 of the Supreme Court Rules to set aside the judgment obtained against the Defendant-Appellant in his absence. An application under that Rule can of course be made to "the Court" and not- only to the Judge who gave the judgment. No such application was made and no reason is given why it was not made.

Parenthetically it must be noted that in giving judgment

the Court below said" Judgment-ex parte-for the Plaintiff", but as the Court was satisfied that the hearing had been on notice to the Defendant, it was incorrect to describe the judgment as

" ex parte ".

The grounds of Appeal are also short and may be quoted in full. Theyare :-

.. 1. That the Divisional Court had no jurisdiction to hear and determine the suit .

.. 2. That there was a Court of competent jarisdiction capable of hearing the case at the time the suit was filed and heard by the Divisional Court."

Brentuo, etc.

Graham Paul, C.J.

94 Adu Kofi v. Chief Kwesi Breniuo, etc.

Adu Kofi The jurisdiction of the Supreme Court is set out in section 14

Chief ~wesi of the Courts Ordinance which is as follows ;- Brentuo, etc. " The Supreme Court shall be a Superior Court of Record, and in addition

to any other jurisdictions conferred by this or any other Ordinance shall, Graham within the Gold Coast and subject as in this Ordinance mentioned, possess Paul, C.]. and exercise all the jurisdiction powers and authorities which are vested in

or callable of being exercised by His Majesty's High Court of ] ustice in England. Provided that the Admiralty jurisdiction and authority of the Supreme Court shall be excerised by virtue and in pursuance of the provisions of the Colonial Courts of Admiralty Act, 1890,"

It is quite clear from the terms of that section that the general jurisdiction so given covers the present suit, but the' Appellant founds upon section 17 (b) of the Courts Ordinance which is in the following terms :-

" Notwithstanding anything in this Ordinance contained the Supreme Court shall not exercise jurisdiction-

* * * * * .. (b) in Ashanti in any civil cause or matter subject to the prOVISIOnsof section 3() of the Native Courts (Ashanti) Ordinance, save and except in accordance with the proviso to such section, or in any cause'or matter within the jurisdiction conferred on the Ashanti Chief Commissioner's Court by sections 62 and 64 of this Ordinance."

Next must be considered section 35 of the Native Courts (Ashanti) Ordinance (Cap. 80) the material part of which is as follows ;-

" Whenever it shall appear to the Chief Commissioner's Court or the Divisional Court, or a Magistrate's Court that any civil cause or matter brought before it is one properly cognizable by a Native Court and that a Native Court with jurisdiction to try such civil cause or matter has been established under the provisions of this Ordinance, such Chief Commissioner's Court or Divisional Court or Magistrate's Court as the case may be shall stop the further progress of such civil cause or matter before it and refer the parties to a competent Native Court as the case may be; and the Court shall thereupon order such costs as it shall deem fit,"

There are certain provisoes to that section but they do not apply to the present case.

The contention for the Appellant is that under the last-quoted section the Court below should have stopped the case before it and referred the parties to a competent Native Court. The Respondent's answer is that in the proceedings before the Court below it did not " appear to x x x the Divisional Court" that the cause or matter in question was one properly cognizable by a Native Court and that therefore there was no reason for action being taken under section 35.

It is not seriously disputed by the Respondent that there was a Native Court available in the area in question with jurisdiction in suits " relating to the ownership, possession or occupation of land", but it is contended that it did not appear to the Court below that the present case was a suit" relating to the ownership, possession or occupation of land."

As the Defendant-Appellant made no appearance in the Court below there was of course no definition of any issue between the parties but Appellant's Counsel contends that a suit such as this,

Adu Kofi v. Chief Kwesi Brentuo, etc-,

in which tribute for farming on land is claimed, must necessarily be regarded for this purpose as a suit relating to the ownership, possession or occupation of land, whatever the defence to it may be: and whatever the issue between the parties may be. Carried to its logical conclusion that argument would mean tllat where a plaintiff claimed arrears of tribute or rent for land it would be a suit relating to ownership, possession or occupation of land even if the defendant appeared and admitted the amount claimed. If the argument for the appellant is upheld that ~s the result.

We are unable to accept this argument. It seems to us that

where, as here, classes of suits are being stated in which the Divisional Court is in certain circumstances to be prevented- or rather is in certain circumstances to prevent itself-from exercising a jurisdiction given to it, one must interpret the words " relating to" in a stricter sense. In our view, for the purpose, a suit "relating to the ownership, possession or occupation of land" must mean in this connection a suit in which some iSS1,e of fact or law is raised for the Court's decision as to the ownership, possession or occupation of land.

It follows that it cannot be said definitely that a suit relates, or does not relate, to ownership, possession or occupation of land until it is known, not only what the Plaintiff claims, but what the defence is.

This view is in accordance with the view expressed by the President of this Court in the cas.e of Kwow v. Ohene Essien Ek1' II as follows :-

.. The short point in this case is whether the case before the Native Tribunal was a suit or matter relating to the ownership, possession or occupation of any land" so that an appeal would lie from the decision to the Provincial Commissioner's Court under section 76 of the Native Administration Ordinance (Cap. 111). In cases such as this the real issue between the parties must be the test and not merely the wording of the suit."

95

Adu Kofi. v.

Chief Kwesi Brentuo, etc.

Graham Paul, C.J ..

(2. W. A. C. A., 180).

Each suit must be considered on its own particular facts, and in the case of Agyeman and others v. Panin (6 W.A.C.A., 11) upon which the Appellant founded the Defendant had appeared and from his defence it was clear that an issue as to occupation of land was raised. This Court accordingly held in that case that it was " clearly a suit relating to the occupation of land."

In short our view is that where the Legislature is sorting out suits as between different Courts it is to the issue to be tried that one must look. Our view, is we think, further supported ~y the decision in the English case, In re Staines-Staines v. Staines, (55 L. J. Chancery p. 913) where it was held that an action brought claiming rents and profits of real estate was not " a cause or matter relating to real estate" within the meaning of a Rule of the Supreme Court using the words quoted. Manifestly, in the ordinary conversational meaning of English words an action claiming rents and profits of real estate is a " cause or matter relating to real estate",

96

Adu Kofi v.

Chief Kwesi Brentuo, etc.

Graham Paul, C.J.

Adu Kofi u. Chief K7tlesi Brentuo, etc, but the Court in the Staines case did not accept that conversational meaning of " relating to ". The Court in that case looked to the issues it had to try in the action and as it had not to try any issue. as to real estate it held that the action was, from the Courts point

of view, not a " cause or matter relating to real estate."

In the present case in our view all that "appeared to the Divisional Court was that the suit might or might not be a suit relating to ownership possession or occupation of land, depending on the nature of the defence. As the defendant elected not to appear the nature of the Defence did not " appear" to the Divi- sional Court, indeed, so far as the Court knew, there was no defence, and therefore it did not appear to the Divisional Court that the suit was one relating to the ownership possession or occupation of land so no action under section 35 was called for.

The essential words of the material section, "Whenever it shall appear x x x to the 'Divisional "Court", deserve, we think, some comment in this appeal. It is no doubt the duty of the Court to know the law, and to apply that knowledge in considering judicially what" appears" or does not" appear" to the Court. But the parties to the suit have a right to put before the Court any facts of the particular case which might assist the Court in that consideration. If a party, knowing such facts of the particular case, omits to bring them to the notice of the Court, he cannot complain if the Court comes to a conclusion without reference to such facts. Nor in our opinion can the Appeal Court entertain such a complaint. It is quite true that the omission of a party to put before a Court facts showing that the Court had no jurisdiction would not confer on the Court a jurisdiction which it did not possess. But here the Court, under section 14 of the Courts Ordinance, had the necessary jurisdiction and could, and indeed must, exercise that jurisdiction unless and until it appears to the Court that there are facts which by statute prevent such exercise of its jurisdiction. We are unable to find that in the present case the Court below was wrong in exercising its jurisdiction as it did.

For these reasons the appeal is dismissed with costs assessed at

£2416s.

7

Nii Ahele Nanshiedu II, etc. tI. Henry Nuno 91

Accra, 22nd February, 1944

Cor. KINGDON AND GRAHAMPAUL, C.J]., AND DOORLY, AG. C.].

NIl AHELE NANSHIEDU II, ABOLA MANTSE OF ACCRA Plaintiff-Appellant

tI.

HENRY NUNO OF ACCRA Defendant-Respondent.

Jurisdiction of the Supreme Court-Libel disclosing offences against Chief's position-Courts Ordinance, s. 75 (1).

Plaintiff sued for libel in the Divisional Court, Accra, but the Court referred the parties to the Native Tribunal or State Council on the ground that the writ disclosed offences of attempting to undermine or usurp a Chiefs position, punishable under s. 27 (1) and s. 31 of the Native Administration Ordinance; so Plaintiff appealed on the ground that a Native Tribunal had no jurisdiction in libel and the damages of £200 claimed were beyond it. The ground of the Judge's ruling was not clear. On appeal Counsel for Defendant-Respondent argued that the action related to the election, installation, or deposition of a Chief and as such Goold not be tried by the Supreme Court, in view of the innuendo averred in the writ ; though the only defence made in the action was that that innuendo was far fetched.

Held, that the rule that civil proceedings should wait upon a criminal trial where an offence is alleged applied to felonies only and not to misdemeanours.

Held also, that so far there was no issue raised relating to the election, installation, deposition or abdication of a Chief, the case was not removed from the jurisdiction of the Supreme Court.

Frans Dove for Appellant.

J. H. Coussey for Respondent.

The judgment of the Court was delivered by Doorly, Ag. C.]. (Gold Coast) :-

This appeal comes by way of special leave to appeal from a Ruling of the Divisional Court, Accra, given on the lOth December, 1943 whereby that Court, on the ground that the writ in an action for libel disclosed offences by the Defendant either of attempting to undermine the authority of a Chief (the Plaintiff) or of attempting to usurp his position, punishable criminally under section 27 (1) and section 31 of the Native Administration Ordinance respectively, referred the parties to the competent Native Tribunal or State Council for the proper proceedings to be taken and awarded £5 55. costs to the Defendant.

Against this Ruling the Appellant has appealed on the grounds that a Native Tribunal has no jurisdiction in libel actions and that the sum claimed (£200) is above the jurisdiction of a Native Tribunal in an action for damages. Objection is taken also to the fact that the Court made its Order without hearing evidence.

7 I~K

98

Nii Ahele Nanshiedu II, etc.

v. Henry Nuno

Doorly, Ag. C.J.

Nii Ahele Nanshiedu II, etc. v. Henry Nuno

The fact that the Judge's Order referred the parties to the competent Native Tribunal or State Council cannot be taken to mean that he purported to be acting under the provisions of section 65 of the Native Administration Ordinance (Cap. 76) for that section relates only. to civil cases cognizable by a Native Tribunal. Furthermore there is no order stopping the further progress of. the c_asebefore the Divisional Court.

The precise intention of the Court is not made very clear but we think that it must be taken that the Court referred the parties to a Native Tribunal or State Council because in its opinion the allegation of a criminal offence was disclosed in the writ andIt held the view that, when that is the case, the offence alleged should first be tried by a criminal Court before the civil Court proceeds with the action.

We can find no authority for this proposition. This matter was fully dealt with in the case of Smith v. Selwyn (L.R. 1914', 3 K.B., 98).. In that case Swinfen Eady, L.J. stated:-

" It is' well established that according to the law of England, where injuries are inflicted on an individual under circumstances which constitute a felony, that felony cannot be made the foundation of a civil action at the suit of the person injured against the person who indicted the injuries until the latter has been prosecuted or a reasonable excuse shown for his non- prosecution.' ,

The rule clearly applies to felonies only. That this is so is borne out by the fact that in his judgment in the same appeal Kennedy, L.J. considered the question whether the injury alleged in that action might not be a misdemeanour but decided that it was not. The fact that the learned Lord Justice made this enquiry shows that the same objection does not apply to 'a civil action taken without prosecution for a misdemeanour.

The offences which the Judge in the Court below considered to be disclosed in the Writ are punishable with imprisonment for a term pot exceeding six months in one' case and in the other with imprisonment not exceeding three months. Neither of them is a felony.

On this ground we consider that the Judge in the Court below was wrong in referring the parties elsewhere as on the face of it the action is not cognizable by a Native Tribunal or State Council. We are of opinion that he should have proceeded with the trial of the action.

Counsel for the Respondent has raised the question whether

the action is not one relating. to. the election, installation, or . deposition of a Chief and as such not triable by the Supreme Court under the provisions of section 75 (1) of the Courts Ordinance which reads as follows:-

" The Supreme Court and Magistrates' Courts shall not have jurisdiction to ent'ertain either as of first instance or on appeal any civil cause or civil matter instituted for- .

" (1) the trial of any question relating to the election, installation, deposition, or abdication of any Paramount Chief, Head Chief, or C:Qief."

su Ahele Nanshiedu, II, etc. v. Henry Nuno 99

The writ in the action sets out the libel complained of as Nii Ahele

consisting of the alleged publication by the Defendant of notices Nanshiedu II, etc.

signed by him and describing himself as Acting Abola Mantse. v.

It is the alleged publication of this description of himself by the Henry Nuno

Defendant which alone constitutes the alleged libel, the writ averring Doody, Ag.

the innuendo that by so signing himself" the Defendant intended c.]. to convey and did convey to the reading public that the Plaintiff was not and never had been Abola Mantse according to Ga Customary Law and accepted as such by the Ga Mantse and recognised by Government and further that by representing himself as Abola Mantse and participating in Ga Stool affairs as such Abola Mantse the Plaintiff was committing offences against the provisions of the Native Administration Ordinance."

The only defence to the action disclosed so far in the opening by Defendant's Counsel in the Court below is " that the innuendo is far fetched;" There is up to the present no issue raised relating to the election, installation, deposition or abdication of a Chief, consequently the case is not removed from the jurisdiction of the Supreme Court by section 75 (1) of the Courts Ordinance already quoted.

The appeal is allowed, the ruling of the Court below, including the order as to costs is set aside, and it is ordered that any sum paid in respect thereof shall be refunded: the case is referred back to the Court below to continue the hearing of the suit unless and until it appears from the issues raised that the matter is one over which the Court has no jurisdiction owing to the provisions of section 75 of the Courts Ordinance.

The Appellant is awarded costs in this Court assessed at £28 15s. and of the one day's argument in the Court below assessed at £5 5s. the other costs in the Court below, both those already incurred and those to be incurred at the further hearing are to

abide the ultimate issue.

\

1. T. N. ,ANORBA}

100 Rex v. T. N. Amwba 0- E. Odonko«

Accra, 28th February, 1944

Cor. KINGDONANDGRAHAMPAUL, C.J]., AND DOORLY,AG. C.J.

REX Respondent.

v.

2. E. ODONKOR ... Appellants.

Criminal Law-Homicide-Manslaughter-Conviction on ground of aiding and abetting.

The first Appellant asked the second to come along with his gun to round up supposed thieves, the intention being to shoot if they threatened with a gun. The second Appellant shot unlawfully but at that moment the first was out of his sight. He was convicted on the ground of aiding and abetting the second Appellant. On appeal:

Held, that there being no evidence that he had instigated the unlawful shooting the conviction of the first appellant could not be sustained.

Appeal by both Defendants; case reported mainly with regard to the first Appellant.

Ollennu for both Appellants.

Akufo Addo for the Crown.


It is quite clear in this case that, the 2nd Appellant shot the deceased in circumstances which amounted to manslaughter. There is no substance in his appeal against conviction and it is dismissed.

The case of the 1st Appellant is different. He was convicted of manslaughter by aiding and abetting the 2nd Appellant in the shooting of the deceased. But the only evidence to support the allegation of aiding and abetting is that he got the 2nd Appellant to come along with his gun to help round up supposed thieves .: The only evidence of intention is that of the 1st Appellant himself :-

.. We took the gun to. find the thieves and our intention was that if we saw the thieves and they threatened us with a gun we wo~ld shoot,"

The evidence shows that 1st Appellant was out of sight of 2nd Appellant and about 25 yards away when '2nd Appellant fired. There is no evidence whatever either that the 1st Appellant instigated the unlawful shooting at the moment it took place or at any time previously. There is no evidence that 1st Appellant did any act or had any intention other than what was strictly lawful. For these reasons we are of opinion that he was wrongly

convicted of manslaughter.

Rex tI. T. N. Anorba & E. Odonkor 101

The appeal of the 1st Appellant is allowed, the conviction Rex

and sentence passed upon him are quashed and it is directed that T. N~Anorba

in the case of the Ist Appellant a judgment and verdict of acquittal & Anor.

be entered. He is discharged. Kingdon.

C.J.

102 Elias J. Moubarak v. Ayoub [apour

Accra, 1st March, 1944

Cor. KINGDON AND GRAHAMPAUL, C.J]', AND DOORLY, AG. C.J.

eross Appeals

ELIAS ]. MOUBARAK, SYRIAN TRADER OF SEKONDI Plaintiff

v.

A YQUB JAPOUR, SYRIAN TRADER OF SEKONDI... Defendant.

Land-Possession-mesne profits-4emolition-grants under native customary law-Land Registry Ordinance (Cap. 112, Gold Coast).

The Plaintiff sought possession of certain, premises in the occupation of the Defendant. Each party claimed as successors in title to grants made under native customary law; the Plaintiff from a grant-obtained in 1913, and the Defendant from one in 1920. Subsequently, in 1933. the original owners of the land executed a conveyance with plan attached in favour of the predecessor in title to the Plaintiff, the plan showing an apparent overlap of 9 feet on to Defendant's plot.

At the outset of the proceedings the area in dispute was clear and defined, but the trial Judge in his judgment lost sight of this definite issue, and further omitted to deal with that part of the

claim for. mesne profits and demolition; the effect of the judgment thus being in favour of the Plaintiff for a strip of the house site, and for the Defendant as regards the rest of the premises. On review the claim for mesne profits and demolition were adjudged, and the narrow strip of the 'house site which had been awarded to Plaintiff was described.

The Plaintiff appealed and the Defendant cross appealed.

Held : That the description and plan in the 1933 conveyance was not proved to truly and accurately represent the extent of the 1913 grant; and consequently the plaintiff could not found upon th~t deed granted thirteen years after the grant to the defendant; that the plaintiff failed to discharge the burden of proof and that the defendant showed a more satisfactory grant, albeit later in date.

Held further. the Land Registry Ordinance (Cap. 112, Gold Coast) does not give to a registered deed any priority over an earlier grant by native customary law; also that too much reliance should not be placed on plans prepared from descriptions given by illiterates.

Appeal of Plaintiff dismissed. Cross-appeal of Defendant allowed. Review order set aside.

F. Auoonor WiUiams for Plaintiff.

J. H. Coussey for Defendant.

Elias J. Moubarak v. Ayoub Japour

The judgment of the Court was delivered by Graham Paul,

C.J. (Sierra Leone) :- ,

The Plaintiff sued the Defendant in the Divisional Court, Sekondi. A~ these are cross-appeals from the judgment. of that Court, it will be convenient in this Court to refer to the parties throughout as Plaintiff and Defendant. respectively.

The claim in the Writ of Summons was as follows :- .. The Plaintiff seeks to recover from the Defendant possession of all

that piece or parcel of land situate between the corner of Sixth St. and Essei St. Dutch Sekondi measuring 132 ft. by 42 ft. by 97 ft. by 52 ft. more or less the property of the Plaintiff of which the Defendant is in wrongful possession.

.. The Plaintiff also claims mesne profits from the Ist September, 1942 to "date of delivery of possession,

.. The said land is bounded on the North by Essei St. on the South , by a ,10 ft. passage, Mrs. Cromwell's house and Moubarak's property on

the East by Sixth St. and on the West by a 12 ft. lane and J. Annu- Esuman's land." . .

There is some confusion in the evidence as to measuremen ts of various pieces of land referred to, but at the outset of the trial and up to judgment in the Court below there was no doubt whatever about the issue between the parties. Quite definitely the Plaintiff's claim as against. the Defendant was to recover possession of the' site on which stands a house occupied by the Defendant, and just as definitely the Defendant's case was that the Plaintiff was not

entitled to recover possession of that site or any part of it. It was agreed by' Counsel in this Court that the" site 'J meant the land actually occupied by 'the building and compound almost enclosed by the building, no more and no less.

At the outset of his judgment the learned Judge appeared to understand that this was the clear issue between the parties when he said:-

103

Elias J Moubarak

v. Ayoub- Japour

Graham Paul, C.J.

.. In this action the plaintiff claims from the defendant possession of a piece of land in Essei Street, Sekondi. .It has been made clear during the trial that the only land in issue is the actual site of a house No. 12/13 Essei Street, occupied by the defendant."

But later in his judgment it appears that the learned Judge . lost sight of the definite issue between the parties when he said :-

f' The defendant does not now dispute the plaintiff's title to one of the two plots bought by him 4t 1941, viz. : a corner plot bounded on one side by Esei Street and on another by Sixth Street, although he did in the early part of the proceedings. The length of this plot in Esei Street is 80 feet from the eastern end of the street, not including the space of 6 feet between the relevant drain and the building line-in Sixth Street .

.. Making allowance for this space of 6 feet, ~heplot in question comprises land on which house No. 12/13 stands to the extent of 9 feet; if this is not included then to the extent of 3 feet .

.. No serious question arises as to this. The main question has been as to the other of the two plots bought by the plaintiff from Nyasemhwe, which comprises all the land on which the house stands, excepting in SO

far as it stands oIl:the first-mentioned plot."

It is quite' clear that the learned Judge was mistaken in this part of his judgment. Counsel for Defendant in his argument

Elias J. Moubarak

v. Ayou~ ]apour

~ r..

- -, Graham ~ Paul, C.J.

,

Elias]. Moubarak v. Ayoub ]apou'l before us .drew attention to this manifest mistake of the learned Judge and Respondent's Counsel did not in his reply attempt to suggest that the learned Judge was not mistaken in the part of his judgment last quoted.

A careful study of the judgment and the record makes it difficult to understand how the learned Judge came to make this mistake. Referring to the strip in question he says" No serious question arises as to this." In his judgment the important question as to the width of the strip was left unanswered as if of no importance, whereas, with part of the Defendant's house standing on the strip, how could the width be regarded as too unimportant to decide? Also in his judgment the learned Judge made no order nor even any reference as to mesne profits or as to demolition of part of the house, rendered necessary by his judgment. Indeed, the opening paragraph and the operative part of the judgment are consistent and intelligible only on the hypothesis that the Judge had forgotten that the strip of land he was giving to the Plaintiff had a part of the house on it, or overlooked the importance of that

fact.

In effect the Court below gave judgment for the Plaintiff for a narrow strip of the house site, at the. east side and including the east wall of the house; and judgment for the Defendant as regards the rest of the house site. In his judgment the learned Judge did not deal with the question of mesne profits, but on a Motion for review he made an order for mesne profits at the rate of £1 per month from the date of the writ until delivery of possession of the narrow strip. He also, on the Motion.for review, ordered the demolition of that part of the house which stands upon the narrow strip. In that order, though not in "his judgment, the leamed Judge defined the narrow strip as being 9 feet in width.

From the judgment and subsequent order these cross-appeals are taken.

In considering these appeals there are two questions (I) as to the narrow strip and (2) as to the rest of the house. The Defendant's appeal relates only to (1) ; the Plaintiff's appeal orily as to (2). These questions may be treated separately, though they are not, on the view we take of the case, separate questions at all.

As regards the narrow strip, the question resolves itself into a competition between the grant from the owners of the land which the Plaintiff alleges his predecessor in title, Brem, obtained in 1913, and. the grant from the same owners which the Defendant alleges his predecessor in title, Brodwimaba, obtained in 1920. Both these grants were under native custom and the evidence does not show that the parties to the grants went on the land with a surveyor to define by a survey and plan the exact boundaries of the plots respectively granted. Brem himself gave 'evidence and all he

1

)

I

r

Elias J. Moubarak .v Ayoub Japou,

said by way of defining what his grant gave him was: .11 A plot at the corner of Essei Street and Sixth Street was given to me by Anaisie II., in 1913." Not a word did he say as to the linear measurements or the shape of the plot. Not a word as to its being a particular plot on a particular plan. Not a word as to physical boundary marks on the South-west. His evidence does not help at all to determine, to within the rather fine limit required by this question, namely nine feet, how far the plot extended South-west from Sixth Street, even if we take it that the term At Sixth Street"

was a sufficiently defined line at the time, which is doubtful. Brem's evidence is useless on this question and there is no other contem- poraneous evidence as to the exact extent of the grant to him in 1913.

The grant to Brodwimaba is evidentially in a much more .satisfactory position. At the time of the grant she had a house on the land which she had bought from a Lagosian, and her object in getting the grant was obviously to make good her title to the land on which the house stood. There stood the house, and the grant was given fot good consideration. It would be an amazing, indeed an incredible, thing if the grant had been given to cover the whole house except the small eastern strip of which we have heard ~ much in this case.

As regards the grant to Brodwimaba the witness Kojo Aba, whose evidence the learned Judge expressly accepted, said :-

.. I was Councillor in Segu Winwah's time .

•• When we were building the Ahinfie we were in need of money, so we called Brodwimaba and asked her for a loan pf £50. She gave us the amount. The Chief and his Councillors for the consideration of this amount granted to Brodwimaba the land on which stands House No. 12/13. She had bought the house already from a Lagos man." .

That evidence is conclusi ve as to the extent of the grant to Brodwimaba ; that it covered the whole land on which the house stood. It is significant that it was never in cross-examination suggested to Kojo Aba or to Ekow Annu, the other witness to Brodwimaba's grant, that a narrow strip of the house at the east side was excluded from the grant.

Upon the evidence it seems clear enough that Brodwimaba's 1920 gran! of the whole land on which the building stands is amply proved and that the Plaintiff has failed. to discharge the onus of proof upon him that the 1913 grant to Brem extended South-west so as to cover the narrow strip of the house which the learned Judge has .given to him, or to extend into the area of the house at all.

Elias J. Moubarak..

v. Ayoub - Japour

Graham Paul, C.J.

It is true that the Plaintiff attempts to 'pray in aid by way of proof of the extent of land given to Brem in 1913 a formal conveyance with plan attached which the owners of the land executed in favour of Brem in 1933. But the Plaintiff cannot for this purpose found upon that deed granted thirteen years after the grant to Brodwimaba, unless he can prove that the

106

Elias { Moubarak

,.-

r v. _. Ayoub

- --:-Japour

"""'" Graham Paul, C.J.

I \

Elias]. Moubarak v. Ayoub Japour description in that deed and the delineation in the plan attached to' it truly and accurately represent the extent of the 1913 grant to him. Not a single witness is called to prove this, and the Court is left entirely in the dark as to who provided the information for -

the description and the plan, and as to the source of that person's information. The persons' who signed the formal conveyance as the owners were not the persons who represented the owners in the 1913 grant. '

ItIs a most surprising thing that the Plaintiff, whose' first witness wasthe surveyor who signed the plan on the conveyance, never put the conveyance in evidence until later on, and never asked the .surveyor to disclose the source of the information on which he made the plan attached to the conveyance. In short, as it is not proved that the 1933 conveyance to Brem referred to

-the same land' as was given to Brem in 1913, it is of no evidential value whatever on the question of the exact extent of the 1913 grant and in .no way assists the Plaintiff to dischatge the onus of

proof upon him. ,131 _

The Plaintiff has sought to eke out his case by reference to the Land Registry ordinance {Cap; 112), but there is no substance in that plea. The Land Registry Ordinance clearly does not give

to a registered deed any priority oV,er.an earlier ~ant by na~iv~ CL

law and custom: Furthermore the Ordinance (section ~.)..ptm11aes -- ..r..; that registration of an .instrument shall not ,,. confer upon it any effect of validity which it would not otherwise have had.",

Parenthetically we may note that too much reliance must not be placed on descriptions in plans attached to instruments executed by illiterates who, as from judicial experience we know, can understand very little from a plan. There is no evidence

that anyone present at the 1913 grant to Brem went on 'the land in 1933 to instruct the surveyor as to the exact limits of the 1913 grant. Nor is there evidence that any of the illiterate grantors of the conveyance to Brem went on the land with the surveyor

so as to show him correctly and accurately the plot of which he was to make a plan for the conveyance.

Upon the evidence as explained we are satisfied that the Plaintiff did not discharge the onus of proof upon him as to the exact extent of his 1913 grant. The learned Judge Was therefore' wrong to hold as he did that the Plaintiff was entitled, to judgment in respect of the land on which any part of the house stands and the Defendant's appeal must be allowed.

As regards the main part of the building, to which the Plaintiff's appeal relates, the position is even clearer in favour of the Defendant. The following material findings of fact by t~ trial Judge are conclusive :-

.. I find that the Omanhene Segu Winwah and his Elders did grant the land to Madam Br,odwimaba long before his successor purported to grant it to theplaintiff;"

• • • •

Elias]. Moubarak v. Ayoub Japour

" In the result I uphold the defendant's title as against that claimed ti.y the plaintiff in respect of the plot in question."

We can find not the slightest ground for interfering with these findings with which on the evidence we agree. The Plaintiff's appeal must therefore be dismissed.

For these reasons the judgment of the Court below of 4th May, 1943 is set aside including the order as to costs and there is substituted therefor a judgment for the Defendant dismissing the Plaintiff's claim with costs to be taxed. The review order of 8th July, 1943, both as to mesne profits and as to demolition of a portion of the building is also set aside and the Defendant is awarded the costs on that motion, to be taxed. The Defendant is also awarded the costs of both the cross-appeals in this Court assessed at £56 12s. 8d.

107

Elias j. Moubarak

v.

Ayoub Japour -Graham Paul, C.J.

1

108 Kofi Baidoo v. Kweku Akwekt4


.Cor. KINGDON AND GRAHAMPAUL, C.JJ., AND DOORLY, AG. C.J.

KOFI BAIDOO AS CARETAKEROF THE JOMO STOOL OF JOMO DIVISION IN SHAMA STATE AND KWESI DODOO OF ABOASI IN JOMO DIVISION Plaintiffs-Appellants

v.

KWEKU AKWEKU OF ABUASI, JOMO DIVISION Defendant-Respondent.

Fishing rights-ejectment-admissibility of documentary evidence.

In 1917 an agreement was made between certain parties on behalf of the J omo Stool and the people of the fishing villages of Aboadzie and Aboasi. As time passed, the Aboasi community collected, tolls from stranger fishermen.

In 1939, on account of the death of most of the signatories to the first agreement, a new agreement was . made, the signatory on behalf of Aboasi being the second Plaintiff. This agreement followed the terms of the first agreement and, in addition, recognised the right to levy tolls. But the Defendant and not the second Plaintiff collected the tolls, and in consequence the first Plaintiff as caretaker of the Stool and the second Plaintiff as the Aboasi signatory to the 1939 agreement instituted this action to restrain the Defendant from continuing to collect the fishing tolls, and to eject him.

Held: That the defendant and not the second plaintiff is the headman of the Aboasi fishing community, therefore the 1939 agreement is invalid, and the 1917 agreement remains binding as between the Stool (represented by the first plaintiff) and the defendant as successor to the original Aboasi signatory.

Held further, that the 1917agreement, though not specifically therein stated, was plainly intended to bind the respective parties not as individuals but as between overlord and community; and that from this agreement the right to levy tolls may tacitly be assumed as resembling a sub-letting of part of a fishing right.

Held further, that the case is not a land case, but a monetary claim.

Appeal dismissed.

F. Auoonor Williams (with him E. O. A safu-Adjaye) for Plain tiffs- Appellan ts.

D. E. Gwira (with him]. Sarkodee-Adoos for Defendant- Respondent.

The judgment of the Court was delivered by the President.

The Plaintiffs sued the Defendant in the Court of the Provincial Commissioner, Western Province, their claim reading ;-

.. The plaintiffs seek to eject the defend'ant from Abuasi village and land attached to the Jomo Stool of which the plaintiff Kofi Baidoo is caretaker and the plaintiff Kwesi DOOoounder an agreement dated 21st April. 1939 is a tenant.

Kofi Baidoo v. Kweku Akweku

"The defendant has without the plaintill's authority or permission

been collecting fishing tolls from stranger fishermen residing and fishing at Abuasi and threatens and intends to continue collecting fishing tolls unless restrained by an injunction.

"The plaintiffs also claim a perpetual injunction restraining the defendant, his servants, and agents from collecting tolls from stranger fishermen residing and fishing at Abuasi. Abuasi village is bounded on the North by Abuasi and Jomo lands; on the South by the sea; on the East by Jomo lands and Shama town, and on the West, by Jomo lands and Abuadzie village."

The main bone of contention in this case was the collection of fishing tolls from stranger fishermen by the Defendant. The Provincial Commissioner's Court held :-

"(a) That the plaintiffs have failed to show cause why the defendant, Kweku Akweku, should be ejected from Aboasi and land attached to the J omo Stool ;

"(b) That the defendant acted in good faith and under what he considered legitimate and recognised rights and powers when he collected tolls from the stranger fishing community of Aboasi.

"(c) and that no evidence has been adduced to entitle me to grant a perpetual injunction, as craved, "restraining the defendant, hts servants and agents. from collecting tolls from stranger fishermen residing and fishing at Aboasi."

and gave judgment for Defendant with costs.

Against that judgment the Plaintiffs now appeal to this Court. The case centres in two agreements Exhibits A and B respectively in the-case, The first is dated 5th March, 1917 and the second is dated the 21st April, 1939. The first agreement Exhibit A is made " by and between Odikro Kwao Kum of Jomo, with the consent of the members of his family (hereinafter called the party of the first part) Headman Kwao Mensah of Aboadzi, for and on behalf of and with the concurrence and consent of the principal members of the fishing community of Aboadzi (hereinafter called the party of the second part) Headman Kondua of Aboasi, for and on behalf of and with the concurrence and consent of the principal members of the fishing community of Aboasi (hereinafter called the party of the third part) and Omanhene Kwao Fraiku of Chama with the concurrence of his Councillors and Elders, hereinafter referred to as the party of the fourth part."

By the agreement the" party of the first part" grants to the " parties of the second and third parts" rights to reside and build and fish, a rent of £40 per annum being reserved. Paragraph 6 reads" That the term of this agreement is indefinite."

It was duly signed by the proper persons, one of whom signing on behalf of the fishing community of Aboasi was Kondua. No mention was made in it of a right to collect fishing tolls from stranger fishermen, but it is common ground that Kondua did in fact collect such tolls from stranger fishermen. By 1939 Kondua and most of the other signatories to Exhibit A had died, and the Stool- of Jomo thought it desirable to have a new agreement, consequently Exhibit B was signed on the 21st April, 1939. It is signed by Chief Ekra Kobina, by Kofi Baidoo, the present first Plaintiff and by the other proper persons on behalf of the Stool

109

Ko6 Baidoo

v.

Kweku Akweku

Kingdon,

C.J.

no

Kofi 'Baidoo v.

Kweku Akweku

Kingdon, C.].

• Kofi Baidoo v. Kweku AklfJcku

of the first part; by "Kwesi Baidoo, Headman" (the present second plaintiff) and others, Councillors, all of Aboasi and by a Headman and Councillors of Aboadzie " as representing the fishing communities of Aboasi and Aboadzie respectively", of the second part. I t was expressed to be for the term of 50 years, renewable by agreement; it renewed the respective rights under the first agreement Exhibit A, which it was intended to supersede, and added and included the following two new clauses :-

"5. That the parties of the second part shall have the exclusive rights to collect customary tolls from foreign fishermen who may from time to time come to reside at Aboasi and Aboadzie for the purpose of fishing and it is hereby expressly agreed that the parties of the second part shall pay to the parties of the first part the sum of £30 (Thirty pounds) annually out of the tolls so collected provided that the said sum of £30 (Thirty pounds) shall be payable irrespective of whatever amount is collected by the parties of the second part in any year .

.. 6. That the rents and tolls so collected yearly should tie shared as follows :-

, Two-thirds to go to the Chief of ]omo and his elders, linguists and family, and one-third to go to the State of Shama."

The Acting Deputy Provincial Commissioner, who constituted the Provincial Commissioner's Court at the trial, found as a fact that Kweku Eku, the Defendant, and not Kwesi Dodoo, the 2nd Plaintiff, is the headman of the fishing community of Aboasi, and held that consequently the 193!Jagreement signed by Kwesi Dodoo, as Headman and as representing the fishing, community of Aboasi is invalid.

We may say at once that we entirely concur with this finding of fact by the Acting Deputy Provincial Commissioner and with his consequential finding as to the invalidity of Exhibit B. The evidence to support the finding of fact is the strongest possible.

Kodjoe Botwiman II, Tufuhene of Shama State, testified as

follows :- .. I know Aboasi: it is on land attached to ] omo Stool, Shama State.

I know Kondua at one time headman of Aboasi. When he died, there was a dispute as-to his successor. One Dodoo was introduced to the State Council as a headman, and there was a protest from the Aboasi people. The District Commissioner asked me to arbitrate and my .. award" was that Akweku should be recognised. We all came to the District Commissioner together with my Councillors, Elders, the Chief of ] omo, and both disputants, Akweku was introduced as the headman. He has never refused to pay the ground rent to the ] omo Stool."

His testimony is supported by documentary evidence, viz. : two letters Exhibits G and F respectively. Exhibit G is a letter dated the 14th December, 1940, from him to the District Commissioner, Sekondi, and is in the following terms :-

" Headman of Abuasi Village-Intl'oduction of

.. Of their own free will and accord the two contending parties at Abuasi have, according to a message received from their representatives this afternoon, agreed to a merger by which Mr. Dodoo alias Suri'iarnu and his elders have become absorbed by Mr. Akua Eku's existing Council there. Accordingly I have invited Chief Ekrah of ]omo to accompany me on Monday the 16th instant to Sekondi where it is my intention, after both parties have satisfied you that the present understanding arrived at by them will ensure peace at Abuasi, to f?rmally introduce Mr. Ak,ua Eku to you as Headman of the fishing commumty there."

Kofi Baidoo v. Kweku Akweku 111

and Exhibit F is a letter from the District Commissioner to Kwesi Kofi Baidoo

Dodoo dated the 23rd December, 1940 in the following terms :-'- Kwekuv

.

.. Aboasi Fishing Tolls-collection of : Akweku

.. I have the honour to acknowledge receipt of your letter dated 21st December. 1940• .and to inform you that the Judgment specifically points Kingdon. out·that you are not entitled to collect tolls. C.J .

.. 2. Since the judgment. the fishing community have elected Aku Eku to be Headman. an election of which you personally informed me you were in favour. He has been presented to me by the Tufuhene as Headman and he, in my opinion. is the correct collector of tolls."

The judgment of the Acting Deputy Provincial Commissioner continues :-

.. As to whether the agreement of 1917 is still binding and valid is another matter: I would point out. however. that it was made • on behalf of the fishing community of Aboasi '. and I am of the opinion that the death of Kondua, did not. of itself. alter the rights so conferred upon this community. one of which is 'the right to reside and build upon' land specified in the Schedule to the agreement. I have no evidence before me that the community. or defendant. has gone outside this ,area .

.. The main bone of contention is the collection of tolls by the defendant. As I have said before. the agreement of 1917 makes no mention of tolls. but there is ample evidence to prove that the late Kondua, as headman did collect tolls and that the J omo Stool acquiesced in this collection. Kweku Akweku, considering (in my opinion. rightly) that he was headman of Aboasi after Kondua's death. continued this collection in good faith. despite the agreement of 1939. which he has always contested."

Appellants' Counsel upon this appeal urged very strongly that since the 1917 agreement (Exhibit A) did not purport to be made on behalf of the parties, their heirs and successors, it was binding only upon the actual parties to it at the tiine of its signature and no one but those parties could enforce it, so that when they were all dead it ceased to exist. We are unable to agree with this view, we think that the plain intention of Exhibit A, sufficiently expressed therein, is that it should bind the respective parties, viz. : the Stools of Shama (Chama) and Jomo and the fishing communities of Aboadzie and Aboasi until cancelled by mutual consent regardless of the natural changes in the personnel whether of the Stool occupants or of the fishing communities, and that the Headman of each fishing community succeeds to the rights of his predecessor, on behalf of the community, under the·agreement.

Certainly all the members of the fishing community in 1917, and not merely the actual signatories, are entitled to the benefits of the grant, and it has not been shown that all those members are dead or no longer members of the community. The natural way for them to enforce their rights under the agreement is through their headman for the time being.

We hold therefore that the 1917 agreement Exhibit A is still in force and binding as between the first Plaintiff and the Defendant.

Another point strongly urged on behalf of the Appellants was that even if Exhibit A were still in force, it gives no right to collect fishing tolls and consequently no such right is possessed by the Defendant. As to this, it is, of course, not sufficient, in order to establish his right and so to resist an injunction restraining him, for the Defendant to show (.as the Acting Deputy Provincial

112

Kofi. Baidoo

v.

Kofi Baidoo t'. Kweku Akweku

Commissioner found) that he acted in good faith and under what he considered legitimate and recognised rights and powers when

Kweku Akweku

Kingdon,

C.J.

he collected tolls from stranger fishermen. He must show that those rights and powers were in fact legitimate and recognised. We are of opinion that he did succeed in showing this. It is clear from the evidence that all parties to Exhibit A tacitly assumed that the rights granted to the fishing communities carried with them the right to levy tolls from stranger fishermen. The transaction resembles a sub-letting of part of the fishing rights. It was definitely proved that Kondua had been collecting these tolls for years in his capacity as headman of the Aboasi fishing community and his right to do so had never been questioned by the Jomo Stool; we are of opinion that the first Plaintiff cannot be heard to question that right now and that the Defendant as Kondua's successor in the position of Headman of Aboasi -fishing community now possesses the right. The second Plaintiff has no standing to question the right.

Upon these findings the claim to eject the Defendant from the land on the ground that he has set up a claim to tolls adverse to the Stool falls to the ground. The only other point raised on behalf of the Appellants upon the appeal was the alleged wrongful admission of evidence, the documents attacked being Exhibits E, G and J and K. Exhibit E is a receipt dated the 14th August, 1941 given by the Defendant to the District Commissioner, Sekondi, for" the sum of £31 (Thirty-one pounds) being fishing tolls collected in respect of Aboasi Fishing Toll Dispute between Akweku and Okra Kobina-an amount collected from Kobina Penin and nine others, fishermen of Aboasi."

It was produced by a clerk from the District Commissioner's office. We are of opinion that the document was properly received in evidence as showing that at its date the Government recognised the Defendant as the proper person to whom fishing tolls should be paid. Even if it were inadmissible it is not of great importance, being· corroborative only, and its wrongful admission would be no sufficient ground for allowing the appeal. Exhibit G has already been quoted; when it was tendered, objection was taken to its admission on the ground that it was not a true account. The objection on that ground was very properly overruled. Had objection been taken on the ground that the proper foundation for its admission had not been laid, it would, no doubt, have been marked for identification only at that stage and later put to the witness Kodjoe Botwiman II who wrote it and, upon his swearing to it, would have been properly admitted. It is noteworthy that when Kodjoe Botwiman II did give evidence he was not cross- examined as to Exhibit G.

Exhibit J and K to the admission of which exception is taken are the writ and decision in the Court of the District Commissioner, Sekondi. in the case of Chief Kwesi Dodoo, Headman v. Kojo

!<.ofi Baidoo v. K7.lJek14Akweku 113

Amoanoo. Plaintiff.

The Plaintiff in that case was the The writ was as follows:-

present second Kofi Baidoo v.

Kweku " The Plaintiff claims from the Defendant the sum of £4 5s. being tolls

due from the Defendant to Plaintiff, for permission to live and fish at Aboasi." Akweku

and the District Commissioner's decision as follows:- ~gdOn,

" The first point I am going to deal with in my judgment is the question of Dodoo's right to be considered 'the Headman of Aboasi as on this whole case seems to swing. To be Headman of Aboasi Dodoo must be chosen by the community of Aboasi and confirmed or approved by the Omanhene of Shama (vide definition of Headman in Cap. 76). The Omanhene it appears from this cannot make a Headman; he can only approve or confirm the appointment of a Headman. The first essential in the making of a Headman is the selection by the community of the village. This Court is not at all satisfied from the evidence before it that Dodoo was ever so selected; so the Court cannot recognise him as Headman.

" Now the lease dated. 21st April. 1939 under which Plaintiff is suing was signed by Plaintiff as representing the fishing community of Aboasi and deals with many matters in which the Aboasi people are vitally concerned. The Court not being satisfied that Plaintiff has any right to represent the fishing community of Aboasi as shown above is not prepared to accept that Plaintiff has power to collect tolls under this lease which was prepared by him as representing the people of Aboasi in a matter vitally affecting the Aboasi people .

.. Judgment is therefore given for Defendant. Plaintiff to pay costs to be taxed."

In this Court it has been urged that the case was a land case and so outside the jurisdiction of the District Commissioner sitting as a Magistrate and the proceedings were therefore a nullity. We do not agree with this view, the claim on the face of it, was a monetary one pure. and simple, and the case was decided on the question of the Plaintiff's locus standi to bring the action. We are of opinion that the exhibits were rightly admitted. So much for the grounds of appeal. We agree with the conclusion of the Court below that the Plaintiffs have failed to show cause for the ejectment of the Defendant or for the granting of the injunction prayed.

The appeal is accordingly dismissed with costs assessed at

8 £37 15s. against the Plaintiffs jointly and severally.

114 Odik1-oDanso Abiam II v. Ohene Boakyi Tromu II


Cor. KINGDON AND GRAHAM PAUL, C.JJ., AND DOORLY, AG.

ODIKRO DANSO ABIAM II ON BEHALF

OF HIMSELF AND THE SUBJECTS OF THE

C.J.

TAKYIMANTIA STOOL •.. P laintiffs- A ppellants- A ppellants- Appellants.

v.

OHENE BOAKYI TROMU II ... Defendant-Respondent- Respondent-Respondent.

Tribute--injunction~amendment of writ-Committee of Privileges.

The Appellants claimed a declaration that they are not liable to pay tribute to the Respondent and an injunction to restrain the collection of such tribute. As the claim lay in the Court of first instance and in the Courts below a question of constitutional issue appeared; the writ was therefore amended to confine the issue to the matter of liability to tribute.

Originally the Appellant people were subordinate to the Etipinhene, and so " strangers" to the Respondent; but in 1896 by action of the Government they were placed under the Respondent and so ceased to be " strangers" liable to pay tribute as evidenced in the 1919 agreement. But at a later date a Committee of Privileges restored the original situation and the appellant people reverted to their status of subordination to the Etipinhene.

Held: Sufficient reasons prevailed to allow the amendment of the writ before the Court of Appeal.

Held further, that the later decision by the Committee of Privileges removing the appellant people from their position under the Respondent caused the former to revert to the status held prior to 1896 and thus become" strangers" liable to pay tribute.

Appeal dismissed.

K. A. Bossman for Appellant.

E. O. Asafu-Adjaye for Respondent.


C.J. (Sierra Leone) :-

This suit was started in the Asantehene's Court B, Kumasi, the Appellant being' the Plaintiff and the Respondent the Defendant. The claim in the Writ of Summons was as follows:-

.. The plaintiff claims that he and all the subjects of Tekyimantia stool are not entitled to pay any tribute to the defendant on behalf of his stool and therefore calls on the defendant to show cause why he demanding him and his subject that from henceforth every inhabitant of Tekyimantia stool subjects should pay a tribute of £2 7s. each whereas there are agreements to the knowledge of the defendant and made between the ancestors of both

Odikro Danso Abiam II v. Ohene Boakyi Tromu II

the plaintiff and the defendant by Messrs. Philbrick & Fell and confirmed by F. C. Fuller, Chief Commissioner, Ashanti, dated 15. 10. 14. 17th April, 1917. respectively and L. H. Wheatley. Ag. Commissioner, W.P.A. on the 11th February, 1919. purporting that no tribute was to be collected from any residents of Tekyimantia.

" 2. The plaintiff further asks the Court in the meantime to restrain the defendant, his servants and'/or agents from proceedings to collect any such tribute from plaintiff or any subjects of Tekyimantia stool till final hearing of the case to a close."

The trial Court gave judgment in favour of the Respondent and from that judgment the Appellant appealed to the Asanteheae's "A" Court which, after hearing further evidence from the Appellant and the statement of the Respondent that he did not "d.esire to say anything besides what has been recorded by the Court below", found that there was no substance in the Appellant's appeal and dismissed it. The Appellant further appealed to the Chief Commis- sioner's Court which after hearing further evidence dismissed the Appellant's appeal. From that judgment the Appellant has appealed to this Court.

In this Court Respondent's Counsel raised the question of the trial Court's jurisdiction to entertain the claim as stated in the Writ, his point being that the claim raised on the face of it a constitutional issue which the trial Court had no jurisdiction to entertain. On this point being raised Appellant's Counsel applied to amend the claim so as to seek only the following :-

.. A declaration that Plaintiff and all his subjects an! not liable to pay any tribute to Defendant on behalf of his Stool in respect of their occupation of that portion of Nkwanta land known as Takyimantia land."

An application to amend the Writ of Summons at such a late stage would not of course be granted by this Court without very good reasons but in this case we think that there are such good reasons, namely:-

(1) that if the objection to the jurisdiction had been taken in the trial Court there would then have been an opportunity for the Appellant to apply to make uris amendment.

and (2) that, as always, we look not merely to the form of the Writ of Summons in Native Court proceedings but rather to the substance of the issues actually raised and tried in the suit, and that in the present case the issues raised and tried were those raised by the amendment now proposed.

We have therefore decided to allow the amendment sought; the Writ of Summons is amended accordingly, and that disposes of the objection to the jurisdiction of the trial Court, the issue being solely a question of whether or not tribute is.payable in respect of the occupation of land, no constitutional question being raised.

Before dealing with the merits of the appeal on the judgments of the three lower Courts it will be as well to state shortly the main historical facts of the case about which there is no serious

84

IU, Odikro Dan- so Abiam II

v. Ohene Boa- kyi Tromull

Graham Paul. C.}.

116

Odikro Dan- so Abiam II

v. Ohene Boa- kyiTromuJI

Graham Paul, C.].

Odikro Danso Abiam II v. Ohene Boakyi T,omu 11 controversy. Prior to the British occupation the Takyimantia people were subject to the Etipinhene and through him subject to the Asantehene. Under the rearrangements made under the auspices of the British Government in 1896 the Takyimantia people were taken away from their allegiance to Etipinhene and placed under the Nkwantahene. Later, on the re-establishment of the Ashanti Confederacy, the Takyimantia people were taken from the Nkwantahene and put back again under the Etipinhene.

In 1919 a written agreement was made between the Nkwanta Chief and Elders of the one part and the Takyimantia Elders of the other part. The text of that agreement, which was 'put in evidence, is as follows :- .

.. We the undersigned the Chief and elders of Nkwanta and the Chief and Elders of Tekyimantia agreed to and hereby bind ourselves to accept and keep the following conditions with reference to the collection and division of tribute on snails. kola. cocoa, etc. :-

.. 1. Both parties shall send representatives who shall meet and combine to collect the tribute .

.. 2. The tribute shall be divided into three parts one-third to be given to the Chief of Tekyimantia and two-thirds to the Chief of Nkwanta .

.. 3. The tribute to be collected from strangers and not from bona fide residents on Tekyimantia land."

On the return of the Asantehene some years ago a " Committee of Privileges" was set up by the Government to deal with constitutional questions which might arise in connection with the restoration of the Ashanti Confederacy. No Report of that Committee dealing with the matters now in dispute was formally put in evidence but it appears to have been available in the Asantehene's A Court- and to have been read in whole or in part to that Court. We have not seen that Report but in our opinion it is not of direct importance to the determination of the claim as now amended, as the Committee was not a judicial tribunal whose decision would constitute res jttdicata on matters of this kind coming before a judicial tribunal.

The A ppeliant in all the lower Courts expressly, and very definitely, based his case entirely on the agreement which we have quoted, and the agreement therefore calls for careful consideration. To understand that agreement, and to define its meaning ani effect, it is essential to bear in mind the relationship between the parties at its date, and the most important point in that connection is that at the date of the agreement the Takyimantia people were under the Nkwantahene. This land in question was undoubtedly Nkwantahene's land at the date of the agreement, so that at that date the Takyimantia people, in any questions or agreements about this land, were not "strangers". It was by the action of the British Government in putting them under the Nkwantahene that they had ceased to be ,. strangers" in regard to Nkwanta land. It follows that, not being" strangers" they were by the terms of the 1919 agreement and at its date, exempted from payment of tribute in respect of their occupation of that portion of Nkwanta land known as Takyimantia land.

Odikro Danso Abiam 11 v. Ohene Boakyi· Tromu 11

The decision of the Committee of Privileges does not itself

bind the Appellant as a judgment of a judicial tribunal about rights to land. If that idea were present, as it appears to have been in the minds of the members of the first two Courts to deal with the case it was wrong. All the Committee of Privileges could decide was the constitutional relations between the parties and upon these relations the parties themselves by their agreement made exemption from tribute to depend. In other words it was the parties by their agreement who. made the decision of the Government through the Committee of Privileges as binding for practical purposes as if it had really been res jUdicata as to tribute.

. It is clear that if and when they should become" strangers .. they were, by the terms of the Agreement, on which their whole case in the lower Courts was expressly based, no longer exempted from the payment of tribute. As has been pointed out they had by the action of the Government in 1896 ceased to be " strangers" to the Nkwantas but had become" strangers .. to the Etipinhene. When later again by the action of the Government through the" Committee of Privileges" they were taken from the Nkwantahene and put back under the Etipinhene, they became "strangers" to the Nkwantahene just as they ceased to be "strangers" to the Etipinhene. Just as in 1919, by the 1896 action of the Government, they were within the express exemption of the agreement so now by the later action of the Government through the "Committee of Privileges" they have been taken out of that exemption.

In this Court Counsel for the Appellant, realising no doubt that. difficulty about depending on the agreement, sought to go behind the agreement and to found on occupation prior to 1896- i.e. while they were" strangers" to the Nkwantahene. Nothing

s of this kind was suggested in the Courts below. In fact it was only

quite incidentally, in a casual sentence of the Respondent's evidence, that this occupation prior to 1896 was even mentioned in the trial Court. We are inclined to think that there must have been some good reason why in the trial Court the Appellant in his evidence never even mentioned the occupation prior to 1896, much less founded upon it. Possibly a clue to that good reason is to be found in the judgment of the trial Court which expressed the opinion that it was the Asantehene "who in the olden days acquired this Takyimantia land from the Nkwantahene and made the

t Takyimantia people occupy it to act as his hunters." If the Appellant in the trial Court had raised the question of the prior occupation it would possibly have been for the Asantehene to say what the terms of that occupation were but the Appellant apparently thought it better to confine his case, as in fact he did, to the agreement, made direct between the Nkwantas and the Takyi- mantias, to which the Asantehene was not a party. If the new case sought to be made out for the Appellant for the first time in this Court had been put forward in the trial Court there would doubtless have been available ample evidence to show the

117 Odikro Dan-

so Abiam II v.

Ohene Boa-

kyi Tromull

Graham Paul, C.J.

tis Odikh> Danso Abiam if v. Ohene 130akyi Tromu II

Odikro Dan- circumstances and the terms of the Asantehene's hunters' occupation so Ab~ II prior to 1896. As it is, there is no such evidence, and the lack of o~ene Boa- such evidence is due to the fact that the Appellant elected to rely kYITromuII_ entirely on the 1919 agreement and to draw a veil over any previous

.Gra~· _ occupation Of the land. At this late stage the Appellant cannot Paul. c.j: ask US to guess at what is behind the veil, and to draw conclusions

in his favour from our guesses. For these reasons we do not think it would be right or proper for us to consider in this appeal- a case which was never by the Appellant put, or even suggested, to any of the three lower Courts.

We are therefore of opinion that the Appellant is not entitled to the declaration sought in his amended claim and the appeal is accordingly dismissed with ..costs assessed at £36 12s. 6d.

District Commissioner, etc. v. Robert Daniel Patterson 119

Accra, 4th, March, 1944

Cor. KINGDON AND GRAHAMPAUL, C.J]., AND DOO;RLY,AG. C.}. (Report No.1) .

In re PEACE PRESERVATION (LABAD!) ORDER, 1942

AND

In re ROBERT DANIEL PATTERSON, HOUSE NO. E/l/17

AND

In re APPLICATION 'FOR WRIT OF PROHIBITION TO

ISSUE

Motion for writ of prohibition-Final or interlocutory judgment; Appeal-West African Court oj Appeal Ordinance Cap. 5, s. :3 (1) and (3).

Appellant moved the Divisional Court, Accra, to issue a writ of prohibition against execution on his property, but was refused. The amount recoverable was £3 18s. 9d., but property worth more than £100 was attached. Appellant applied for special conditional leave under Cap. 5, s. 3 (3) as from an interlocutory judgment; he was granted by the Court below, apparently unintentionally, conditional leave under 'subsection (1). For Respondent it was

. argued in. the Court of Appeal that an appeal did not lie under . either subsection. This report is confined to the preliminary

objection on appeal. Held, that as'the judgment disposed of the issues on the motion it .was final

and an appeal lay under Cap. 5,lj. 3 (1).

Held also, that irregularity in the inception of the appeal was not sufficient' to prevent the hearing' thereof. -

Appeal by Robert Daniel Patterson from the refusal of the Divisional Court, Accra, to issue a writ of prohibition.

K. A. Bossman (with him N. A. Ollennu) for Appellant.

}. S. Manyo Plange, Crown Counsel, for Respondents (District Commissioner, District Magistrate, and Sheriff, Accra).

The judgment of the Court was delivered by the President:-

'The Appellant moved the Divisional Court, Accra for an Order calling upon the District Commissioner, Accra, as Execution Creditor in the 'above case, the District Magistrate, Aecra, and the Sheriff, Accra, "To SHOW CAUSE WHY AN ORDER FOR WRIT OF PROHIBITIONshould .not issue to 'prohibit them from proceeding

any further in the above suits against the said IfOBERT DANIEL PATTERSONthe applicant herein, and in particular from proceeding into execution by attaching the real and personal properties of the said Applicant-AND for .such further Order as to the Court may seem meet." Upon that motion the learned Judge in' the lower Court delivered a " judgment" refusing the writ.

120

District Commis- sioner, etc.

v. Robert Daniel Pat- terson

Kingdon. c.j.

District Commissioner, etc. v. Roben Daniel Patterson

In our view that was a final It judgment" since it finally

disposed of the issues between the parties upon the motion, and would equally have done so if the writ had been granted.

The motion, on the face of it, does not disclose the value of property in issue, but the proceedings show that the sum which is recoverable against the Appellant amounts to £3 18s. 9d. only. It is, however, common ground that in order to recover that sum real property of the value of more than £100 has been attached. We are, therefore, of opinion that an appeal lies from the It judgment" of the Divisional Court under subsection (1) of

section 3 of the West African Court of Appeal Ordinance Cap. (0), since the It judgment" determines a question respecting property above the value of £100. We hold that the" judgment." is not an interlocutory one for which special conditional leave is necessary under subsection (3) of that section.

Counsel for the Appellant, however, took the view that the " judgment ,. was interlocutory and applied for special conditional leave under subsection (3). The learned Judge in the Court below took the same view and granted special leave. but, by what seems

to be a slip of the pen, he purported to grant that special leave under subsection (1) instead of subsection (3). Upon the appeal being called on before this Court. Counsel for the Respondent has submitted that the Court has no jurisdiction to entertain the appeal contending (a) (rightly, in our view) that the appeal does not lie under subsection (3) of section 3 of Cap. 5. and (b) (wrongly, in our view) that it also does not lie under subsection (1) of that section.

We agree, however, that the appeal has got before the Court in a wholly irregular manner since the appeal proceedings' started with an application for, and grant of. special conditional leave to appeal, instead of merely conditional leave under subsection (1) of section 3. But this Court has held before that such a technicality was not sufficient to prevent this Court from hearing an appeal and endeavouring to do substantial justice between the parties. (G. B. OlUvant, Ltd. v. C. A. Vanderpuye. 2. W.A.C.A., 368.)

We have accordingly decided to hear the appeal upon its merits.

J. A. Annoh v. Sakyi Djan 0- A.nor.

Accra, 7th March, 1944-

COR. KINGDON AND GRAHAMPAUL, C.JJ., AND DOORLY, AG. C.J.

J. A. ANNOH Plaintiff-Respondent--Appellant

v.

121

1. SAKYI DJAN,

2. NICHOLAS AKOTO KOVE alias 'N. R. A. GBECKOR ... Defendants-Appellants-Respondents

Land=-declaratio« of title-damages for trespass-fam'ily property- statutes of general appUcation-judgment of Native Tribunal restored. '

The second respondent bought the premises from A. P. Plange and paid a deposit. Thereupon the Plange family intervened claiming the property to be family property. In consequence A. P. Plange failed to convey the property to the second respondent who sued for the return of his deposit; he succeeded and proceeded to execution by a writ of Fi. Fa. on the premises.

At the subsequent auction on 7th July, 1941, the first respondent bought the premises, but before this, in 1940, the appellant had purchased the same from the Plange family. Thus the proper issue in the Court below was the competition between the two sales.

Held: The second respondent not being a party to the appeal proceedings in the Court below when re-trial was ordered, should not have been a party to such re-trial.

Held. Funher, that a Native Tribunal has no power to attach property, and consequently the supposed attachment in May 1940 had no legal efficacy to create priority to the purchase by the appellant in the same year.

Held Furths«, that the Statute 13 Elizabeth Cap. 5 is a Statute of general application applicable to the Gold Coast by section 70 of the Courts Ordinance. and consequently the absence of proof of fraud on the part of the appellant supports the latter's claim to declaration of title.

Appellant's appeal against first respondent allowed; judgment of Native Tribunal restored as regards appellant and first respondent, but set aside as regards second respondent. Counsel:- .

Akufo "Addo for Appellant

K. A. Bossmam. for first Respondent.

S. Sakyi Djan for second Respondent.

Cases. referred to :-

Laryea v. Quao (6 W.A.C.A. 228)

Mil~r v. Kwayisi (1 W.A.C.A. 11)

Braithwaite v. Folarin {4 W.A.C.A. 76}.

122

J. A. Annoh v.

Sakyi Djan & Anor.

Graham Paul, C.J.

]. A. Annok v. Sakyi Djan & Anor,

The judgment of the Court was delivered by Graham Paul, C.J. (Sierra Leoneji->

The Appel1ant was Plaintiff and the Respondents were the Defendants in a suit in the Tribunal of the Paramount Chief of the Akwapim State in the Gold Coast Colony. Judgment was given' by the Tribunal but it was set aside on appeal by the

Prpvincial Commissioner's Court which ordered a retrial de novo. In this connection it may be mentioned at once that the second Respondent· was not' a party to the appeal proceedings and Appellant's Counsel now admits that the second Respondent was unaffected by the order made on appeal for a retrial and was improperly treated by the Tribunal as still a party when the rehearing was taken. It will be necessary later to refer to that

feature of this appeal. "

The claim in the original case and in the retrial was as follows :- " The Plaintiff's claim against the Defendants is for a Declaration o)

Title in respect of all ~hat piece or parcel of land situate, lying' and being .at Nsawam in the Akwapim State and bounded on the North' by E. S. Anoff's land measuring 208' 00' feet more or less, on the South by High Street leading to Accra measuring 140'60 feet more or less, on the East by Nsawam-Aburi Motor Road measuring '85'70 'feet more or less and on the West by A, P. Plange'sland and measuring 9'4'00 feet more or less.

" The Plaintiff further claims from the second Defendant Fifty Pounds '(£50) damages for unlawful trespass committed upon' the above-described property, the said trespass consists 'in entry and placing Auction Notice thereon,"

At the conclusion of the retrial the Tribunal gave judgment for the Plaintiff against 'both Defendants for the declaration of title sought, and for £25 damages for trespass against the second Defendant. From that judgment the Defendants appealed to the Provincial Commissioner's Court which allowed the appeal and reversed the judgment of the Tribunal. From that judgment the

Plaintiff has appealed to this Court, .

The main question upon which the, decision of this appeal 'depends is short and definite but the history of fact leading up to that question requires narration at some length. .

That history begins with dealings which the second Respondent had with one A. P. Plange in regard to the land now in question, The second Respondent agreed to buy, and A. P. Plange agreed to sen,' the land in question .. A deposit was paid by second Respondent on account of the agreed price, but before the' balance was paid some members of the family of A. P. Plange wrote to

.the second Respondent to say that the property belonged to them so he should not buy it. The second Respondent took no notice of that letter, called upon A. P. Plange to. give 'him a deed of conveyance and, when he refused to- do so, sued A. P. 'Plange and. got judgment in the Tribunal of the Paramount Chief ofAkwapim for the refund of his deposit, etc, On getting that judgment the second Respondent issued a Writ of Fi. Fa. to recover the amount. of the Judgment and "attached" the same property' now in

question. Whether the property was re:illY in any legal sense

]. A. Annoh v. Sakyi Djan & Anor. 1'28

" attached" will be later dealt with. The judgment of the Tribunal J. A. ADnoh

was dated 27th March, 1940. The Writ of Fi. Fa. was. issued on 'Sakyi ~jan 20th May, 1940. On the 22nd May, 1940, A. P. Plange appealed & Anor, to the Magistrate's Court and obtained a stay of execution pending Graham

decision of the appeal. Judgment in the appeal was not given Paul, C.J.

until 4th June, 1941. The reason for the delay of over a year in the appeal being decided does not appear.

The Appellant came into the historical picture when in -1940 he purchased the property in question. He says he purchased it from the Plange Family by Guaha custom, and by formal Indenture of Conveyance which is in evidence and is dated 13th August, 1940. The Indenture of Conveyance is expressly granted byA. P. Plange as Vendor" seised in fee simple in possession free from incumbrances", but the Indenture is witnessed by the members of his family who had written to the second Respondent warning him not to buy from A. P. Plange,

There seems upon the record of the evidence at the trial no reason to doubt that the Plaintiff bought from the Plange Family. He said so on oath, was not contradicted, and was apparently believed by the Tribunal. That he took an Indenture of conveyance in ordinary English- conveyancing jargon expressly from A. P. _Plange is true. The witnessing of the conveyance by members of the family apparently satisfied him, and indeed members of the family willingly witnessing a conveyance would find it difficult to attack it later on the ground that it was not with their consent.

Whatever suspicioh there may be upon the evidence as to the bona fides of the Plange family in all these dealings there is nothing in the evidence against the Plaintiff's bona fides, either alleged, suggested, or proved. When he bought, he quite openly occupied .the land and made a drain and started building on it and no orie interfered.

In this Court a great deal was made of the fact that the Appellant in his evidence founded on a sale by the Plange Family and yet P1,1tin evidence a conveyance by Plange himself. Nothing seems to.have been made by the Defendants of that point at the trial, nor is if specifically mentioned in any of the 12 joint grounds of appeal of the two Respondents in their appeal to the Provincial Commissioner's Court. It -is not surprising that this should be so, for it might well be beyond -the ingenuity of the parties to conceive such a case. To oppose the Plaintiff's claim on theground that he had a conveyance not from the Family but only from A. P. Plange who, according to their own case, was the proper person to grant such a conveyance seems to pass beyond the bounds of mere ingenuity. In support of this plea the first Respondent's Counsel quoted the case of Laryea v. Quao (6. W.A.C.A., ,228). But in that case it did not appear, as it does in the present case, that the Defendant's case supported explicitly the validity of the Plaintiff's documentary evidence of title.

124

J. A. Annoh v.

Sakyi Djan & Anor.

Graham Paul .:C.J.

). A. Anno" fl. Sakyi Dian 0- Anor.

It is noteworthy that although the Defendant's case at the trial was quite definitely that the property in question belonged to A. P. Plange, and I not to the Plange Family. the Defendartts by 'their evidence blew hot and cold on this very question. They called Peter Quarcoo Plange to swear that it was not family Property and Silke, the caretaker of the land, to swear that it was family property. It is not surprising that the Tribunal upheld the Appellant's case by their finding of fact" That the Plaintiff had title to the land transferred to him before the sale of the land on 7th June, 1941." No reason appears in the judgment of the Provincial Commissioner's Court or in the arguments before this Court why that definite finding of fact by the trial Tribunal should not be accepted.

The appearance of the second Respondent as the second Defendant in this suit is explained by his being the judgment creditor who had issued the Writ of Fi. Fa. upon which, on the cessation of the stay of execution by reason of the decision of the pending appeal, a sale of the property took place. It is by reason of that sale that the first Respondent comes into the Picture; he bought the property at the sale, and that is why the Appellant made him a defendant in this suit.

Now that it has been shown how the first and second Respondents came to be Defendants in the Appellant's suit it will be convenient to see what their respective cases were in their defence. In the course of the Tribunal's most lucidly expressed judgment the respective cases of the Defendants before it are stated as follows:-

.. The case for the 1st Defendant is that on the 7th June, 1941, he attended an auction sale at Nsawam. He became the purchaser of the land in dispute for £80, without knowing the owner of the property before the sale, or the creditor at whose instance the property was being sold, but he got the Summons in this case a few days after the sale and on the 7th July, 1941, obtained a Certificate of Purchase (Exhibit F) in respect of his purchase, and on the same day the Tribunal gave Judgment against him from which he appealed to the Court of the Provincial Commissioner. He did not know who was called Sampson O. Djan but he JIlay be able to identify him if he were to see him.

" The case for the 2nd Defendant is that he recovered Judgment in this Tribunal on the 27th March, 1940 against A, P. Plange, and on the 22nd May, 1,,40 the land in dispute was seized in execution by attachment Notice and Auction Notice being put on a palm tree standing on the land in dispute. Aft~r the attachment a telegram was received by the Tribunal from the District Commissioner staying execution, because an appeal had been lodged. At the time of the attachment of the land, there was a building being erected on the land .

.. 2nd Defendant then referred to the following legal authorities which he said he relied upon for his defence: .

.. (I) Millet'v. Kwayisi (I.W.A.C.A. II)

.. (2) Order 44 Rule 15 of the Courts Ordinance .. (3) Bt'ailhwaile v. Folaf'in (4.W.A.C.A. 76.) ..

Having regard to the claim and the basis of it, namely the sale and Indenture of conveyance on the one hand, and the cases for the two Defendants on the other, it is clear that the issue before the Tribunal was a competition between the sale embodied in the

]. A. Annoh v. Sakyi Djan e. Anor.

conveyance of 13th August, 1940 and the sale under the Writ of Fi. Fa. which according to the receipts Exhibits D and E was not completed until 21st June, 1941. In this competition, the first Respondent, founding upon a sale nearly a year later than that upon which the Appellant claimed, could not succeed unless he could relate his sale back to something anterior in date to the sale to the Appellant, and the first Respondent seeks to date the sale to him, for priority purposes, back to May, 1940, when the Writ of Fi. Fa. was issued and a Tribunal Messenger was by the Tribunal entrusted with the execution of the Writ, and, according to the first Respondent's case effectively" attached" the property.

Instead of examining the evidence as to what was, or was not, done in May, 1940 by way of execution of the Writ of Fi. Fa.-and there is some difference and difficulty in the evidence on this point- it is enough to state clearly two propositions: (1) That" attachment" of property is a creature of statute. Neither the Common law of England, nor any proved or judicially accepted native

. custom, gives any virtue or priority to mere" attachment" as against a subsequent purchaser, and (2) that the Legislature of this Colony has not thought fit to enact for Native Tribunals any efficacy of " attachment" done by a Messenger of the Tribunal or otherwise. And the unfortunate result is that such attachments have no legal efficacy at all.

Founding, as he had to found, upon the efficacy of the alleged " attachment" in May, 1940, and faced as he was by these two propositions just stated to which he could give no answer, first Respondent's Counsel had to fall back upon the Statute 13 Elizabeth Cap. 5, which, as an Englishstatute of general application prior to' 24th July, 1874, applies here. He quoted from the Provincial Commissioner's judgment in this case the following important paragraph :-

"There is no doubt that Plange must have known of ,the Order of attachment prior to his negotiations with the Plaintiff-Respondent and as the learned Judges recorded in the judgment of the W.A.C.A. of Koft v.

Adjei referred to above, there is an omission in the procedure governing seizure and sale of property by Tribunals" which might suitably be remedied by making of further regulations" but until such time as these regulations are made if it can be reasonably presumed that a party had information that a Writ had been issued by a Tribunal, any attempt to alienate the property mentioned in that Writ must be considered as an attempt to defeat the Law."

and argued that the Provincial Commissioner had in view the Statute of Elizabeth as "the law" which Plange had attempted to defeat. This may well have been so, for in the Tribunal the second Defendant had quoted the Nigerian case of Braithwaite v .

.Folarin (4. W.A.C.A., 76) which drew attention to- this statute and to its being a statute of general application.

The Statute of Elizabeth was no doubt very sound legislation in England in 1571, for it remained in force in England till 1925. It was simply declaratory of the Common law of England as it was in 1571 and the Common law of the England of 1571 may no

- -- - -- - -

125

J. A. Annoh v.

Sakyi Djan & Anor.

Graham Paul, C.J.

126 J. A. Annob v. Sakyi Djan & Anor.

]. A. Annoh doubt be soundly applied to the Gold Coast in 1944, and it

Sakyi ~jan undoubtedly does apply to the Gold Coast by section 70 of the & Anor. Courts Ordinance-the repeal in 1925 not applying here.

Graham· To plead this statute however is a very serious and onerous Paul, C.]. pleading. It is not necessary to quote the quaint language of

the statute but two things are clear and definite: (1) That to void a conveyance under the statute, fraud must be alleged and proved and (2) That the Act does not extend to any rights or interest which any person has obtained under a conveyance for good consideration and bona fide, however fraudulent the grantor may have been in granting the conveyance. .

In its judgment the Provincial Commissioner's Court apparently set aside the trial Tribunal's judgment on the gr.ound that Plange knowingly had attempted II to defeat the law". Even assuming that the Provincial Commissioner's Court was right in finding that Plange knowingly "attempted to defeat the law", which on the evidence is by no means certain and was not found by the trial Tribunal, that cannot affect the rights of the Plaintiff under the conveyance which he obtained for good consideration and bona fide. Throughout the course of the trial no suggestion was made

that the Plaintiff in taking the conveyance acted otherwise than bona fide, or that there was no good consideration for his conveyance.

Neither Defendant alleged fraud or mala fides against the Plaintiff. It was not even suggested to him in cross-examination that he knew of a creditor's attempt to get the property sold for his debt, and there is certainly no evidence that he did. Nothing is more definite in English Procedure than that a party founding upon fraud of the other party in a suit must specifically allege and prove that fraud. That is a canon of English legal procedure but it is also a canon of natural justice and common sense. N 9 fraud on the part of the Appellant having been alleged in the defence of either Respondent in the trial Tribunal, it is obvious that the Statute of Elizabeth cannot be used against the Appellant fo defeat his claim under his conveyance.

For these reasons it seems clear that the judgment of the Tribunal, in so far as it gave the Appellant the declaration of title which he sought, must be restored and to that extent the judgment of the Provincial Commissioner's Court set aside.

It is now necessary to deal with the position of the second Respondent and his plea that he was pot a party to the appeal which resulted in the first judgment of the Tribunal being set aside and a retrial ordered, and that therefore he ought not to have been a party at all in the retrial. This plea might have raised nice questions, but Appellant's Counsel in this Court has conceded that the order for retrial did not affect the second Respondent, and that in the retrial he should therefore not have been a party. Upon that concession by Appellant's Counsel the judgment of the Tribunal on the retrial in so tar as it purports to affect the

J. A. Annoh v. Sakyi Djan <5- Anor.

second Respondent must be set aside. It has, however, been made clear to this Court that the Appellant was in no way responsible for the order of the Provincial Commissioner's Court setting aside, on the face of it without qualification in favour of the second Respondent, the first judgment of the Tribunal and therefore it would not be just to mulct the Appellant in the costs which the second Respondent has incurred by the proceedings.in the Tribunal subsequent to the order for retrial. The second Respondent as an Appellant to the Provincial Commissioner's Court did raise this question in his grounds of appeal, and therefore is entitled to his costs in that Court and in this Court.

The Appellant's appeal against the first Respondent is allowed, the judgment of the Provincial Commissioner's Court in so far as it affects the case between the Appellant and the first Respondent, including the order as to costs, is set aside and it is ordered that, if any sum has been paid to the first Respondent by the Appellant in pursuance of that order, it shall be refunded; the judgment of the Tribunal of the Paramount Chief of Akwapim is restored in so far as it applies t9 the case between the Appellant and the first Respondent, the Appellant to have in that Tribunal taxed costs of his case against the first Respondent. The judgment of the Provincial Commissioner's Court in so far as it affects the case between the Appellant and the 2nd Respondent is upheld including the order as to costs, and it is declared that the original judgment of the Tribunal in favour of the 2nd Respondent, delivered upon the first hearing of the suit stands good; the Appellant is awarded against the first Respondent costs in this Court assessed at £43 13s. 3d. ; and in the Provincial Commissioner's Court to be taxed: the second Respondent is awarded against the Appellant costs in this Court assessed at £29 4s.

127

J. A. Annoh v.

SaJcyi Djan

& Anor.

Graham Paul, C.]

/

District Commissioner, etc. v. Robert Da'rt1:elPatterson

K. A. Bossman, with him N. A. Ollenn«, for Appellant.

District Commis-

129

.:f. S. M anyo Plange, Crown Counsel, for Respondents.

The judgment of the Court was read by the President :-

This is an appea-l from a t t j udgment " of the Supreme Court

refusing to issue a Writ of prohibition.

The Appellant moved the Divisional Court, Accra, "for an Order calling upon the District Commissioner, Accra, as Execution- Creditor in the above case, the District Magistrate, Accra, and the Sheriff, Accra, To SHOW CAUSEWHY AN ORDER FOR WRIT OF PROHIBITIONshould not issue to prohibit them from proceeding any further in the above suits against the said ROBERT DANIEL PATTERSONthe applicant herein, and in particular from proceeding into execution by attaching the Real and personal properties of the said Applicant-AND for such further Order as to the Court may seem meet."

The facts of the case are shortly stated in the judgment of the lower Court as follows :-

.. On 29th September, 1942, the town of Labadi was placed under the Peace Preservation Ordinance by proclamation. Under section 9 of the Ordinance the inhabitants of the proclaimed district, which consisted of an area with a radius of one mile of Labadi market, by order in Council of 30th November, 1942, were charged with the cost of additional police stationed there. The District Commissioner assessed the proportion of such cost which each inhabitant was to pay. Notice of the assessment requiring payment to be made at the District Commissioner's Office, Accra, within 7 dals of January 14th, 1943, was posted at the District Commissioner s Office,Accra, and copies of it were also posted at conspicuous places at.Labadi including the Mantse We (Chief's residence).

'. Patterson and 11 others did not comply. On 22nd April, the District Commissioner made application to the District Magistrate, Accra, for a writ of attachment to be issued in respect of Patterson's house. This was done and the bouse was attached, as well as those of other persons who failed to pay."

The main ground of a-ppeal to this Court is that the Court below was wrong in deciding that "the District Commissioner's procedure was entirely in accordance with the section: it was a ministerial act, not a judicial one: therefore it was not the act of an inferior Court; a writ of prohibition could not issue so far as concerns the District Commissioner." The section referred to is section 9 of the Peace Preservation Ordinance (Cap. 40) which

9 is in the following terms :- .. 9. Where additional constabulary or police have been sent up to or

stationed in a proclaimed district the Governor in Council may order that the inhabitants of such proclaimed district be charged with the cost of such 'additional constabulary or police.

"A District Commissioner within whose district any portion of a proclaimed district is shall, after enquiry, if necessary assess the proportion in which such cost is to be paid by the said-Inhabitants according to his judgment of their respective means .

.. All moneys payable under this section may be levied under the law for the time. being in force for the levying of moneys ordered by a Court to 'be paid."

The submission made by. Counsel on behalf of the Al?pellant was that on principle as well as by the very wording of the section the District Commissioner was made a judicial officer ad hoc, and

sioner, etc. v.

Robert Daniel Patterson Kingdon. C.J.

9 ,a-L.

130

District Commis- sioner, etc,

v. Robert Daniel Patterson

Kingdon, C.J.

District Commissioner, etc. v. Robert Daniel Patterson

was bound to exercise his discretion judicially; that by omitting to hold an enquiry or to give notice to the persons concerned that they were about to be assessed, he failed to exercise any judicial discretion, so that his assessment is invalid and the proceedings are illegal and should be stopped by issue of the writ as prayed. In support of his argument Counsel referred to the following extract in the Judgment of Hewart, L.C.]. in the case of Rex v. North Worcestersbire Assessment Committee, ex parte Hadley (1929) 2.K.B., 397 at page 406, ·being a dictum of Atkin, L.J. (as he then was) in the case of Rex v. Electricity Commissioners (1924) 1. K.B. 171 :-

.. Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs."

We draw special attention to the words "and having the duty to act judicially." That is the vital point. In reply to these arguments Counsel for the Respondents submitted :-

" The whole of Chapter 40 is punitive legislation, which is only applicable in certain circumstances, viz. : when the public peace is disturbed or endangered. The act of the' District Commissioner under section 9 is purely an executive act. The liability of the inhabitants is determined by Order

iri Council. The District Commissioner is merely an executive officer who, by virtue of his position, is in touch with the people of the District, and, by virtue of his knowledge is directed to spread out the liability amongst the people in accordance with his knowledge.

* • * "He does not have to make an enquiry, if the matter

is within his knowledge. The words "after enquiry" do not impose upon him any powers or duties as a judicial officer; he is an executive officer throughout, a writ' will not lie to such an officer."

We entirely concur' with these submissions by Respondents' Counsel and we do not think that the reasoning can be improved upon. That disposes of the appeal so far as the District Commis- sioner is concerned, except that we should addthat there is a second reason for refusing a writ .directed to t he District Commissioner namely that he is functus officio. He has completed his assessment and his duties are over. There are no further steps leftfor him to take and it is not he who is proceeding to execution. ·It is difficult to see what it is asked that he should be prohibited from

doing. So far as the District Magistrate is concerned t he pol tion of the" Judgment" of the Court below which is attacked upon the appeal is :- .

" As regards the actual attachment of the house, that also was in conformity with the Ordinance. The issue of the writ of attachment was a judicial act by the District Magistrate, an inferior Court. Was it in excess of jurisdiction or contrary to any statute or of the principles of common law? The District Magistrate undoubtedly had jurisdiction to issue the writ of attachment; the process which he issued was in accordance with the relevant ordinance (Cap. 40). Prohibition could"not lie on those grounds."

District Commissioner, etc. v. Robert Daniet Patterson.

The argument of Appellant's Counsel as to this is 'that after assessment, the District Commissioner gave no personal" notice

District Commis-

131

to the Appellant requiring him to pay, no notice of assessment and no demand for payment; that the notice given (namely the posting of notices at the District Commissioner's cffice, the Mantse We and other conspicuous places at Labadi) was not proper notice; that before execution could issue there ought to have been proper notice; that-the issue of a writ of Fi. Fa. without notice was wrong and that in any case before a Writ of Fi. Fa. could issue the order for payment ought to have been registered as a judgment of the

District Magistrate's Court.

As to this it will be observed that the complaint is entirely of past acts, and again it is not clear what act on the part of the District Magistrate it is sought to prohibit. The District Magistrate, like the District Commissioner, is functus officio, and for this reason alone the writ could not be granted.

But in addition Counsel for the Respondents has submitted that the _act of the District Magistrate in issuing the writ is a' ministerial act and not a judicial one. In support of this contention he relies upon a dictum of Fletcher-Moulton, L.]. in the. case of

Rex v. Woodhouse (1906) 2. K.B., 501 at 535 :- .. The true view of the limitation would seem to' be that the term

.. judicial act" is used in contrast with purely ministerial acts. To these latter the process of certiorari does- not apply, as for instance to the issue of a warrant to enforce a rate, even though the rate is one which could itself be questioned by certiorari."

We agree with him on this point and we fire of opinion that a writ could not, in any case, be issued to the Magistrate to prohibit him from .carrying out his clear duty under the law. which makes no provision requiring the giving of notice before issue of writ.

As to the Sheriff, obviously he is not acting judicially and the writ will not lie.

In our view these whole proceedings by way of an application for the issue of a writ of prohibition were entirely misconceived.

The appeal is dismissed with costs assessed at £33 18s. 6d.

9A

sioner. etc. v.

Robert Daniel Patterson

Kingdon, C.J.

132 Obed Yao Bansab v. Alfred Yao Kuma Kwadjo

Accra, 7th March, 1944

Cor. KINGDONAND GRAHAMPAUL, C.]J., AND DOORLY, AG. C.].

OBED Y AO BANSAH Defendant-Appellant.

v.

ALFRED YAO KUMA KWADJO PER OSCAR KPE Plaintiff-Respondent.

Claim to land-Burden of proof.

Plaintiff sued Defendant in Native Tribunal, unsuccessfully, for a piece of land. He appealed to the Provincial Commissioner's Court, which reversed the Tribunal's judgment without recording what parties put forward; but it was clear from its decision that that Court considered whether Defendant had proved his title. Defendant then appealed to the West African Court of Appeal. As an afterthought Plaintiff's Counsel argued that some witnesses gave evidence without being sworn before the Native Tribunal and therefore the case should be remitted for retrial.

Held, that the absence of a note that witnesses had been sworn before the Native Tribunal was no proof that they had not been sworn. and seeing that nothing was said about it in the intermediate appeal, no weight could be given to the objection.

Held also that the burden of proof in the suit claiming the land lay on the Plaintiff, who had failed to discharge it before the Native Tribunal.

Appeal by Defendant from the decision of the Provincial Commissioner's Court (given on appeal from a Native Tribunal).

N. A. Ollenn'u for Appellant.

A. O. Larbi for Respondent.


C.]. (Sierra Leone) ;-

This case started in the Native Tribunal of Fiaga of Peki State, the Respondent in this appeal being the Plaintiff and the Appellant the Defendant. The claim in the case was as follows :~

.. Plaintiff claims trom Defendant all that piece or parcel of .land lying and being at Agata and bounded as follows :-

.. On the North by Anyomi

.. On the South by Amoa Kwadjo

.. On the East by Alfred Yao Kuma Kwadjo

.. On the West by Denteh,

and of which Defendant covertiously taken same for his own."

The Tribunal, after hearing the evidence of both parties, and viewing the land, gave judgment against the Plaintiff with costs. From that judgment the Plaintiff appealed to the Provincial Commissioner's Court which, according to the record before us, "heard both parties and read the copy of the proceedings in the Tribunal", allowed the appeal, and reversed the judgment of the

Obed Yao Bansah v. Alfred Yao Kuma Kwadjo 188

Tribunal. There is no record vouchsafed to us of what the parties Obed Yao

put before the Provincial Commissioner's Court, which is perhaps Bansahv.

unfortunate. Alfred Yao Kuma

We have, however, considered carefully the evidence given by and for, the Plaintiff in the Tribunal, and we have not the slightest doubt that the Tribunal was right in refusing to entertain the claim of the Plaintiff on the evidence adduced in support of it. The Plaintiff most certainly failed to discharge the onus of proof upon him in making his claim to the land in question. The Tribunal is better qualified to weigh the evidence than either the Provincial Commissioner's Court or this Court, and we are certainly unable to hold that the Judgment of the Tribunal was wrong.

From the grounds of appeal filed by the Plaintiff in his appeal to the Provincial Commissioner's Court, and from the judgment of the Provincial Commissioner's Court, it seems perfectly clear that it was not understood that the onus of proof at the trial was upon the Plaintiff. The Judgment of the Provincial Commissioner's Court shows that what he considered on the grounds of appeal before him was whether the Defendant had proved that he was entitled to a declaration of his title. That this was the position, and that it was indefensible, was put to the Respondent's Counsel in this Court, and he did not attempt to uphold the judgment of the Provincial Commissioner's Court. His only contention was that the case must be sent back for retrial because some of the witnesses at the trial had given evidence unsworn. It would be more accurate to say that in the case of some statements made to the Tribunal the letters" S.A.R.B." (meaning" sworn according to his religious belief ") did not appear in the record after the names of some people making statements. In so far as these statements were by the parties to the suit, no exception could be taken that the parties were allowed to state their respective cases to the trial Court without' being first sworn.

From our judicial experience of records in these Courts, we are by no means satisfied that the mere omission of the usual letters' " S.A.R.B." means that the witness in question was not in fact sworn. For a witness other than a party to the suit to give a statement to a trial Court without being sworn would be so unusual as to call for a protest or objection from the other side. There was no such protest or objection. Furthermore, in the elaborate Grounds of Appeal filed in the appeal to the Provincial 'Commis- sioner's Court there was not the slightest suggestion of the kind now made by the Respondent's Counsel. If there had been anything in these Grounds of Appeal about this point, the Commissioner's Court could have made enquiry from the Tribunal as to the accuracy of the record on the point,' and such enquiry would probably have disposed of the point altogether.

As it is, the point is raised for the first time in this Court, and we do not think we can treat it seriously. It was quite obviously

Kwadjo

Graham Paul, C.].

Obed Yao Bansah v. Alfred Yao Kuma Kwadjo

Obed Yao Bansah an eleventh hour afterthought of Respondent's Counsel faced in

v.

Alfred Yao Kuma Kwadjo

Graham Paul, C.J.

this Court with the unanswerable case of the Appellant on the merits of the appeal.

The appeal is accordingly allowed. The judgment of the Provincial Commissioner's Court including the order as to costs is set aside and it is ordered that any costs paid under that judgment are to be refunded. The judgment of the Tribunal. is restored and the Appellant is awarded costs in the Provincial Commissioner's Court to be taxed, and in this Court assessed at £29 14s. 6d.

Kabba G Anor. v. Da'niel S. Young

Freetown, :!9th March, 1944

Cor. KINGDON AND GRAHAMPA·UL, C.JJ., AND DOORLY, J.

KABBA AND FRANK FRASER Defendants-Appellants

v. DANIEL S. YOUNG ... Plaintiff-Respondent

Claim to possession of premises-Equitable defence=Purchase of legal estate '/£lithnotice of equitable right-Summary hearing- County Court Rules, O.IX, R.7 ; R.15; Supreme Court Ordinance, 1932, s.8; s.57.

Plaintiff claimed possession and mesne profits in respect of certain premises whereof Frank Fraser (Defendant 2) claimed to be in possession by his tenant Kabba (Defendant 1) and another. The law of Sierra Leone requires such a case to be tried summarily in the Supreme Court without pleadings. In opening Plaintiff's Counsel stated that the premises were purchased in 1938; it was not until his final address that Counsel for the Defendants made it clear that they resisted the claim for possession. The Judgc found-

135

A-that Plaintiff bought from vendor on 28-7-38 but Defendant 2 had paid vendor £24 out of £33 agreed upon for the premises;

B-that before Plaintiff's purchase vendor had told Defendant 1 to pay the rent to Defendant 2 ;

C-that Plaintiff was aware of facts affecting his title and was a purchaser for value with notice.

The Judge thought Plaintiff was entitled to possession and Defendant 2 to compensation for his lien.

Plaintiff was admittedly owner of the legal estate. The defence relied on equity on those findings as a prior .purchaser put in possession, of which Plaintiff had notice. Plaintiff relied mainly on the fact that that defence had not been raised in time as required by the County. Court Rules (which governed the proced ure).

Held, that failure to comply with Rule 7 of Order IX of the County CO~lrt

Rules did not bar the equitable relief sought in view of section 8 of the Supreme

Court Ordinance, 1932.

Held also, that as part of the price had been paid and the balance tendered

within the time stipulated, the Defendants would have had a perfect defence against

the vendor.

Held further, that notice of the land, being in the occupation of a person other

than the vendor, is notice to a purchaser that the person in possession has some interest in the land, and a purchaser having notice of that fact is bound either to

inquire what that interest is or to give effect to it whatever it may be, being bound

on this principle by all the equities which the tenant could enforce against the vendor; and that in the circumstances of the case Plaintiff's claim for possession

. must fail and consequently no question of lien arises.

Kabba 0- A nor. v. Daniel S. Young 137

substitute-for pleadings. Here the only opening is the short Kabba &

one by Plaintiff's Counsel "Premises purchased 1938. Plaintiff Anor. v.

claims possession." Nothing from the Defendants' Counsel at Daniel S.

that stage to indicate whether they resisted the claim to possession Young

or were prepared to give up possession on certain terms or what Kingdon,

those terms might be. It was not until the final address of Counsel C.J.

for the defence that the position 'was clarified, and it can have been apparent to the learned trial Judge what were the real issues he had to decide, then Counsel made it abundantly clear that his clients were resisting the claim for possession. The learned trial Judge in his first interlocutory judgment made the following findings :-

" A. That the Plaintiff purchased these premises from the vendor Williams, on the 28th July, 1938, but that at that date the second Defendant was interested in the property, having paid £24 as part payment of the agreed purchase price of £33 to the vendor for the same premises.

" B. That the first Defendant was in actual physical possession of these premises at the material times, but that early in July, 1938, and prior to the Plaintiff's purchase the second Defendant was put into the receipt of the rents and profits from the first Defendant by the vendor.

" C. That the Plaintiff was aware of various facts which indicated to him that a certain state of things was in existence prejudicially affecting his title, but that he took no steps to remedy this, and was in fact purchaser for value with notice.

" Possession does not mean personal occupation. If the first Defendant pays his monthly rental as tenant of the prernises--13s. per mensem-to the second Defendant at the request of the vendor, then he, the second Defendant, has in fact thereby been put into possession of the premises in the same manner as if he were in physical possession for the purpose of asserting any rights he may have in the premises. He was so put into possession early in July, 1938. and has been receiving the rent of 2, Edward Lane from the first Defendant ever since."

The Judge then went on to consider the legal position, but he seems to have taken it for ...,granted that the Plaintiff was entitled to possession, and to have thought that the only point requiring decision wa-s the value of the lien enjoyed by Fraser and what sum he ought to grant to Fraser in respect of that lien. At any rate he omitted altogether to deal with the arguments adduced or authorities quoted by Counsel for Defendants in support of their resistance to an order for possession. It is possible that he meant to dispose of these arguments with the words :-

..If I were wrong in holding this to be a common law lien, then, in my view, the second Defendant has not carried out the requisite formalities as laid down in the County Court Rules as being essential before such a. defence can be dealt with, and I should have given judgment for the Plaintiff as claimed although it would only have meant further litigation."

If that is the case we are of opinion that he was wrong in that such a decision ignores the provisions of Order IX Rule 7 of the County Court Rules and of section 8 of the Supreme Court Ordinance, 1932 (No. 39 of 1932).

The Appellants do not quarrel with the learned trial judge's findings of fact ; they naturally would not do so as the findings are all in their favour. We also accept those findings as the basis

138

Kabba & Anor.

K abba e: A nor. v. Daniel S. Young

of fact upon which this appeal must be decided, explaining, however,

v.

Daniel S. Young

Kingdon,

C.J.

that the actual vendor was Patience Williams, wife of C. K. Williams, whose part in the matter was as her agent. The defence to the claim for possession of the premises by the Plaintiff, Young. who is admittedly owner of the legal estate, is a claim to equitable relief on the basis that the second Defendant Fraser is a prior purchaser who has fulfilled the conditions of purchase and been put into possession by the vendor and is in possession through his tenant the first Defendant Kabba, that the Plaintiff being a purchaser with notice is bound to give effect to the interests of the Defendants and is bound by all the equities which they or any of them could enforce against the vendor, and that one of those equities is the right to relief against a claim for possession.

The only answer which Plaintiff's Counsel put forward in the Court below to meet this defence was that it could not be set up because no notice of it had been given as required by the County Court Rules in force in England in 1880 which apply to a summary trial in the Supreme Court by virtue of section 57 of the Supreme Court Ordinance, 1932. He relies upon O.IX r.15 of those Rules which reads :-

" Where a defendant claims to be entitled as matter of defence to any equitable estate or right, or to relief upon any equitable ground against the claim of the plaintiff, or any part thereof, he shall five clear days before the return-day tile a concise statement in the estate or right he so claims, and shall show concisely the circumstances which gave rise to such defence, and set forth separately each of the grounds of equitable defence::

The Defendants failed to comply with this rule, but that failure, though, by virtue of O.IX r. 7 of the County Court Rules, it would properly have been a ground for an adjournment with the Defendants being mulcted in costs, could not result in their being barred against the equitable relief sought, more especially in view of the provisions of section 8 of the Supreme Court Ordinance, 1932, which J;'eads :-

" In every civil cause or matter in dependence in the Court, law and equity shall be administered concurrently. and the Court, in exercise of the jurisdiction vested in it by this Ordinance, shall have power to grant, either absolutely or on such reasonable terms and conditions- as shall seem just, all such remedies or relief whatsoever, interlocutory or final, as any of the parties thereto may appear to be entitled to in respect of any and every legal and equitable claim or defence properly brought forward by them respectively, or which shall appear in such cause or matter, so that as far as possible all matters in controversy between the said parties respectively mar be completely and finally determined, and all multiplicity of legal proceedings concerning any such matters ·avoided, and in all matters in which there is any conflict or variance between the rules of equity and the rules of common law with reference to the same matter, the rules of equity shall prevail."

Faced with this position in this COUlt Counsel for the Plaintiff- . ,Respondent fell back on the proposition that the Defendants could not set up this claim to equitable relief unless and until they had established their right to it by themselves bringing a substantive action claiming it. In support of this proposition he quoted the case of Tacon v. National Standard Land Mortgage and Investment Company. (!)() L.T.R. (N.S.) page 165). The proposition is not

Kabba G Anor. v. Daniel S. Young

.supported by that case and we do not accept it. The case of Daniels v. Davison (33 Eng. Rep. p. 978), from which we shall

139 Kabba it Anor,

presently quote, shows that our view is correct. In this connection we may mention that in 1938 the present second Defendant- Respondent, Frank Fraser, had brought an action against C. K. Williams claiming specific performance of the contract for the sale of these premises. That action was naturally dismissed as misconceived since the legal estate was not and never had been vested

itt C. K. Williams. It 'remains for us to consider whether the Defendants are entitled to the equitable .relief claimed, and we have no hesitation in deciding that they are. 1here can be no doubt that this defence would be a complete answer to an action by a vendor who brought an action against a purchaser who was in possession, who had paid part of the purchase price and had fulfilled his part of the bargain by tendering the balance within the time stipulated for full payment, as was unquestionably done in the present case. It is indeed difficult to imagine such a futile action being brought by a vendor.

What is the position of a second purchaser for value with notice? It is put like this in Dart on the Law of Vendors and Purchasers (6th Edition) at page 975 :- "-

.. Notice of the land. being in the occupation of a person other than the vendor. is notice to a purchaser that the person in possession has some interest in the land, for possession is prima facie evidence of seisin, and a purchaser having notice of that fact is bound either to enquire what that interest is, or to give effect to it whatever it may be., On this principle a purchaser is bound by all the equities which the tenant could enforce against the vendor."

That seems perfectly plain and the text is amply supported

by decided cases. In Barnhart v. Greenshields (14 Eng. Rep. p. 204) the Right Honourable T. Pemberton Leigh in giving the Judgment of the Court said at p. 209 :-

.. With respect to the effect of possession merely, we take the law to be, that if there be a tenant in possession of land, a purchaser is bound by all the equities which the tenant could enforce against the vendor, and that the equity of the tenant extends not only to interests connected with his tenancy, as in Taylor v. Stibbert' (2 Yes. jun. 437), but also to interests under collateral agreements. as in Daniels u, Davison (16 Ves. 249). Allen v. Anthony {I Mer. 282), the principle being the same in both classes.of cases; namely, that the possession of the tenant is notice that he has some interest in the land. and that a purchaser having notice of that fact, is bound, according to the ordinary rule, either to inquire what that interest is, or to give effect to it, whatever it may be. .

.. This is the doctrine to be collected from the judgment of Lord Rosslyn, in the case of Taylor u, Stibbert (2 Yes. jun. 437). and from the earlier authority to which he refers; and the decision itself, and the principles on which it is rested, are referred to with approbation, by Lord Redesdale, in his judgment in Crofton v. Ormsby (2 Sch. and Lef. 583). The language of Lord Eldon. in Daniels v. Davison (16 Yes. 249), which was decided in 1809,

is to the same effect; and when, some years afterwards, in Allen v. Anthony (I Mer. 282)', he had again occasion to consider the subject, he states the rule in these words: .. It is so far settled as not to be disputed. that a person purchasing, when there is a tenant in possession, if he neglects to inquire into the title, must take, subject to such rights as the tenant may have."

v. Daniel S. Young

Kingdon,

C.J.

140

Kabba & Anor.

v. Daniel S. Young

Kingdon, C.J.

Kabba G Anoy. v. Daniel S. Young

" The rule is stated in the same way by Sir James Wigram, in his most

elaborate judgment in the case of Jones v. Smith (1 Hare, 60). "If a person purchases an estate which he knows to be in the occupation of, another than the vendor, he is bound by all the equities which the party in such occupation may have. in the land; .. and, referring to the authorities which I have mentioned, he adds, for possession is prima facie evidence of a seisin in fee' ".

In Daniels v. Davison (33 Eng. Rep. p. 978) Eldon', Lord Chancellor, said at page 980 :-

"My opinion therefore, considering this as depending upon notice, is, that this tenant, being in possession' under a lease, with an agreement in his pocket to become the purchaser, those circumstances altogether give him an equity repelling the claim of a subsequent purchaser, who made no inquiry as to the nature of his possession,"

In Potter v. Sanders (67 Eng. Rep. p.1057) it was decided that:

" If a vendor contract with two different persons for the sale to each of them or the same estate, the Court will, prima facie, ...nforce the contract which was. first made; and if the party with whom the second contract was made should, after notice of the first contract, procure a conveyance of the legal estate in pursuance of the second contract, the Court will, in a suit for specific performance by the first purchaser against the vendor and the second purchaser, decree the latter to convey the estate to the Plaintiff,"

and at page 1060 Wigram, Vice-Chancellor said :-

" The first question is whether the Piaintiff's contract has not priority, in point of time, over the verbal contract made with Coates on the 24th of April. If that question "be answered in the affirmative, it will dispose of the whole case, For the property comprised in the contract would cease to belong to the vendor from the moment that contract was concluded; and I am quite clear (in the-circumstances which I have detailed) that Coates can derive no advantage from the. conveyance of the legal estate taken after notice of the Plaintiff's agreement for purchase, and whilst his own position was unaltered by payment of purchase-money, or otherwise, under an agreement which, if the Plaintiff's contract had priority, would be void from the beginning."

The attention of the learned trial Judge was not drawn to either of these two last-mentioned cases. Other cases in point are Hunt v. Luck (68 Eng. Rep. p. 711., 1902 1 Ch. 428) ; and Jared v. Clements (1903 1 Ch. 428). We hold that the Plaintiff's claim for possession must fail; consequently no question of lien arises.

For these reasons the appeal is allowed, the judgment of the Court below, including the order as to costs, is set aside, and it is ordered that any sum or sums paid in pursuance of that judgment shall be refunded. It is directed that final judgment be entered in the Court below dismissing the Plaintiff's claim with costs to be taxed. The Defendants-Appellants are awarded costs in this COUIt to be taxed.

Rex: 1'. Jeremiah Terry lU

Freetown, 29th March, 1944

Cor. KINGDON AND GRAHAMPAUL, C.JJ., AND DOORLY, J.

REX Respondeut, v.

JEREMIAH TERRY Appellant.

Criminal Lau=-Imperial Statutes (Criminal Law) Adopti01t Ordinance, 1932-Larceny Act, 1916, s. 2; s. 33 (1) ; s.35- Larceny; Receiving; Aiding and abetting larceny-Trial with assessors, under [urors and Assessors Ordinance, Cap. 106.

Defendant was charged on two counts (1) Larceny and (2) Receiving--both relating to the same goods. All three assessors were of opinion that he was not guilty of receiving. one that he was not guilty of larceny, and two that he was. The Court found him not guilty of larceny but convicted him of receiving on count (1) and acquitted him of receiving on count (2). On appeal the main point was that in view of the acquittal of receiving on count (2), and the judge's verdict that he was not guilty of larceny on count (1), the defendant could not have been convicted of receiving on count (1), the goods being the same.

Held, (1) that in convicting the appellant of receiving on count (1) the.j udge must have been satisfied of facts proving him guilty of larceny;

(2) that the evidence on which the Judge found appellant guilty of receiving was evidence of aiding and abetting the larceny, and that his verdict should have been larceny on count (1) ;

(3) that a verdict of guilty of larceny be substituted for the Judge's verdict on count (1) and the acquittal of receiving on (2) be left undisturbed.

Appeal by the Defendant from the decision of the Supreme Court.

N. ]. P. M. Boston for Appellant

C. Abbot, S.G., and S. A. Benko-Coker (Crown Counsel) for Crown.

1he judgment of the Court was delivered by Graham Paul, C.]. (Siena Leone) :-

The Appellant in this case was chat ged in the Supreme Court' of the Colony of Sierra Leone upon two counts, the first count, Larceny contrary to section 2 of the Larceny Ad, 1916, and the second count, Receiving stolen goods contrary to section 33 (1) of. the Larceny Act, 1916. Both counts related to the same goods.

The case was tried by a Judge with the aid of three assessors under the Jurors and Assessors Ordinance (Cap. 106). At the close of the trial the presiding Judge summed up very fully to the

II 2. Ass. Guilty of Larceny Ist Count Not Guilty of Receiving 2nd Count.

142

Rex

v. Jeremiah Terry

Graham Paul, C.J.

Rex v. Jeremiah Terry

assessors and thereafter each assessor was in turn asked to give his opinions on the first and the second counts. These opinions were duly recorded by the Court as follows :-

" 1. Ass. Guilty of Larceny Ist Count Not Guilty o~· Receiving 2n~ Count.

II 3 Ass. Not Guilty of Larceny Ist Count Not Guilty of Receiving 2nd Count.

The record then proceeded as follows :-

Verdict of the Court:

II Not Guilty larceny; Guilty of Receiving Count 1.

II Not Guilty of Receiving Count 2

II Acquittal and Discharged-2 Count as Assessors unanimous."

From that conviction the appellant has appealed to this Court on questions of law; he has also appealed, with the leave of the Court, on questions of fact, and against sentence. Although the three appeals were heard separately, they are all three covered by this judgment. The grounds of appeal on questions of law are:-

.. 1. That as the Assessors who tried the case with His Honour the Acting Chief Justice were unanimous in their opin,ion that I was not guilty on the charge of Receiving six cases of Ovaltine knowing the same to

'have been stolen the learned Acting Chief Justice was wrong in law in convicting me on that charge .

.. 2. That as His Honour the Acting Chief Justice overruled the opinion of two of the three assessors on the charge of Larceny of six cases of Ovaltine and acquitted me on that charge and as the assessors were unanimously of the opinion that I was not guilty of the charge of Receiving the six cases of Ovaltine knowing the Same to have been stolen a verdict of acquittal should have been entered in my favour on that charge."

The grounds of appeal on questions of fact are :-

"3. That the verdict was against the' weight of evidence.

and .. 4. That there was not sufficient evidence to support the verdict of guilty on the charge of Receiving stolen property knowing the same to have been stolen."

Upon consideration of all the evidence and the arguments of counsel, we have come to the conclusion that the learned Judge in giving his verdict of guilty of receiving upon the first count must have been satisfied of facts which proved the accused guilty of larceny. In finding his verdict of guilty of receiving we consider

. that the learned Judge omitted to bear in mind that section 35 of the Larceny Act, 1916 which reads-

"Every person who knowingly and wilfully aids. abets, counsels. procures or commands the commission of an offence punishable under this Act shall be liable to be dealt with, indicted, tried and punished as a principal offender."

Rex v. Jeremiah Terry U3

applies to Sierra Leone by virtue of the provisions of the Imperial Rex

Statutes (Criminal Law) Adoption Ordinance, 1932 (No. 45 of Jeremi:h

1932) and overlooked the fact that the evidence upon which he Terry

found the ~ppellant guilty of receiving was evidence that this Graham

appellant aided and abetted the larceny, so that the appellant Paul.

C.J. was properly charged with larceny and could properly be convicted of larceny as though he were a principal offender. We therefore hold that the proper verdicts were Guilty of Larceny on the first count and Not Guilty on the second count of Receiving

Following the decision of the Court of Criminal Appeal In England in the case of Rex v. Smith (17 C.A.R. 133) and having no doubt that the appellant upon the evidence was guilty of larceny, we have decided to substitute a verdict of guilty of larceny upon the first count for the verdicts of not guilty of larceny and guilty of receiving given by the learned Judge on the first count, and to leave unaltered the verdict of not guilty upon the second count.

The verdicts of the learned Judge on the first count are accordingly set aside and a verdict of guilty of larceny substituted therefor. Taking that view of the whole case. it is not necessary for us to consider the questions of law raised by the appellant in regard to the learned Judge's "Verdict on the first count of guilty of receiving which now disappears.

As to the appeal against sentence, we see no reason to alter the sentence of the Court below, and the sentence of three years' imprisonment with hard labour accordingly stands upon the substituted verdict of guilty of larceny on the first count.

11;4 Safiatu Savage-John v. Doud« [obe <5- Anor.

Gambia case heard at Freetown, 29th March, 1944

COR. KINGDON AND GRAHAMPAUL, C.J]', AND DOORLV; J.

SAFIATU SA VAGE- JOHN A ppellant(Plaintiff)

v.

DOUDU JOBE AND N'GAGN JOHN (ADMINISTRATORSOF THE ESTATE OF MALICK JOHN, DECEASED) Respondents (Defendants)

Contract for consideration to devi~e land to promisee-Bequest to another=Promisee's rigkts-Onus of proof of repayment or falsity of document-Need to join devisee in proceedings.

Plaintiff's claim was (a) for the premises known as No. 32 Primet Street, Bathurst, and (0) the value of 16 cows. The judgment on claim (b) was not attacked; this note relates to claim

~). This claim rested on a document executed in 1921 in which

the deceased acknowledged the receipt ~f nosio, f~om Plaintiff, with which to erect a building at No. 32 Primet Street, on condition that he would bequeath the premises to her tj)1' that amount on his death. He left a Will in which the premises were bequeathed to his daughter Sophie.

Defendants pleaded that the document was false. The Judge did not hold it was, but thought that if money was lent; it must have been repaid long ago in all probability, and disallowed the claim. Hence the appeal on this branch of the case:

Held, that the Judge was wrong in regarding the transaction as a loan: it was '" contract for valuable consideration to devise land in a particular way and as such specifically enfor+-able against the testator's heir-at-law.

Held also, \.uat the onus of proving that the document was false, or that the money had been repaid, lay on the Defendants, but was not discharged.

Held further, that no decree could be made without the devisee (the daughter Sophie) being joined as a defendant, as her interest was affected.

Appeal by Plaintiff from the judgment of the Supreme Court.

The judgment of the Court was delivered by the President:-

The Plaintiff's claim against the Defendants in the Supreme Court of the Colony of the Gambia was as follows :-

.. The Plaintiff claims the hereditaments and premises situate at and known as No. 32, Primet Street, Bathurst, by virtue of a promise made by the above-named deceased in writing, dated the. 30th October, 1921, fu the Plaintiff then Qelng the lawful wife of the said deceased in consideration of the sum of £105 lOs. lent by the Plaintiff to the deceased at his request for the building of a shop and room in the said premises.

and

.. The value of 16 cows now in the South Bank Province belonging to the said Plaintiff but declared to be the property of the sa.id deceased. The value being £120."

Safiatu Savage-John v. Doudu [obe & Anoy.

For the first of these two claims the Plaintiff relied upon a

document (wrongly described as a " contract as to loan ") which became Exhibit" A " in this case and is in the following terms :-

.. EXTRACT COpy OF RECEIPT AND PROMISSORY NOTE MADE BY

MALICK JpHN (DECD.)

Bathurst Gambia,

30th Oaober, 1921.

.. I. Malick John of Bathurst received this 30th of October 1921 the sum of £106 lOs. (One hundred and five pounds ten shillings) from my wife Safiatu John to erect a building of shop and room at No.' 32·Primet Street on condition that I will bequeath the said property to her for the said amount on my death.

145 Safiatu Savage-john .

v, Doudu Jobe & Anor.

Kingdon. C.J.

.. Witnesses

.. (Sgd.) M. Cole

.. Baboucar John

.. Signature in Arabic ..

,,' (Sgd.) Malick John

.. (In Arabic) Written by

.. Lancaster St., Bathurst. (Sgd.) O. Jallow."

. She stated that the two witnesses to the document M. Cole and Baboucar John were both dead and subsequently gave evidence that the writer of the document, O.'Jallow, was also dead.

The Defendants relied upon pleading that the document was false.

The issue was joined in the following terms :-

,. Did the Plaintiff' loan £106 lOs. to deceased by 'conuact in writing with consideration set out thereon? "

, After- hearing the evidence the learned trial Judge ga ve the following judgment :-

.. My finding in' this case can be briefly expressed. I disallow the Plaintiff's claim on the Note or Mem!lr¥ldum, of loan.' I do not say it is a false document or a forgery but I am inclined to tlie belief that if. the money passed, that loan must have been repaid .in SOme other manner, to the Plaintiff's satisfaction, many years ~o. It is sigiillicantly adverse to the Plaintiff that from the date of the alleged loan down to the date of this suit both the document and the circumstances of the alleged transaction which allegedly. produced it have remained a secret known only to the Plaintiff. It is my belief that if the loan had been made; ;;ome living person to-day, other than the Plaintiff could testify to, at least, having heard the Plaintiff or her former husband or someone else mention the matter in some connection or other. I therefore admit the possibility that the note itself is not a false document but I am compelled through regard for the pr.obabilities of human conduct, to take the view that the debt as an existing' debt cannot be regarded as proved or at all probable. l\ft;er all these years something

10 more than this document is necessary to establish thiS .part of the Plaintiff's claim and there-is nothing more. Plaintiff's husband died -testate. Before his death he discussed his .affairs with an independent witness Mr. Jbof. The Plaintiff's name was not mentioned. Some time ago Plaintiff's husband divorced her before the Cadi. If her evidence is true, she at that time also had this document- in her possession and her debt unsatisfied. If ever there was an occasion in the Plaintiff's life for mention of her claim against her husband, it was this occasion, on the dissolution of her marriage, her departure from her husband's roof, care and companionship, Yet, not a w.ord to anybody. This portion of the Plaintiff's claim must fail. Her evidence is just insufficient to support it."

Safiatu Savage-John v. Doudu Jobe & Ana,.. 147

But we find ourselves unable to order any decree in Plaintiff's ~afiatu ]

favour upon these proceedings, because we are of opinion that vage~. ohD

no such decree can be made without the devisee, Sophie John, Doudu Jobe

being made a party to the proceedings and having an opportunity &: Anor.

of defending her rights under the Will, so also that if a decree is Kingdon,

eventually made it will operate against her as well as against the c.t. present Defendants. We can see no alternative but to order a new trial with Sophie John joined as a Defendant .

. The appeal is accordingly allowed, that part of the Judgment of the lower Court disallowing the first of the Plaintiff's two claims is set aside, and it is ordered that the case be remitted to the Court below for that first claim to be tried de novo the devisee, 'Sophie John, being first joined as a Defendant.

The part of the Judgment dealing with the claim as to cattle stands good; As to costs, the order that the Plaintiff shall receive one-fourth of her total costs stands good, without prejudice to the possibility of her receiving more than that proportion at the retrial. Apart from that one-fourth part the remaining costs both of the previous trial and of the retrial will be in the discretion of the trial Judge at the retrial. The Appellant ~ awarded her taxed costs of this appeal to be paid out of the estate of the testator Malick John.

lOA

Rex v. Alber! Fumeh

Freetown, 1st April, 1944

COR. KINGDON, C.J., DOORLY AND BRACE, JJ. REX ... Respondent.

v. ·ALBERT FUMEH .: Appellant.

Criminal Law-Murder-Trial with Jury-judge's summing-up- M anslaughter~E vidence-Prosecution not calling certain witnesses.

Defendant was charged with the murder of one Moiwu, but the jury's verdict was manslaughter, though the Judge suggested to them he was either guilty or not guilty of murder.

Defendant is an Army sergeant, deceased was a labourer; they, with others, were travelling on a train. The labourers were asked to show their tickets; and the prosecution's case was that Defendant, aa .the train ran rapidly along, pushed deceased out of the front door, which gave directly on to the permanent way, and caused his death; the defence being that deceased was-not pushed but jumped out with others because threatened by Defendant with arrest on arrival at Gerihun for travelling without tickets.

On appeal the main points taken. were (1). that the verdict could not be supported by the evidence; (2) that the Judge misdirected the jury in suggesting they might find Defendant guilty of manslaughter in purely hypothetical circumstances; (3) that hearsay evidence had been admitted; and (4) that only two labourers were called by the Crown out of 21 labourers and several soldiers who witnessed the alleged murder.

Held (1) that the inconsistencies in the witnesses' statements had been drawn to the attention of the jury, therefore their verdict on those questions of fact should not be upset;

(2) that manslaughter was a reasonable verdict on three possible alternative views of the circumstances of the case, and the summing-up erred, if anyt:ltmg, in putting only one: but in view of the verdict, there had been no substantial

<misdirection:

(3) that the hearsay evidence was adopted or brought out by the defence in cross-examination, and' could not be objected to ;

(4) that there being no suggestion that the Crown failed to call any persons whose whereabouts were known and who could speak to the circumstances of the offence, there was no ground to upset the verdict, for which there was ample evidence.

Appeal by Defendant from the decision in his trial before the Supreme Court.


The Appellant was charged upon information in the Supreme Court of the Colony of Sierra Leone with the murder of one Moiwu in the Bo District of the Protectorate. The trial was had at

Rex v. Albert Fume'" 1~

Freetown before the Chief Justice and a jury and resulted in the Rex

Appellant being convicted of Manslaughter and sentenced to five Albe:t years imprisonment with hard labour. Fumeh

Shortly the facts alleged by the prosecution were that the Kingdon ..

Appellant, a Sergeant in the Royal Artillery, was travelling with C.].

other soldiers in a train from Bo. On the same train there was also travelling a number of labourers working under the Produce Inspector at Bo, one Wilberforce, amongst them the deceased Moiwu. The Produce Inspector, travelling in the guard's van, had their tickets. The Appellant accompanied by other soldiers demanded of the labourers travelling in one of the coaches that they should show their tickets, and when they were unabJe to do so proceeded to throw or force some of the labourers out of the coach. It is alleged that the Appellant actually pushed the deceased Moiwu out of the front door of the coach when the train was travelling at a high speed and that in consequence Moiwu was killed. A point which does not appear to have been brought out very clearly in the Court below, but which was accepted as common ground in this Court, is that the door in question was at the front end of the coach and not at the side and gave directly on to the permanent way without any platform outside the door. The defence was that the Appellant did not push the deceased off the train, that neither he nor any of the other soldiers attempted to put any of the labourers out of the coach, but that some of the: labourers themselves, including the deceased, jumped from the coach whilst the train was in motion because the Appellant threatened to have them arrested when the train: arrived at Gerihun for travelling without tickets.

The first two grounds of appeal are :-

.. (1) That the verdict was against the weight of the evidence .

.. (2) That such verdict was unreasonable and could not be supported having regard to the evidence."

The main point made by the Appellant's Counsel in support of these grounds was that the witnesses A<bdulai and Negbema, two of the deceased's fellow labourers on whose evidence rested the case for the prosecution as to the Appellant pushing the deceased off the train, contradicted themselves and each other so frequently and were so inaccurate and untruthful that their evidence ought not to have been accepted by the jury. Counsel pointed out in great detail many contradictions and discrepancies in the evidence of these two witnesses.

It is clear, however, from the learned Chief .j1rstice's notes of the addresses of Counsel in the Court below that the 'inconsistencies were pointed out in detail to the jury by Counsel for the accused and in his summing-up the learned Chief Justice said :-

.. Counsel for the defence has quite rightly drawn attention to inconsistencies in statements of the witnesses as to the circumstances under- which permission was obtained, as to the time at which it was got, as to the conversation at Gerihun and of course as to what happened in the coach.

, I

160

Rex v.

Albert Fumeh

Kingdon,

C.J.

Rex v. Albert Fumeh

You gentlemen will have to judge whether such inconsistencies as there are in the statements of the witnesses for the prosecution ate the inconsistencies which show that their story is a false one made up and concocted together or whether they are inconsistencies of people not very well trained to observ.e and remember and doing their best to give a true account of their re.collection of what happened on a rather disturbed occasion-c=tbat will be a matter which you gentlemen will consider."

Since the jury had the points put to them as plainly as this, it is not for this Court to upset their verdict on those questions of fact.

A more difficult point, however, arises upon ground 2, with which ground 4 is also concerned, and that ground will now be considered in conjunction with ground 2. It readsi=-

.. That the learned trial Judge misdirected the jury to the effect that in certain circumstances they might find your applicant guilty of Manslaughter, when in fact those circumstances had never arisen, nor had they been suggested or implied as having arisen, by either the prosecution or the defence."

The questions arise: Was the prosecution evidence such as to support a verdict of guilty of manslaughter, and were the jury misdirected as to the possibility of returning a verdict of manslaughter? ' .

It is clear that the learned Chief Justice himself thought that the verdict should be either " guilty of murder" or " not guilty" and thata verdict 'of manslaughter ought not to be returned. In his summing-up he said:

..If you accept the evidence of the accused, then you must return a verdict of not guilty. If on the other hand you accept the evidence of the prosecution and if you come to the conclusion beyond any reasonable doubt that the accused did in fact intentionally push Moiwu off that train at a time when the train was going fast and if you are satisfied that as a result of being pushed off that trainMoiwu met his death, you will consider whether that is the natural and reasonably probable consequence of what the accused must be implied by law as having intended. 'That is the position. This is not one of those cases where it is a question whether it was murder or manslaughter. There is no real suggestion made by Counsel for the defence that this might be manslaughter. The whole case of the accused is that he never touched Moiwu and that the whole case of the prosecution is a tissue of lies and that he must be acquitted, The only way in which, on this evidence, a verdict of manslaughter might be conceivable would be if you came to the conclusion on the evidence for the prosecution that the accused did in fact push this man but that he did not intend to push him off the train but his pushing him in such circumstances amounted to such gross and criminal recklessness that it would justify you in finding him guilty of manslaughter. It is_for you to say. There is no suggestion by any witness or by Counsel that the accused in. fact pushed Moiwu without intending to push him off the train. Still you gentlemen have heard all the evidence and that seems to me to be the onlv conceivable view of the evidence which would justify a verdict of manslaughter."

and later .. There can be little doubt if you accept the evidence of the Pf'osecutilm

that Moiwu was pushed out by the accused-pushed off the train by the accused-and that he met his death in consequence of that push and that meeting his death was a reasonable and probable result of pushing a man off a train going at a high speed."

In so far as the words " this is not one of those cases where it is a question whether it was murder or manslaughter" may appear to withdraw from the jury the question of manslaughter,

Rex v. Albert Fumeb

we are of opinion that they amount to a misdirection and if a Rex v.

verdict of " guilty of murder" had been returned we should have Albert

had to consider very seriously whether it was not our duty to Fumeh

reduce it to "guilty of manslaughter", following the precedent K d

in the case of Howard Ball (18 Cr. Appeal Report Sec. 149). But C.j~gon,

since the jury in spite of those words returned a verdict of " guilty of manslaughter", that question does not arise,

Further, in spite of those words, we think it clear from the rest of the above quotations from the summing-up that the learned Chief Justice did in fact leave to the jury the question of manslaughter, at the same time making it clear to them, as he was entitled to do, that in his own view the verdict should be either' • I guilty of murder" or II not guilty."

As we understand the position there were three sets of circumstances in which the jury could return a verdict of guilty of manslaughter. They were :-

(1) If the jury accepted the case for the prosecution including the allegation that the appellant deliberately pushed the deceased off the train when it was travelling at speed, but did not consider that the death of Moiwu was the natural and probable consequence of such pushing off, but considered the pushing off a criminally reckless act; in that event the verdict could be guilty of manslaughter,

(2) The case put by the learned Chief Justice, namely, that Appellant pushed deceased in a criminally reckless manner without the intention of pushing him off the train.

(3) If the jury found that the Appellant pushed the deceased in such a manner that such pushing must at least have been criminally reckless, but, being in doubt as to whether the intention was to push the deceased off the train, gave the Appellant the benefit of that doubt; in that event, also, the verdict could be guilty of manslaughter,

We think that (1) and (3) above might with advantage have been more plainly put to the jury. We do not know upon which of the possible alternatives the jury acted, but we arc satisfied that there was ample evidence upon which a verdict of guilty of manslaughter could properly be returned and that there was not such misdirection as to justify any interference with such verdict.

Ground 3 of the grounds of appeal reads :-

That the learned trial Judge wrongly admitted-

.. (a) All the evidence of Abdulai and Joe Negbema to the alleged granting of permission by your applicant to Mr. Wilberforce at Bo. Both of these witnesses in cross-examination said in effect that the alleged conversation was carried on in broken English which they did not understand and that Mr. Wilberforce afterwards told them what had been said;

.. (b) All the evidence of Abdulai of the alleged admission by your applicant to Mr. Wilberforce at Gerihun. In cross-examination Abdulai said . I did not hear what the accused or the Europeans said because they spoke in English. My master told me all that had been said afterwards.' ..

As to (a), it is true that this evidence of Abdulai turned out to be hearsay, So far as he is concerned it was elicited in examination-in-chief. It was not known to be hearsay until the

152

Rex

v. Albert Fumeh

Kingdon. C.].

Rex v. Albert Fumeh

end of the examination-in-chief when he. referring to a late!' occasion, states that Wilberforce and Appellant at Gerihun spoke in English and he (the witness) did not understand what was said.

In spite· of this knowledge, Counsel for the defence made no objection and actually cross-examined on the very same matter and got the reply ., my master Wilberforce asked Sergeant (Appellant) to allow his people to go in train."

As to Negbema, he made it quite clear that the conversation between Wilberforce and the Appellant was translated to him by Wilberforce. Nowhere in his eviden~e did he repeat the conversation as interpreted to him' by Wilberforce; There was no hearsay by Negbema on the matter.

Wilberforce subsequently gave direct evidence on this subject to the same effect as Abdulai. Abdulai's evidence of the conversation was hearsay, and the jury were not warned of it; but the hearsay complained of was not on a matter vital to the decision of the trial and objection to it is not justified at this stage seeing 't~at it was adopted by Counsel for the defence. It might well have been used by the defehce (though there is no record that it was so used) to suggest that it was unreasonable that the Appellant, after granting permission for the labourers to board the train (if indeed he did grant the permission) should turn round shortly afterwards and have them put off the train for lack of tickets. The admission of this piece of hearsay provides no justification for upsetting the verdict of the jury.

As te (b), it is true that this was hearsay and the learned Chief Justice did not draw the attention of the jury to the fact. This, hearsay was, however, brought out by Counsel for the defence in cross-examination. The record on the matter reads as follows:-

.. When we got to Gerihun I saw many Europeans speaking in English. My master asked accused if he had put his labourers out of train and accused said .. yes because they had no tickets I put them out." .... At Gerihun Wilberforce spoke English. My master told me he had asked Sergeant if he bad put us.out and that accused had said he had done so as we had no tickets.

NOTE.-This last evidence in answer to a specific question by Counsel as to what his master told them. (ltd.) G.G.P."

Counsel had early notice that the conversation was in English and by this time he knew that the witness did not understand English, yet instead of having the witness stopped as soon as he heard Abdulai's statement that the conversation was in English he allowed him to go on and even asked the witness specifically what his master had told him, as is shown by the Chief Justice's note.

Hearsay is admissible In cross-examination and the Appellant's Counsel is not entitled to rely on the admission of this piece of hearsay as an objection seeing that it was deliberately brought out by his colleague at the trial. Apart from this, Abdulai's hearsay on the matter was subsequently corroborated by Wilberforce in his statement that Appellant at Gerihun admitted that he had driven labourers out of the train.

Rex. v. Albert Fumek

it is remarkable that the evidence of the admission came from Wilberforce only in cross-examination. Counsel for the Crown informed this Court that it was only at that stage of the proceedings that he-had knowledge of the alleged admission and he gave that as the reason why the Station Master at Gerihun was not called as a witness although he was said to have been present when the admission was made.

The witnesses for the defence contradicted each other on this matter. The Appellant stated in evidence that all that happened at Gerihun on that day was that the Station Master asked him his name and would give no reason why he wanted it.

Appellant's witness Byon states that on that day Abdulai told Wilberforce in Appellant's presence that Appellant had driven them out and accused said fI No." This is a most serious divergence between Appellant and his witness on a very vital matter. Abdulai's hearsay having been brought out by Counsel for the defence its admission cannot be accepted as supplying a ground for upsetting the verdict of the jury.

Ground 5 of the grounds of appeal deals with a variety of matters of which any that are of any importance have already been covered, except ground 5 (e) which reads :-

.. That the learned trial Judge failed in his summing-up to the Jury:

" To comment that it was a well-established principle in law that' in criminal cases the prosecution is bound to call all the material witnesses before the Court, even though they gave inconsistent accounts in order that the whole of the facts may be before the .jury ; and that the prosecution had failed to call sixteen (or according to the- Defence, eighteen) eyewitnesses of the alleged murder."

As to this it is true that of some 21 labourers and several soldiers in the coach the prosecution have called only two of the labourers and none of the soldiers.

It is not known how many of these labourers were ina position to see what happened and, there is no suggestion that the Crown has deliberately failed to call them. They seem to have disappeared. It is common ground that the soldiers nave been posted to other stations and their whereabouts was more easily discoverable by the defence than by the prosecution.

The failure to call other witnesses does not appear to be a sufficient ground for upsetting the verdict of the jury for which there was ample evidence. All the grounds of appeal fail and the appeal is dismissed. .

Rex

v. Albert Fumeh

Kingdon, C.J.

153

154 C. L. Page v. The Receiver-General of the Gambia

Gambia case heard at Freetown, 1st April, 1944

COR. KINGDON AND GRAHAM PAUL, c.JJ., AND DOORLY, J. C. L. PAGE

v.

THE RECEIVER-GENERAL OF THE GAMBIA

Income Tax Ordinance, 1940, s. 3; s. lIB and Order No. 13 of 1942 thereunder-Income derived from the Gambia-Exemptions- Contribution to approved fund, when not annual but special.

Page was an employee of the United Africa Company in the Gambia on a salary of £500 plus commission on profits, which (as stated in letters from the Company to him) was normally granted but could be withheld, as the Company thought fit. In 1942 he was granted a commission: £562-two-thirds thereof- was credited to his Provident Fund " A" account as a special contribution, the other third to his account on the Coast, according to rules previously made known to him-an arrangement to which by his conduct he must be regarded as agreeing. Under those rules his legal personal representative would on his death be entitled, to receive the balance in his" A " account.

The Income Tax Ordinance, 1940 (as amended) provides in s. 3 that income tax shall be payable on income derived from the Gambia in respect of the items of income there specified, and in s.ll that a deduction shall be made of the annual contribution to an approved fund (which the above-mentioned fund was) up to one-sixth of the income, where the contribution is made pursuant to a statutory or contractual obligation under rules precluding the withdrawal of the contribution except upon the death of the contributor or the termination of his appointmeht.

The Receiver-General contended that the £562 in question was chargeable income within the terms of s. 3 and was not exempted

by the terms of s. llB. On Page's behalf it was contended-

(a) that the sum was not" income" within the meaning

of section 3 ;

(b) that if it was "income ", it was not." accruing in, derived from, or received in, the Gambia" ;

(c) that in any case it was exempted, up to one-sixth of Page's income, by the terms of s. l l B,

Held (a) that the commission, when paid, was remuneration for employment, and the payment of two-thirds thereof into Page's Provident Fund" A" Account must be regarded as a voluntary contribution, wherein, in view of his legal personal representative's right to receive it on his death, he had a vested interest; and that therefore it was .. income", it being immaterial that he did not receive the sum and what he agreed to do with it.

(b) that being part of his remuneration for employment, the commission was income derived from the Gambia; .

C. L. Page v. The Receiver-General of the Gambia 155

. (el that the contribution, not being an annual one but special, did not come within the terms of the exemption under section lIB.

Case stated by the Judge of the Supreme Court under s. 47 (9) of the Income Tax Ordinance, 1940, of the Gambia.


C. L. Page v.

The Receiver- General of the Gambia'

Kingdon,

This matter comes before this Court by way of case stated by c.J.

the Judge of the Supreme Court of the Colony of the Gambia under section 47 (9) of the Income Tax Ordinance, 1940 (No. 14 of 1940) of the Gambia. The following is the case :-

" Upon the hearing of the said appeal the following facts were proved or admitted 'before me :-

..l. That the Appellant is an employee of the United Africa Company Limited under Agreement with the Company which is annexed hereto and marked .. A " .

.. 2. That the Company expressed their intention to grant a commission to the Appellant on the net profits of the Company in the manner described in a letter addressed to the Appellant by the Company dated the 23rd September, 1938, and further exemplified in a letter addressed to the Appellant dated the 24th October, 1941, which are annexed hereto and marked respectively as Exhibits" C .. and" E " .

.. 3. That in the year 1942 the Appellant was credited with the sum of £562 as commission which was paid by the Company into the Appellant's Provident Fund .. A" Account under the rules of that Fund which are annexed hereto and marked" B " .

.. 4. That the attention of the Court was directed to the aforesaid annexures and was directed also to the passages marked in Exhibits .. L" and .. M .. which are annexed hereto .

. .. 5. The Appellant contended that the commission of £562 was not taxable .

.. 6. The Respondent directed the attention of this Court to section 11 (b) of the Income Tax Ordinance, 1940 and contended that the commission was taxable. .

.. 7. The parties were unrepresented and had no argument to adduce .

.. 8. The Grounds of Appeal, the facts thereof, and the relevant provisions of the Income Tax Ordinance as amended by No.1 of 1942 and No. 1(1 of 1942 are stated fully in my judgment .

.. 9. The question upon which the opinion of Your Lordships is desired is whether upon the statement of facts I came to a correct determination in point of law, and if not, I would respectfully request Your Lordships to reverse or amend my determination or remit the matter to me with the opinion of Your Lordships thereon."

The material-part of Exhibit II A " is paragraph 4 which is in the following terms :-

... The remuneration of the employee shall be at the rate of £500 (five hundred pounds) per annum payable in Africa monthly in arrear together with such increases and with such commission if any as may from time to time be notified by the Company to the employee in writing."

Exhibits II C" and "E" referred to in paragraph 2 of the case are respectively in the following terms :-

,Exhibit .. C ..

.. THE UNITEDAFRICACOMPANYLIMITED

UNILEVERHOUSE BLACKFRJARES,.C .•.

.. C. L.' PAGE, ESQ.,

.. BATHURS. T

.. Dear Sir, .

23rd September, 1938 .

.. We have pleasure in advising you that while you discharge to the satisfaction of the Company the duties of ACTING GENERALMANAGER, BATHURSit is the intention of the Company to grant you a commission of

usa

C. L. Page v.

The Receiver- General of the Gambia

Kingdon. C.J.

C.1. Page v. The Receitlef-General of the Gambia . 066% (Point nought Six Five Per Centum) on the net profits of the United Africa Company Limited certified by the Chief Accountant in accordance with our letter of the 24th July, 1934, as available for commission.

.. The commission will be calculated at the end of the Company's financial year or other accounting period and will be deemed to accrue from day to day, and if you do not for any cause whatever discharge the said duties during the whole of such period the amount of commission will be based on the ratio the number of days in which you discharge such duties bears to the total number of days in the financial year or other accounting period .

..It is to be clearly understood that the commission will only be granted to you on the following conditions ;_

.. (1) That it will be granted voluntarily by the Company without any obligation and though there is no intention of generally withholding the grant the Company reserves to itself the right to withhold it in whole or in part and in particular in cases where the duties of the member concerned have not been carried out with the efficiency which the Company requires .

.. (2) That you will only be qualified for commission in respect of the period during which you carry out the abovementioned duties and will not be qualified' when absent on leave .

.. (3) The Company's Chief AccounJant's Certificate as to the amount of net profits available for commission anc;lcommission due to you shall be binding and conclusive.

Yours faithfully,

for TIm UNITED AFRICA CoMPANY LIMITED

ORIGINAL SIGNED BY A. R. I. MELOR."

Exhibit" E"

"THE UNITED AFRICA COMPANY LIMITED

.. Dear Sir,~

UNILEVER HOUSE,

BLACKFRIARS,

LoNDON, E.C.4.

24111October, 1941.

.. TERMS UNDER WHICH COMIIUSSION IS PAYABLE

~'This is to' advise you that your commission is payable to you, as in the case of all members of the Coast Staff who receive a commission percen- tage under the following terms and conditions ;_

"(1) It will be granted voluntarily by the Company without any obligation and though there is no intention of generally withholding the grant the Company reserves to itself the right to withhold it in whole or in part and in particular in cases where the duties of the member concerned have not been carried out with the efficiency which the Company requires. .

.. (2) You will only be qualified for commission in respect of the period during which you carry out the abovementioned duties and for normal leave periods.

"(3) The Company's Chief Accountant's Certificate as to the amount of net profits available for commission and commission due to you shall be binding and conclusive .

.. Kindly acknowledge receipt by signing the duplicate of this letter and returning it to us.

Yours faithfully,

for THE UNITED _AFRICA COMPANY LIMITED

(Sgd.) A. R. I. MELLOR

Director,

C. L. Page u. The Receiver-General of the Gambia 157

It will be noticed that there is a discrepancy between the two c. L. Page

letters as regards leave periods, but this is not material to the The v.

present case. In regard to paragraph 3 of the case, it is to be Receiver-

observed that the sum of £562 was not the only commission paid ~en~~m~ia

by the Company during the year 1942. The total was £843, of which two-thirds, viz. £562, was paid as stated, and one-third, Kingdon,

viz. £281, was credited to Page's account on the Coast (Exhibit C.J . .. I "). This is in accordance with paragraph 18 (the marked part) of Exhibit "L II and paragraph 4 (the marked part) of Exhibit II M II referred to in paragraph 4 of the case. They are

respectively in the following terms:-

Exhibit" L " (dated 1st Sepumber, 1938)

" 18. Commissions and Bonuses:-:" Commissions" and "Bonuses" are purely' ex gratia' payments made to members whose services have given satisfaction. A member has no right to them, and the Company may decide not to grant them, but it does not, in practice, take that course unless there are good reasons for doing so. At least two-thirds of any commission or bonus must be paid to the member's account in the Provident Fund. Any further allocations which a member may wish to make to the Provident Fund in respect of commission or bonus declared in the first six months of a year can be paid by him at any time up to the 31st December following, to the Company, who will keep these monies on deposit, earning interest at the current rate and will \transfer same, if received before 30th June, on the 30th June, if later, then on the 31st December following, to his account in the Provident Fund."

Exhibit" M .. (dated 6th February, 1934)

.. 4. As the purpose of the Board in taking this decision has largely been dictated by their desire to see that provision for their eventual retire- ment is made for members of the Coast Staff under the Provident Fund, it is to be understood that in future without exception, beginning with the distribution of commission, bonus, or additional bonus on account of the financial year ending 30th September, 1934, two-thirds instead of half the commission and lor bonus will be paid into the Provident Fund as special contribution to the credit of the recipient's account."

The relevant sections of the Income Tax Ordinance, 1940 (as amended) are in the following terms:-

" 3. Income Tax shall, subject to the provisions of tlus Ordinance, be payable at the rate or rates specified hereafter upon the income of any person aecruing in, derived from or received in, the Gambia in respect of-

_. (a) gains or profits from any employment and any allowance in respect of any employment, other than the value of any quarters provided free of charge and any allowance made as a reimburse- ment for expenses actually incurred ;

.. (b) gains, or profits from any trade, business, profession or vocation for whatever period of time such trade, business, profession or vocation may have been carried on or exercised;

Provided that for the purpose of this paragraph gains or profits arising from the sale of, or from other dealings in, goods being the produce of the Gambia and exported from the Gambia shall be .deemed to be income derived from the Gambia, whether the contract or other dealing is made or took place within or without the Gambia;

"(c) dividends, interest, or discounts ;

" (d) any pension, charge or annuity;

"(e) rents, royalties, premiums, and any other profits arising from property."

158

C. L. Page

.v The Receiver- General of the Gambia

Kingdon.

C.J.

C. L. Page v. The Receiver-General of the Gambia

.. lIB. In ascertaining the chargeable income of any person who-

.. (a) shall have made insurance (including insurance against death by accident) on his life or on the life of his wife in any insurance company; or

.. (b) shall have been a contributor under the Widows' and Orphans' Pension Ordinance. 1913 or have contributed to an approved scheme as defined in that Ordinance. or to such other public or private fund as the Governor may by. Order declare to be an approved fund for the purposes of this section. there shall be allowed a deduction of the amount of the annual premium paid by him for such insurance and the amount of such annual contribution as aforesaid;

Provided that 110 deduction shall be allowed of any contribution made to any such fund unless such contribution is made pursuant to statutory or contractual obligation to a fund under the rules of which such contribution may not be withdrawn from the fund except upon the death of the contributor or upon the termination of his appointment:

Provided further that no such deduction shall be allowed in respect of any such amount or aggregate amounts beyond an amount equal to one-sixth part of his income: ..

Under Order No. 13 of 1942 made on the 24th day of March. 1942 under paragraph (b) of section llB of the Income Tax Ordinance, 1940 the Governor declared the United Africa Company. Limited, Union Overseas Provident Fund Trust Ltd. inter alia. to be an approved fund for the purpose of that section."

The Receiver-General contends that the £562 in question comes within the terms of section 3 •• income . . . accruing in, derived from, or received in the Gambia in respect of gains or profits from any employment and any allowance in respect of any employment" and is not exempted by the terms of section 11B.

On behalf of Page it is contended-

(a) that the sum is not .. income" within the meaning of section 3 ;

(b) that, if it is income, it is not" accruing in, derived from, or received in, the Gambia; ..

(c) in any case it is exempted, up to one-sixth part of Page's

income, by the terms of section l1(B).

These are the three questions which have to be decided by this Court. It is only in regard to (a) that there is any difficulty.

The Receiver-General contends that the case is governed by the decisions of the Court of Appeal in the case of Bell v. Gribble (1903) 1 K.B. 517 and of Channell]. in the case of Smyth v. Stretton (20 T.L.R. 443) followed by Sankey]. in the case of Bruce v. Hatton L.R. (1922) 2 K.B. 206, whilst Page contends that his case is on all fours with that of Edwards v. Roberts (19 Tax Cases 618), Unfortunately we have not available for reference the full report on that case, but have to gather the decision from Mew's Aunual Digest 1936, p. 115 which shows that the Court of Appeal in England distinguished that case from Smyth v. Stretton (supra).

In the present case we think that the contribution of £562 to the Fund must be regarded as a voluntary contribution by Page. Although there is no obligation upon the Company to pay commis-


sion, once commission is paid it is clearly 'remuneration for employment under section 4 of the service agreement; the payment of two-thirds of the commission to the Fund is in accordance with notice given by the Company of its intentions in regard to disposition of commission granted and Page, by continuing in the service of the Company and accepting the payment of one-third only into his Coast account, must be taken as agreeing to the Company's arrangements for the disposition of the commission. This being so, we are of opinion that the present case is indistinguishable from the three cases relied upon by the Receiver-General. It makes no difference that Page did not actually receive the sum, and what he (in this case, by implication) agreed to do with it is equally immaterial. Nor does it make any difference that in certain circumstances Page might never receive the money.

In Bruce v. Hatton (supra) Sankey J. said :- " On this branch of income tax law, assumipg that the fund in question

is a profit or gain, two canons of construction can be laid down: (1) The fact that the taxpayer does not actually receive the sum is immaterial. This is illustrated by the cases of Bell u. Gribble and Smyth u. Stretton above referred to. (2) What the taxpayer does with the sum, or agrees to do with it, is equally immaterial. This is illustrated by the cases of Mef'sey Docks v. Lucas and Gresham Lil« Assurance Society v. Styles. . .. In my view it being found that the salary is £1,000, and it being further found that the respondent voluntarily joined the scheme and contracted to allow the Institution to devote 5 per cent of it to the superannuation fund, it is quite impossible for him. successfully to contend that he did not in fact receive the whole sum of £1,000. It is hardly necessary to enumerate the astonishing results which would follow if it were held that when a servant directs his employer to pay part of his salary to a fund or third person, he is not liable to pay income tax on the part directed so to be applied. I hold it is wrong in law to say that the £50 was not received by the respondent.

" With regard to the destination of the £50 it is true that it has been found to be in the uncontrolled discretion of the Institution, but as has been pointed out above the case falls within Mr. Montgomery's definition in that it is one where the fund may not eventually come to the taxpayer by reason of something done or not done by him, and so falls within the decision in Bell v. Gribble and Smyth v. Stretton,"

In our view the present case is distinguishable from Edwards v. Roberts (supra) in that here Page obtained a vested interest in the payment to the Fund on the date on which his personal account with the Fund was credited with the sum; that this is the case is evident from paragraph 11 of the Rules of the Fund, under which, in the event of an employee's death, his legal personal representative is entitled to receive the balance standing to the credit of his" A " account, which is the account into which the £562 was paid. On the other hand it was held in Edwards v. Roberts that the Respon- dent did not obtain a vested interest in the yearly payments ·made to the trustees at the dates when they were respectively made.

We hold that the sum of £562 is " income" within the meaning of section 3 of the Ordinance.

As to contention (b) on behalf of Page, we think it clear that the SUIl_l is derived from the Gambia in respect of gains or profits from his employment. Once the Company pays commission, it

159

C. L. Page

v. The Receiver- General of the Gambia

Kingdon, C.J.

160

C. L. Page

v. The Receiver- General of the Gambia

Kingdon. C.].


is part of Page's remuneration under his agreement and is just as much derived from the Gambia as is his salary.

As to contention (c) it is sufficient to point out that this is a special contribution and not an annual contribution.

We hold that the sum of £562 is properly assessed as part of Page's income for the purposes of income tax assessment under the Income Tax Ordinance, 1940, and accordingly answer in the affirmative the question submitted to us.

There will be no order as to costs.

Rex v. Amadu Adamu 161

REX

Lagos, 17th April, 1944

COR. KINGDON, C.]., BAKER AND BROOKE, JJ. Respondent

v.

AMADU ADAMU Appellant.

Criminal Law-Homicide-Possible alternatives to be considered by Court-s-Presumptions-s-Onus of proof.

The Court having found as a fact that the Defendant had killed the deceased and-done so intentionally having regard to the wounds inflicted on the deceased, without any evidence proving malice aforethought in the nature of motive or otherwise, found the Defendant guilty of murder. On appeal :-

Held, that (1) the onus of proving that the killing amounted to murder was on the prosecution and that there was no onus on the defendant to prove that no crime had been committed even though such proof rested upon facts peculiarly within his own knowledge; .

(2) Where the evidence indicates a clash between the defendant and the deceased who went armed for a fight the presumption should be that the deceased must have been the aggressor;

(iI) In such circumstances the trial Judge has a duty to consider very carefully what the killing amounted to-murder, manslaughter or justifiable homicide-and to bear in mind that even intentional killing might Oe justifiable if the only way to avoid being killed.

Appeal by the Defendant against his conviction by the High Court of the Warri Judicial Division.

The facts of the case appear sufficiently from the judgment.

N. C. Hay, Crown Counsel, for the Crown.

Appellant in person.

The judgment of the Court was delivered by the President of

the Court:-

The Appellant was charged in the High Court of the Warri Judicial Division with the murder of one Buraimoh Ajegunmo.

He was convicted and sentenced to death. The facts proved were that on the night of the 26th December, 1943, the deceased, a farmer and hunter living at Okemale, a place about 9 miles from Owo, went out at about 9 p.m. to hunt. He returned home about midnight, when he awakened his son Yesufu and announced the loss of a clock and £1 in money from his room. He had a conversation with his son and decided to go out to look for the thief or thieves who had removed his clock and money. He had with him when going out his Dane gun, his matchet in a sheath and a hunting lamp. His son Yesufu. went back to bed and before falling asleep -heard the report of a gun. In the morning when Yesufu discovered that his father had not returned home. he decided to go to Owo.

It -)0(

H52

Rex v.

Amadu Adamu

Kingdon, C.].

Rex v. Amadu Adamu

On search being made, Yesufu found, on the side of the road leading

to Afo, Buraimoh's sheath with blood on it and blood on the grass by the sheath, and some distance away in the bush the dead body of his father upon which multiple injuries had been inflicted with a sharp cutting instrument such as' a matchet. These injuries included the severing of the spinal cord and of the blood vessels in the cervical region whereby death was caused. Not far from the body, a black waistcoat was also found in the bush. Investigation into the death of Buraimoh was made by the Police at Oba, and the Appellant, who is the Seriki or head of the Hausas living in the compound of the Oloba of Oba came under suspicion. He had a fresh wound between the left thumb and forefinger and another on his right arm. His explanations as to how he came by these wounds were not believed. His house was searched and in it were found the deceased's gun, which had recently been discharged and had blood-stains on the stock, and the deceased's matchet, which had blood-stains on the handle and scratches as though made by another matchet on the blade. Later there" were also found in the Appellant's house a blood-stained gown and a dagger, both subsequently identified as the Appellant's.

The Appellant has consistently denied that he killed the deceased, alleging that the deceased's gun and matchet were " planted" in his house, and that the gown and dagger were not his. The learned trial Judge disbelieved the defence and found as a fact that the accused killed the deceased. He added :-

.. The nature of the injuries inflicted on the deceased are consistent only with an intention to kill and I. therefore. find the accused guilty of murder."

We entirely concur in the finding of fact that it was the Appellant

who killed the deceased.

We are of opinion, however, that in the Judgment of the learned trial Judge there is grave misdirection by non-direction. It is clear that the Judge assumed throughout that the killing was murder, and overlooked the fact. that the onus was on the Prosecution to prove that a murder had been committed, in other words that the killing amounted to murder. The onus was not upon the Appellant to prove that no crime had been committed, even though such proof rested upon facts peculiarly within his own knowledge. (Woolmington v. Director of Public Prosecutions (1935) A.C.462; Attygalle 0- anor. v. The King (1936) A.C.338; Seneviratne

v. R (1936) 3 all E.R.36). In most cases where a man is found brutally killed by the road side there is a strong presumption that he has been murdered but here the circumstances were unusual and that presumption did not arise. The deceased went out doubly armed and obviously prepared to use his arms against a supposed

thief. The evidence points to his having actually fired his gun and used his matchet. There is no evidence whatever that the Appellant was in fact the culprit who stole the deceased's clock and money. No motive is apparent for the Appellant to have made an attack upon the deceased.

Rex v. Amadu Adamu 163

So far as there can be any presumption one way or the other Rex v

as to what brought about the clash between the two men, it seems Amadu ,

to be that the deceased must have been the aggressor. Adamu

In these circumstances, it was, in our view, the duty of the Kingdon,

Judge to direct himself to consider very carefully what the killing C.j.

amounted to, whether murder, manslaughter or justifiable homicide, . and, in considering the last possibility to bear in mind that, even though there was an intention to kill, the killing might be justifiable if it was the only way to avoid being killed.

In view of the learned trial Judge's omission to direct himself properly upon this point and to direct his mind to the possible alternatives to murder we are of opinion that the conviction for murder cannot be allowed to stand, and Counsel for the Crown in this Court has not sought to uphold the conviction.

Nor has Counsel asked us to substitute a conviction for manslaughter, nevertheless we have carefully considered whether it is not our duty to substitute a verdict of guilty of manslaughter; but in order to do so we should have to be sure that the learned trial Judge was satisfied of facts which proved that the killing was manslaughter. We cannot be sure of that, more especially as, in our view, it is at least as likely as not that the killing was in self- defence. For although the severity and number of wounds on the deceased's body point to great ferocity on the part of the killer, experience shows that once two primitive Africans start a fight to the death with matchets the conqueror is apt to make a thorough job of it, and this does not necessarily show that he was not bound to kill in order to save his own life.

For these reasons the appeal is allowed, the conviction and sentence are quashed, and it is directed that a judgment and verdict of acquittal be entered.

The Appellant is <lischarged

11,\

164: Felicia A. Dedeke & Ors. v. Victor A. Williams & Anor.


Cor. KINGDON,C.}., BROOKEAND FRANCIS,JI. 1. FELICIA A. DEDEKE I 2. JANET A. SHAW } 3. SHOLABOMI WILLIAMS Appellants (Petitioners). 4. MATHEW T. AKINSOWON 5. CHRISTIANA A. TELLA

v. 1. VICTOR A. WILLIAMS }

2. CHARLES O. WILLIAMS ... Defendants (Respondents).

(WAC. 2036)

Practice and Procedure-Originating Summons-M after raised but undecided in original suit-Res judicata; Estoppel; MultiPlicity of proceedings.

Petitio~ers' took out an originating summons against the trustees asking that there should be a partition and distribution of an estate in which they and Respondents were beneficiaries .. After evidence taken the summons was dismissed on the ground that the point should have been raised in Suit No. 140/41, in which the claim was for a statement of the properties comprising the estate and a partition and distribution, and therefore Petitioners were estopped by res judicata and the rule against multiplicity of actions. On appeal it was argued that the issue raised by the sumtnons had not been decided in Suit No. 140/41 though raised • in that suit; but was left ·by the trial Judge to be decided later either, in that suit or in other proceedings for convenience' sake as relating to the trust property alone; further that estoppel had not been pleaded by Respondents.

Held, that there having been no default of pleading or attempt to divide the matter into two in Suit No. 140/41, Petitioners were not guilty of multiplicity of actions.

Held also, that as the matter raised by the originating summons had been left by the judgment in that suit to be considered in other proceedings, there was no estoppel pet' t'em [udicatam.

Held further, that as estoppel had not been pleaded in the Court below and Petitioners had not been given an opportunity of being heard against it, that Court could not ex proprio motu hold that they were estopped.

Appeal by Petitioners from the judgment of the Supreme Court in Suit No. 94/1943.

A. Soetan (with him E. J. Alex-Taylor) and]. I. C. Taylor for

1st and 2nd Appellants.

I. F. Cameron for 3rd Appellant.

O. Moore for 4th Appellant.

A. Soetan for 5th Appellant.

J.

•

Felicia A. Dedeke c5- Ors. v. Victor A. Williams & Anor. 165

E. David for Respondents. Felicia A. Dedeke &:

The judgment of the Court was delivered by Brooke, J. ;- Ors. v.

These proceedings were commenced by originating summons, ~mi:m&~; ' which though strictly not provided for in our Rules of Court is Anor.

in practice the usual procedure where a person claiming to be -- interested in a Will applies to the Court for the determination of Brooke, ].

any question of construction arising under that Will or of matters arising in the administration of a trust, but they took an unusual course in that Counsel called witnesses other than persons who had sworn affidavits and attended for purposes of cross-examination and thus they assumed the appearance of a suit. They related to the Will of one F. E. Williams who died in Lagos about the 12th of November, 1918, and the Petitioners and Defendants are beneficiaries under that Will and the Defendants are also the trustees appointed by the Court in 1940: the question sought to be determined is whether in view of the discontinuance of the farming operations and general business of the testator the powers and appointments under the Will and the trust created in clause 10 thereof have not failed and whether or not it is desirable and in the interests of the beneficiaries as well as consistent with the intentions of the testator that there should be a partition and distribution of all the real and personal properties of the testator among those entitled. After evidence had been taken and argument heard, judgment was given dismissing the action on the ground that the Petitioners were estopped by the rule with regard to multiplicity of actions in that the point properly belonged to the subject of the litigation in Suit No. 140/41, and thePetitioners, if they had exercised reasonable diligence, should have raised the point in that suit and that the doctrine of res judicata applied. The passage in the judgment reads :-

"Without considering the question whether some of the questions in the present petition have not been answered by the above judgment and are accordingly 'Yes,judicata I am of opinion that the subject of this litigation could and should have been brought forward in the Suit No. 140 of 1941."

The grounds of appeal are two of which the first alleges a misdirection in the passage just quoted in that the original suit was for a statement of the properties comprising the estate and a partition and distribution whereas the "suit the subject of this appeal II sought the determination of a question of law .r. which is more within the province of an originating summons than an action " : the second ground was that the plea of estoppel was never raised by the Respondents. :

Counsel for the Appellants have stated from the Bar of this Court that after the judgment in the of gina I suit, which was upheld on appeal, there was a meeting of Counsel representing all persons interested in the Judge's Chambers when the Judge

intimated that, in his view, the best course was that the present question should be decided upon an originating summons and that that course was agreed to by the parties. Against this Counsel

Felicia A. Dedeke & Ors. u, Victor A. Williams & Ano".

. .,

Felicia A. Dedeke & Ors,

v.

Victor A. Williams & Anor.

Brooke, 1.

for the Respondents, who was unable through illness to be present at the hearing of the appeal, intimated to the Court, through Counsel holding his brief, that he never agreed to the present originating summons being issued.

The Judge in the original Suit No. 140/41 did not decide the pr'esent issue, and it is clear from the following passage in his judgment, both that the present issue was actually raised in that suit, and that the Judge thought it could be decided either in that suit or in further proceedings :-

" The sole point I have to decide at the present stage of the proceedin~ is whether the last named devise (in clause 12 of the Will) is in any way controlled by or subject to the two previous clauses as contended by the surviving trustees and the other defendants with the exceptions of Nos. " and 7 or whether it is entirely independent of those clauses as contended by the rest of the parties. In the former case the properties named in it will not faU for distribution so long as the trust subsists, a question which may have to be decided later on in the present or other proceedings; in the latter case there is obviously no reason why distribution should be further delayed."

The learned trial Judge in that case decided that the devise contained in Clause 12 was in no way controlled by or subject to the preceding clauses and ordered that the properties to which the former clause referred should be sold when they had been exactly ascertained and the proceeds distributed according to its provisions. From this it is clear that there was here no default of pleading or attempt to divide the matter into two and thus multiply litigation; there was a further question which arose to be determined and it may have been thought inconvenient to deal with the question of the trust which only covered a portion of the properties in those proceedings: these further proceedings appear to have been taken by way of originating summons for this very purpose. Counsel in his opening address in the Court below remarked: It I am asking the Court to deal with the Trust Funds alone."

The present judgment the subject of this appeal, as it stands, would debar the beneficiaries from having this important point regarding the trust determined and it is accordingly impossible to uphold the decision as to an estoppel per rem judicatum. The appeal must therefore succeed on the first ground.

It must also succeed on the second ground, in view of the fact that the question of matter of estoppel being constituted was never raised at any time in the Court below and Counsel had no opportunity to be heard thereon .

It is a cardinal rule of pleading and of the law of estoppel that a party relying upon estoppel, must, where there are pleadings, specifically plead it, and, where there are no pleadings, must raise it by word of mouth at the earliest possible stage of the proceedings. The object of the rule is to prevent the other party being taken by surprise, and to give him full opportunity of meeting the plea. We think it follows that a Court cannot hold, ex proprio motu,

Felicia A. Dedeke G Ors. v . Victor A. Williams G A nor. 161

that a party is estopped, when no question of estoppel has been ~~~~~e ~

raised, without at least giving the party against whom it may Ors.

operate an opportunity of being heard against it.

The appeal is allowed; the judgment of the Court below including the order as to costs is set aside, and it is ordered that, if any costs have been paid in pursuance of that order, they shall be refunded; the case is remitted to the Court below for the determination of the issue or issues raised upon the proceedings.

The Appellants are awarded costs in this Court as follows :-

The first two Appellants 35 guineas.

The 3rd Appellant 15 guineas.

The 4th Appellant 15 guineas.

The 5th Appellant 15 guineas.

all payable out of the estate.

The costs in the Court below, already incurred and to be incurred will be in the discretion of the trial Judge at the continued hearing.

v. Victor A. Williams &: Anor.

Brooke, J.

168 G. A. Adu v. A: O. Makanjuola


Cor. KINGDON, C.l, BAKER AND FRANCIS, JJ.

G. A. ADU Plaintiff-Appellant

v.

A. O. MAKANJUOLA (TRADING AS PROPRIETOR AND MANAGINGDIREC- TdR OF THE UNITED DEVELOPMENT TR \DING COMPANY) ... Defendant-Respondent

Mining contract-Ambiguity-Effect of public policy-Minerals Ordinance (Cap. 93).

Respondent with two others registered themselves in 1933 as the United Development Trading Company, which in April, 1942, owned a prospecting right. In that month Appellant and Respondent agreed orally to prospect and mine under the name United Development Trading Company of which Respondent was owner and manager; Appellant to be manager of mining venture. On 20th October, 1942, they signed an agreement that Respondent should withdraw from the mining business and that Appellant shall carry it "alone personally in the name of and holder of

Prospecting Right". On 21st November, 1942, a Prospecting Right was issued to If G. A. Adu . . . . on behalf of the United Development Trading Company". On -19th May, 1943, Respon- dent, as manager of United Development Trading Company, wrote a letter to the authorities indicating that Appellant's Prospecting Right was on behalf of United Development Trading Company. Appellant regarded this letter as a breach of the agreement of 20th October, 1942, which, he claimed, put an end to the interest both of the Respondent personally and the United Development Trading Company in the mining venture and made him sole owner, and sued for damages; Respondent argued that only his personal interest ceased and that Appellant was to continue as agent of the United Development Trading Company in the mining venture. The trial Judge dismissed the suit on the grounds (1) that there had been no oral agreement as the parties were not ad idem and (2) that the agreement was in avoidance of s. 9 of-the Minerals Ordinance. On appeal:-

Held, that there was a patent ambiguity in the agreement itself, and that if the true interpretation were that claimed by the Appellant, viz.: that the United Development Trading Company's interest should cease, then the agreement was void as being against public policy since it contemplated a deceit on the mining authorities.

Appeal from the judgment of the High Court, Ibadan Division, in Suit No. 1/33/1943.

].. I. C. r"aylor (with him A. O. Thomas) for Appellant.

"Money expended on prospecting, pegging, labour, and other incidental expenses in connection with mining ... £550 0 2

" General damages £500 0 0

Total ... £1,050 0 2

G.. A. Adu v. A. O. Makanjuola

A. O. Soetan for Respondent.

169

G. A. Adu

v.

The judgment of the Court was delivered by the President: The Plaintiff-Appellant's claim brought in the Ibadan Division

of the High Court against the Defendant-Respondent was for-

o< £1,050 Os. 29-. being general and special damages tor the breach of an

agreement entered into between the plaintiff and the defendant and dated

20th day of October, 1942."

and the particulars given were:- .

A.O.

Makanjuola Kingdon,

c.j.

The agreement in question (which became Ex. " D" in the

case) is in the following terms :-

Agreement

.. I, A. O. Makanjuola of Ekotedo, Ibadan, Nigeria, 1st partner in the

mining Business with Mr. G. A. Adu of Oke Bola, Ibadan, Nigeria, 2nd

partner of the said Mining Business hereby mutually agreed with each other

as follows :-

" 2. The 1st partner Mr. A. O. Makanjoola shall from the 20th

day of October, 1942, withdraw, cease and discontinue his interests,

rights and attentions from the partnership of the said Mining Business

and the afore-mentioned 2nd partner in the person of Mr. G. A. Adu

from this date, shall be carrying on the said business alone personally

in the name of United Development Trading Company and holder of

'Prospecting Right .

.. 3. That, the said 1st partner Mr. A. O. Maka!ljuola, from this

date, has nothing to do any more with Mining Business as to whether

loss or gain, and all the tools remaining belong to the said 2nd partner

Mr. G. A. Adu and also the Kit Car No. B500.

" 4. That, I, G. A. Adu the 2nd partner, this 20th day of October,

1942, hereby promise faithfully to refund the share of Two hundred

and fifty-four pounds, three shillings and tenpence (£254 3s. 10d.) to

Mr. A. O. Makanjuola the 1st partner D.V. on the 30th day of October,

1943, which the said 1st partner Mr. A. O. Makanjuola had contributed

formerly for the execution of the business:

" Dated at Ibadan this 20th day of October, 1942.

(Sgd.) A. O. MAKANjUOLA

.. Signed by the said A. O. Makanjuola 'in the presence of-

(Sgd.) ?

" Signed by tlie said G. A. Adu

in the presence of- (Sgd.) ?

(Sgd.) G. A. ADU

The High Court held that the contract was not one that the Court could enforce and entered judgment for the Defendant.

This appeal is brought against that judgment.

Shortly 'the facts are that the Defendant in partnership with two other men named Olamijulo and G. Makanjuola set up a general trading business in produce and on the 28th July, 193:t were registered in the name of the "United Development Trading Company" under the Registration of Business Names Ordinance, 1926. The partnership was not incorporated as a company under

170

G. A. Adu

v. A.O. Makanjuola

G. A. Adu v. A. O. Makanjuola

the Companies Ordinance. In April, 1942, the Plaintiff and Defendant entered into a verbal agreement-as the Plaintiff puts it-

Kingdon, C.].

" to prospect, develop and mine. We were to prospect under the name United Development Trading Company of which the Defendant is the owner proprietor and Manager. I was to be the Manager of the Mining Venture."

The Plaintiff stated that he put £261 6s. 3d. into this mining venture and the Defendant contributed £254 3s. 10d. and that £530 Os. 2d. was expended in prospecting and development.

Apparently at the time of ihis verbal agreement the United Development Trading Company owned a Prospecting Right, and their first prospector was one Okubadejo.

On the 20th October, 1942, the agreement Ex. " D " (already quoted) was entered into and later, namely on the 21st November, 1942, Prospecting Right No. 208/1942 was issued by the Chief Inspector of Minesto"G.A.Adu,Yoruba,aged 42, c/o. P.O. Box 52, He-He on behalf of United Development Trading Company, P.O. Box 241, Ibadan to prospect for minerals except coal lind diamonds" .

The learned trial Judge's reasons for holding that the contract (Ex. D) was not one which the Court can enforce were two, namely (1) that the parties were not ad idem and consequently there was no verbal agreement and (2) that the agreement was in avoidance of section 9 of the Minerals Ordinance (Cap. 93):: As to this we think that there is a patent ambiguity in the agreement itself, the words in paragraph 2 t t alone personally" being irreconcilable with the words" in the name of United Development Trading Company and holder of Prospecting Right."

The Defendant contends that all that was intended by the agreement was that his personal interest in what might be described as the sub-venture of the mining business should cease, but that the Plaintiff should carryon as before as agent of the United Development Trading Company in the mining venture. If this is the correct interpretation the agreement is not open to objection and the taking out of Prospecting Right No. 208/1942 by the Plaintiff in the terms already quoted is also in order, and there is no avoidance of the provisions of section 9 of the Minerals Ordinance.

But then so also in order is the letter Ex. G. which is what the Plaintiff alleges constitutes the breach of the agreement and is in the following terms--

MEMORANDUM

" The United Development Trading Co. (2nd. copy)

General Produce & Import Merchants,

A. O. Makanjuola, Proprietor & Managing Director.

Tel. Address" UNDETRACO" Phone No . .131 19th May, 11143.

Code A.B. C., 6th Bently, Lieber, Private

P.O. Box 241,

lbadan:

C. A. Adu v. A. O. Makanjuola

" Chief Commissioner, Western Province, Ibadan.

Chief Inspector of Mines, J os.

Director of Surveys Department, Lagos.

Resident, Oyo Province

Resident, Kabba Province

Wolfram Production Board, J os.

"Copy; Mr. G. A. Adu, Prospector for Messrs V.n.T.C., Ibadan.

If Sirs,

" We have the honour to notify you that all applications, letters or any documents on behalf of the above Company in Mining Business should only be signed by our Ibadan Manager, Mr. A. O. Makanjuoia.

" That Mr. G. A. Adu with P.R.208/42 can only prospect on behalf of Messrs. United Development Trading Company and submitted for the Manager's signature.

"That all applications and documents, etc., previously signed by Mr. G. A. Adu before the above date should remain valid for the Company.

Yours faithfully,

(Sgd.) A O. MAKAN] VOLA

Manager The United Development Trading Coy."

On the basis of the Defendant's interpretation of the agreement (Ex. D) this letter could not possibly constitute a breach of that agreement and the action must fail; but the Plaintiff contends that the Defendant's interpretation is not correct, and that what the agreement contemplated was that both the Defendant personally and the United Development Trading Company should cease to have anything to do with the mining venture and that he, the Plaintiff, should carryon as sole owner.

If this is indeed the true interpretation, we are of opinion that the agreement is void and unenforceable, being against public policy since it contemplates the perpetration of a deceit upon the mining authorities, a deceit which was actually perpetrated when the Plaintiff subsequently obtained Prospecting Right No. 208/1942.

In any event the Plaintiff's action could not succeed.

For these reasons the appeal is dismissed with costs assessed at 15 guineas.

171 G. A. Adu

v. A.O. Makanjuola Kingdon, C.].

172 M1tmuni Abudulai 71. Ramotu Manue

II

I~

lit I"


<;:OR. KINGDON, C.J., BROOKE AND FRANCIS, JJ. MUMUNI ABUDULAI Defendant-Appellant.

v.

RAMOTU MANUE P laintiff- Re spondent,

A ction for declaration of title to land-Long occupation. b)' defendant- Contficting evidence of title- Trial [udge' s finding s.

Respondent (Plaintiff in the action) sued for a declaration of title to certain land occupied by Appellant, claiming that it had been sold to her father, who later let it to Appellant's father, after whose death it remained in Appellant's occupation. Respondent went away but on her return Appellant claimed that the land had been sold to his father; he also pleaded long possession, laches and estoppel. The evidence was conflicting but the trial .Judge found in Respondent's favour, and the Appellant (Defendant in the action) appealed.

Held, that the trial Judge's finding of fact would not be disturbed as it could be supported by the evidence.

Held also. that in a claim solely for declaration of title the onus to prove acts of ownership is only thrown upon the plaintiff where the other evidence of title is

inconclusive or lacking, and does not. arise where the plaintiff relies upon and proves title by grant.

Ekpo v. Chief Ita, 11 N.L.R. 68, distinguished.

Appeal from the judgment of the Supreme Court.

I. F. Cameron for Appellant.

L. Odunsi for Respondent.

The judgment of the Court was delivered by Brooke, J. :- . The Plaintiff by her writ, seeks a declaration of title to " all

that piece of land situated at Makoko Village, Yaba, now in the occupation of the defendant," and she sues on behalf of herself and other descendants of Adamu Manue (deceased) who are averred to have given their consent to this action being brought (paragraph 6 of Statement of Claim) : in evidence she stated that she claimed as the only surviving descendant of Adamu Manue. It is not disputed that the land originally formed part of the chieftaincy land of the Oloto family and the plaintiff claims that it was sold by Eshugbayi Chief Oloto to her father Adamu Manue some years ago: he lived there himself but later let it out to one Abudulai Gambari. After the latter's death one of his children, the defendant, remained in occupation and the plaintiff went away-or as she .describes it " went abroad" though she appears to have gone no

further than Itori-to trade and when she returned the defendant

a

Mum1tni Abudulai v. Ramotu Manue

claimed that the land had been sold to his father and had descended to him as next-of-kin: he refused to continue the payment of rent

Mumuoi

Abudulai

v.

173

or to give up possession. The defendant denies that the land was ever sold to the plaintiff's father or that plaintiff's father lived there, as well as that the plaintiff is entitled to possession: he also pleaded long possession; laches, estoppel and standing-by.

The plaintiff gave evidence herself and called two witnesses who are members of the Oloto family. For the defence there was one witness besides the defendant himself: he said he knew the defendant's father was burning bricks there in 1892 but he had not heen near the land since then. The Court accepted the testimony of the former and gave judgment for the plaintiffin the following terms :-

.. I am satisfied that she has proved her title to the land and there will

be.judgtnent for the plaintiff with twenty five guineas costs."

There was a plan put in by the plaintiff (Ex. AC.1) the result of a recent survey and one put in by the defendant (Ex. AC.2) dated 1891 and there is also a land certificate of measurement of the 28th January, 1891 (Ex. EF.1) put in .by defendant, The defendant's father and the defendant have been in undisturbed occupation for over forty years. Counsel for the defendant rightly emphasised the fact that this is a claim for a declaration of title to land and not a mere question of which of the parties can prove the better title on the balance of proof. There is no mention in the writ of any claim for recovery of possession of land.

There were four grounds of appeal :- ..l. The learned trial Judge was wrong in attaching any weight to the

declaration of 20-2-1943 of the present Chief Oloto in the face of the

conflicting evidence given by the representatives of the Oloto family

on behalf of the Plaintiff-Respondent and the fact that such declaration

was obtained by Plaintiff-Respondent. for the purpose of the action .

.. 2. The learned trial Judge was wrong in finding that on the strength of

the evidence of the representatives of the Oloto family alone, the . Plaintiff-Respondent had proved her title to the land, but should have

found that the Plaintiff-Respondent having failed to prove a single

aet of ownership over a period of 25 years, she had failed to discharge the onus which rested on her as laid down in the case of Ekpo Eta Ekpo v. Chief Ita Eta Ita (XI N.L.R. 68) .

.. 3. The learned trial Judge was wrong in not finding that the Plaintiff-

Respondent was estopped by the Defendant-Appellant's long and

undisturbed possession and the Plaintiff-Respondent's laches and

standing-by .

.. 4. The judgment is against the weight of evidence."

Each of these argued at length by Counsel for the Appellant and he attacked in lucid and forceful manner the evidence for the plaintiff which had been accepted by the learned trial Judge. A series of cases was referred to in this connection and it is fullv appreciated that although the reversal of a finding of fact of Judge who sat without .the assistance of a jury is within the competence of a Court of Appeal the presumption is that the decision of the trial Judge on the facts was right and that presumption .must :be displaced by the Appellant. The plaintiff

Ramotu

Manue

Brooke, J.

174

Mumuni Abudulai

v.

Rarnotu Manue

Brooke. J.

Mumuni Abudulai v. Ramotu Manue

who is about 74 years of age gave evidence that the land was originally given to her father by the Oloto and that he subsequently bought it: she had formerly been in possession of receipts for the payment made but lost them; that her father put the defendant's father on a portion of the land but the defendant's father predeceased him and one Imoru took possession and paid rent but that her father died and the defendant occupied the land and had been in occupation ever since. She returned in 1918 and knew the defendant was on the land but again left for Abeokuta and could not bring this action before because she had no money to do so. The 3rd and 4th witnesses are members of the Oloto family: their testimony is seen to have been unsatisfactory and contradictory in parts but this was mentioned in the judgment and the 4th witness was described as "not an impressive one and prone to prevaricate but in the main corroborated" plaintiff's story" and "was in a difficult position in that he had filed a statement of interest in another case claiming title to a portion of the land the subject matter of this action".

The plaintiff also placed reliance upon Ex. YF.1 which is in the following terms :-

" To whomsoever it may concern

" 20/2/43.

" ] Akinlolu Akodu Chief. Oloto of Oto, an Idejo Chief of Lagos with the consent of the family council bereby confirm that the land described in Plan No. C9/43 prepared by Mr. Adekunle Coker. Licensed Surveyor, is a portion of the land sold to Adamu Manue by late Chief Eshugbayi Oloto, my predecessor.

Witnesses: -

(Sgd.) Yesufu Fadairo

(Sgd.) Ashafa B. Tijani

(Sgd.) E. Jas Ogundimu

(Sgd.) Sanusi S. Oba ".

Chief Akinlolu Oloto His left thumb impression

It is dated the 20th of February, 1943 and refers to a plan which is not before the Court. Much was made of the fact that the Respondent had failed to prove any act of ownership over a period of 25 years and the case of Ekpo v. Chief Ita 11 N.L.R. 68 was relied upon to support the proposition that a claim for declaration of title cannot succeed unless the plaintiff proves ':Lcts of ownership extending over a length of time. In this connection we think it necessary to point out that that case seems to have been misunderstood as going further than it in fact does, owing possibly to the too general terms of the wording of the judgment. It is clear that the dictum does not apply where, as in this case, the plaintiff relies upon and proves title by grant; the onus as to acts of ownership is only thrown upon the plaintiff where the other evidence of title is inconclusive or entirely lacking. Both from the record of the proceedings and the judgment it is seen that the learned trial Judge was fully aware of the nature of the evidence before him and that in spite of the unsatisfactory elements he found for the plaintiff: it must not be overlooked that the

M umuni A budl.lJai v. Ramotu Mantle 17~

Ex. YF.l was a declaration against interest and that this aspect -Mumuni.

of it is not affected by any subsequent action by the Oloto family. Abud~l.al

It cannot be said that any incorrect principle in considering the Ramotu

matter was applied in the Court below or that the finding was Manue

unsupported by evidence; we are not satisfied that the finding Brooke, ] .

was wrong or such that the verdict cannot be supported on the evidence.

As regards acquiescence the Court below held that in the circumstances there had not been anything which would justify it in finding that the plaintiff was now debarred from bringing this action which is for a declaration of title and we agree with this in the special circumstances: there is no claim for possession and we are not called upon to express any opinion as to what the position would be if the plaintiff sought to pursue her remedy and recover possession of land from the defendant who claims that he and his father have been in the undisturbed possession for over forty years.

The appeal cannot succeed on any of the grounds of appeal, but we think that the judgment of the Court below-merely judgment for the plaintiff, presumably in terms of the writ-is not sufficiently definite and that the plan Ex. AC.l should be incorporated as part of the judgment. It is accordingly ordered that the judgment of the Court below be amended to read-

.. Judgment for the plaintiff for a declaration of title to all that piece of land situated at Makoko Village, Yaba, shown and edged crimson on the plan marked as Ex.ACI in this suit, with twenty five guineas costs ".

subject to this amendment the appeal is dismissed with costs assessed a.t 20 guineas.

1 J

176 Sadiku Ogungbesan v. Kajero & Ors.


COR. KINGDON, C.J., BAKER AND FRANCIS, JJ. SADIKU O<;i-UNGBESAN (PRESIDENT

OSUGBO CULT, ACBOWA) ... Plaintiff-Appellant

u.

1. KAJERO 2. FAKOYA OJO AYIBIOWU

3. BELO OGUNLARU 4. YESUFU OSIDEYIN

5. DADEOWO ARANIJA Defendants-Respondents

Damage to cult property by members of the cult-Criminal proceeding,

followed by action for tort-Practice uihere Defence submits there is no case to answer, at close of Plaintiff?« case.

Plaintiff sued Defendants for special and general damages for malicious injuries to Iledi (Osugbo House) the property of the Cult. At the close of his case, it was submitted for Defendants that there was no case to answer, whereupon the Judge dismissed the action on the ground that they had an interest in that property and that the evidence pointed solely that they had made a forcible entry after having been locked out.

Plaintiff's evidence was that the Iledi could only be entered when there was a meeting and only members could attend; that he let Defendants attend; also that material damage had been done for which criminal proceedings had been taken. The Judge seemed to regard the claim as one for damages for forcible entry.

Held, that Plaintiff had made out a prima facie case of damage to property and that Defendants should have been called upon to make their defence to that case.

Held also, that the tort was actionable without proof that the damage had been .done maliciously and that previous criminal proceedings in which compensation might have been awarded were no bar to the action for tort.

Akinlolu Akodtl v. Yesufu Omidiji , 8 N.L. R.55, distinguished. Aduke and

another v. Aiyelabola (then unreported, now at 8 W.A.C.A.43) referred to on the Court's duties upon a submission of " no case to answer".

Appeal by Plaintiff from the decision dismissing the action.

A. O. Thomas for Appellant.

E. A. Akerele for three, and L. Odunsi for two, of the Respondents.

The judgment of the Court was delivered hy Francis, J. ;- In this action the Appellant as President of the Osugbo Cult,

Agbowa, sued the Respondents for the sum of £510 special and general damages "for malicious injuries done to Iledi (Osugbo House) the property of the Osugbo Cult Agbowa."

...

Sadiku Ogungbesan v. Kajero 00 O~s.

The damages claimed are set out in the writ as follows :-

Sadiku

177

SPecial Damages

Repairs t.o the Iledi £106 0 0

Drums, Paraphernalia and other Osugbo Properties removed from the Iledi 55 0 0

12 Cost of Prosecuting Defendants crimi-

nally 49 0 0

Ogungbesan v.

Kajero&Ors.

Francis, J.

t £210 0 0

General Damages 300 0 0

£510 0 0

At the conclusion of the Appellant's case a submission was

made by Counsel for the Respondents that there was no case to answer, upon which the learned trial Judge without calling on the Defendants proceeded to judgment and dismissed the action with costs.

After considering the evidence and arguments the learned Judge found as a fact that the Respondents had an interest in the Iledi and the Cult property, the subject of the action, and he also came to the conclusion that the whole evidence pointed to a forcible entry by Respondents into the Cult property from which they had been locked out-and to that alone. It was on this ground that he held that no civil remedy lay.

There appear to be two points on which the learned Judge , misdirected himself. First, that the Respondents had been locked

t out of the property of the Cult and secondly that the evidence

adduced by the Appellant pointed only to a forcible entry.

As to the first the evidence 'given by the Appellant was that " the Iledi could only be entered when there is a meeting and only members can attend". This fact would of course apply equally to all members of the Cult and in our opinion cannot be taken to mean that during a meeting when the building was accessible to members the Respondents were excluded.

The Plaintiff's evidence was "I let them attend". And as to the second point the evidence of Appellant and his witness Efunkoya was to the effect that material damage was done to the Iledi both by removal of the doors and damage to t.he walls of the building, the latter witness stated" the whole building had to be repaired" . I t is not necessary to show that such damage was done maliciously for the tort to be actionable ; nor does the fact that previous criminal proceedings had been taken in which compensation might possibly have been awarded debar the Appellants from pursuing their civil remedy by this action.

12

178

Sadiku Ogungbesan

v.

Kajero&Ors.

Francis, J.

sau« Ogungbesan v. Kajero 0- Ors.

In dismissing the action the learned Judge seems to have

regarded it merely as a claim for damages for forcible entry and to have relied on the case of Akinlolu. Akodus v. YesuJu Omidiji reported in VIII N .L.R. 55 in which it was held that the Defendant Omidiji had a right to enter the building and consequently no trespass had been committed by his forcible entry. In the course of his judgment in that case (which was affirmed by the Full Court) Petrides, J. held as follows :-

" I am of the opinion that the English law on the point is correctly stated by Fry J., in Beddall v. Maitland (1881) 17 Ch. D. at page 188, in the following words :-" Damages cannot be recovered against the rightful owner for a forcible entry on land . . . .. The result of the cases appears to me to be this, that, inasmuch as the possession of the Defendant was unlawful he can recover no damages for the forcible entry of the Plaintifi. He can recover no damages for the entry because the possession was not legally his and he can recover none for the force used, because, though the .statute 5 Rich. II. creates a crime it gives no civil remedy".

and that the principle enunciated applies to Nigeria verbatim with the exception of the words" statute 5 Rich. II " for which the words" Criminal Code" should be substituted."

It is our view that there is a distinction between the Akodu case (supra) and the present one. In the Akodu case the claim was for damages for trespass by forcible entry, but there was no claim for damage done to property, whilst the present action was brought, not in respect of trespass by forcible entry, but for damage caused to the Cult property, any suggestion of forcible 'entry in para. (j of the Statement of Claim being incidental to the allegation of actual damage done.

'The principle enunciated 'in Beddall v. Maitland (supra) goes no further than- to lay down that .damages cannot be recovered by a party whose possession is unlawful against the rightful owner of land for a forcible entry on the land and that he can recover no damages for the force used because the statut-e 5 Rich. II. which makes forcible entry an offence provides no civil remedy. This is abundantly clear by reference to the case itself, where the passage quoted by Petrides, J. and reproduced above from the judgment of Fry, J. is immediately followed by-

" But, in respect of independent wrongful acts which are done in the course of or after the forcible entry, a right of action does arise, because the person doing them cannot allege"'that the acts were lawful, unless justified by a lawful entry; and he cannot plead that he bas a lawful possession."

It was argued by Counsel for the 3rd and 5th Respondents before us that a co-owner cannot sue his co-owner for trespass (including, in the wider sense, damage to their jointly owned property). This defence was not set up by any of the Defendants' pleadings and has not been considered by the learned trial Judge. We think that we should not express any opinion upon the soundness or otherwise of the submission .

. .' It is, in our view, clear that the Plaintiff made out a prima facie case of damage to property, and that the Defendants should have been called upon to make their defence to that case. In this connection we refer to the case of Aduk» and another v.

Sadiku Ogungbesan v. Kajero 0- Ors.

Aiyelabola decided by this Court in April, 1942 (not yet reported) in which the Court considered the duties of a Court when a submission of "no case to answer" is made at the conclusion of the Plaintiff's case.

For the reasons set out above we allow this appeal and set aside the judgment of the Court below including the order as to costs, and further order that any such costs as may have been paid shall be refunded.

We remit the case to the Court below for the Defendants' defence to the action to be heard and thereafter for judgment. The Appellant is awarded costs in this Court assessed at 30 guineas against all the Respondents jointly and severally. The costs already incurred and to be incurred at the further hearing in the Court below will be in the discretion of the trial Judge at the further hearing.

179 Sadiku Ogungbesan

v .

Kajero&Ors.

Francis.).

1

180 Rex v. Palmer lyakwe

REX

Lagos, Ist May, 1944

COR. KINGDON, C.J., BAKER AND BROOKE, JJ.

Respondent.

v.

PALMER IYAKWE ... Appellant

Criminal Law-Burglary and Stealing-Doctrine of recent possession.

The only evidence to connect Palmer Iyakwe with the burglary and stealing being the fact that five months after it he was in possession of stolen shoes and passed them to another defendant to sell for him.

Held: that he ought not to have been found guilty of burglary and stealing but of receiving the shoes knowing them to have been stolen.

Appeal from the decision of the High Court, Warri.

N. G. Hay for the Crown.



In this case the Appellant was charged with two other men with burglary and stealing. He was convicted of the offences as charged and sentenced to five years I.H.L., and three y:ears Police supervision. The other two accused were convicted of " receiving" and sentenced to lesser terms of imprisonment.

The only evidence to connect the Appellant with the burglary and stealing was that 5 months after it he was in possession of the shoes and passed them to one of the other accused to sell for him, and -though this was believed by the trial Judge the Appellant denied it.

We are of opiuion that, in these circumstances, the doctrine of " recent possession" cannot operate in such a way as to make it proper for the Appellant to be convicted of the burglary and stealing, but we are satisfied that the Judge must have been satisfied of facts which prove the Appellant guilty of receiving the shoes knowing them to have been stolen, and that on the charge he could and should have found the Appellant guilty of that offence.

We accordingly substitute for the verdict found by the Judge a verdict of guilty of receiving stolen property knowing it to .have been stolen contra sec. 427 of the Criminal Code and in substitution for the sentence passed at the trial sentence the Appellant to two years I.H.L. to be followed by three years Police supervision.

Rex v. Peters Udo Akpabio 181

REX ..

Lagos, 3rd May, 1944

COR. KINGDON, C.J., BAKER AND BROOKE, JJ. Respondent.

v.

PETERS uno AKPABIO ... Appellant.

Criminal Law--Stealing by Agent: section 390 (8) {b) of the Criminal Code. Fraudulent False Accounting: section 438 (c) of the Criminal Code-Fraudulent Intent-Onus of proof.

The defendant was charged (1) with stealing £4 lOs. M. entrusted to him as Honorary Treasurer of a Union Branch to pay into a Win-the-War Fund; (2) with omitting to enter that sum in the Branch book with intent to defraud; (3) with stealing £7 entrusted to him as such Treasurer to pay into the said Fund. The facts were that on 22nd November, 1941, he was handed £4 lOs. 5d., for which he did not account in the Branch book, but which he paid into the Government Local Treasury on 16th April, 1943. He admitted receiving another £15 in all, £8 of which he paid into the Treasury on 16th April, 1943, and £7 on 26th April, 1943. The trial Judge found that though suspicious the ..retention of the £4 lOs. 5d. for a long time did not establish stealing by conversion and acquitted the defendant on count 1. On (2) the Judge thought the defendant was a servant or clerk of the Union with a duty to account and that his omission to account for the £4 lOs. 5d. sufficiently indicated a fraudulent intent, and convicted the defendant on count 2. As regards count (3) the Court thought that as at the meeting of 17th April, 1943, the defendant did not say the £7 had been received and had not paid it in on 16th April, he did not believe defendant's story of receiving the £7 between 17th and 22nd April, when he:admitted receiving the £7 to a witness, and found that defendant had received the £7 prior to 16th April and was guilty of fraudulent conversion, whereupon he convicted him on count 3. On appeal :--

Held, that, as defendant chose to do the duties of a treasurer, he was, though unpaid, acting in the capacity of a clerk or servant to the Union, but that in view of the acquittal on the first count of stealing by'an agent regarding the £4 l Os, 5d.,

-the necessary intent to defraud could not be held as proved on the second count of fraudulent false accounting.

Held also, in regard to the third count, that the onus of proving receipt of the £7 prior to 16th April, 1943, being on the prosecution, which it failed to discharge, he should not have been convicted on the ground that he failed to disprove receipt prior to that date, there being no onus on him.

Appeal from the decision of the High Court, Calabar,

N, G. Hay for Crown,

182

Rex v.

Peters Udo Akpabio

Kingdon, C.J.

Rex v. Peters Udo Akpabio

A. Alakija for Appellant.


In this case the Appellant was charged in the High Court of the Calabar-Aba Judicial Division upon three Counts with the

particulars as shown :-

"STATEMENT OF OFFENCE 1st Count

" Stealing by Agcnt contrary to section 390 (8) (b) of the Criminal Code.

" PARTICULA.RS OF OFFENCE

" Peters Udo Akpabio on or about the month of January, 1942 ill lkot Ekpene Division of the Calabar Province did steal the sum of £4 lOs. 5d. which had been entrusted to him as Honorary Treasurer of the lkot Ekpene Branch of the Ibibio Union for him the said Peters Udo Akpabio to pay into the Win-the-War Fund.

" STATEMENT OF OFFENCE 211d Count

Fraudulent False Accounting contrary to section 438 (c) of thc Criminal Code.

" PARTICULARS OF OFFENCE

" Peters Udo Akpabio on or about the month of November. 1941 at Ikot Ekpene, in the Calabar Province while acting in the capacity of Honorary Treasurer of the Ikot Ekpene Branch of the Ibibio Union did with intent to defraud omit a material particular from' the book of the said Branch of the Ibibio Union to wit: did omit entry of the sum of £4 lOs. 5d. received on the said day from Mr. John Udo Udo Ebong.

" STATEMENT OF OFFENCE 3rd Count

.• Stealing by Agent contrary to section 390 (8) (b) of the Criminal Code.

"PARTICULARS OF OFFENCE

.. Peters Udo Akpabio on or about the month of April. 1943. at Ikot Ekpene in the Calabar Province did steal the sum of £7 which had been entrusted to him as Honorary Treasurer of the lkot Ekpene Branch of the Ibibio Union for him the said Peters Udo Akpabio to pay into the Win the War Fund ".

The Appellant was acquitted upon the first Count but convicted upon Counts 2 and 3 and sentenced to 12 months I.H.L. on each Count, the sentences to run concurrently.

Against these convictions he has appealed to this Court.

The undisputed facts found by the learned trial Judge are- " that accused was the honorary or unpaid Treasurer throughout the period under review of a local branch. situated in Ikot Ekpene, of an association known as the Ibibio Union. a co-operative society. so named after the indigenous tribe inhabiting that area. He held also during the same period. the paid official position of Native Administration Treasurer of the Ikot Ekpene Division .

.. At a meeting of the Union held on 22nd November. 1941. the accused. as treasurer of the Union. was handed by John Ebong. the auditor of the whole Union. the sum of £4 lOs. !)d., the proceeds of a " rally". held on 8th November, to collect funds for a fund known as " Win the War Fund" .

.. This sum was not accounted for in any way in any of the books of the Union, and was paid into the Government local treasury by accused on 16th April, 1943. . The sum of £4 lOs. 5d. is the subject matter of the first two charges .

.. At the meeting held on 22nd November. 1941. it was also decided that the Union members in all Court areas. nineteen in all. should each contribute a sum of £1 to the Win the War Fund. This fact also is admitted by accused. and so is not in dispute. also that no sum contributed in this way was accounted for by accused in the books of the Union. He admits

R~x v. Peters Uiio Akpabio

receiving the sum of £15 in all from the Courts. This sum of £15 was paid in by accused. in two instalments. one on 16th April. 1943. to the Treasury

183 Rex

v. (a sum of £8) and the balance. £7. on. the 26th April. 1943. also to the Treasury."

The Judge set out the main facts in issue as follows :- "First. whether accused was aware that he was eX;J?ectedto account

for these sums or any sum. in respect of " Win the War' • as distinct from the ordinary funds of the Union passing through his hands. and second. whether he was expected to pay them over immediately to Government as received. or to retain them in his hand indefinitely. until all were received. Third. whether the sum of £7 paid in by him on 26th April. 1943. was received from the Courts between 17th and 26th April. 1943."

In effect the learned trial Judge answered the first and the first part of the second of these questions in the affirmative, and the third question in the negative.

In acquitting the Appellant on the first Count the Judge said :- " The mere retention of the sum of £4 lOs. 5d. for so long and in such

circumstances. though it raises grave suspicions as to his good faith does not in my opinion involve an overt act definite enough to amount to the conversion of it so as to establish the offence of stealing under section 390."

Upon the second Count the learned trial Judge first considered whether the Appellant was a clerk or servant of the Union within the meaning of the definition of those terms given in section 1 of the Criminal Code and held that he was.

The Judge further held that it was the duty of the Appellant to account for the sums received as contributions to the Win the War Fund and that the Appellant had not accounted for them in any way. .

The teamed trial Judge then considered the question of fraudulent intent and held.

" The retention of the money therefore in such circumstances is to my mind in my capacity of jury. sufficient indication of fraudulent intention on the part of the accused when he omitted the entry of the receipt of the sum of £4 lOs. 5d. in his cash book which without doubt was a particular material to the welfare of the Union; His action can bear no other interpretation."

The Judge thereupon recorded a verdict of "guilty" uporr Count 2.

Upon the third Count the learned trial Judge said :- " If accused at the meeting of 17th April. had produced this amount.

or had paid it in with the other monies on 16th April. or had even announced its receipt. I think that he would on that'account have been entitled to an acquittal on a charge of stealing it. He did none of these things.

" He stated, of course. that this amount had not then been received. and that he informed the meeting the number of Courts that had paid and that the remainder. among them these seven referred to. were ordered to pay up at once under penalty. What penalty could have been enforced so as to cause seven Court areas to collect and pay in a sum of £1 each within five days was not specified.

.. I therefore feel bound to believe the evidence of the witness. Ekam, the. Secretary. and those who supported him. that no reference was made by accused at that meeting. to the number of 'Courts that had not paid. and that when be told the meeting that the sum of £12 lOs. 6d. paid in by him was the total received by him in respect of the war fund. he was not speaking the truth, and that it was only on being pressed -by Ekam at a subsequent meeting that he admitted the receipt of the £7. paid in later by him on 26th April.

Peters Udo Akpabio Kingdon. C.].

184

Rex v.


.. I do not believe, and it is unsupported by any evidence other than

that of accused, though such support should easily be forthcoming that Peters Udo Akpabio

Kingdon, C.J.

accused did in fact receive this sum between the 17th April and the 22nd when he admitted its receipt to Mr. Ekam ~ and I do not believe that he informed this witness that he had received these amounts within the previous five days.

.. I therefore find that accused did in fact receive this sum of £7 prior to 16th April, 1943, and was unable to produce it on that day or next, and so was obliged to conceal its absence by falsehood at the meeting of 17th April.

.. I can only conclude, and so find, that accused converted this sum to 'his own use or with intent to use it at will, and therefore did it fraudulently in accordance with the definition contained in section 383 (/) of the Criminal Code, even if in fact 'he hoped or intended subsequently, to repay it to the Union." .

The Judge thereupon convicted the Appellant upon the third Count.

The grounds of appeal are 6 in number, Nos. 1, 2, 5 and 6 attack the conviction on Count 2, they are--

.. 1. The prosecution failed to prove that I was a clerk or servant of the Ibibio Union, Ikot Ekpene Branch .

.. 2. Because the prosecution failed to prove that any legal duty was imposed upon me to enter up the sum of £4 lOs. 5d. in the Cash Book it being not exactly Union money .

.. Ii. Because omission of £4 105. 5d. is not omission of a material particular .

.. 6. Because the omission to insert the £4 lOs. 5<1. in the Cash Book is consistent with my innocence."

Ground 1 raises a nice point of law which seems never to have been definitely decided, viz. : whether an Honorary Treasurer of a Union is a person employed or acting in the capacity of clerk or servant to the Union?

In passing we should point out that the particulars would have

been better worded- .. While acting in the capacity of a clerk or servant to wit, as Honorary

Treasurer, of the Ikot Ekpene Branch, etc., "

Difficulty arises in deciding whether a person is acting in the capacity of a clerk- or servant when, as in the case of Outlines of Criminal Law puts it like this :-

.. A periodical salary or wage is some evidence of the recipient's being a servant; hence it is common for societies to pay their treasurers a nominal yearly sum, such as a shilling, to secure the protection of the law of embezzlement.' ,

But the true test appears to be indicated by the words of Brett. J. in Reg. v~ Foulkes (13 Cox's Criminal Cases p. 63 at p. 67).

.. The prisoner undertook to do certain things for his fa~her in the way in which a clerk does for money; and as long as he chose to do them-although it may have been voluntarily onhis part-he was bound to do them honestly, as a clerk would have done them. As he did tiiem dishonestly, I think he was liable under the circumstances for embezzlement."

Applying that test, we think that although the Appellant performed the duties of Treasurer voluntarily and without payment, so long as he chose to do them he was acting in the capacity of a clerk or servant to the Union.

This ground therefore fails,


As to grounds 2 and 5 the sum of N lOs. 5d. was not ordinary

revenue of the Union and it was incumbent upon the Prosecution to show that it was the duty of the Appellant to pass the sum through the books of the Union. There was evidence-though, in our view, not very satisfactory evidence-to that effect.

The Judge accepted the evidence and we cannot overrule him on this question of fact. These grounds of appeal therefore also fail.

Ground I)' puts in issue, inter alia, the question of whether intent to defraud was proved; and on this point learned Counsel for the Crown in this Court has intimated that he does not seek to uphold the conviction since he thinks that the acquittal on

Count 1 automatically negatives a finding of intent to defraud upon Count 2.

We agree with him, and of course, with Counsel for the Appellant that, in view of the acquittal on the first Count the necessary intent to defraud cannot be held to have been proved upon the second Count.

This ground of appeal succeeds and the conviction on Count 2 cannot be sustained.

Grounds 3 and 4 of the grounds of appeal which attack the conviction upon Count 3 are as follows :-

.. 3. The prosecution failed to discharge the onus of proof of the alleged theft of £7.

"4. Because there was no theft or c..onversionof £7 ".

These grounds put in issue of the correctness of the finding that the Appellant received the sum of £7 prior to the 16th April. As to this the learned trial Judge seems to have overlooked that the onus was upon the prosecution to prove the earlier receipt, and not upon the Appellant to disprove it. In fact the only direct evidence on the point is that of the Appellant himself that he had not yet received the money on the 16th April. If in fact the money was paid earlier the Prosecution could and should have called the respective payers to prove the dates of payment; by omitting to do so the Prosecution failed to call the best evidence available and failed to discharge the onus of proving the case for the Crown.

Counsel for the Crown in this Court has intimated that he cannot support. the conviction on this Count, and we agree that it cannot be sustained.

The appeal is allowed, the convictions and sentences upon Counts 2 and 3 are quashed and it is directed that in respect of all Counts a judgment and verdict of acquittal be entered.

The Appellant is discharged,

185 Rex

v. Peters Udo Akpabio Kingdon, C.}.

186 Amponsa Tandoh. v. Compagnie Francaise etc. & Anor.

Accra, 16th May, 1944

COR. KINGDON, C.J., DOORLY, AG. C.]., AND M'CARTHY, J.

AMPONSA TANDOH Plaintiff-Appellant.

v.

COMPAGNIE FRANCAISE DE L'AFRIQU,E OCCIDENTALE ACCRA AND KWAME POKU

OF

Defendants-Respondents.

Practice=Procedure at close of Plaintiff's case.

Plaintiff sued claiming that the sale of his mortgaged property be set aside on several grounds and damages for wrongful sale. When his case was closed the Judge recorded " I do not calion the defence" and accepting a statement from another Counsel that Plaintiff's Counsel did not wish to address the Court, gave judgment for Defendants, on the ground that there had been no fraud, without considering the other points raised by Plaintiff's pleadings and evidence.

Held,' that where at the close of Plaintiff's case, the Defence submits that there is no case to answer, the proper course is to ask the Defence if it is calling evidence: if the answer is in the affirmative to hear it, and if in the negative to hear argument on the submission.

Appeal by Plaintiff.

Akufo Addo for Appellant.

Akilagpa Satnyerr (with him]. Sarkodee Adoo) for Respondents.


In this case at the close of the case for the Plaintiff the learned trial Judge recorded :-

.. I do not call upon the defence."

He then accepted a statement from another Counsel that Counsel for Plaintiff who was absent did not wish to address the Court, and then delivered judgment .for Defendants with costs.

This Court recently considered in a Nigerian Appeal the duty of a Court when on the close of Plaintiff's case, a submission is made on behalf of the Defence that there is no case to answer. It was pointed out, following recent English pronouncement'), that the proper course is for the Judge to ask Counsel for Defence if he wishes to call evidence, and if the answer is in the affirmative to hear the Defendant's evidence; if in the negative to hear argument on the

submission. A fortiori, we are of opinion that on the close of Plaintiff's case a Court ought not to decide nor call upon the Defence without asking if the Defence wishes to call evidence. We are of opinion that owing to the wrong procedure followed by the Court in this case, Counsel for the Plaintiff was not given sufficient

Amponsa Tandoh v. Compagnie Francoise etc. & Anor. 187

opportunity to address the Court upon his case. In the result the Amponsa

learned trial Judge appears to have entirely overlooked and failed Tando~.

to deal with most material facts of the Plaintiff's claim. Compagnie Francaise

The Plaintiff asked to have the sale of his property mortgaged to 1st Defendants to secure one Sappon in respect of cash advances made to Sappon by Ist Defendants set aside on the grounds of :-

(1) Actual fraud and collusion,

(2) Sale at gross undervalue from which the Court should assume fraud in equity,

(3) Irregularity in the sale, the Plaintiff not having been given notice of the correct amount due from Sappon in respect of cash advances.

Plaintiff further claimed damages for wrongful sale. Of all these various matters the only one with which the judgment of the learned trial Judge deals is the question of whether or not the sale ought to be set aside on the ground of actual fraud and collusion. He decided that there was no actual fraud or collusion and so saw no reason to set aside the sale.

But he entirely failed to consider or give a judgment upon any of the other points raised by the Plaintiffs pleadings and evidence. For these reasons we are of opinion that the case must be sent hack to the Court below for retrial.

The appeal is allowed, the judgment of the Court below, including the order as to costs, is set aside, and it is ordered that if any sum has been paid in pursuance thereof it shall be refunded; the case is remitted to the Court below to be retried de novo hy a different Judge. The Appellant is awarded costs in this Court assessed at £38 lIs. against the Respondents jointly and severally. The costs in the Court below, both those already incurred and those to be incurred at the retrial will be in the discretion of the Judge at the retrial.

etc. & Anor.

Kingdon, C.].

188 J. K. Q. Aryeh 0- Ors. v. Malam Dauuda 0- Anor.

Accra, 23rd May, 1944

COR. KINGDON, C.J., DOORLY, AG. C.J, AND M'CARTHY, J.

J.K.Q.ARYEH,D.S.QUARCOO- POME, J A. LAMPTEY, A. A. S. WILLIAMS, A. D.

ANKRAH, F. W. AMARTEIFIO AND DELPHINA OCQUA YE FOR AND ON BEHALF OF THEM- SELVES AND AS REPRESENTING THE DIRECT DESCENDANTS OF

MANCHE ANKRAH ... Plaintiffs-A ppellants.

v.

MALAM DA WUDA OF FEOYOH Defendant-Resp-ondent.

M. D. A. ANKRAH FOR AND ON BEHALF OF NEE ANKRAH FAMILY AND GILBERT EMMANUEL ALLOTEY Co-Defendants-Respondents.

Descent of property under native customary law-Presumption.

Plaintiffs sued claiming a declaration of title to land, damages for trespass, and an injunction; the trial Judge held that they had failed to prove their case; so they appealed.

Held,' that the ordinary rule of native customary law as to descent through the female line applied as no sufficient evidence had been adduced to show that the case was governed by another rule ..

Appeal by Plaintiffs.

j.. Sarkodee Adoo for Appellants.

K. A. Bossman for Respondents.


The Plaintiffs' amended claim in this case reads as follows :- " The Plaintiffs claim (1) a declaration that they are in possession as

owners of all that piece or parcel of land commonly called and known as Ahodome or Awudome situate lying and being at Accra; (2) £20 Damages for trespass; and (3) An Injunction restraining the Defendants. their Agents. Servants or representatives from entering upon. or in any way interfering with. the said land."

The main claim is that the direct descendants of Manche Ankrah are entitled to exclusive ownership of the land in question, the descendants of Manche Ankrah's uterine brothers having no rights in the land.

The learned trial Judge held that the Plaintiffs had failed to prove their case, thus, in effect, nonsuiting them. It is sufficient for the purpose of deciding this appeal to say that we entirely

}. K. Q. Aryek & Ors. V·. Maiam Damuda 6- Anor.

agree with this finding, and that we find no substance in any of

J. KQ.

189

the grounds of appeal. It is true that the actual ratio decidendi Aryeh& Ors.

v. in the Court below is not very clear, but the ordinary rule of native customary law as to descent of property through the female line prima facie applies in this case, and in our opinion no sufficient evidence has been adduced to show that any other method of descent applied in this particular case. Hence we are satisfied

that the leamed trial Judge had no alternative but to nonsuit the Plaintiffs. The claims for damages and an injunction were dismissed and we concur with the Judge's decision in this respect.

The appeal is dismissed with costs assessed at £43 7s. 6d.

Malam Dawuda & Anor.

Kingdon,

C.J.

190 Rex v. James Ernest Bandoli

'J

REX

Accra, 26th May, 1944-

COR. KINGDON, C.J., M'CARTHY ANn S~IlTH, ]J.

Respondent.

v.

] AMES ERNEST BANDOH Appellant.

Criminal Law and Procedure-Criminal Code, s. 359-Perjury·_· Criminal Procedure Ordinance, ss. 202, 231-Particulars of offence-West African Court of Appeal Ordinance, s. 10 (1), proviso.

Defendant was convicted of perjury on a count which did not aver that he knew the statement he was alleged to have made was false or did not believe it to be true. On appeal:

Held, (1) that an information for perjury should contain an averment that the defendant knowingly falsely swore or did not believe to be true what he is alleged to have stated, otherwise the information is defective;

(2) that such a defect may be cured by amendment, but that if left uncured it vitiates the information;

(3) that it would not be proper to let the conviction stand where the defendant bas not been given reasonable information as to the nature of the charge against him.

Appeal by the defendant from the decision of the Supreme

Court sitting at Kumasi.

F.. O. Asafu-Adjaye for Appellant.

J. S. M anyo Plange, Crown Counsel, for the Crown.


The Appellant was charged upon information in the Supreme Court of the Gold Coast at the Kumasi Assizes upon three counts of " Perjury contrary to section 359 of the Criminal Code." He was convicted upon the 1st count only and sentenced to 1 year's Imprisonment with Hard Labour. Against that conviction he has appealed to this Court upon eleven grounds, but we have only found it necessary to hear argument upon one ground, viz. No. 11 in order to dispose of the appeal. That ground reads as follows :-.

" That the conviction is wrong in law; in that the charge preferred against the accused and upon which he was convicted did not disclose a triable offence in law.

" No where in the charge is it stated that the statement alleged to have been made by the appellant was false to his knowledge or that he did not believe same to be true."

The particulars given upon count 1 read :- " James Ernest Bandoh on the 4th day of August, 1942, at Kumasi in

Ashanti, being a witness upon the trial of a suit in the Divisional Court of the Supreme Court of the Gold Coast holden at Kumasi aforesaid in which the said James Ernest Bandoh, one Kweku Daboni and one Kofi Fetua were

Rex v~ James Ernest Bandoh.

plaintiffs and one C. H. Dickson and one B. D. Addai were defendants, in a verbal statement made by him (the said James Ernest Bandoh) upon oath

191 Rex

v. before the said Court stated that no Management Shares of the Ashanti Producers Corporation Limited had ever been issued."

I t is obvious that the ground of appeal is correct in stating that the charge does not allege that the Appellant's statement was false to his knowledge or that he did not believe it to be true. The particulars do not even aver that the statement is untrue. In the form of indictment for perjury given at page 1221 of the 31st Edition of Archbold's Criminal Pleading, Evidence and Practice the essential words It knowingly falsely swore" are used ; and we are of opinion that it is essential in an information for perjury that the particulars should contain an averment either in those terms or in terms which make it clear that the statement alleged to have been made is also alleged to be false, and false to the knowledge of the accused or that he did not believe it to be true.

In England, until the enactment of the Indictments Act, 1915, the omission of a material part of the indictment was fatal to the prosecution.

In Reg. v. James G Another (1871) 12 Cox, 127, Lush, J. said at page 12~ :-

" I must hold the words' with intent to defraud' to be a material part of the indictment, nor can I amend it under the 14 & 15 Vict. c. 100, s. I, and as the words are not inserted, their omission is I think, fatal to the prosecution, therefore this indictment must be quashed."

James Ernest Bandoh

Kingdon,

C.J.

And, though the Indictments Act, 1915, gave power to amend I a defective indictment during the trial, if no such amendment is made presumably the defect is still fatal to a conviction.

Provisions similar to those of the English Indictments Act, 1915, exist in the Gold Coast; thev are set out in section 202 of the Criminal Procedure Ordinance (Cap. 10), and the power of

amendment is contained in section 231. That power of amendment could, and, in our opinion, should, have been exercised in the present case, but it was not; with the result that the trial was completed and the Appellant convicted upon an information defective upon the face of it.

Section 202 of the Criminal Procedure Ordinance provides inter alia that :-

" Every information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the charge."

We are of opinion that the particulars given in the present case fail to state what is necessary for giving reasonable information as to the nature of the charge, and that consequently the information is bad.

Learned Counsel for the Crown has asked us to exercise the discretion conferred upon the Court by the proviso to section 10 (1) of the West African Court of Appeal Ordinance (Cap. 5) and to refrain from quashing the conviction on the ground that no

192

Rex v.

James Ernest Bandoh

Kingdon,

C.J.

Rex », James Ernest Bandoh

substantial miscarriage of justice has actually occurred. The principles upon which a Court of Criminal Appeal should act in applying the corresponding provisions of the English Criminal Appeal Act, 1907 were considered by the English Court of Criminal

..,.-Appeal in the case of R. v. Thompson (9 Cr. App. Rep., 252), and we do not think those principles go so far as to justify the use of the proviso where an accused person has not been given reasonable information as to the nature of the charge against him. In our view the point raised is no mere technicality, since we think that there is a very real danger that an accused person, especially an illiterate person to whom the charge and particulars have to be translated, may admit the correctness of such particulars and have a plea. of guilty recorded against him, when he would have pleaded Not Guilty to a charge with properly framed particulars and perhaps have been acquitted.

For these reasons the appeal is allowed, the conviction and sentence are quashed, and it is directed that a judgment and verdict of acquittal be entered. The Appellant is discharged.

Rex v. Samuel Ribeiro Okyere Badu

Accra, 1st June, 1944

COR. KINGDON, AND HARRAGIN, C.J.]'. AND DOORLY, J.

REX Respondent

v.

13 SAMUEL RIBEIRO OKYERE BADU . .. Appellant

Criminal Law and Procedftre-Charge of Libel under s. 246 (2) of Criminal Code-Denial of publication for the first time by defendant in his evidence-Permission to prosecution to call

rebutting evidence after close of defence-Criminal Procedure Code, s. 275.

Defendant was charged with intentional libel, and to prove publication the prosecution put in the newspaper containing the article complained of, an open letter to the Commissioner of Police, purporting to be signed by defendant, and a letter in identical terms to the Commissioner proved to be signed' by defendant. The cross-examination was directed to justification and there was no suggestion that defendant was denying publication. When defendant came to give evidence, to the surprise of everyone he denied publication and this defence was adopted by his Counsel. Thereupon Counsel for the Crown intimated that he would call rebutting evidence on the point, and was permitted so to do by the trial Judge after the close of the defence. The defendant appealed, inter alia, on the ground that the trial Judge should not have so permitted. On appeal:

Held: that the discretion to allow the prosecution to call rebutting evidence should be exercised only in exceptional cases, but that as the evidence of publication by defendant adduced by the Crown in the first instance was sufficient in the ordinary way and there had been no suggestion of denial of publication, the making of such a denial by the defendant for the first time in his evidence and his giving evidence that it was not he but another person who sent the letter for publication, constituted .. new facts" under s. 275 of the Criminal Procedure Code justifying the trial Judge in allowing the prosecution to call rebutting evidence.

Appeal by defendant from the decision of the Supreme Court, Kumasi.

H. A. Hayfron-Benjamin for Appellant.

}. S. Manyo Plange, Crown Counsel, for the Crown.


The Appellant was charged, along with a man named Baiden at the Kumasi Assizes with-

.. Intentionailibel contrary to section 246 (2) of the Criminal Code."

13 4-N

193

194

Rex v.

Samuel Ribeiro OkyereBadu

Kingdon, .C.].

Rex v. Samuel Ribeiro Okyere Badu and the particulars given of the offence were :-

.. Jacob Eduam Baiden and Samuel Ribeiro Okyere Badu on the 27th day of September, 1943,at Kurnasi in Ashanti with intent to defame Thomas, William Sackey, Sergeant in Charge of Police, at Ashanti-Mampong unlawfully published in the issue dated the 27th September, 1943. of a newspaper entitled til" Ashanti Pioneer in the form of an open letter addressed to the Commissioner of Police. Accra, which contained the following defamatory matter concerning the said Thomas William Saekey :-

"I. The Sergeant then swerving from the law and correct Police Procedure, sat as Judge who found complainant guilty because he refused to respond to the Oath sworn to by the Krontihene and as a result, took pacification of £1 3s. from the complainant to the Krontihene, which amount the Sergeant positively took a share whilst it is never known to be legal that police officers shall sit as ] udgcs to hear and determine Oath cases (meaning thereby that Thomas William Sackey was guilty of misconduct in his office as Officer in Charge of the Police at Ashanti-Mampong).

"2. After this. Sergeant Sackey then directed and encouraged both the complainant and the Krontihene to give statement suitable for him to endanger and disgrace me; and having obtained his wish, he Sergeant Sackey ordered my arrest which was done in the afternoon of September 2, 1943, and 1 was charged with stealing £4; after he had collected false evidence in support of prosecution against me (meaning thereby that Thomas Williams Sackey was guilty of fabrica- ting evidence with intent to pervert the course of justice)."

Baiden was acquitted but the Appellant was convicted and sentenced to six months' imprisonment with Hard Labour. On appeal to this Court his Counsel has argued a number of grounds of appeal, but the only one with any substance is .. Error in Law (c) " which reads :-

(c) Because the Prosecution were not taken by surprise to warrant the trial Judge giving themleave to adduce rebuttal evidence as in any case the burden is on the Prosecution to prove that it was the Appellant who published the alleged libellous matter or caused it to be published;"

The trial of the case took rather an unusual course, the Crown, by way of proving publication, put in evidence the newspaper in which the article containing the alleged defamatory matter was published under a heading: "Open letter to the Commissioner of Police, Accra" and over what purported to be the Appellant's signature, and also an original letter in identical terms to the Commissioner of Police, Accra which was proved to be signed by the Appellant. This was in our view sufficient, in the ordinary way, to prove publication. Throughout the prosecution case, there was no suggestion by Appellant's Counsel, either by cross- examination or otherwise, that the Appellant was denying publication but cross-examination was directed to justification. This is not surprising seeing that at that time Appellant's Counsel himself was under the impression that the Appellant was not disputing publication.

After the Prosecution had been closed the following appears

upon the record :-- " 2nd Dejendanl--called upon-informed of his rights-elects to give evidence

on oath-4 witnesses--defence: statements are true and expression of opinion in-good faith, etc."


Presumably the words; "defence; statements are true and Rex

expression of opinion in good faith, etc. " are the opening of Sam~~l

Appellant's Counsel in pursuance of the provisions of section Ribeiro

272 (4) of the Criminal Procedur-e Code. There is still not a word Okyere Badu

about disputing publication. Kingdon,

The Appellant then went into the witness box and gave C.).

evidence, inter alia-- _ .. I did not write anything in the paper. I know- nothing about the

publication in the paper."

Appellant's Counsel himself was so taken by surprise by this evidence that, after the short evidence of another witness had been taken, he asked for an adjournment to consider his position; the record reads ;-

.. I ask {or adjournment till tomorrow to consider my position as my client has changed his defence without my knowledge, i.e. that he did not publish the libel."

The adjournment was granted.

On resumption next day Appellant's Counsel intimated that he was adopting the denial of publication as part of the defence, whereupon Counsel for the Crown immediately intimated that he would" call rebutting evidence to prove this and to confirm what we have already proved." This could: of course, only be done with the leave of the Court under section 275 of the Criminal Procedure Code, which reads as follows ;-

.. Notwithstanding anything contained in section 2i3, at the close of the evidence fot. the defence, or, where it is sought to rebut evidence of good character, after such evidence of good character has been given, the Court may, in its discretion, on the application of the advocate for the prosecution, grant him leave to call evidence to disprove any new facts set up by the defence. Where such evidence in rebuttal is given, the advocate for the defence shall be entitled to comment on the evidence so given."

Then in the course of the defence a witness, Krobo Edusei, a reporter to the newspaper, was called to testify that the letter in question was sent to him for publication by one Akosa. Akosa was not called by the defence to corroborate this. After the close of the defence, the Prosecution, with the leave of the Court of course, called rebutting evidence, namely the man Akosa himself who testified that he did send the letter to Edusei for publication and that he did so at the request of the Appellant; a second witness, in rebuttal, was called to corroborate Akosa's evidence. It is against the decision of the learned trial Judge granting leave to adduce evidence in rebuttal that the ground of appeal which we are considering is directed. We desire to say at once that, however we may decide this case, the practice of allowing the Prosecution to call evidence in rebuttal is not one which has our blessing. The discretion should be exercised very sparingly and only in quite exceptional cases. We think however that the present case is within that. category and we are unable to say that the learned trial Judge exercised his discretion otherwise than judicially in granting leave to call evidence in rebuttal. It is clear that the Prosecution was, like Counsel for the Appellant, taken completely

13A

196

Rex v.

Samuel Ribeiro OkyereBadu

Kingdon, C.].


by surprise by the sudden and complete change in the nature of the defence, and that such a change was about to take place could not possibly have been foreseen. The evidence for the defence that it was Akosa and not the Appellant who sent the letter to Edusei for publication certainly constitute "new facts" within the meaning of that expression in section 275 of the Criminal Procedure Code already quoted. There is all the difference between this case and the case of R. v. Day (27 Criminal Appeal Reports, 3) to which Appellant's Counsel pinned his faith in arguing the appeal. In that case Hilbery, j., in giving the judgment of the Court referred to the evidence which the Court held to have been wrongly admitted as evidence" the necessity for which was obvious". That is far from being the position in the case now before us.

This ground of appeal therefore fails and, as we have already

laid, there is no substance in any of the other grounds.

The appeal is accordingly dismissed.

Bahae Helwani u. Commissioner of Police

Accra, 2nd June, 1944

COR. KINGDO::>1, C.J., DOORLY AND M'CARTHY, JJ. BAHAE HELWANI ... Appellant (Defendant)

v.

COMMISSIONER OF POLICE Respondent (Complainant).

Criminal Law-Criminal Code; ss. 7 (2), 108 (1), 108 (3), 109- Unlawful Possession of goods on premises.

Defendant was convicted, under s. 108 (1) of the Code, of unlawful possession of ten drums of aviation petrol found in an open space outside his house, which he said were his ; and the conviction was upheld by the Supreme Court on appeal from the Magistrate. A new ground of appeal was taken in the West African Court of Appeal-that s. 108 is confined to cases where a person has or conveys the property in the street.

Held. that ,!-S s. 109 of the Code refers to premises whilst s. 108 does not. and s. 108 (3) seems to indicate the scope of the whole section and refers (inter alia) to a servant employed to carry something. it becomes doubtful whether s. 108 applies to goods not in transit; and s. 108 should therefore, on the principle of s. 7 (2), be confined to goods in transit.

Appeal by Defendant from the decision of the Supreme Court dismissing his .appeal from the decision of the Magistrate.

E. C. Quist for Appellant.

[, S. Manyo Plange, Crown Counsel, for Respondent.


The Appellant was charged in the Court of the Magistrate at Sekondi with-

"Unlawful Possession: Contrary to section 108 (1) Cap. 9 ..

and the Particulars given were- .. For that you on the 12th February. 1944 at Sekondi in the Sekondi

Magisterial District and within the jurisdiction of this Court. were found in possession of 20 drums. each containing 44 gallons of petrol, reasonably suspected of having. been stolen or unlawfully obtained."

The case for the prosecution was that, when Appellant's house was searched under a search warrant the Police found 20 drums of petrol in an open. space outside his house which the Appellant said were his and that he got them from the oil factory, Takoradi, ten of the drums contained aviation petrol. The Magistrate convicted the Appellant of the offence charged in respect of the ten drums of aviation petrol and sentenced him to three months' Imprisonment with Hard Labour. On appeal to the Supreme Court the conviction was upheld.

198 Bahae Helwani v. Commissioner of Police

Bahae The only substantial ground of appeal in this' Court is a new Helwani

v. one, namely, that the provisions of section 108 (1) are confined to Commis- cases where a person has or conveys the property in the street. sioner of Po- lice That question was not raised in either of the Courts below

Kingdon,

" C.].

because the Magistrate's Court was bound by a decision to the contrary given by Smyly, C.J. in the Supreme Court in 1915 in the case of I.G.P. v. Afferi, and that decision has been generally accepted as correctly expounding the law ever since it was given. It was a decision which, however, was avowedly to the direct contrary of a decision also in the Supreme Court given by Gough, J. in 1901}in I

the case of Rex v. Amissak and others (Renner's Reports Vol. I Part II p. 503-4).

It is therefore perfectly in order for Counsel for the Appellant to raise this question for the first time in this Court and ask this Court for a pronouncement upon a point as to which Judges of equal authority in the Supreme Court have taken a different view.

The construction of an English enactment in almost identical terms came under consideration in the Court of Queen's Bench in

the case of Hadle-,>v. Perks (1866 L.R., Q.B. 444; 35 L.J., 1866, 160). The enactment in question is section 24 of the statute 2 & 3 Vict. c. 71, and it wall held that that section is supplementary to section 66 of the statute 2 & 3 Vict. c. 47 which gives power to a constable to "stop, search and detain any person who mav be reasonably suspected of having or conveying in any manner anything stolen or unlawfully obtained " ; and so is confined to the class of case contemplated by that section 66, i.e. to the summary conviction of persons who, under section 66, are liable to be arrested by a constable in the open. To bring a case within section 24 the" having in his possession"

must be ejusdem generis with" conveying"

That English case has been followed recently in Nigeria in a

decision of Kingdon, C.J., in the case of Police v. Lawani 0- another (16 N.L.R., 17), where at the time it was given there existed in the Nigeria law sections corresponding to both the English sections to which reference has been made.

The position is rather different in the Gold Coast. At the time at which both Gough, J. and Smyly, C.J. gave their decisions there was no law in the Gold Coast corresponding to section 66 of the statute 2 & 3 Viet. c. 47, although in 1926 a new section (now section 89 of Cap. 10) was included in the Criminal Procedure Code providing (as the marginal note puts it) for "search without a wa:rrant in certain cases where articles ·are being conveyed, etc.". We are of opinion, however, that the enactment of this section does not affect the argument in the present case since, in our view, an amendment of the Criminal Procedure Code of this nature could not be held to effect a material alteration in .the substance of the Criminal Law under the Criminal Code,

Bahae Helwani v. Commissioner of Police 199

In the absence of a Gold Coast section corresponding to' section ~:~!:ni 66 of 2 \.~:3 Viet. c. 47 the ratio decidendi of Gough, J. in R. v. v.

Amissah. <5- others' (s1,pra) could not, of course, be the same as in C:Ommis-

Hadley v. Perks (supra). The reason for his decision that the .~~onerof Po-

application of section 106 (1) (now 108 (1) ) is confined to goods in Ice

transit is given in this passage from his judgment :- Kingdon,

e r By s. 7 'subs. 3 of the Criminal Code I am not bound to construe s. 106 C.}. subs. I by a judicial decision on the construction of any other statute. Bu I think that having regard to the provisions relating to searching a house in s, 20 of Ordinance 6 of 1876. and to the ditinsction which is drawn in sections 107, 108 and 109 of the Criminal Code between' possession' and' on the premises,' and also to the provision in s. 106 subs. 3 that possession by a carrier servant or agent is possession by the person who employed such person -eoconvey anything. the application of section 106 subs. 1 is confined to goods in transit:"

The sections of the Criminal Code to which he refers as 107 and ] 08 are now omitted but his " 109 " is now also our 109 and his 106 (3) is our 108 (3), and his section 20 of Ordinance I) of 1876 corresponds to our section 81 of the Criminal Procedure Code.

In differing from Gough, J., Smyly, C.J. said that" he (i.e. Gough, J.) "held that section 106 subsection (1) was confined " to goods in transit, in other words that the words' having in his possession ' should be construed as ejusdem generis with the words , conveying in any manner' ; this is a construction which I would be inclined to agree with, were it not that section 6 subsection (3) of the Code seems to me to be conclusively against any such construction, it reads :-

" The expression 'or' • other' and otherwise' shall be construed disjunctively and not as implying similarity, unless the expression ' similar' or some equivalent expression is used ".

" Section 106 subsection (1) of the Code does not contain the word 'similar' or any equivalent expression and should therefore have been construed by the learned Judge disjunctively and not as ejusdem generis with the. words , conveying' in that subsection."

• • • " If his attention had been called to section 6 subsection (3) of the Code I am of opinion that his decision must have been different."

In saying this we think that the learned Chief Justice misunderstood the ratio decidendi of Gough, .J.'s judgment, which was not based at all upon the doctrine of the ejusdem generis construction, but upon a consideration of what must have been the intention of the legislature having regard to the context of the enactment. Smyly, C.J.'s judgment on the other hand disregards this aspect of the question and is based solely on the statutory declaration that the expression "or II shall be construed disjunctively.

200 Bahae Helwani v. Commissioner of police

,."

,

lL

Bahae

Helwani

v. Commis- sioner of Po-

lice

Kingdon,

C.].

The omission from section 108 of any reference to " premises" such as was contained in the three sections formerly following this section, and is still contained in section 109, appears to us significant. Moreover although section 108 (3), which having regard to the context seems to indicate the scope of the whole section, refers inter alia, to the possession of a servant employed to carry something; it does not cover the possession of a servant employed to be in charge of something on his employer's premises.

A,t the least, we think that the application of the section to goods not in transit is of doubtful validity; therefore we feel complelled to give effect to section 7 (2) of the Criminal Code which reads ;- . ~.

" TJ:1isCOde shall not be construed strictly, either as against His Majesty

or as against a person accused of any offence, but shall be construed amply

and beneficially for giving effect to the purposes thereof ".

Thus we find ourselves in agreement with, the decision of

Gough, J. and differ from the views of Smyly, C.]. We hold as did Gough, J. that the application of section 108 is confined to goods

in transit. The appeal is therefore allowed, the conviction and sentence are quashed, and it is directed that a judgment and verdict of acquittal be entered. The Appellant is discharged.

Rex v. Augustus WiUillm Kojo Thompson 2()1

Gold Coast, 5th June, 1944

COR. KINGDON, C.J., M'CARTHY AND SMITH, JJ.

REX Respondent

v.

AUGUSTUS WILLIAM KOJO THOMPSON Appellant.

Criminal Law-Criminal Code, ss. 3, 5, 6 (3), 394-Gold Coast Colony (Legislative Council) Order i1t Council, 1925. The British Settlements Act, 1887 (500' 51 Vict., c. 54).

Defendant was charged before the Assize Conrt, Accra, with corruption and extortion as a public officer, being the elected Municipal Member for Accra in the Legislative Council of the Gold Coast, and the trial Judge found that he, as such member, offered to permit his conduct to be influenced by a gift and unlawfully demanded money; but the Judge was in doubt whether defendant was or was not a public officer within the definition of "puhlic officer" in s. 5 of the Criminal Code, having regard to the fact that Hie election of such a member was regulated by the Gold Coast Colony (Legislative Council) Order in Council, 1925, and the Electoral Regulations thereunder, neither of which was an Act of Parliament or Ordinance or formally expressed to be made under such an Act or Ordinance, and he stated a case for the opinion of the West African Court of Appeal. "Public Officer" is defined in s. 5 of the Criminal Code as a person holding anyone of the offices therein named, inter alia "any office to which a person is nominated or appointed by statute or by public election" ; and Il l public election ' means any election the qualification for voting at which, or the mode of voting at which, is determined or regulated by statute".

The crux was whether the election was under a statute", which is defined in s. 3 of the Code as Il any Act of Parliament or Ordinance, and any orders or rules or regulations made under the authority of any Act of Parliament or Ordinance :' ; and the main question (dealt with at length in the opinion) was whether the 1925 Order in Council was made under the authority of the British Settlements Act, 1887. -

Held (1) that the position of elected Municipal Member of Legislative Council is an .. office" within the meaning of s. 5 (2) of the Criminal Code;

(2) that the Gold Coast Colony (Legislative Council) Order in Council. 1925, is an " order" within the meaning of that term as used in s. 3 of the Criminal Code;

(3) that the election of the defendant as Muncipal Member for Accra was an election the qualification for voting at which is determined by the 1925 Order in Council.

Rex v. Augustus William Kojo Thompson

"4. On the part of the Crown it was contended that the defendant was

a Public Officer within the meaning of the definition of • Public Officer'

203 Rex

v. contained in section 5 of the Criminal Code (Cap. 9).

" 5. On the part of the defendant it was contended to the contrary.

.. 6. My attention was drawn to the following decisions:- .. Rex v. Whittaker 19143 ICB. 1283. . .. Rex v. White } 15 English and Empire Digest .. Rex u. Hunting 662. Footnotes. .. Rex u. Mayor of Tiverton 88 E.R., 136 ".

"7. I being in doubt whether the defendant's election being one the qualification for voting at which or the mode of voting at which are determined or regulated by the Gold Coast Colony (Legislative Council) Order in Council. 1925.(Vol. IV pp. 27 et seq.) and by the Legislative Council Electo- ral Regulations (Vol. IV pp. 59 et seq.) made under Clause 48 of the abovementioned Order in Council, neither of which pieces of legislation is an Act of Parliament or Ordinance or is formally expressed to be an Order, Rule or Regulation made under the authority of an Act of Parliament or Ordinance, reserved for the decision of the West African Court of Appeal the question whether the defendant is or is not a Public Officer within the terms of the definition of ' Public Officer' in section 5 of the Criminal' Code (Cap. 9) .

.. QUESTION

" II. The question upon which the opinion of the Court is desired is whether, upon the above statement of facts, the defendant is a Public Officer within the definition of • Public Officer' in section 5 of the Criminal Code (Cap. 9)".

Augustus William Kojo Tho~n

Kingdon, C.J .

.. Dated the 15th day of May, 1944.

(Sgd.) A. N. DOORLY,

Acting Chief Justice ..

I n our view the answer to the question submitted to us turns mainly upon a question of considerable constitutional importance and of some difficulty, namely was the Gold Coast Colony (Legis- lative Council) Order in Council, 1925, Laws of the Gold Coast Vol. IV, p. 27 (hereinafter referred to, with the amending Order of 1927 (id. p. 50), as II the 1925 Order in Council ") made under the authority of the British Settlements Act, J.887 (50 & 51 Vict. c. 54), though not formally so made.

Section 5 of the Criminal Code, which contains the definition

of " Public Officer", within the meaning of which it is contended on behalf of the Crown that the defendant falls is in the following

terms :,- , .. , Public Officer' means any person holding any of the following offices, or performing the duties thereof, whether as a deputy or otherwise, namely :-

.. (1) Any civil office, including the office of Governor, 'the .power of appointing a person to which or of removing a person from which is vested in His Majesty, or in the Governor, or the Governor in Council, or in any public commission or board; or

.. (2) Any office to which a person is nominated or appointed by statute or by public election; or

"(3) Any civil office. the power of appointing to which or of removing from which is vested in any person or persons holding public office of any kind included in either of the two last preceding paragraphs of this section; or

.. (4) Any office of arbitrator or umpire in any proceeding or matter submitted to arbitration by order. or with the sanction of any Court i or

.. (5) Any Justice of the Peace.

204:

Rex

v.

Rex v. Augustus William Kojo Tbompso»

.. A person acting as a minister of religion or ecclesiastical officer. of

whatsoever denomination. is a public officer in so far as he perfonns August Willia.m Kojo Thompson

Kingdon. C.J.

functions in respect of the notification of intended marriage. or in respect of the solemnization of marriage. or in respect of the making or keeping of any register or certificate of marriage. birth. baptism. death. or burial. but not in any other respect.

" • Civil office' means any public office other than an office in the naval. military. or air service of His Majesty.

" • Public office' means the office of any public officer.

" . Judicial officer' means any person executing judicial functions as a public officer.

" It is immaterial. for the purposes of this section, whether a person be or be not entitled to any salary or other remuneration in respect of the duties of his office.

.. . Public election' means any election the qualification for voting at which. or the mode of voting at which. is determined or regulated by statute."

The submission on behalf of the Crown is that the defendant as the elected Municipal Member of the Legislative Council for the town of Accra holds an office to which he has been appointed by public election.

The first question which arises upon that submission is-- Is the position of elected Municipal Member of Legislative Council an "office" within the meaning of paragraph (2) of section 5 ? We have no doubt that it is. The 1925 Order in Council itself, referring in Clause 11 (2) to an unofficial member, speaks of " his term of office", and in Clause 22 (2) speaks of " the office of Mining Member of the Council". In this respect there can be no difference between the Mining Member and a Municipal Member. Moreover it is clear from the words of Wills, ]. in Rex. v. Lancaster and Worrall (16 Cox, 737) " The nature of the office is immaterial as long as it is for the public good", that the widest interpretation should be given to the term in cases of this kind.

The Crown then contends that the election by which the defendant became appointed Municipal Member for Accra was a "public election" within the meaning of the definition of that term given in section 5 of the Criminal Code. It is contended (a) that Clause 20 (2) of the 1925 Order in Council determines the qualification for voting at the election of a Municipal Member by prescribing that the electorate for the purpose shall coincide with the electorate for the time being for the purpose of the election of a member of the Town Council; and (b) that the 19.25Order in Council is a " Statute" within the meaning of that term as used in the definition of " Public election ". the definition of " Statute" for that purpose being given in section 3 of the Criminal Code'. And it is further contended (c) that the mode of voting at the election of a Municipal Member is regulated by the Legislative Council Electoral Regulations made under the 1925 Order in Council and (d) that those Regulations are also a " Statute" within the meaning of that term as used in the definition of " Public election" ; and further (e) that since the expression" or .. where it occurs in the definition

Rex v. Augustus WiUiam Kojo Thompson 20&

of "Public election" must be construed disjunctively (Criminal Rex Code section 6 (3) ) it is sufficient to establish the correctness of Augu"~t either contentions (a) and (b) together or of contentions (c) and (d) William together. We agree with contention (e). We also have no Kojo difficulty in agreeing with contention (a). That seems clear on the Thompsen face of it. Kingdon,

C.].

The real crux of this case is contained in contention (b).

The definition of " Statute" given in section 3 of the Criminal Code is in the following terms :-

" Statute" means any Act of Parliament or ordinance, and any orders or rules or regulations made under the authority of any Act of Parliament or ordinance ".

The 1925 Order in Council is clearly an .. Order" within the meaning of that term as used in the definition; the learned Attorney- General on behalf of the Crown contends further that it must be made under the authority of the British Settlements Act, 1887, (50 & 51 Viet. c. 54), and so is a " Statute" within the meaning of the definition; learned Counsel for the defendant on the other hand contends that the Order is not made under the authority of the 1887 Act but by virtue of the Royal Prerogative and consequently is not a ~' Statute" within the meaning of the definition. That is the important constitutional question which has to be decided upon this case. In considering it one is met at the outset by the fact that the Order is not formally issued under the authority of the ]887 Act. This is pointed out in Halsbury's Laws of England (2nd Ed.) Vol. 11 Note (d) at page 141, moreover that note does not go on to indicate that though not formally issued under the Statute the Order was in fact so issued, although in the case' of Sierra Leone such an indication is given on the same page at Note (i) and in the case of the Gambia at the previous page at Note (b). Neither in the Sierra Leone Order in Council of 1924 nor in the Gambia Letters Patent of ] 915 (to both of which we have referred) is there any reference to the Act of 1887, yet in the case of Sierra Leone the note states" The Colony is regarded as settled and falls under the British Settlements Act, 1887, though not formally cited" and in the case of the Gambia-" Gambia is legislated for under the British "Settlements Act, 1887". We are unaware why there is a distinction in the notes between the Gold Coast on the one hand and Sierra Leone and the Gambia on the other. But at any rate these notes do show that, although in some cases 'when an Order is issued under the authority of the 1887 Act it is so recited (e.g. The West African Court of Appeal Orders in Council 1928-35

Consolidated, Gold Coast Laws Vol. IV page 190), that course is not invariably followed, and the fact that an Order in Council is not formally made under the Act is not conclusive that it is not in fact so made. But there is one eminent authority on Gold Coast Law who had no doubt upon the question. At page 26 of his booklet entitled A Note on the History of the British Courts in the Gold

206

Rex v.

Augustus William Kjo Thompson

Kingdon,

C.J.

Rex 71. Augustus William Kojo Thompson

Coast Colony, with a brief account of the changes in the Constitution of the Colony the late Sir William Brandford Griffith states in terms" This Order, made under section 2 of the British Settlements Act, 1887 ".

Furthermore at page 268 of his Constitution, Administration and Laws of the Empire, Professor Berriedale Keith states:-

.. In other cases the power to create constitutions rests simply on the prerogative to assign the form of government of a conquered or eeded colony, as in the cases of Ceylon, Mauritius, Seychelles, Hong Kong, Fiji, Gibraltar, Malta, Ashanti, Basutoland, St. Lucia, Trinidad, and British Guiana. 111

other cases it rests on express statutory authority, as in the case of the Straits Settlements when they were transferred from the care of India to the Colonial Office in 1867, and in that of the Falkland Islands. These islands were, it is true, settled territories, but the manifest absurdity of creating a representative legislature for a tiny population presented itself, and a similar question arose regarding the control of British settlers in West Africa; the existing legislation is represented by the British Settlements Act, 1887. which gives power to the Crown to legislate by Order in Council for any British settlement, and to establish in it a legislature of not less than -three persons. It is by virtue of this legislation that legislatures were set up in the Gambia. Gold Coast. and Sierra Leone."

We might perhaps have been content to accept these dicta as correct statements of the law without further inquiry, but we have thought it right to make a full investigation into Constitutional Law and to decide the question for ourselves. It has been contended on behalf of the defendant that the question is not one of law, hut of fact since it turns upon the question of how the Colony of the Gold Coast was acquired, whether by settlement on the one hand or by conquest or cession on the other, and that this question is one which can only be decided upon evidence, which ought to have been given in the Court below and upon which that Court should have made a finding of fact. We do not agree with this contention since we think that the question can be determined as a question of pure Constitutional Law to be found in public documents, decided cases and recognised text-book authorities. For this purpose it is unnecessary to look beyond the latter part of the eighteenth century by which time it was well established that the power of the Crown to legislate by virtue of the Royal Prerogative was limited so far as a settled Colony was concerned, to the grant of a representative Constitution. (11 Halsbury (2nd Ed.) page 6 Note (m), ; Keith's Introduction to British Constitutional Law pages 83 and 190, 191), although in the case of a conquered or ceded Colony the Crown has always had full power to legislate by virtue of the Royal Prerogative, unless and until it was lost by the Crown itself conferring a representative Constitution, without reserving the right to legislate (Cr,mpbell v. Hall (1774) 20 State Trials, 239). At page 5- of his British Rule and Jurisdiction beyond the Seas the late Sir Henry Jenkyns states :-- .

.. As regards a settled colony, the principle is well established that an Englishman carries with him English law and liberties into any unoccupied country where he settles. so far as they are applicable to the situation having regard to all th~ circumstances.

Rex v. Augustue William Kojo Thompson 207

.. Consequently, apart from statute law, no legislature can ·beestablished Rex

in a settled colony by the Crown, except one which comprises a representative v. body having powers of taxation. Nor can the Crown legislate for it by August Order in Council or otherwise." William

Kojo

The distinction between "Settlements" and possessions Thompson

acquised by cession or conquest is maintained and exemplified in Kingdon,

section f. of the British Settlements Act, 1887. C.J.

The text-book writers seem in some doubt as to the category in which the Gold Coast should be placed. Professor Berriedale Keith, the contributor of the relevant title in the 2nd Edition of Halsbury's Laws of England says at Vol. 11 page 10 paragraph 11 :-

.. Settlement may take various forms. Occupation of territory may be authorised by the Crown, possession taken in the King's name, and settlers introduced. Such is the case with the Australian colonies, British North America excluding Ontario, Quebec, Newfoundland, and in the West Indies, the Leeward Islands, Bahamas, Barbados, and Bermuda. The Falkland Islands and the Gold Coast, Sierra Leone, and even the Gambia may fall into this category."

The italics are ours.

On the other hand in the same title in the 1st Edition (of which

Sir Charles Tarring was one of the joint authors) the Gold Coast is mentioned under the heading of conquered and ceded colonies (10 Halsbury, 1st Ed., p. 566/7 paragraph 986). But in -his own book on the Law relating to the Colonies Sir Charles Tarring deals with the Gold Coast under the heading of occupied, i.e. settled Colonies (4th Ed., p. 5).

Upon this point there can be no doubt that the Gold Coast Colony had its origin in the settlement of British subjects on the West Coast of Africa, and these original settlements form the nucleus round which what is now the Gold Coast Colony has grown.

Towards the latter part of the first half of the last century it was recognised that there was required some wider power to legislate for such settlements than the limited rights under the Royal Prerogative; consequently in 1843 the Statute 6 and 7 Viet. c. 13 was enacted. It is intituled " An Act to enable Her Majesty to provide for • the Government of Her Settlements on the Coast of Africa and in the Falkland Islands' and enacts inter alia-

.. Whereas divers of Her Majesty's subjects have resorted to and taken up their abode and may hereafter resort to and take up their abode at divers Places on or adjacent to the Coast of the Continent of Africa 'and on the Falkland Islands: And whereas it is necessary that Her Majesty should be enabled to make further and better Provision for the Civil Government

. of the said Settlements: Be it therefore enacted . . . That it shall be lawful for Her Majesty, by any Order or Orders to be by Her made, with the Advice of Her Privy Council, to establish all such Laws, Institutions, and Ordinances, and to constitute such Courts and Officers, and to make such Provisions and Regulations for the Proceedings in such Courts, and for the Administration of Justice, as may be necessary for the Peace, Order and good Government of Her Majesty's subjects and others

. within the said present or future Settlements respectively, or any of them; any Law, Statute, or Usage to the con,trary in anywise notwithstanding."

208

Rex

v.

Augustus William Kojo Thompson

Kingdon,

C·l·

Rex 'V. Augustus WiUiam Kojo Thompson

By the Act 23 & 24 Vict. c. 12i enacted in 1860 the provisions

of the 1843 Act were extended to all possessions: .. 1. The Provisions of the said Act shall extend to all Possessions of

Her Majesty not having been. acquired by Cession or Conquest, nor (except in virtue of this Act) being within the Jurisdiction of the legislative Authority of any of Her Majesty's Possessions abroad."

Both the 184:3 and the 1860 Acts were repealed in 1887 by the British Settlements Act, 1887 (50 &: 51 Viet. c. 54). The preamble to that Act states :--

.. Whereas divers of Her Majesty's subjects have resorted to and settled in, and may hereafter resort to and settle in, divers places where there is no civilised government, and such settlements have become or may hereafter become possessions of Her Majesty, and it is expedient to extend the power of Her Majesty to provide for the government of such settlements, and for that purpose to repeal and re-enact with amendments the existing Acts enabling Her Majesty to provide for such government: "

The important sections for the purpose of the present argument are :-

Section 2. .. It shall be lawful for Her Majesty the Queen in Council from time to time to establish all such laws and institutions, and constitute such Courts and officers, and make such provisions and regulations for the proceedings in the said Courts and for the administration of justice, as may appear to Her Majesty in Council to be necessary for the peace, order, and good government of Her Majesty's subjects and others within any British Settlement. "

Section 5. .. It shall be lawful for Her Majesty the Queen in Council from time to time to make, and when made to alter and revoke, Orders for the purposes of this Act." .

Section 6. .. For the purpose of this Act, the expression 'British possession' means any part of Her Majeaty's possessions out of the United Kingdom, and the expression 'British settlement' means any British possession which has not been acquired by cession or conquest, and is not for the time being within the jurisdiction of the Legislature, constituted otherwise than by virtue of this Act or of any Act repealed by this Act, of any British possession."

Soon after the enactment of the 1843 Act the Crown made use of its provisions. On the 3rd September, 1844, it passed an Order in Council appointing Cape Coast Castle a place of trial of offenders. That Order was, in terms, made partly under the Act of 1843.

On the 4th April 1856 an Order in Council was made, also, in terms, partly under the 1843 Act, which recites-

.. And whereas Hcr Majesty hath acquired power and jurisdiction within divers countries on the said coast of Africa, hereinafter called .. the protected territories on the Gold Coast, near or adjacent to Her :\lajesty's Forts and Settlements on the said Gold Coast, and it is expedient to determine the mode of exercising such power and jurisdiction: ..

On the 19th February 1866 a Commission was passed under the Great Seal, which at Clause VII recites the 1843 Act and goes on to provide, inter alia for the establishment of a Legislative Council for forts of West Africa including the Forts and Settlements on the Gold Coast.

On the 26th February, 1867 an Order in Council wac; passed, reciting the 184:3 Act as its authority, and creating "The West Africa Court of Appeal" -not the present Court of Appeal but its predecessor of nearly the same name.


On the 13th January 1886 Letters Patent were passed under the Great Seal separating the Government of Her Majesty's Settle- ment at Lagos from the Government of Her Majesty's Settlements on the Gold Coast (which had been joined in the previous Letters Patent of the 22nd January 1883). It provides=-

.. II. Our Gold Coast Colony (hereinafter called the Colony) shall, until we shall otherwise provide, comprise all places, settlements, and territories belonging to us on the Gold Coast in Western Africa between the fifth degree of west longitude and the second degree of east longitude."

and also provides for the government of the said Colony and proceeds by Article IX of those Letters Patent made in pursuance of the 1843 Act to lay down the powers of the Legislative Council.

The second part of Article X reserves to the Crown powers of legislation in the following terms :-

.. We do also reserve to ourselves, our heirs and successors, our and their undoubted right, with the advice of our or their Privy Council, from time to time to make all such laws or Ordinances as may appear to us or them necessary for the peace, order, and good government of the Colony."

These Letters Patent of 1886 after having been amended in 190ij, 1906 and 1912, were finally revoked and fresh Letters Patent

were issued dated 20th September, 1916.

These do not purport to be made under the British Settlements Act!', 1887, which had replaced the 1843 Act, but they contained an Article, No. X, similar to the second part of Article X·of the 1886 Letters.

These Letters Patent of 1916 were still in force when the 1925 Order in Council was made, namely on the Sth April 1925 but were revoked a few weeks later on the 23rd May, 1925, when fresh Letters Patent were issued. Neither the 1925 Order in Council nor the Letters Patent of 1925 recites the 1887 Act.

So much for the history of legislation by the Crown affecting the Legislative Council, but there was a very important Order in Council made by the King in 1901, namely It The Gold Coast Order in Council, 1901 ".

This recites- .. WHEREASby Letters Patent passed under the Great Seal of the

United Kingdom of Great Britain and Ireland bearing date the 13th day of January, 1886, provision waS made for the government of Her late Majesty Queen Victoria's settlements on the Gold Coast, and it was provided that the Gold Coast Colony of Her said late Majesty should, until Her Majesty should otherwise provide, comprise all places, settlements, and territories belonging to Her Majesty on the Gold Coast in Western Africa between the fifth degree of west longitude and the second degree of east lon~itude, and the Legislative Council of the said Colony was empowered, subject to any conditions, provisos, and limitations prescribed by any instructions under Her Majesty's sign manual and signet, to establish such Ordinances not being repugnant to the Law of England and to constitute such Courts and offices, and to make such provisions and regulations for the proceedings in such Courts, and for the administration of justice as might be necessary for the peace, order, and good government of the Colony:

. .. And Whereas it is expedient that the boundaries of the Gold Coast Colony should be further defined, and that all such portions of the territories

209

Rex

v. Augustus William Kojo Thompson

Kingdon, C.J.

210

Rex v,


on the West Coast of Africa, with the limits hereinafter defined, which have not already been included within His Majesty's dominions should be annexed

: !

';"

I!,

II'

IIII

"

II

11,:

11 ,


Kingdon, C,],

to, and should henceforth form part of, the said Gold Coast Colony : ..

and Article 3 declares-

.. All such parts of the territories within the limits aforesaid as have not heretofore been included in His Majesty's dominions shall be, and the same are hereby, annexed to His Majesty's dominions, and the whole of the said territories are declared to be part and parcel of His Majesty's Gold Coast Colony in like manner, and to all intents and purposes as if all such tetritories had formed part of the said Colony at the date of the said Letters Patent of the 13th day of ] anuary, 1886,"

Indisputably the Forts which apparently constituted the limits of the early settlements on the Gold Coast come within the definition of a settlement in section 6 of the l8

•87 Act.

In 1850 the Danish settlements were ceded to the British Crown. Examination of the relevant public documents makes it clear that these ceded settlements were at no time treated. as separate administrative units by the Crown. Of course they might have been, in which-case the law relating to ceded territory would have applied to them. Actually there can be no doubt that the

Crown waived its prerogative in this respect and absorbed them for all purposes into the original British settlements. It is clear '{or instance in the Commission of 1886 that all British territories

on the Gold Coast were treated as a single administrative unit.

It was the same with the Dutch territories ceded to the British Crown in 1871. They have never been treated since the cession as a separate administrative unit.

In the Letters Patent of 1886 the Gold Coast Colonv is declared to comprise all places, settlements and territories belonging to the Crown on the Gold Coast within the limits mentioned; andfhe Letters Patent provide for the government of the Colony as a single unit expressly, in so far as the Legislative Council is concerned, under the 1843 Act. It is clear that the original settlement never lost the character of a settled possession.

In our view any territories acquired otherwise than by settlement by the Crown before the Letters Patent of 1886 were absorbed in and acquired the character of the settlement. This was confirmed by the Letters Patent. We hold that at the time of the annexation of the protected territories by the Order in Council dated 1901, the Colony as a whole partook of the nature of a settlement within the meaning of section 6 of the Act of 1887. The Order in Council provides that the protected territories should become part of the Colopy as from 1886 for all intents and purposes; these territories were not acquired either by concession or by conquest; they were' simply annexed after having been brought under. British protection; and in our opinion the effect of the Ordet was to constitute the enlarged Colony a settlement within the meaning of section 6 of the Act of 1887.

Rex v. Augustu« William Kojo Thompson

S It is indisputable that the 1925 Order in Council must have

been made as regards certain parts of the Colony under the authority of the Act of 1887, That in our opinion is sufficient to make the Order a " statute" within the meaning of section 3 of the Criminal Code. But we go further than that for, in our view, whatever the rights of the Crown in respect of other parts of the Colony may be, it is clear from the foregoing that the Order was in fact made in respect of the whole Colony as a single administrative unit under a single authority, namely the Act of 1887.

We, therefore, find ourselves in agreement with the late Sir William Brandford Griffith when, in effect, he so states in his booklet from which we have already quoted, and with Professor Berriedale Keith.

This being so the answer to the question submitted to us follows automatically. The election of the Defendant as Municipal Member for Accra is an election the qualification for voting at which is determined by the 1925 Order in Council, That Order in Council is an Order made under the authority of an Act of Parliament, namely the British Settlements Act, 1887. It is therefore a " statute" within the meaning of that term as defined in section 3 of the Criminal Code.

The election is therefore a" Public election " within the meaning of section 5 of the Criminal Code. The Defendant has therefore been appointed Municipal Member for Accra by public election, and we have already held that the position of Municipal Member is an " office" within the meaning of.section 5 (2) of the Criminal Code.

It follows that in our opinion the Defendant is a Public Officer within the definition of "Public Officer" in section 5 of the Criminal Code, and we so answer the question submitted to us. Having so decided, it is superfluous to deal with contentions (c) and (d) put forward on behalf of the Crown, but we think it right to say that whilst (c) is obviously correct we do not agree with (d) for the reason that the Legislative Council Electoral Regulations are made under the 1925 Order in Council which although, as we have held, a " statute" is hot. either an Act of Parliament or an Ordinance and therefore the Regulations are not a " statute" within the four corners of the definition in section 3 of the Criminal Code.

Nor do we agree with the further contention of the Attorney- General that, even if the 19~5 Order in Council is not a " statute" the qualifications for voting were, at the time of the election, regulated under the Town Councils Ordinance (Cap. 51), which is a " statute", so that the election was a "Public election" within the meaning of section I) of the Criminal Code. We think that the correct view upon this point is that the qualification for voting is regulated by Article 20 (2) of the 1925 Order in Council by reference to the Town Councils Ordinance. Before leaving the case we wish to express both to the Attorney-General and Crown Counsel on the

14A

211

Rex

v. Augustus William .

Kojo Thompson,

Kingdon,

C·l·

212

Rex

v.


Kingdon, C.J.

Rex v. Augustus WiUiam Kojo Thompson

one hand and to Counsel for the Defendant on the other our appreciation of the great assistance they have rendered the Court in its endeavours to come to a correct decision upon the question of law submitted.

We have already indicated our answer to that question.

Kojp Gyapon 0- Anor. v. OseiKwabena II 213

Accra, 13th June, 194:4

COR. KINGDON AND HARRAGIN, C.JJ., AND DOORLY, J. 1. 'KOJO GYAPON, KONONGOHENE, FOR

ON BEHALF OF THE KONONGOSTOOL AND}

2. KOFI AKRASI II, NYARBOHENE, FOR AND Plaintiffs ON BEHALF OF THE STOOL OF NYARBOE

v.

OSEI KWABENA II, PATRIANSAHENE, FOR AND ON BEHALF OF THE PATRIANSASTOOL Defendant.

Restrictions on exercise of Supreme Court's jurisdiction.-Suit relating to ownership of land as between Chiefs-Courts Ordinance, s. 14, s. 17, s. 62 (1) (a)-Boundary (Land, etc.) Disputes Ordinance, s. 3 (1), s. 3 (3).

Plaintiffs prayed the Supreme Court at Kumasi to fix the correct boundary between them and Defendant under an executive decision of 1910. The Judge decided (subject to the opinion of the W.A.C.A.) that the Court had no jurisdiction in a suit relating to the ownership, etc., of lands between Chiefs of different divisions in Ashanti, in view of the Courts Ordinance, ss. 17 and 62 (1) (a). The Chief Commissioner's decision had been given under the Boundary (Land, etc.) Disputes Ordinance, s. 3 (1) ; and the present dispute related to the source of the River Akroponsu and involved a large tract; but it was argued for Plaintiffs that s. 3 (3) of the

Boundary (Land, etc.) Disputes Ordinance overrode the provisions restricting the Supreme Court's exercise of jurisdiction.

Held. that (1) s. 14 of the Courts Ordinance confers full jurisdiction on the Supreme Court but that s. 17 imposes a restriction on the exercise thereof;

(2) a pronouncement in the suit would have.had the effect of adjudicating upon the ownership of the land contained within certain lines-an adjudication which could only be regarded as deciding the ownership of land as between Chiefs in Ashanti contrary to the restriction imposed by s. 17 ;

(3) the language of 5. 3 (3) of the Boundary (Land. etc.) Disputes Ordinance was too vague and indirect to restore the exercise of the jurisdiction restricted as aforesaid. and seemed to presuppose a case in a Court in which a question arose as to the exact boundary. e.g. where all the parties were not natives.

Case stated by the Kumasi Divisional Court.

The opinion of the Court was delivered by Doorly, J. :- This is a case stated by Fuad, J. in a suit before him sitting

in the Divisional Court at Kumasi. The writ in the action reads

as follows :-

In this suit the plaintiffs' claim is :.:....

... For the Court to cause the correct boundary between the-plaintiffs and the defendant to be fixed in tenns of an executive decision dated the

214

Kojo Gya- pon, & Anor.

v.

Osei Kwabe- na II

Doorly, J,

Kojo Gyapon e- Anor. v. Osei Kwab~na It

26th day of March, 1910, whereby the boundary between the plaintiffs and the defendant was fixed by Captain Armitage as follows ;-

" Starting from the junction of the Anunsu and Mintinasu, thence a straight traverse to the source of the Akroponsu, thence following that stream till it flows into the Weresu thence following Wert;.to the point where the Kokrowi stream flows into it, thence following Kokrowi to the point where it crosses the Konongo- J uaso road'."

The question reserved for the opinion of this Court is :- "Whether or no this Court (i.e. the Supreme Court) has jurisdiction

to entertain this suit? "

and the learned Judge gives his decision, subject to the opinion of this Court of Appeal, that the Supreme Court has no jurisdiction to entertain the suit.

lt is clear that in stating the case and giving his decision in this form the learned Judge does not use the expressions n has jurisdiction II and "has no jurisdiction II in their widest sense for in the case of Ababio v. Ackumpong 6 W.A.C.A. 173, attention was drawn to the difference between the jurisdiction w.hich the Supreme Court possesses and that which it may exercise. lt was pointed out that section 14 of the Courts Ordinance (Cap. 4) confers upon the Supreme Court full jurisdiction and that the Court has never been dispossessed of that full jurisdiction, but certain restrictions upon its exercise have been imposed.

It is therefore presumed that what the learned Judge really

desires is an answer to the question-

" Is the Supreme Court precluded by law from exercising jurisdiction in this suit ? II

We therefore propose to examine and answer this question.

The learned Judge of first instance took the view, subject to the opinion of this Court, that by virtue of the provisions of

sections 17 and 62 (1) (a) of the Courts Ordinance the Supreme Court should not exercise jurisdiction for the reason that the suit is one relating to the ownership, possession or occupation of. lands arising between Chiefs belonging to different divisions within Ashanti. and accordingly' within the jurisdiction of the Court of the Chief Commissioner, Ashanti and therefore a suit in which by the provisions of section 17 the Supreme Court should not exercise jurisdiction. .

The suit is in terms one for the fixing of a boundary between the lands of the contending parties, which. had. been the subject of an executive decision given by the Chief Commissioner under the provisions of section 3 (1) of the Boundary (Land, etc.) Disputes Ordinance (Cap. 120) and validated under the terms of that subsection by its being officially recorded in the Boundary Book.

The dispute which has arisen is in regard to the precise position of the source of the River Akroponsu involving, as the Judge states, many square miles of valuable land with concessions on it. lt was stated in this Court by Counsel for the plaintiffs that there

Kojo Gyapon ~ Anvt. v. Osei Kwabena II

were two rivers which ran into each other and continued as the River Akroponsu and that the question -in dispute was which of .these branches of the river was the Akroponsu referred to in the executive decision. It is clear, therefore, that a pronouncement one way or the other would have the effect of adjudicating upon the ownership of the land contained within the lines starting from the junction of the Anunsu and the Mintinasu to the source of the stream nearest to that point, thence down that stream to its confluence with the other stream, thence up the othe rstream to its source and so back to the point of commencement.

Such an adjudication can in our opinion be regarded only as a decision as to the ownership of land claimed by owners of lands adjoining one another and arising between Chiefs of different divisions. It matters not whether the Chiefs are Chiefs of different divisions in Ashanti or of different divisions in the Ashanti Confederacy, for by section 35 of the Native Courts Ordinance (Ashanti), Cap. 80, the Divisional Court is required to stop the further progress of any civil cause or matter before it and refer the parties to a competent Native Court whenever it shall appe-ar to the Court that the cause or matter is one properly cognizable by a Native Court. It follows that, whether the matter for decision in an action is cognizable by the Court of the Chief Commissioner, Ashanti, or of a Native Court, the position .IDfthe Supreme Court is the same ; it must either not exercise jurisdiction or it must stop the proceedings and send them elsewhere.

We are therefore in agreement with the trial Judge that the action before him was one relating to the ownership, possession or occupation of lands arising between Chiefs in Ashanti.

For the plaintiffs it is argued that section 3 (3) of Cap. 120 overrides the provisions of the laws which prohibit the exercise of jurisdiction by the Supreme Court in such cases.

The subsection reads as follows :- ..If in any case relating to the boundary of any land any doubt or

question shall arise as to the correct interpretation or application of any such executive decision as aforesaid, the Court (which expression does not include a Native Court) may cause the boundary concerned to be fixed to the best of its ability, guided always by the principle of applying such decision as closely and with as much precision as the Court shall consider practicable. Where a boundary is, either as of first instance or on appeal, so fixed by the Supreme Court, .no appeal shall lie from the CO\lrt's judgment with respect to such fixing."

2115 Koj_o Gya-

p on & Anor v .

Osei Kwabe na II

Doorly, J

We are not prepared to hold that the power to exercise jurisdiction can be restored to the Supreme Court by language so vague and so indirect.

We are strengthened in this view by the terms of C<1p. l l S, the Boundaries Ascertainment Ordinance, which refers to the Colony and which declares in the plainest m.muer that such disputes are to be decided by action in the Divisional Court. The last-mentioned Ordinance was enacted in 1905; if in 1929 and

216

Kojo Gya- pon & Anor.

v. Osei Kwabe- bena II

Doorly. J.

Kojo Gyapon e- An01'. v. Osei'Kwahena 11 1935 (the years of the enactment and amendment of Cap. 12(}) the legislature had intended to place these matters within the sole jurisdiction of the Supreme Court, it had an excellent model in Cap. 118.

Furthermore the opening words of section 3 (3) of Cap. 120, " If in any case relating to the boundary of any land any doubt or question shall arise as to the correct interpretation ... of any executive decision as aforesaid, the Court may cause the boundary . . . to be fixed . . ." seem to pre-suppose the existence of a " case" in a Court and that the doubt or question arises in regard to the exact boundary in that case. They do not appear to authorise the filing of an action in a Court not exercising jurisdiction in land cases for the express purpose of answering such question or of resolving such doubt.

The interpretation sought to· be put on the subsection by Counsel for the plaintiffs is one that this Court would accept only if on any other interpretation the law would be meaningless, but there is certainly one class of case which would necessarily come before the Supreme Court as a Court of first instance, in which a doubt or question might arise as to the interpretation of an executive decision concerning boundaries-we refer to' cases in 'which all the parties are not natives; and it is not impossible to conceive of circumstances by which cases in which a similar doubt or question had arisen should find their way to the Supreme Court on appeal.

For these reasons we are of opinion that the Supreme Court is precluded by law from exercising jurisdiction in this suit.

Malam Alidu v. Kofi Manu 211

Accra, 16th June, 1944

COR. KINGDON AND HARRAGIN, C.JJ., AND DOORLY, J. MALAM ALIDU Plaintiff Appellant.

v. KOFI MANU Defendant Respondent

Wrongf1tl detention of goods--Right to return-Right to damages, whether special and lor general.

In September, 1942, Defendant asked Plaintiff, who was going to Accra, to buy him two tyres and a tube; Plaintiff was unable to get them, but got a tyre for Kofi Atia, which he gave Defendant subject to Kofi Atia's consent. Kofi Atia would not consent, but Defendant refused to return the tyre; so Plaintiff gave one of his own to Kofi Atia, whereby his lorry was put off the road. In November Plaintiff sued in the Native Court claiming (a) return of cover and tube, (b) 25s. per day while his lorry was off the road and (c) general damages. That Court ordered Defendant to replace the tyre or pay its value but gave no damages, Plaintiff appealed to the Magistrate, who ordered Defendant to return the tyreIn a week but disallowed payment of its value as an illegal alternative, Defendant then offered to return the tyre after this Order given on lOth July, 1943, but Plaintiff refused to take it and appealed to the Chief Commissioner's Court, which ordered instead that Defendant should pay the cost of the tyre (doubtless because Plaintiff said the tyre was spoiled). Failing to get either special or general damages, Plaintiff appealed to West African Court of Appeal.

Held, that as Appellant had no obligation to give one of his own tyres to Kofi Atia, special damages could not be awarded.

Held also, that after the request to return the tyre, Respondent's detention thereof was wrongful-which entitled Appellant to the return thereof, damages for wear and tear thereto, and general damages for wrongful detention from the date of the request to return the tyre down to the date when Respondent offered to return it, to be assessed by the Native Court.

Appeal by Plaintiff from the decision of the Chief Commis- sioner's Court, given on appeal from the Magistrate's Court, which had made an Order on appeal from the Native Court, Kumasi.

E. P. Asafu-Adjaye for Appellant.

E. A. N. Ffoulkes Crabb« for Respondent.

The judgment of the Court was delivered by Harragin, C.J. (Gold Coast) :-

Some time in September, 1942, Malam Alidu, the appellant in this case, who lives in the Kumasi District, proceeded to Accra. Before leaving the Kumasi District, he was asked by the respondent

in

Malam Atidu 'V, Kofi Manu 219

It was argued on behalf of the respondent that it would have Malam Alidu

been an illegal act for the appellant to have sold the tyre in question to the respondent and that therefore the appellant was estopped

Kofi v.

Manu

from. claiming damages. This mayor may not be correct, but we have perused the law on the subject and can nowhere find that it. is an offence to lend a tyre to a friend in distress and it is upon this basis that the case is brought.

Weare not of the opinion that in this case any special damages. can be awarded as the appellant was under no obligation to hand over to Kofi Atia one of his own tyres thereby putting his lorry out of commission. It is clear, however, that the respondent' wrongfully retained the tyre in question from the date upon which the appellant requested its return. We are therefore of the opinion that the respondent should return the tyre in question to the appellant particularly as it is a matter of common knowledge that the appellant cannot obtain a new tyre without producing an old tyre to the dealer. Should this tyre be worn out as we have good reason to believe, the appellant is entitled to damages for the wear and tear to the tyre, and we are further of the opinion that the appellant is entitled to general damages for the wrongful detention of the tyre from the date on which the appellant requested its return until the date that the respondent offered the tyre to the appellant, which was on or about the 13th July, 1943.

The case is therefore returned to the Kumasi Divisional Native Court to assess damages in accordance with the terms of this judgment.

As the appellant has been successful in his appeal, the respondent shall pay the costs this Court assessed at £40 2s. 5d. and in the Courts below to he taxed.

Harragin, C.J.

Rex fl. Ani Nuokarafor <5- Ors. 221

REX

Lagos, 6th July, 1944


Respondent.

v.

l. ANI NWOKARAFOR} 2. EDE NWODI 3. ALUKWE EZE

Appellants.

Criminal Law-Murder, manslaughter, justifiable homicide-Circum- stances attending the killing-Crown's onus of proof-r-Benefit of doubt in absence of evidence.

Defendants following footprints found deceased and a cow belonging to 1st defendant tied to a tree. Deceased ran away and was. chased. When defendants came up with him, he showed fight and tried to defend himself with his machete and escape. First defendant struck him with a stick, and the others beat him with machetes until he died. They were all convicted of murder and appealed. On appeal :-

Held (1) that in the circumstances the convictions for murder could not be sustained;

(2) that whether it was (a) manslaughter. or (b) justifiable homicide would depend on (i) whether death was caused after possibility of resistance had ceased. or (ii) fatal blow was struck while deceased still defending himself with machete;

(3) that in absence of evidence either way. the appellants should be given the benefit of·the doubt;

Appeal by defendants from decision of High Court, Enugu- Onitsha Division.


Appellants not present.

The judgment of the Court was delivered by the President :--,.

In this case the three Appellants were convicted in the High Court of the Enugu-Onitsha Division, sitting at Afikpo, of the murder of one Okorafor Eze.

The facts are adequately given in the evidence of the 1st Appellant which the learned trial Judge believed :--,.

.. One ' Nkwo' day I went to my farm. 2nd and 3rd accused were walking behind me with another man. At my farm I saw the footprints of a cow and was surprised because our cows do not go there and I suspected it was a stolen cow. I ran back and called the other three saying I saw the footprints. We followed the footprints to Azu River where we met

.

222

Rex v.

Rex v. Ani Nwokarafor & Ors.

Okorafor Eze and the cow tied to a tree. I knew Okorafor Eze as a well- known thief. When .he saw us he ran away. We pursued him and I

Ani Nwoka- rafor & Ors.

Kingdon, C.].

commenced to beat him with a stick. The others had machetes and beat him with those until he died.

" We left the body lying in the bush and returned to the cow, where we met Ani Nwede. We told him the thief had run away. We then took the cow back to Isu.

" I don't know what happened to the body as I became ilL When the Police came to the village I was arrested and at first denied killing Okorafor out of fear. Afterwards I admitted killing him along with the others.

" I did this because a thief will reduce people to poverty and it was formerly the custom to. kill or sell into slavery thieves caught in our town. Nowadays a thief is still killed secretly.

" I do not think it is a bad thing to kill a thief. If a man kills a thief he has done well.

.. When we came up with the thief he showed fight and tried to defend himself with his machete and escape. I took his machete after his death and handed it to the Police. Exhibit" D" is the machete in question.

" I used a stick and not a machete. Exhibit" B .. is the stick which I handed to the Police and I made the statement which was read in Court."

The 2nd Appellant told the same story saying :-

.. I killed this thief because we hate thieves. This Okorafor Eze was armed with a machete which he tried to use in order to escape."

Upon these facts the learned Counsel for the Crown has not sought to uphold the convictions for murder nor has. he asked us to substitute convictions for manslaughter. We agree with him that in the circumstances the convictions. for murder cannot be upheld. Upon the question of manslaughter in our view the act of the Appellants would amount to manslaughter if it were shown that the death of Okorafor Eze was caused by wanton beating or cutting with machetes after all possibility of resistance by him had ceased, but it would be justifiable homicide if the fatal blow were struck whilst Okorafor Eze was still defending himself with his machete. There is no evidence either way as to this and no finding of fact upon this point by the learned trial Judge The benefit of the .doubt must therefore be given to the Appellants, and we do not feel justified in substituting convictions for manslaughter. In coming to this conclusion we wish to guard against the possibility that we may be taken to be endorsing the opinion of the Ist Appellant that it is not a bad thing to kill a thief. It is necessary to warn him and others who. hold that view that if they kill a thief when he is not resisting and those facts are proved they will certainly be punished under the Criminal Law.

The appeals of all three Appellants. are allowed, the convictions and sentences are quashed and it is directed that in the case of each Appellant a judgment and verdict of acquittal be entered.

The Appellants are discharged.

Rex v. Ugo Chima 223

REX

Lagos, 11th July, 1944

COR. KINGDON, C.J., BAI{ER AND BROOKE, JJ.

Respondent

v.

UGO CHIMA AppeUant.

Crimina! Law - and Procedare-=M urder=-I nf anticide-C riminal Code s. 327A-Killing of twins by mother shortly after birth-One cou.ntfor murder of two persons. Criminal Procedure Ordinance, Cap. 20, First Schedule Rule 3 (1).

The defendant gave birth to twin female children and within an hour killed them, it being an abomination in her view. She was convicted of murder. On appeal :-

HeM. that the conviction ~if any) should have been for" infanticide" ;

Held also. that it being prohibited. in Nigeria trl join another charge with a charge of murder. two murders cannot be joined whether in one or in separate counts. and the trial was thereby vitiated.

Appeal by defendant from the High Court, Enugu.


Appellant not present.

The judgment of the Court was read by the President.

In this case the woman, Ugo Chima, was charged in the . High Court of the Enugu-Onitsha Division sitting at Afikpo in one count with" murder ", contrary to section 319 of the" Criminal Code," and the particulars given were :-

.. Ugo Chima. on the 9th day of October. 1943a~ Owutu Edda. in the Province of Ogoja unlawfully murdered twin babies."

She was convicted and sentenced to death. She has appealed

to this Court.

The facts of the case are that the Appellant gave birth to twin female children weighing only 4 lb. and 3 lb. respectively. It being considered an abomination to have twins and this custom being a strong one in her town the Appellant was very much upset by the occurrence and within an hour of the birth put her foot on the children so that they died. The learned trial Judge found that she did this deliberately and so convicted her of murder. In doing 50

it is obvious that he overlooked the provisions of section 3~7A of the Criminal Code inserted in the Code bv section 4 of Ordinance 9 of 1940.· That section exactly covers the present case, and if there should have been any cWlviction at all it should have been for " infanticide" and not for murder.

Rex t'. Hammar Dangar 225

REX

Lagos, l Ith July, 1944.

COR. KINGDON, C.]., BAKER and BROOKE, JJ.

Respondent.

v.

HAMMAR DANGAR ... Appellant.

Criminal Law-Murder or M anslaughter=H omicide in course of unlawful arrest-s-Criminal Code ss. 317, 319, 283.

The defendant had been arrested by the deceased, a Native Authority policeman, and escaped; on the deceased attempting to recapture him, the defendant killed, with a knife, the deceased, who only carried a stick. The trial Judge found that the arrest was unlawful but thought, having regard to s. 283 of the Criminal Code, that as the defendant thought the deceased had authority

15 to arrest him, his act under the law of Nigeria amounted to murder but gave the defendant a certificate that it was a fit case for appeal. On appeal:-

Held: that the law on the point in Nigeria is, by virtue of section 317 of the Criminal Code, the same as the law in England, whereby if any person unlawfully arrests another and the person so provoked immediately and unjustifiably kills the other, the offence is manslaughter, and not murder.

Semble: s. 283 of the Criminal Code appears to relate to the case of a bystander who may intervene to prevent an arrest rather than to the person actually being arrested.

Appeal by the defendant from the decision of the High Court, Kaduna.




The Appellant was charged in the Kaduna JudiciCJ,l Division of the High Court sitting at Gombe with the murder of a man named Adamu Kundulum. He was convicted and sentenced to death. He has appealed to this Court upon the certificate of the trial Judge that it is a fit case for an appeal upon the following grounds :-

" The appellant had been arrested by the deceased who was an N.A. Policeman, and had escaped from him, and killed him upon his (the deceased's) attempting to recapture him. The decision involved the question of whether the appellant's arrest was lawful or not, and if not (and I held that it was not) whether in the circumstances the killing of the deceased was murder or manslaughter."

The facts are sufficiently stated in those grounds with the addition of the Judge's finding.

" The killing was very savage and done with a knife against a man armed with a stick."

-0

Rex v. Hammar Dangar

such an extent as any other man might be resisted who was doing the same act. If he is killed by violence, in excess of what the case requires, this is manslaughter, the excess rendering the killing unlawful, but the provocation arising from the illegality of the officer's conduct reducing it below murder. In all such cases, therefore, where the killing is held to be murder, it must be taken that mere resistance was unlawful. Where the killing is only manslaughter, the mere resistance was lawful, the excess only constituting the crime."

For these reasons there is substituted for the verdict found by the trial Judge a verdict of guilty of manslaughter, and for the sentence passed at the trial there is substituted a sentence of 5 years H.L.

227 Rex

v. Hammar Dangar Kingdon, C.].

228 L. A. Lawson v. Local Authority, Aba

Lagos, 14 July, 1944


L. A. LAWSON Defendant-Appellant

v.

LOCAL AUTHORITY, ABA Prosecutor-Respondent

Criminal Procedure-s-Trial by Magistrate (Limited Powers) who is also Local Authority at whose instance proceedings taken.

The Defendant-Appellant was charged at the instance of the Administrative Officer qua Local Authority (the Tax Collection Authority) Aba, for failure to pay income tax, and tried by that Officer qua Magistrate (Limited Powers). His appeal to the High Court was dismissed. On appeal to the West African Court of Appeal :-

Held-That the proceedings were vitiated by the fact that the same person was both prosecutor and judge.

Appeal by the Defendant from the decision of the High Court, Calabar-Aba Division, dismissing his appeal from the Magistrate (Limited Powers), Aba.


Ladipo Moore for Appellant.


The Appellant was charged at the instance of the Local Authority (the Tax Collection Authority), Aba, in the Court of the Magistrate (Limited Powers), Aba with-

" Failing to pay £4 3s. 4d. 1943-44 Income Tax contrary to section 24 of Ordinance No.4 of 1940 ".

He was convicted and fined £10 or one month's imprisonment in default. He appealed to the High Court of the Calabar-Aba Judicial Division which dismissed his appeal summarily under section 170 of the Criminal Procedure Ordinance. On appeal to this Court the Appellant relies on one ground of appeal only, viz. the undisputed fact that it was the same individual Administrative Officer who, in his capacity as Local Authority, instituted the proceedings, and, in his capacity as Magistrate (Limited Powers) tried the case. The Appellant relies upon the maxim '<Nemo

debit esse Judex in propria sua causa" in contending that the proceedings are vitiated by the fact that the same person was both prosecutor and judge. We have no hesitation in upholding his contention. It is a fundamental rule both of natural justice and of the practical administration of justice that a person cannot be a judge in a cause wherein he is interested. There is a large

L. A. Lawson v. Local A~ethority, Aba 229

number of English cases in which that rule has been followed and L. A. Lawson

proceedings quashed owing to the possibility of bias. The nearest Local;~tho-

in point is R v. Milledge (4 Q.B.D.332), from which it is clear that rity, Aba

the possibility of bias need not arise from personal interest, but K d

may be due (as in the present case) merely to the dual capacity c.j:g on,

in which an individual is acting.

Here it was clearly the duty of the Administrative Officer in question to have decided, qua Local Authority, that there was a good case against the Appellant before instituting proceedings ; having so decided it is obvious that he could not approach the trial of the case, qua Magistrate, with an entirely open and unbiased mind-though we think it right to state that the proceedings disclose no signs of actual bias.

For these reasons the conviction cannot be allowed to stand.

We have carefully considered whether this is a proper case in which to exercise the power of ordering a retrial. But having regard to the facts that the tax has now been paid, and that the Appellant has been put to very considerable expense in taking his appeal to two Courts, in each of which he had perforce to engage different Counsel, in order to establish his right to a trial conducted -in accordance with the fundamental principles of justice, we think it would be unduly harsh to order him to undergo a further trial.

The appeal is allowed, the finding and sentence of the Magistrate's Court are reversed, and the AppeUant is acquitted and discharged.

Rex v. Romanus Ezejiogt~ 231

done by the said Romanus Ezejiogu namely, to omit to arrest the said Rex Thomas Ebomuche who, to his, the said Romanus Ezejiogu's knowledge v. had committed an offence under the Customs Ordinance. Romanus

.. Statement oj offence-2nd count Ezejiogu

.. Demanding property with menaces, contrary to section 406 of the Kingdon, Criminal Code. €.J .

.. Particulars of offence

.. Romanus Ezejiogu, on the 5th day of April, 1944 at Port Harcourt, with intent to steal did demand the sum of £2 and a watch from Thomas Ebomuche, with threats to the- said. Thomas Ebomuche that if the said Thomas Ebornuche did not comply with such demand. he, the said Romanus Ezejiogu, would accuse the said Thomas Ebomuche of having committed an offence against the Customs Ordinance,"

He was convicted UpORCount 1 and sentenced to six months LH.L. He was acquitted upon Count 2, the learned trial Judge saying" There is no evidence of 'intent to steal' the watch and so I find accused not guilty on Count 2 ".

He has appealed to this Court against his conviction upon the first count.

The evidence of the complainant, which was substantially

believed by the learned trial Judge was:- " On 5th April I went to work in the morning; by noon on my return

I came along Aggrey Road. Someone came to me: it was accused; he was in plain clothes; I knew him before as a Police Constable; he had on a red school cap, white singlet and coat and white knickers; and white canvas shoes. He had a Raleigh cycle with him; he said that I was wanted at the Police Office: I asked him why; he said I had bought a wrist watch which had been smuggled; I told him it was not smuggled as I bought it from a certain trader; he asked me to show him the watch and how much I paid; I did so; I told him I paid £1 15s. Accused put the watch in his pocket. He then asked me if I had obtained a receipt from the trader; I said" No ". He said there was a new law under which any person who buys anything in the Township shall obtain a receipt from the seller and having broken this law I might be fined £10 if taken to Court or be sent to prison for two years in default, which implied I would lose my job. I was very .afraid. He asked me to follow him to the Police Station. On the way there, at Aba Street he stopped me and asked me which I would prefer-s- to settle the matter' there and then with him or to be taken to Court. I said I preferred to settle with him. He asked me to give him money; to make an offer; I offered 5s.: he refused this and I then offered lOs.; this also he refused. He then demanded £3; I refused and agreed to pay £2 and he agreed."

Subsequently the complainant paid the Appellant £1. lOs. out of the £2 agreed upon.

It will be observed that the evidence does not bear out the wording of the particulars given in the two counts. The particulars refer to the commission of an offence against the Customs Ordinance, whereas the complainant's evidence refers to a threat to accuse him of an offence against a wholly fictitious' " new law" as to obtaining receipts.

As to this the learned trial Judge found:-:- .. I have no reasonable doubt about accused's gujlt on count 1. I am

satisfied he did receive a bribe from Thomas and t1tat the suggestion of taking a bribe came from the accused himself; it was given so that accused should not prosecute Thomas for an alleged offence namely, failing to get a written receipt from the seller of the watch when the complainant bought it-which, as far as I know is no offence in law, The accused, however,

282

Rex v.

Rex v. Romanas Ezejiogu told the complainant that it was an offence and the complainant believed him. It is going to open up a very wide field of fraud and abuse of office

Romanus Ezejiogu

Kingdon,

C.J.

if a constable is to be permitted with impunity to obtain money from innocent and unsuspecting civilians if he merely charges them with a fictitious offence which, is, in fact, no offence in law."

We are of opinion that such finding is incorrect in law and that section 116 (1) of the Criminal Code does not apply to cases where there is no ground for a suggestion that an actual offence has been committed by the person from whom money is demanded. In such a case the demand is not made either" with a view to corrupt or improper interference with the due administration of justice, or the procurement or facilitation of the commission of any offence', or the protection of any offender from detection or punishment ".

Nevertheless a constable cannot make such a demand" with impunity ". His act is clearly an offence against section 404 of the Criminal Code. We say this as quite a general proposition and must riot be understood to mean that the Appellant has necessarily been proved to have committed an offence under section 404. Any question of our acting upon the record before us to substitute a conviction under section 404 for the conviction under section 116 (I), does not arise, since we should only have the power to make such a substitution if the trial Judge could on the charge have found the Appellant guilty under section 404, and clearly he could not. We therefore have no option but simply to quash the conviction.

The appeal is allowed, the conviction and sentence are quashed and it is directed that a judgment and verdict of acquittal be entered.

The Appellant is discharged.

Appeal allowed, conviction and sentence quashed.

Rex 1). Augustus William Kojo Thompson 233

REX

Gold Coast, 14th July, 1944

COR. HARRAGIN, C.]., FUAD AND COUSSEY, JJ.

(Report No.2)

1).

AUGUSTUS WILLIAM KOJO THOMPSON Appellant.

Criminal Law and Procedure-Criminal Code s. 410 .. Corruption or extortion by public officer-Inherent jurisdiction. regarding subpoena to witness.

Defendant was found guilty of corruption and extortion as the elected Municipal Member for the town of Accra in the Legislative Council of the Gold Coast Colony. On appeal he argued that he was not a "public officer" within s. 5 of the Criminal Code, but this point had been decided against him

upon a case stated (see the previous report sub eod. nom.)

He also argued, inter alia, (1) that there was no allegation or evidence that he had any duties to perform .in respect of which he agreed or offered to permit his conduct to be influenced, and (2) that he was prejudiced by the trial Judge's refusal to issue a subpoena to the Governor; (but in point of fact he had not complied with the Judge's direction to show that His Excellency was likely to give evidence material to the trial).

Held: (1) Under s. 410 of the Criminal Code it is only necessary to prove that a public officer agreed to permit his conduct as such to be influenced by a gift or promise. and he is thereupon deemed guilty of corruption in respect of the duties of his office; therefore those duties need not be set out in the charge or proved by evidence.

(2) The Court has inherent jurisdiction to refuse a subpoena unless satisfied that the witness is likely to give evidence material to the issue.

Appeal by the defendant from the decision of the Accra Assizes.

Dove (with him A. Sawyerr, E. C. Quist, W. E. G. 5ekyi. A. G. Heward-Mills and A. M. Akiwumi) for Appellant.

J. S. Manyo Plange, Crown Counsel, for the Crown.

'f-lre judgment of the Court was delivered by Harragin, C.J.

(Gold Coast) :-

In this case Augustus William Kojo Thompson, a Member of the Legislative Council of the Gold Coast Colony, was convicted by a Judge sitting without a jury upon two counts. The first was corruption by a public officer, and the second extortion by a public officer. He was sentenced to one day's imprisonment and to a fine of £200 in default of payment three months' imprisonment without

-¥~JO

Rex fl. Augustus William Kojo Thompson 235

The only other point that might be called a point of law that Rex

was. raised by Counsel for the appellant is to be found in the fifth Au;;tus ground of appeal where it is alleged that the appellant was greatly w~a.m prejudiced by the trial Judge's refusal to issue a subpoena for the attendance of His Excellency the Governor. We are quite unable ompson

to imagine in what way the evidence of the Governor would have Harragin,

assisted the appellant. In any event from the record it would C.].

appear that the trial Judge did not refuse to summon the Governor but that he wrote to the appellant stating that he would not do so until he was satisfied that the Governor was likely to give evidence material to the trial and nowhere in the record do we find that any effort was made to comply with this direction. We wish to make it perfectly clear that the Court has inherent jurisdiction to prevent the abuse of its process by refusing to issue a subpoena to a witness unless it is satisfied that that witness is likely to give evidence material to the issue before it. The Court has the right and indeed the duty to satisfy itself before ordering a subpoena to issue that the request to call the witness is a proper one and is not merely frivolous, vexatious or obstructive.

The remaining grounds of appeal m.ay be taken together. They deal entirely with the facts of the case and we may say at once that there was ample evidence upon which the trial Judge could come to the conclusions that he did.

Numerous discrepancies in the evidence of the witnesses for the prosecution appear in the record, but we are of the opinion that they were not in any way fatal to the learned trial Judge's findings. In fact on the evidence before him it is difficult for us to think that he could have come to any other conclusion. The Crown case is to a great extent corroborated by the evidence of the appellant himself in that he admitted that he was at the house in question with the intention of obtaining money and that this money was to be given to him in order that he should absent himself from the Legislative Council and fail to deliver a speech in that Council which he had already prepared and which would have been detrimental to the interests of the Association of West African Merchants. His case was however that his sole object in trying to obtain this money was in order to produce it at some later stage as proof of the perfidy of this Association and to assist him in exposing the Association. It will thus be seen that the only real point at issue between the Crown and the appellant was with regard to the intention of the appellant in his attempts to obtain the money. There was ample evidence before the trial Judge to justify him in rejecting the ingenious explanation of the appellant and accepting the version of the prosecution.

This appeal is accordingly dismissed.

236 Rex v. Lewis Wangara

REX

Accra, 22nd July, 1944

COR. HARR.6t.GIN, C.J., DOORLY AND COUSSEY,J]. Respondent.

v.

LEWIS WANGARA Appellant.

Criminal Law-Murder-Insanity-Onus of proof and degree thereof required-Criminal Code s. 52-Criminal Procedure Code, s.130.

Defendant was convicted by a jury of murder and appealed on the ground that the jury were not directed as to the sufficiency of the evidence before the Court to sustain the defence of insanity, his proposition being that though proof of the defence of insanity was required, any evidence raising a doubt as to his sanity was sufficient to entitle him to its benefit.

Held: that the burden of proof 011 the prisoner to establish the defence of insanity is not so heavy as the burden on the prosecution to establish his guilt, and may be taken to be not higher than the burden on a party in civil proceedings.

Held also: that the evidence on the defence of insanity bad been adequately drawn to the jury's attention but bad been inadequate to satisfy that test.

Appeal by Defendant from the decision of the Cape Coast Assizes.


]. S. Manyo Plange, Crown Counsel, for Crown.

The judgment of the Court was delivered by Harragin, C.J., Gold Coast :-

In this matter, the appellant who was convicted by a jury at the Criminal Assizes at Cape Coast on the 17th May, 1944, on a charge of murder, contrary to section 221 of Cap. 9, appeals on the ground that he was insane at the time of the act charged and that the jury should therefore have found him guilty but insane. It is submitted on his behalf that although by section 52 of Cap. 9 and section 130 of Cap. 10 proof of insanity a.s a defence by an accused person charged with an act or omission is required, any evidence which raises a doubt as to his sanity is sufficient to entitle the accused to the benefit of that doubt, and that the jury were not directed as to the sufficiency of the evidence before the Court to sustain the defence of insanity. In support of this proposition,

Sodeman u, The King, a note on which is at page 17 of Archbold's Criminal Pleading and Practice, 31st Edition, has been cited. The passage on that case reads as follows:-

" The burden of proof which rests upon the prisoner to establish the defence (of insanity) is not so heavy as that which rests upon the prosecution to prove the facts which they have to establish. It has not been definitely defined but it may perhaps be stated as not being higher than the burden which rests upon a plaintiff or defendant in civil proceedings."

LEWIS WANGARA Appellant.

Criminal Law-Murder-Insanity-Onus thereof required-Criminal Code Code, s.130.

of proof

s. 52-Criminal and degree

Procedure

236 Rex v. Lewis Wangara

REX

Accra, 22nd July, 1944

COR. HARRAGJN, C.]., DOORLY AND COUSSEY, J].

Respondent.

v.

Defendant was convicted by a jury of murder and appealed on the ground that the jury were not directed as to the sufficiency of the evidence before the Court to sustain the defence of insanity, his proposition being that though proof of the defence of insanity was required, any evidence raising a doubt as to his sanity was sufficient to entitle him to its benefit.

Held: that the burden of proof on the prisoner to establish the defence of insanity is not so heavy as the burden on the prosecution to establish his guilt, and may be taken to be not higher than the burden on a party in civil proceedings.

Held also: that the evidence on the defence of insanity had been adequately drawn to the jury's attention but had been inadequate to satisfy that test.

Appeal by Defendant from the decision of the Cape Coast Assizes.


]. S. Manyo Plange, Crown Counsel, for Crown.

The judgment of the Court was delivered by Harragin, C.]., Gold Coast :-

In this matter, the appellant who was convicted by a jury at the Criminal Assizes at Cape Coast on the 17th May, 1944, on a charge of murder, contrary to section 221 of Cap. 9, appeals on the ground that he was insane at the time of the act charged and that the jury should therefore have found him guilty but insane. It is submitted on his behalf that although by section 52 of Cap. 9 and section 130 of Cap. 10 proof of insanity a.s a defence by an accused person charged with an act or omission is required, any evidence which raises a doubt as to his sanity is sufficient to entitle the accused to the benefit of that doubt, and that the jury were not directed as to the sufficiency of the evidence before the Court to sustain the defence of insanity. In support of this proposition, Sodeman v. The King, a note on which is at page 17 of Archbold's Criminal Pleading and Practice, 31st Edition, has been cited. The passage on that case reads as follows:-

.. The burden of proof which rests upon the prisoner to establish the defence (of insanity) is not so heavy as that which rests upon the prosecution to prove the facts which they have to establish. It has not been definitely defined but it may perhaps be stated as not being higher than the burden which rests upon a plaintiff or defendant in civil proceedings."

Rex v. Lewis Wangara

There seems to be some disagreement as to the effect of the

decision in Sodeman v. The King, but applying the test there laid down, did the appellant in this case offer satisfactory evidence for the consideration of jury and which the learned trial Judge could put to them to support a defence of insanity? We find that there was no such evidence before the Court by which it could be found that the appellant by reason of imbecility or mental derangement or disease did not know the nature or consequences of his act, in other words that he did not know that his act was wrong or that he did not know what he was doing. It is true that on the adjournment of this appeal on the 12th June last, a medical report was

1 called for as to the mental condition of the appellant, and that report has since been furnished, but it was called for, not for the purpose of supplying evidence which might have been produced by the appellant at his trial, but to satisfy this Court that he was fit to conduct this appeal and that the appeal was not a nullity for lack of appreciation on the appellant's part of the na.ture of the proceedings. The medical report has been looked at for that purpose only and, whatever consideration may be given to it at another time and place, it cannot weigh further with this Court than has been above indicated.

Then it is submitted for the appellant that the learned trial Judge did not in his summing-up put to the jury the conduct of the appellant immediately preceding and at the time of the act charged in order that the jury might infer that he was suffering from some delusion. Reading the whole of the summing-up we are satisfied that the material evidence on which the appellant relied was reviewed and the medical testimony as to' hallucinations and delusions was read to the jury in 'such a manner that they could decide in relation to the evidence upon which the appellant relied to establish his defence of insanity, whether a verdict of guilty or guilty but insane should be returned. The jury on the evidence before them, in our opinion, rightly convicted the appellant and this appeal must therefore be dismissed.

237 Rex

v:

Lewis

Wangara

Harragin, C.].

238 Naparo Braima Al-Hassan v. Commissioner of Police

Gold Coast, 28th July, 1944

COR. HARRAGIN, C.J., DOORLY AND COUSSEY, JJ. NAPARO

BRAIMA AL-HASSAN Appellant (Defendant) v.

COMMISSIONER OF POLICE Respondent (Complainant).

Criminal Law-Corruption-Criminal Code, s. 394.

Defendant was the "Stock" man on a Government farm and was convicted by a District Magistrate of corruption in that he had exacted £1 each from four labourers mentioned in the charges before engaging them. To prove system the prosecution called two witnesses, who gave evidence that money had been extorted from them by defendant, though there were no charges regarding these two witnesses. He argued that this evidence was inadmissible on the authority of Makin v. Attorney-General of N.S.W. (1894) A.C. 57, whilst the respondent relied on King v. Lovegrove, 1920, 3 K.B., at p. 643. This was the main point Oil

appeal. The other point was that the four labourers should have been treated as accomplices.

Held. that the fact of the appellant having previously extorted money from others had no specific connection with the charges at issue and the evidence was inadmissible as appellant denied having received the money stated in the charges.

Held also, that as the four labourers did not seek out the appellant and offer him a bribe. they were mere victims.

Held further, that as in his judgment the District Magistrate examined the evidence and decided on each charge separately without referring to the two alleged previous offences, it was clear that he had not been prejudiced by the inadmissible evidence.

Appeal from the decision of the Divisional Court dismissing the appeal from the District Magistrate's decision.

A. G. Heward-Mills (with him A. M. Akiwumi) for Appellant.

J. S. Manyo Plange, Crown Counsel, for Respondent.

The judgment of the Court was delivered by Harragin, C.J., I

Gold Coast:-

The appellant in this case was convicted on four counts for corruption contrary to section 394 of the Criminal Code (Cap. 9).

The facts upon which he was convicted are as follows :-

The appellant was the" Stock" man on a Government farm, and appears in the Government Staff List as such. Amongst his other duties, he supervised, engaged and dismissed the labourers. It was alleged by the prosecution and proved to the satisfaction of the learned District Magistrate that the appellant

Naparo Braima Al-Hassan v. Commissioner of Police 239

had exacted from each of the four labourers mentioned in the Naparo

counts the sum of £1 before he would engage them. He was ~~~san

sentenced to three months' imprisonment with hard labour and v.

a fine of £25 or two months' imprisonment with hard labour on Commis- sioner of

each count, the sentences of imprisonment to be concurrent and Police

the fines to be non-cumulative. From this finding and sentence . he appealed to the Divisional Court where his appeal was dismissed. ~j~raglD'

There are three grounds of appeal, .and we may say at once that, with regard to those grounds which refer to the facts of the case, we are of the opinion that there was ample evidence upon which the learned District Magistrate could convict the appellant if he helieved the witnesses for the prosecution, and we are not of the opinion that the discrepancies in the evidence of the witnesses for the prosecution were of such a serious nature as to make it imperative upon the learned District Magistrate to discard their evidence.

There are, however, two points of law for decision in this case. The first appears in Ground 3 (a): "The Court received inadmissible evidence in proof of system". This ground was based on the fact that two witnesses for the prosecution stated in their evidence that they themselves had at some previous date been obliged to give the appellant sums of money in order to obtain employment. This evidence was given in chief, and was, of course, evidence of crimes committed before those charged in this case, and were not to be found in any count in the charge. The appellant relied on the judgment in the case of Makin v. Attorney General of N.S. W. (1894) A.C. 57, 65 and the other authorities cited in that case. The judgment in that case is still the leading authority with regard to the admission of evidence in order to prove facts similar to those in issue. We cannot do better than

quote the learned author of Pkipson on Evidence, 8th Edition at page 14!f where he sets out shortly the effect of the judgment ill the above-mentioned case :-

.. Facts which are relevant merely from their general similarity to the main fact or transaction, and not from some specific connection therewith as illustrated below, are not admissible to show its existence or occurrence. Nor, to prove that an act was done by a given party, may evidence be given of similar acts done either by himself, with the object of showing a general disposition, habit, or propensity to commit, and a consequent probability of his having committed, the act in question, or by others, though similarly circumstanced to himself, to show that he would be likely to act as they. If, however, the similar acts are so related to the main act as to show the party's identity irrespective of any general propensity, they will be admissible notwithstanding that they may also tend to show such propensity."

For the respondent the case of the King v. Lovegrove, 1920, 3 K.B. page 643 was cited, but we are of the opinion that this case can be distinguished. The Lord Chief Justice in his judgment in that case states as follows :-

.. We .do not desire either to extend or to restrict the principle laid down in Makin's case and in other similar cases. But the present case does not depend on the principle there laid down."

240

Naparo Braima Al-Hassan

v. Commis- sioner of Police

Harragin,

C.J.

Naparo Braima Al-Hassan v. Commissioner of Police

We are of the opinion that the question now before us does

depend on the principle laid down in Makin's case. The fact that a witness had previously paid a sum of money to the appellant in no way tends to corroborate the fact that he was present when the complainant, in the case before us, made a similar payment, but was a fact which was relevant solely from its general similarity to the main fact or transaction and has no specific connection with the matter at issue. It is therefore in our opinion clearly inadmissible.

In the- Lovegrove case the evidence was only admitted on the ground that it corroborated the account given by one of the witnesses for the prosecution with regard to a certain interview with the appellant in that case. In our view the fact that the appellant some months before received a certain sum of money in no way corroborates the matter at issue which is whether he received the money on the dates stated in the charge. If we accept the argument put forward by Counsel for the respondent, it' would mean that in every case the prosecution would be permitted to lead evidence of similar acts-thus if "A" were accused of stealing a watch on the 15th of June, 1944, evidence could be called to show that he stole a watch in 1943 from which the Court would be asked to deduce that he was the type of man likely to have stolen the watch on the date appearing in the information. This would be running entirely contrary to the rule laid down in the Makin case above quoted.

We would, however, like to make it perfectly clear that had the appellant, for example, raised the issue by way of defence that although he had received the money in question on the date mentioned in the charge, it was not received with any criminal intent but with some such object as to buy provisions for the labourers in question, then on the authority of the Lovegrove case, the prosecution would have been entitled to call evidence that on previous occasions the appellant had received sums of money from labourers under circumstances similar to the present, and where the question of buying provisions could not have arisen. No such issue was raised in this case where it was perfectly clear that the appellant was denying ever having received the money.

The next point raised on behalf of the appellant was to this effect-that as the labourers who were giving evidence with regard to the payment of the money were themselves committing a crime in bribing a public officer, the Court should have treated them as accomplices. The evidence satisfies us that the witnesses referred to did not seek out the appellant and offer him a bribe, but that when they applied for employment, they were told that this would not be given to them unless they were prepared to pay to the appellant the sum of £1 which in all innocence they did.

On these facts and on the authority of Rex v. Dare, 5 W.A.C.A.

Naparo Braima Al-hassan v. Commissioner of Police 241

page 122 which in turn was based on the cases of Rex v. de Verteuil Na~aro

an~ .Whelan and Rex u. C_rat_np(14 Cox Criminal. Cases), we are of ~f~:~ao

opinion that they were victims and not accomphces and that this v.

ground of appeal fails. \ ~ommis- . SlOoer of

The other grounds of appeal raised by Counsel for the Police

appellant are of no substance, and were not pressed by him. Harragin,

I t now becomes necessary for us to consider the effect of the improper admission of evidence relating to similar facts on the mind of the learned District Magistrate, and we are of the opinion that it could not have affected his mind adversely to the appellant in any way whatsoever.

In coming to this conclusion we have not failed to give close consideration to the words of Kennedy, ]. in Bond 1906, 2 K.B., 398 "Nothing can so certainly be counted upon to make a prejudice against an accused as the disclosure to the jury of other misconduct of a kind similar to that then charged".

There are, however, three distinctions which we would draw between the case of Bond and the present case.

Firstly, the distinction between a jury and a professional Magistrate. As to this may be cited the further words of Kennedy

J. in Bond (at page 398) " and the hearer (meaning each member of the jury) is a person who has not been trained to think judicially,

16 the prejudice must sometimes be almost insurmountable." In this connection it is to be noted that in his judgment the learned District Magistrate examined the evidence and gave a decision on each of the counts before him separately and made no reference to the evidence of the two alleged offences which were not charged. We regard this as clear proof of judicial thinking.

The second distinction arises from the fact that the accused was tried, lawfully and without objection by the defence, at one trial on four counts of the same class of offence. Where one offence is charged and evidence is given which tends to show that accused has been guilty of another similar offence, the prejudice' is naturally much greater than it is in a case such as the present where the accused was lawfully charged with a number of offences of the same kind and evidence was led as to two other similar offences.

Thirdly, the two witnesses who gave evidence of similar transactions were both of them giving evidence with regard to. the issue before the Court and if the learned District Magistrate believed their evidence, it mattered little whether the appellant had committed a similar act on a previous occasion, whereas if the learned District Magistrate did not believe them to be witnesses of truth, the fact that they were prepared to lie still further and give other instances of alleged crimes committed by the appellant would not in any way tend to make him believe their evidence

16

c.].

Bri~a f

~:~:er

242 Naparo Braima Al-hassan v. Commissioner of Police

Naparo any the more. Under these circumstances we are not of the opinion Al-hassan that the appellant was adversely affected by the admission 0 this

v. inadmissible evidence or that the learned District Magistrate <::OmmiSi p would have come to any other conclusion than the one which he

0 0- did had the evidence been omitted. The appeal is therefore dismissed.

Harragin, C.].

Rex v. Flight-Lieut. Austin Robert Quinn


Cor. KINGDON, HARRAGIN, C.11. AND BROOKE, J. REX Respondent

v.

FLIGHT-LIEUT. AUSTIN ROBERT QUINN Appellant.

Gambia Criminal Code, section 230 @-Charge of obstructingpolice in execution of duty-Entering premises, without searchwarrant, to investigate-Request to leave-Defence (Protected Places and Areas) Rules, 1941, rule 3 (1) (b)-Police Ordinance, 1916, section 3 (1) (b).

A police officer, on receiving a report that a member of the R.A.F. had committed suicide, went to the camp at Bathurst and was admitted by the corporal on duty. Before finishing his investi- .gation, he was noticed by the Defendant, who asked him to wait while he telephoned for instructions and later told him to leave the camp. The Defendant was convicted of obstructing the officer in the execution of his duty, and appealed.

Held, that (1) as the officerwent to the camp on lawful business and was lawfully admitted, he was not a trespasser ab initio;

(2) as he had no search warrant in his hands, he became a trespasser after defendant told him to leave and was therefore no longer acting in the execution of his duty with the result that defendant could not be guilty of obstructing him therein.

Semble: (a) Rule 3 (1) (b) of the Defence (Protected Places and Areas) Rules does not confer on the police any right to enter premises they do not oridinarily possess;

(b) Section 3 (1) (b) of the Police Ordinance, 1916, does not confer 011 the police an absolute right to enter without search warrant for purpose of investigating crime.

Appeal of defendant from a conviction by the Supreme Court of Gambia.

F. K. Ewart for the Crown.

Flying OfficerA. R. Ponsford for Appellant.

The facts and arguments appear sufficiently from the judgment.


The Appellant, a Flight-Lieutenant in the R.A.F., was charged upon information in the Supreme Court of the Colony of the Gambia for that he

.. On or about the Ist day uf May, 1!l44, at Bathurst in the Colony of the Gambia did wilfully obstruct Sub-Inspector Kebba Jallow of the Gambia Police Force in the due execution of his dutv to wit, the investigation he was carrying out as a result of a report received of'a death which had occurred at the RA.F. Camp, Marina, Bathurst aforesaid contrary to section ~!lO (h) of the Criminal Code."

164

mailto:@-Charge

244

Rex

v.

Flight-Lieut. Robert Quinn

Kingdon, C.J.

Rex v. Flight-Lieut. A ustin Robert Quinn

He was convicted and sentenced to a fine of £10 or in default

of payment to 21 days I.H.L. Against that conviction he has appealed to this Court.

The facts of the case are sufficiently set out in the evidence of the Sub-Inspector as follows :-

.. I am Sub-Inspector, Gambia Police, Bathurst, I received certain report on 1st May of an alleged shooting of himself by a Ftight-Lieut. RA.F. at Marina RA.F. Camp. I went alone to investigate. On arrival I went first to the Marina Guard-room where I saw the Corporal on duty. He gave me a Special Police Constable named Robson M'Boge, employed by the RA.F. to assist me. I instructed M'Boge to collect the steward boys who were in the vicinity of deceased's house. He collected them near the kitchen. I went and saw them. My questioning of them did not lead to any satisfactory conclusion. Next I entered the kitchen where I spoke to the Chief cook and told him what I wanted. I then sent M'Boge to collect the kitchen boys. While M'Boge was away collecting them the accused came on the scene and spoke to me. He said, ,. What do you come to find here"? I was in uniform. I told him I was a Police Officerand had come to investigate the sucide case. He asked me who gave me permission to enter RA.F. property. I told him that I was instructed by Mr. Roberts to come and that it was in the presence of the D.A.P.M. He (accused) told me to wait where I was until he telephoned to find out whether it. was in order. I stayed where I was {or over twenty minutes. During that time accused did not come back. Having waited that time I decided to continue my investigation. I went outside and went to deceased's quarters. I stood by the window and looked in. While so doing, I heard someone calling" Hey, Hey" I turned round and saw it was accused. I went up and saluted and said .. Yes Sir". He said" Did I not ask you to wait in the kitchen?" I said" Yes Sir, but the place was too hot and I came out." He said" You must leave the Camp at once". He said he had telephoned. T cannot remember his exact words. He then turned to Special Constable M'Boge and ordered him to see me leave the camp at once. I turned my back and M'Boge walked after me. At the Guard-room I telephoned Assistant Superintendent of Police Roberts. The corporal on duty overheard what I said. He expressed surprise and spoke to me. As a result I went to the Officers' Mess. There I pointed out the accused to the corporal. The corporal went up to accused; I heard accused tell the corporal that he should write a notice and put it up in the Guard-room to the effect that nobody should enter the camp without permission. I then went away. At the time the accused told me to leave I had not completed my investigation. I was unable to complete it because of accused's action. Accused was not polite to me. I did not see any officer senior to accused there. Accused did not suggest to me that he was acting upon orders."

and of the Appellant .. I am Austin Robert Quinn, Flight-Lieutenant RA.F. stationed RA.F.

Bathurst. On the afternoon of the 1st Mayas Mess Secretary I went into the Mess kitchen and saw an African Police Officer questioning the Mess boys. I asked him what he was doing. He said he was 'investigating that morning suicide. I asked him on what authority. He said Assistant Superintendent Roberts. I knew by this time that Assistant Superintendent Roberts himself had agreed to suspend his investigations. I said 'Wait here until I ring up the Station Adjutant and find out the position'. I walked across to the Mess 'phone 40 yards distant-I rang the buzzer. Before I got a reply from one exchange I saw through the window opposite Inspector Jallow walking across the sand. I put down the receiver. I hurried across the dining room and called to Inspector Jallow. Since I asked Jallow to wait about 4 minutes had elapsed. I shouted 'Hey' to attract the Inspector's attention and to stop him {rom messing around on his investigations until I got my authority. I said 'I thought I asked you to wait; how will you wait until I get through to the Station Adjutant.'

.. I went back and phoned. I asked for my instructions and got them. I went back to Mr. Jallow and toldhim that he must leave the Camp. That he had to have the Station Adjutant's permission before he came in. He saluted and I probably said-what I imagine I said-it was six 0: seven

Rex v. Flight-Lieut. Austin Robert Quinn

weeks ago and I cannot swear to it-was" See that this Officer goes out of the camp" or "see him out of the camp". I meant that as Inspector

Rex V.

Janow had to finish his investigations then-to stop it-that M'Boge could show the Inspector the way out. out of the ground. We were in a backwater behind the Mess in the Officers' quarters. M'Boge's place of duty was the Guard-room which they had to pass. I did not order M'Boge to escort Inspector Janow out of the camp. I do not consider that I was impolite. J asked Janow to leave the camp because (1) I believed that Assistant Superintendent Roberts had suspended his investigations (2) A question of security arose because it is a duty of RA.F. personnel to keep a check on every visitor to an RA.F. camp. To make certain I 'phoned the Station Adjutant 'for instructions. I was instructed by the Station Adjutant to see that Inspector jallow leave the Camp. I carried out that order honestly believing that 1 was doing the right thing and that Jallow had no right to be there."

It is admitted by the Defence that on these facts the act of the Appellant did amount to obstruction, but it is contended that it was a lawful obstruction lawfully carried out.

In this Court Counsel for the Appellant has gone so far as to

contend that the Sub-Inspector was a trespasser ab initio upon entering the RA.F. Camp; we cannot agree with him as to this, the Sub-Inspector went there on lawful business and was lawfully admitted, but the moment he was asked to leave by the Appellant the position became different. The Appellant contends that, in any case, from that moment the Sub-Inspector became a trespasser and in remaining was not acting in the execution of his duty, so that the order to see him out of the camp was a lawful one.

As to this section 97 of the Criminal Procedure Code (Cap. 26) provides for the issue to the Police by any Magistrate or Justice of the Peace of a search warrant when he is satisfied upon oath that there is in any place anything upon or in respect of which any offence has been or is suspected to have been committed or anything which there is reasonable ground for believing will afford evidence as to the commission of any offence.

In view of this it is clear that, if the Sub-Inspector wished to pursue investigations of the nature in question upon premises in the occupation of the RA.F. against the wishes of the Officer in charge, he should have gone armed with the necessary search warrant. He did not do so, and when requested to desist and leave he acted as though he had the necessary warrant. In this respect we are of opinion that the case is on all fours with that of

Davis v. Lisle (1926) 2 KB. 434, in which it was held that even if Lisle, a Police Officer, had a right to enter a garage to make enquiries as to a possible offence, he became a trespasser after the Appellant Davis had told him to leave the premises, and that he was not therefore acting thenceforward in the execution of his duty, with the result that Davis could not be convicted of assaulting him or obstructing him in the execution of his duty.

It has been contended on behalf of the Crown that the position

is different here owing to the provisions of rule 3 (1) (b) of the Defence (Protected Places and Areas) Rules, 1941, which exempts any

Flight-Lieut. Robert Quinn Kingdon, C.J.

246

Rex v.

Flight-Lieut. Robert Quinn

Kingdon. C.].

Rex v. Flight-Lieut. Austin Robert Quinn member of the Gambia Police Force from the restrictive regulations No. 4-8 of the Rules. But the effect of the rules ismerely to exempt the Police from certain statutory restrictions; they do not confer upon the Police any right of entering upon premises which the Police do not possess in the ordinary way.

It is also contended that the Sub-Inspector was acting under the express statutory powers of section 3 (1) (b) of the Police Ordinance, 1916 (Cap. 95) which declares that the Gambia Police Force shall be employed-

.. For the preservation of the peace. the prevention and detection of crime. the arrest and punishment of offenders. and all other such duties as are usually performed by a Civil PoLice Force or Constabulary."

But here again it is clear that in performing the duties of such employment the Police must act in accordance with the law, and have only the rights which the common law or statutes confer. That section does not confer upon the Police Force absolute right of entering upon private premises without a search warrant for the purpose of investigating crime.

We have come to the conclusion. following Davis v. Lisle (supra). that the Appellant in this case was justified in ordering the Sub-Inspector to leave the premises. and that from the moment when the Sub-Inspector failed to obey that order he became a trespasser and ceased to be acting in the execution of his duty with the result that the Appellant could not be convicted of obstructing him in the execution of his duty.

The appeal is allowed, the conviction and sentence are quashed and it is directed that a judgment and verdict of acquittal be entered. The fine, if paid, must be refunded.

REX

Rex v. Emanuel Kanwe Odiakosa

Lagos 16th October, 1944

Cor. KINGDON, HARRAGIN, C.JJ. AND BROOKE, J.

Respondent

v.

247

EMANUEL KANWE ODIAKOSA Appellant.

Criminal Law-Charge of fraudulent false accounting, under Criminal Code, section 438-Prima facie of omission to enter items with intent to delay discovery of cash deficit-Whether accused should be' called uponr-Case stated.

Upon the prosecution only establishing-a prima facie case that Defendant had omitted to enter items with intent to delay the discovery of a general deficiency in the cash of his employer, the trial Judge ruled that per se that did not amount to a prima facie case of omitting to make such entries with intent to defraud within the meaning of section 438 of the Criminal Code, and stated a case

inquiring whether his ruling was right, or what should be done if wrong. On consideration:-

Held: that the trial Judge's ruling was wrong.

Held: also that the defendant should be called upon for his defence and that the Judge should, at the close of the case, decide whether in fact there was an intent to defraud.

Case stated by the Judge, Kaduna Division.


J. E. David for Defendant.

The following joint opinion was delivered :-

This is a case stated under section 191 of the Criminal Procedure Ordinance (Cap. 20) by the learned Judge of the Kaduna Division.

The particular point for decision appears in the last paragraph of the case stated and reads as follows :-

.. Was I correct in ruling, upon the submission made by Counsel for the accused and referred to in paragraph 5 of the case stated ahove, that the prosecution, having made out a prima facie case that the accused, being a clerk in the employ of the Nigerian Government, had omitted to enter in a cash (or account) book belonging to the said employers of the material items mentioned in the first and third counts, respectively, on the dates therein respectively mentioned, as set out in paragraph 3 (a) of the case stated above, with an intent merely to delay the discovery of a general deficiency in the cash of his employers held by him, had not made out a pl'ima facie case of omitting to make the said entries with intent to defraud within the meaning of section 438 of the Criminal Code, under which the charges were laid?

248

Rex v.

Emanuel Kanwe Odiakosa

Kingdon, C.].

Rex v. Emanuel Kanwe Odiakosa

.. And if I was not correct, what should be done in the premises? ".

In short this might read as follows :-

I t is an offence under section 438 of the Criminal Code for a clerk to omit to make an entry in a cash book in order that the Auditor should not discover a general deficiency in the cash on the day of inspection if the entries are made on a subsequent date.

The answer is clearly in the affirmative.

In the 31st Edition of Archbold's Criminal Pleading, Evidence and Practice at. page 717 the following words appear when dealing with the evidence necessary to sustain a conviction for this offence .

.. Prove .... that the prisoner omitted to make the entry and that it was his duty to have made it. The intent to defraud would probably be implied by the jury if they were satisfied of the wilful false entry or omission." .

It is clear that it is for the jury to decide as a matter of fact whether

there was an intent to defraud when the Crown has proved wilful omission of an entry which it was his duty to make.

Nor is it necessary that the defrauding should relate solely to a pecuniary loss as will be seen in Rex v. Bassey 22 Cr. App. R. p. 160, when it was held that a fraud committed in order to procure an "admission to the Bar is a mischief against public policy none the less because its intent is not to procure money for the offender".

Again in the case of R. v. Firling 15 E & E.D p. 1006 it was held that" an intent to defraud means an intent to deceive in such a manner as to expose any person to loss or the risk of loss." In this case it is obvious that to delay the discovery of a general deficiency must expose the employer to the" risk of loss".

The answer to the question is therefore that the learned Judge was wrong in finding that an intent merely to delay the discovery of a general deficiency could not be held to be an intent to defraud.

Under the premises the accused should be called upon to make his defence and at the close of the case it will be for the learned Judge sitting as a jury to decide whether in fact there was an intent to defraud.

Rex u. Mohammed Bada and Idowu Aborishade 249

REX


Cor. KINGDON,HARRAGIN,C.JJ. AND JIBOWU, J. Respondent

v.

1. MOHAMMED BADA l 2. IDOWU ABORISHADE f Appellants.

Criminal Law-Manslaughter-Two defendants oJwhom one rightly convicted--Onus to prove the other acted in concert.

The 1st Defendant was driving at a great pace, a lorry with a left hand drive, and the second was seated on his right. A cyclist coming from the opposite direction was forced to his left hand side and dismounted. In passing the 2nd Defendant hit him with a stick; he fell against the rear of the lorry and was killed. The trial Judge convicted both of manslaughter on the view that 1st defendant drove to the wrong side to enable the second to strike, although there was no direct evidence of such concerted action. On appeal:-

Held. that the Crown han a duty to prove not merely that the two defendants may have been acting in concert but that they actually were~

Held also, that as the 1st defendant's action was explicable as due to unskilful driving, the inference of concerted action on his part was not inescapable and should not 'have been made,

Appeal by both Defendants from their conviction by the Supreme Court.


Appellants in person.


The two Appellants were charged in the Supreme Court with the manslaughter of one Lawrence Otu Essien.

Shortly the facts proved by the Prosecution and accepted by the learned trial Judge, and which we accept, were that the 1st Appellant was driving a military lorry at a great pace along Great Bridge Street. The lorry had a left hand drive and the 2nd Appellant was sitting beside the 1st Appellant, i.e. the 2nd Appellant

.was on the off side of the lorry. The deceased, a cyclist, was driven right into his left hand side of the road by the oncoming lorry and dismounted. As the lorry passed him the 2nd AppeUant hit him with a stick with the result that he fell against the rear of the lorry

and was killed.

On these facts there can be no doubt that the 2nd Appellant was properly convicted of manslaughter and his appeal is dismissed.

250 Rex u. Mohammed Bada and Idowu Aborishad«

Rex But the case of the 1st Appellant is different. Both Appellants MOham~ed emphasise that it is the 2nd Appellant who is the driver of the lorry Bada & Anor and that the 1st Appellant is not a driver at all. The 1st Appellant

Kingdon. C.J.

would only be guilty of manslaughter if it could be shown that there was concerted action by them both to enable the 2nd Appellant to hit the cyclist, i.e. that the 1st Appellant deliberately drove right over to his wrong side of the road so as to enable the 2nd Appellant to strike. There is no direct evidence of snch concerted action. If it were an inescapable inference from the facts that there must have been such concerted action, then the conviction would be justified.

The learned trial Judge drew such inference and convicted; but we think that he was incorrect to do so, since, in our view, .the inference is not inescapable and there is another and quite as probable explanation of the Ist Appellant's action in driving near the cyclist namely that he was unskilful and inexperienced in driving and had very little control over the lorry.

This would account for the 2nd Appellant's action in hitting out; he might well want to clear the road for the lorry which he knew was being driven recklessly and unskilfully.

But it does not follow that the 1st Appellant knew that the 2nd was going to use his stick in the manner he did.

If this is the explanation, the 1st Appellant is not guilty of the crime of manslaughter. The Crown must prove not merely that the two Appellants may have been acting in concert but that they actually were, and we are of opinion that the Crown failed to prove this.

For these reasons the appeal of the 1st Appellant is allowed, the conviction and sentence passed upon the 1st Appellant are quashed and it is directed that in the case of the 1st Appellant a judgment and verdict of acquittal be entered. The 1st Appellant is discharged.

l

Rex v. Sam Mofor 251


Cor. KINGDON, HARRAGIN, C.JJ. AND BROOKE, J. REX Respondent

v.

SAM MOFOR Appellant.

Criminal Law-Conviction where finding inadequate to establish offence charged-Criminal Code, section 412.

Sam Mofor having been charged with unlawfully entering a dwelling house with intent to commit a felony therein, the trial Judge found that Sam Mofor had entered the house" for an illegal purpose ". On appeal:-

Held, that it baing of the essence of the offence that there should he intent to commit a felony, in the absence of a proper finding to that effect; the conviction was unwarranted.

Appeal by the Defendant from his conviction by the High Court; of Calabar.


Appellant not present.


The Appellant was charged under Count 1 with unlawfully entering a dwelling house with intent to commit a felony therein contrary to section 412 of the Criminal Code. It js of the essence

...of the offence that there should be intent. to commit a f~l~y. The dlearned trial Judge found that the Appellant entered" for an illegal \purpose". He did not find that the entering was with intent to Icommit a felony, and indeed it is doubtful if there was intent to commit a felony. This is fatal to the conviction. The appeal against the conviction upon Count 1 is allowed, the conviction and sentence upon Count 1 are quashed and it is directed that. in respect of Count 1 a judgment and verdict of acquittal be entered.

Appeal allowed; conviction and sentence quashed.

252 Rex v. A nanti Ejikeme

Lagos, 19th October, 194:4:


REX Respondent

v.

ANANTI EJIKEME Appellant.

Criminal Law-Death from abortion-Acquittal of defendant charged

with effecting abortion-Conviction of co-defendant charged with inciting abortion-Case stated on attempted manslaughter.

As the result of abortion, Defendant Ananti Ejikeme's daughter died. A.E. and X (there was another Defendant but his case is not relevant to this report) were charged with manslaughter, it being alleged that A.E. incited X to cause the abortion, and that X caused the same. X was acquitted, but A.E. was convicted of attempted manslaughter on a finding that he had incited X to cause the abortion and that death ensued from abortion. On a case

stated on whether such conviction was right having regard to X's acquittal :- .

Held, that as X had been found not to have committed the offence, the incitementof X by- A.E. was not the causeof death, and thereforeA.E.'s conviction was wrong.

Quaere whetheran attempt to commitmanslaughteris a possibleoffence.

Case stated by the Judge of Enugu-Onitsha High Court.

N.G. Hay for the Crown.

The Defendant not represented.

The opinion of the Court was delivered by the President :-

Three men were charged before Waddington, ]., in the High Court of the Enugu-Onitsha Division with manslaughter contrary to section 325 of the Criminal Code, the particulars of the offence being given as :-

" Ananti Ejikerne, Peter Umeobiand Nwigwe Ilosue on or about the ::r<1 day of May, 1944, at Iyi-enu, in the Province of Onitsha, unlawfully killedJosephineAnanti."

The 1st accused is the father of the girl Josephine, the 2nd accused was alleged to have made her pregnant, and the 3rd accused was alleged to have been procured by the 1st and 2nd accused to cause her to abort with the result that she died.

The learned trial Judge found that there was no prima facie case against the 2nd accused and discharged him. He also held that the evidence against th~ 3rd accused was insufficient and acquitted him, and in his summing up of the case against the 1st accused stated:-

"The finding of Not Guilty.in 3rd accused's case is equivalent to a declarationthat :lrdaccuseddid not committhe offence."

Rex v. Ananti Ejikeme

But he found as facts:-

" (1) that 1st accused had incited 3rd accused to cause the abortion; and

"(2) the girl had died as the result of a criminal abortion."

Upon these findings he convicted the 1st accused of the offence of attempted manslaughter, provisionally and subject to the opinion of this Court upon the following question which was submitted on the stated case, viz. :-

"Whether, on the facts stated above, following the acquittal of the 3rd accused on the charge of manslaughter, it was open to this Court to convict the 1st accused of attempted manslaughter under the provisions of section 513 (1) of the Criminal Code and section 57 of the Criminal Procedure Ordinance."

We answer that question in the negative for the reason that the 1st accused was not proved to have incited the 3rd accused to kill the girl-that would have been inciting to murder-, but, on the finding, was proved to have incited the 3rd accused to attempt to procure her abortion-an incitement which, on the accepted basis that the 3rd accused did not commit the offence, was not the cause of the girl's death.

Clearly there was no inciting to commit manslaughter or attempt to commit manslaughter; indeed it is difficult to conceive circumstances which would amount to an attempt to commit manslaughter.

Question answered. Conviction disallowed.

253

Rex

v.

Ananti Ejikeme Kingdon, C.J.

254 Rex v. Jackson Akpon Umo & Ors,


Cor. KINGDON,HARRAGIN,C.J}' AND BROOKE,},

REX Respondent v.

1. JACKSON AKPON UMO} 2. AARON UMO 3. MBO ADIAHA UKO 4. ANSON AKPAN

Appellants.

Criminal Law-Mu.rder-Evidence-Admissibility of statements by defendants-Breach of Rule of the Judges' Rules, as applied to illiterates.

In R. v. Afose and others (2 W.A.C.A., 118) the Court laid down

the manner in which Rule 8 of the Judges' Rules should be applied to illiterates. A police constable after taking a statement from 1st Defendant, took statements from the others in sequence, and as each came in he read to him the statements made by the others. The trial Judge being satisfied that the statements were free and voluntary admitted them in evidence; and this was the only substantial point on appeal against conviction :-

Held, (1) that statements obtained from prisoners contrary to the Judges' Rules are not ipso facto inadmissible; .

(2) such statements may be admitted if the trial Judge, exercising his

discretion judicially is satisfied that they were made voluntarily.

Appeal from the Assistant Judge, High Court, Calabar-Aba

Division.


O. A. Alakija for the Appellants.


The four Appellants were charged before Jackson, Assistant Judge, in the High Court of the Calabar-Aba Judicial Division' with the offence of murder contrary to section 319 of the Criminal Code, the following particulars being given :-

.. Jackson Akpan Umo, Aaron Umo, Mbo Adiaha Uko and Anson Akpan on or about the 22nd day of November, 1943, at night time at Uruk Usc, Abak Division, Calabar Province, in the Calabar-Aba Judicial Area murdered one Ntia Adiaha Uko with matchets."

They were all convicted and sentenced to death and have appealed to this Court against their convictions.

The only substantial point upon the appeal arises from the fact that rule 8 of the Judges' Rules, as amended in its application to illiterates by the decision of this Court in the case of Rex v. Afose

Rex v. Jackson Akpon Umo <5- Ors. 255

and others (2 W.A.C.A. p. 118.),was contravened by the Police Officer Rex

investigating the crime. That rule (as so amended) reads ;- Jackso~'

"When two or more persons are charged with the same offence and statements are taken separately from the persons charged, the police should not read these statements to the other persons charged. but each of such persons should be furnished by the police with a copy of such statements, and nothing should be said or done by the police to invite a reply. If the person charged desires to make a statement in reply the usual caution should be administered. Provided that when the person charged is an illiterate the statement may be read over or interpreted to him apart by some person other than a policeman. Anything said to such reader by the person charged when the statement is read shall not be admissible in evidence against him, but if, after the statement has been so read, he shall be desirous of making a statement to the police in reply, such statements shall be taken only after the usual caution has been administered."

Police Constable John Okereke after taking a statement from the 1st accused in this case, took statements from each of the others in sequence, and, as he told the trial Court :-

" When each accused came in I read to him the statements made by the others."

It is clear from this that in respect of the 2nd, 3rd and 4th accused the police constable acted in direct contravention of the Rule.

In England in the case of Rex v. Voisin ((1918) 1 K.B. 531) the Court of Criminal Appeal drew attention to the importance of the police authorities enforcing upon their subordinates due observance of the Judges' Rules, since" statements obtained from prisoners contrary to the spirit of these Rules may be rejected as evidence by the Judge presiding at the trial."

That quotation exactly sets out the position. Such statements do not become automatically inadmissible, but they will only be admitted, if, in his discretion, the trial Judge decides to admit them after satisfying himself that they were in faet made voluntarily.

In the present case the learned trial Judge fully appreciated the position and gave the most careful consideration to the question whether or not the statements' were voluntarily made. As a result he stated in his judgment :-

" I was satisfied that all the statements were made freely and voluntarily and for no reason activated either by hope or by threats held out to them by any person in authority and these statements were admitted in evidence."

It is clear that the Judge exercised his discretion judicially

and (to quote again from Rex v. Voisin (supra) )

" Even if we disagreed with the mode in which the Judge had in this case exercised his discretion, which we do not, we should not be entitled to overrule his decision on appeal. This was evidence admissible in law, and it could not be fairly' inferred from the other circumstances that it was not voluntary."

It is significant that after the statements were taken they were read out to the accused by another interpreter before the District Officer and acknowledged as correct, without any suggestion that they had been made otherwise than voluntarily.

Akpon Umo & Ors.

Kingdon,

C.J.

256

Rex

v.

Jackson Akpon Umo & Ors.

Kingdon, C.J.

Rex v. Jackson Akpon Umo & Ors.

For these reasons the ground of appeal alleging misreception

of these statements of the accused fails.

There is no substance in any of the other grounds of appeal and so far as the facts are concerned the evidence was strong against the 1st and 3rd Appellants and, though not so strong against the 2nd and 4th, it was sufficient to justify the convictions.

The appeals of all the Appellants are dismissed.

17

•

A. M. Agora v. Christiana Ade A bon & Ors. 257

Lagos, 23rd October, 1944.

COR. KINGDON AND HARRAGIN, C.JJ., AND FRANCIS, J.

A. M. AGORO .. PlaintW-Appeliant. v.

1. CHRISTIANA ADE ABON")

2. RACHAEL ADE ABON l '3. SOLOMON EGUNJOBI (

4. NA<fHANIEL AKINLEYE J


Famity property-Judgment against Executor de son tort.

Plaintiff .(.Appellant herein) sued Defendants for damages for trespass on land at Egunoniye Ojokoro, claiming as owner in possession against them for demolishing the building on the land and removing the iron sheets of the roof. The Ist and 2nd Defendants were members of the Abon family, the 3rd and 4th carpenters.

There had been a suit (No. 57 /1934) between A. J. Sijuwade and Adelakun Abon, in which Sijuwade was successful; a sale was made on 15th November, 1941, at which Agoro (Appellant herein) was the purchaser; and Agoro claimed that he bought the land at that sale.

Respondents 1 and 2 herein pleaded that the land in question had been the property of their late father, and hecame family property; that Adelakun Abon (one of his children) was not sued by Sijuwade as head of the family; that that sale was merely of . Adelakun's interest, and did not affect the rights of the other children.

In fact Sijuwade sued Adelakun Abon as executor de son tort for £45 odd advanced to John Abon deceased (the father), and obtained judgment for that amount.

In the judgment under appeal the trial Judge was of opinion that there was nothing to show that Adelakun had been administering the estate before letters of administration were granted to another person, and that after such grant he could only be personally liable for assets which had come into his hands; that Sijuwade's judgment was personal as against Adelakun and all that was sold was his right title-and interest; and that the interest of the other members of the family was not affected. And the trial Judge dismissed the Appellant's claim. On appeal :-

Held. that as all thtl.t in fact was sold was the personal right title and interest of Adelakun Abon in the land in question. the sale did not affect the 1st and 2nd Respondents' rights ano they were not trespassers.

Held also, that a judgment against an executor de son tort is not a judgment against the estate, and only binds its assets to the extent of the assets already in his hands .

.17 '-p

•

2t>8 A. M. Agoro v. Christiana Ade Abon G Ors.

A. M. Agoro Quaere: whether section? of the Adm.inistrat~ol1 (~eal Estate and Small Christi:na F .. t ..e.es) Ordinance (Cap. 13) affected the questions at Issue 111 the case.

Ade Abon Appeal by Plaintiff from judgment of Supreme Court. Ii: Ors.

Kingdon, C.J.

J. I. C. Taylor for Appellant.

A. Soetan for Respondents.

The judgment of the Court was deliveredby the President :-

It is quite obvious that this appeal cannot succeed. Apart from any question of law as to what could or could not be sold to satisfy the judgment obtained by A. J. Sijuwade against Adelakun Abon in Suit No. 57/1934, it is clear that all that was in fact sold was the personal right title and interest of Adelakun Abon in the property on which the alleged trespass by the Defendants took place. The rights of the Defendants to go upon and deal with the property were not. affected and they cannot be held liable in trespass.

But since a question of law was propounded in the Court below on which it was agreed (wrongly in our opinion) that the whole case turned, we think it right to state what in our view is the correct answer to it. The question was "whether a judgment against an

executor de son tort is a judgment against the estate". The answer to this question is that it is not a judgment against the estate and that it binds the assets of the estate only to the extent of the assets

already in the hands of the executor de son tort. We think that this is what the learned Judge in the Court below intended to express, though he did not put in exactly these words.

We may add that the possible effect of section 2 of the Administration (Real Estate and Small Estates) Ordinance (Cap. 13) upon the questions at issue in this case appears to have been overlooked by both parties in the Court below.

The appeal is dismissed with costs assessed at ]5 guineas,

l I

j arinatu Folaunyo & Ors. v. Rufai Belo Folaunyo & Ors. 259


COR. KINGDO..N AND HARRAGIN, C.J],. AND FRANCIS, J.

1. JARINATU FOLAWIYO ")

2. ASHIA WU FOLA WI YO 3. MORIAMO FOLA WI YO

4. SADA TU A. FoiA WIYO Defendants-Appellants.

5. MURIT ALA FOLA WI YO 6. MORINAtU FOLAWIYO

v.

1. RUFAI BELO FOLAWIYO} 2. SAFURATU FOLA WIYO 3. WULEMOTU FOLA WIYO

Plaintiffs- Respond enis.

Interpretation of Will-Limited and general use of the word " children " in carious clauses.

Belo Folawiyo provided in clause 2 of his Will that his trustees

should let the property specified in that clause and distribute the rents among his "sons and daughters hereinafter mentioned". In clauses 3 and 4 he provided that his trustees should hold certain

houses for the benefit of his" children" for life. And in clause 7 he named the appellants and two others as his " children for the purposes of distribution under this Will ".

It was agreed that Belo Folawiyo was the father of all the parties in the suit. The respondents were 110t named in clause 7 ; they claimed that though clause 7 cut them out of the distribution under clause :2, it did not affect their right to a share under clauses 3 and 4. This view was adopted by the trial Court against

the contention of the appellants. On appeal :-

Held, that the word" distribution" in clauses 2 and 7 and the words" sons and daughters hereinafter mentioned" in clause 2, showed that the word .. children" in clause 7 was limited to the provisions of clause 2, whilst" children .. in clauses 3 and 4 was intended to be general and comprised them all in regard to

these two clauses,

A-Qpeal by defendants from judgment of Supreme Court.

Philip Oddie for Appellants.

E. A. A kerele for Respondents.


This Appeal raises the question of the correct interpretation of certain clauses in the last will and testament of Belo Folawiyo deceased, agreed for the purposes of argument to be the father of

all parties to the suit.

J7A

260

Jarinatu Folawiyo & Ors.

v. Rufai Belo Folawiyo & Or5.

Kingdon, C.J.

Jarinatu Folawiyo 0- Ors. v. Rujai Belo Folawiyo <5- Ors.

The clauses in question are-

.. 2. I Devise to my Trustees in fee simple to Hold in Trust for my sons and daughters the following properties :-

"(a) One (1) Plot of Land at 30 Egerton Road Alakoro, (b) One house at 45 Agarawu Street now occupied by the Syrians and (c) one house at 4 Ojobaro Street all in Lagos and To Let or Lease the said properties and pay the rents and profits arising therefrom to my sons and daughters hereinafter mentioned in accordance with Mohammedan Law or Custom relating to Distribution."

"3. I Devise to my Trustees in fee simple my house at 14 Jagun Lane, Lagos to Hold the same in Trust for the use and benefit of my children for life but to permit my brothers and sisters during their lifetime to continue to occupy the rooms in which.they are now residing.

"4. I Devise to my Trustees in fee simple my house at 20 Jagun Lane, Lagos aforesaid wherein I am now residing to Hold the same in Trust for the use and benefit of my children for life.

"7. My children for the purpose of distribution under this Will are :-

(a) Muniratu, (b) Tijani, (c) Jarinatu, (d) Ashiawu, (e) Moriamo, (f) Sadatu Ashake, (g) Muritala and (h) Morinatu."

(The numbering is ours)

The Plaintiffs-Respondents contend that, whilst the effect of clause 7 is to cut them out from a share of distribution under clause 2, it does not affect their right to a share with the Defendants-Appellants in the "use and benefit" of the two properties mentioned in clauses 3 and 4 respectively.

The learned trial Judge upheld this contention. The Appellants 'contend that clause 7 applies equally to the properties mentioned in clauses 3 and 4 as to those in clause 2 and point out that in fact rents derived from the two properties have accrued for distribution. .

After careful consideration of the arguments on each side we agree with the view taken by the learned trial Judge in the Court below. The definition of "my children" in clause 7 is, limited to "the purpose of distribution", and we think it clear that, whereas the testator contemplated distribution under clause 2 where he actually used the word he did not have in contemplation any distribution under clauses 3 and 4 but intended to leave two family houses for the" use and benefit" of all his children for life. Further in clause 2, although the word" children" is not used, the " sons and daughters" who are to benefit by " distribution" are limited to those It hereinafter mentioned" -a plain reference to the subsequent provisions of clause 7. If the testator had intended a similar limitation to apply to clauses 3' and 4 he would naturally have included similar words of limitation in those clauses. He did not do so, and we think that this leaves no doubt that he did not intend such limitation to apply.

For these reasons the appeal is dismissed with costs assessed

at 12 guineas against the Appellants jointly and severally.

M osalewa Thomas v. K ibitiy« A leshinloye Williams 0- A nor. 261


COR. KINGDON AND HARRAGIN,C.JJ., AND FRANCIS, J. MOSALEWA THOMAS, CARRYINGON

BUSINESS IN THE NAME OF A. W. THOMAS & CO. Plaintiff-Appellant.

v.

l. KIBITIYU ALESHINLOYE} WILLIAMS

2. FATAYT ALESHINLOYE Defendants-Respondents.

WILLIAMS

Agency-Mortgagor and A uct£oneer-M ortgagor's withdrawal of

authority to sell coupled with an interest-Ratification by mortgagee-Redemption of mortgage-Pleadings and their effect on closing argument.

Appellant, a licensed auctioneer, received instructions from respondents to sell some property, but these were withdrawn. He had advanced them £11 lOs. against the sale and spent £7 17s. 6d. in connexion with the sale; so he sued them for those two sums plus £35 lOs. 9d. as commission he would have earned. Before the Magistrate he was only allowed the sum advanced. On appeal by him the Supreme Court Judge did not accede to his claim for expenses and commission holding that his authority was originally bad as respondents were mortgagors who could not sell more than t.he equity of redemption. This point was taken on their behalf for the first time in counsel's closing address before the Magistrate. In fact appellant had obtained the mortgagees' written approval a few days after respondents instructed him to sell; and the respondents had redeemed the mortgage before the sale. On further appeal by plaintiff to the W-est African Court of Appeal :-

Held, that respondents not having pleaded that the authoritg to sell was null were debarred from so arguing.

Held also, that that authority became binding by the mortgagees' approval as well as by the redemption of the mortgage, and further that being coupled with an interest it was irrevocable,

Oladipo Moore for appellant.

Omoliyi Coker for respondents.

The judgment of the Court was delivered by Francis, J :- This case originated in the District Court of Lagos where the

Plaintiff-Appellant a Licensed Auctioneer of Lagos claimed the sum of £54 18s. 3d. made up as follows :-

£11 105. Od. cash advanced against the sale of Defendants- Respondents' properties known as No. 11 Ijaiye Street, Lagos and a farm at Obere Otta;

262

Mosalewa Thomas

Mosalewa Thomas v. Kibitiyu Aleshinloye Williams 0- Anor.

£7 17s. 6d. out-of-pocket expenses incurred in connection

v. Kibitiyu Aleshinloye Williams & Anor.

Francis, J.

with the said sale; and

£35 lOs. 9d. commission which Appellant would have earned had the sale been effected.

Judgment was given for the Appellant for the sum of £16 15s.,

that is to say for the amount advanced which was admitted, together with £5 5s. representing the expenses incurred in the sale of the Ott a farm. The claim for commission and expenses in connection with the sale of the house at 11 Ijaiye Street was dismissed on the grounds that Respondents had withdrawn the instructions to sell.

Against this judgment the Appellant appealed to the Supreme Court but the learned Judge while upholding Appellant'scontention that the authority to sell coupled as it was with an interest was irrevocable dismissed the appeal on the grounds that the Respondents being mortgagors of the property had no power to sell more than the equity of redemption, and consequently the original authority was baq. and could not be the basis of an action.

. The two main grounds on which Appellant relies in this Court

may be summarized as follows:-

1. That Respondents not having pleaded the invalidity of their instructions to sell were barred from raising such a defence at the trial; and

2. That even if the defence was properly allowed to be set up the decision of the learned Judge in the Supreme Court upon the point was wrong since he failed to deal with the real question at issue which was not whether a mortgagor could sell only the equity of redemption but whether the authority to sell was binding on the Respondents.

As to the first point the Respondents by their pleadings admitted giving instructions to the Appellant to sell without any suggestion that those instructions were bad and so amounted to no instructions at all. The first time the point was raised in the Magistrate's Court was by Respondents' Counsel in his closing address. We think that such a defence could not be raised for the first time at that late stage and that the Magistrate was quite right- to ignore it in his judgment and that the learned Judge in the Supreme Court was wrong to allow it to be argued before him and to uphold It.

As to the second ground the position appears to us to be as follows :-

Even though the Respondents as mortgagors had no power to authorise the sale on the date they did without the consent of the mortgagees, if the authority given had the approval of the mortgagees, it was valid. In this Court Appellant's Counsel asserts that the Respondents did have the mortgagees' verbal

Mosaletoa Thomas v. Kibitiyu Aleshinloye Williams 0- Anor. 263

approval before giving the authority and if the validity of ~~salewa

the authority had been questioned on the pleadings he would om~.

have led evidence to prove this; further the Appellant a few ~bit~yu

days after the authority obtained the mortgagees' written w~hmlOye

approval and on the authority of Blackburn. Union v. Brooks & A:On:.s

(1877) 26 W.R. at p. 57 approval within a reasonable time makes the authority binding. Further the Respondents by Francis, J.

redeeming the mortgage before the sale acquired the necessary power to give the instructions and were automatically bound (See Fry on SPecific Perfomance (6th Edition) p. 464.

It is well-established law that an authority coupled with an interest is irrevocable and the Respondents had no power to withdraw it.

For these reasons the appeal is allowed the judgment of the Supreme Court, including the order as to costs, is set aside and it is ordered that any sum paid ill respect thereof shall be refunded ;. it is ordered that the judgment in the District Court be amended by substituting "£54 18s. 3d" for "£16 15s." as the amount awarded to the Plaintiffs and " £8 8s." for" £5 5s. " as the amount of costs awarded. The Appellants are awarded costs in this Court assessed at 18 guineas and in the Supreme Court assessed at 13 guineas.

264 .c. Ayotope Sauage-» S. 0. Rotibi


COR. KINGDON AND RARRAGIN, C.JJ., AND BROOKE, J.

C. AYOTOPE SAVAGE Defendant-Appellant.

v.

S. O. ROTIBI Plaintiff-Respondent.

Practice and Procedure-Promissory Note-Limitation of action raised at Hearing without pleadings-Protectorate' Courts Rules,

1934, Order XXIII.

Plaintiff by his action in 1942 claimed £336 7s., lent in 1933, plus £7'2 13s. 6d., balance of cash lent in 1941; there were no pleadings. At the hearing Defendant (in person) denied liability for the £336 7s., Plaintiff then produced a promissory note for it dated 15th June, 1933. When called upon Defendant, for the first time, made the defence that this note was statute-barred. The trial Judge allowed this defence to be set up and adjourned for Defendant to have counsel to argue it, but eventually held the claim for the £336 7s. was not barred. On appeal by Defendant:

Held: that as the parties regarded the note of 1933 as a promissory note and intended it to be governed by English law-a position accepted by Plaintiff's Writ allocating payments to the 1941 loan-the action thereon was barr.ed.

Held also: that as the action proceeded without pleadihgs and Defendant had no counsel when the hearing began. the trial Judge had a discretion under the Rules of 1934 to allow the defence of limitation, to be set up when defendant was called upon after Plamtiff's case had closed.

Appeal by Defendant from the judgment of the Enugu-Onitsha High Court.

,/

E. j. Alex-Taylor (with him P. E. Nelson-Williams) for

Appellant.

S. B. Rhodes for Respondent.


The Plaintiff's the Unugu-Onitsha

claim from the Defendant Division was:-

in the High Court of

" the sum of £409 Os. 6d .• being various sums of money " received by the Defendant on various dates as loans without " interest particulars nf which-are as follows ;._-

£ s. d.

" June, 1933 cash given on interest-free roan ... 336 7 0

" Balance of cash remaining on £97 15s.. 6d. "interest-free loan-given in April, 1941 .. , ... 72 13 6

£409 0 6

C. Ayotope Savage v. S. O. Rotibi

There were no pleadings, plaintiff's Counsel saying that they

sued on documents only and pleadings did not seem to be necessary.

266

C. Ayotope Savage

Defendant, who was not represented by Counsel at that hearing, then said-

" I admit £72 Us. 6d. " Not liable for the £336 7s. Od. ".

Plaintiff then. proceeded to prove his case which he did mainly relying upon Ex." A ", a document purporting to be a Promissory Note for £336 7s., dated 15th June, 1933.

Thereupon the Defendant was called upon for his Defence and then for the first time disclosed his real defence which was-

.. Claim on Ex ... A" is statute-barred." i.e. barred by the Statute of Limitations.

The learned trial Judge allowed the Defendant to set up that Defence at that stage and granted him an adjournment to enable his Counsel to appear and argue the point of law involved. At the continued hearing Defendant was represented by Counsel who led evidence and then argument was heard from both sides and the Judge gave judgment for the plaintiff in terms of the writ with 40 guineas costs, holding that the claim was not barred by the Statute.

Against that judgment the Defendant has appealed to this Court. Appellant's Counsel argued that, whether or not Ex. " A " was in fact a promissory note, it was clearly regarded as such by both parties, so that it was abundantly clear that both parties intended their obligations to be governed by English law, whereby the Statute of Limitations operated to bar the bringing of this action. He further pointed out that the payments made by Appellant were expressly allocated to the later loan, and that this position was accepted by the Respondent by the very terms of his writ. .

In our view these arguments are unanswerable and conclusive. Indeed Respondent's Counsel did not attempt to refute them. Instead he relied upon a submission that since the Defendant- Appellant had failed to plead the Statute when called upon for his answer to the claim at the opening of the case, he could not be allowed to set it up as a defence after the Plaintiff-Respondent's case had closed. He took this point in the Court below.

If this were a case tried with pleadings his submission would certainly be sound, and the same would apply if both parties had been represented by Counsel when the hearing of the case began, for it has frequently been held that in this country the openings of Counsel take the place of pleadings. But in the circumstances of this case we think that it was within the discretion of the learned trial Judge, under the provisions of Order XXIII of the Protectorate Courts Rules, 1934, to allow the Defendant-Appellant to set up the plea at the time he did. Without saying that we should necessarily

v. S. O. Rotibi

Kingdon,

C.J.

266 C. Ayotope Savage v. S. O. Rotibi

C. Ayotope Savage have exercised the discretion in the same way, we think it impossible

v.

S. O. Rotibi

Kingdon, C.].

for us to say, at this stage, that the discretion was wrongly exercised, and consequently the submission made by Plaintiff-Respondent's Counsel fails.

In the result the appeal is allowed and it is ordered that the judgment of the Court below be varied to read-

.. Judgment for the Plaintiff for £72 135. 6d., and costs assessed at 40 guineas."

We have not varied the assessment of the costs in the Court below since it was only as an indulgence that the Defendant was allowed to set up his statutory defence at the time he did and it was this which caused the prolongation of the trial.

The Appellant is awarded costs in this Court assessed at 30 guineas.

Rex v. Shaibu Yakubu 267



REX Respondent.

v.

SHAIBU Y AKUBU Appellant.

Criminal Law-Criminal Code, section 467 and section 467 (3) (c)- Forgery simple or aggravated-Criminal Code section 438 (b)- Absence of Allegation of intent to defraud in particulars of charge of false accounting,

Following a report by the Defendant that he had been falsifying the books so as to cover amounts withdrawn on an Emir's directions, the accounts were audited and Defendant, a clerk in a native treasury, was charged with forgery under section 467 (3) (c) and false accounting under section 438 (b) of the Criminal Code, and convicted of both charges. The forgery was established, but it was not proved that it related to money payable on account of the Nigeria public service. In regard to the charge of false accounting', the particulars did not allege an intent to defraud. On appeal :-

Held, that the conviction of forgery should not, in the circumstances, have been for all offence against section 467 (3) (c) of the Criminal Code, but for the lesser offence under section 467.

Held also, that intent to defraud being the essence of an offence under section 43l! (b), as such intent had not been alleged in the particulars of offence, the' conviction could not be sustained. ~

Appeal from the High Court, Kaduna.


E. N. Egbuna for the Appellant.

The judgment of the Court was delivered by Harragin, c.]. :-

In this case the relevant facts may be set out shortly as follows. A clerk in a native treasury (the Appellant in this case) reported to his District Officer that for some time he had been falsifying the books in order to cover amounts withdrawn from the cash on the directions of the Emir of Kano.

In consequence of the report an audit of the accounts was made with the result that the Appellant and another clerk were charged on six counts with various offences. At the end of the case the second accused was discharged and the Appellant convicted on counts 2 and 6 which read as follows :-

" Statement of Offence-2nd Count .

.. Forgery, contrary to section 467 (3) (c) of the Criminal Code.

26ti

Rex

v.

Rex v. Shaibu Yakubu

Particulars of Offence.

"Mallam Shaibu Yakubu and Mallam Atiku Katsina, on or before the Shaibu Yakubu

Harragin, C.J.

18th day of February, 1944, at Kano in the Kano Province, forged a document relating to the obtaining of money payable on account of the public service of Nigeria, to wit, an order by the Emir of Kano, for the payment of a sum of £30.

" Statement of Offence-6th Count.

"Fraudulent False Accounting, contrary to section 438 (b) of the Criminal Code.

-: Particulars of Offence

" Shaibu Yakubu, on the 18th day of February, 1944, at Kano, in the Kano Province, being a clerk or servant to the Kanenative authority made false entry in an account book, the property of the Kano Native authority, purporting to show that on that day he had paid the sum of £ 126 25. 8d. to one Wakilin Biya."

Against those convictions he has appealed.

With regard to count 2 the Appellant is charged with an offence against section 467 (3) (c) which provides for an increased penalty for a forgery" relating to the obtaining of any money payable on account of the public service of Nigeria". We are not satisfied that

it has been proved that this forgery relates to money payable on account of the public service of Nigeria; in fact it purports to refer to money taken from the native treasury and advanced to the Emir at his request. There was however evidence upon which the learned Judge might find that the document was forged and he has so found and we 'therefore direct that a conviction be recorded against the Appellant of an offence contrary to section 467, for which a lesser penalty is prescribed. This is clearly a case in which the Court shouldexercise the discretion vested in it by section 11 of Ordinance No. 47 of 1933.

The objection taken to the conviction of the Appellant on Count 6 is of a very different character, for here the Crown has failed to allege in the "Particulars of Offence" an "intent to defraud" which is the very essence of the crime charged and following the judgment of this Court in Rex v. James Ernest Bandoh delivered 1- at Accra on 26th May, 1944, in which the English authorities more particularly Rex v. James and another 12 Cox 127 are discussed we quash the conviction on this count.

In the result in view of the fact that the Appellant now stands convicted of the lesser offence of forgery we substitute for the sentence passed at the trial a sentence of 18 months' I.H.L.

Sterios Thomopulos e- Anor. v. John Mandilas 269

Lagos, 3rd November, 1944

COR. KINGDON AND HARRAGIN, C.J]..

AND BROOKE, J.

1. STERIOS THOMOPULOS } 2. ARIST THOMOPULOS Defendants-Appellants.

v.

JOHN MANDILAS Plaintiff-Respondent.

Partnership-Evidence of formation.

Respondent averred in his Statement of Claim that by a verbal agreement in March, 1936, he and Appellants became partners on the footing that his share of profits and losses would be 25 per cent, 1st Appellant's 50 per cent and 2nd Appellant's 25 per cent. In March, 1936, 2nd Appellant was in Europe. According to Respon- dent's evidence (which was believed) they all met at Ondo at Christmas, 1935, and decided that 1st Appellant should also go abroad at the end of March, 1936, Respondent taking entire charge of the business, which should from 1st April become a partnership on the above footing of sharing profits and losses; further, Respondent and 1st Appellant met in March and confirmed the Christmas agreement but left it to be drawn up after 2nd Appellant's return. 1st Appellant gave no evidence.

For Appellants it was argued 'that if Respondent's case was a contract made at Christmas, it was at variance with his pleading; if one made in March, 2nd Appellant's absence refuted the averment of the three verbally agreeing.

Respondent's case was that the March agreement between him and 1st Appellant bound all three as 2nd Appellant had already agreed to the terms, and that subsequent conduct of all three confirmed existence of partnership .

. Held that at first there had been a mere "agreement to agree ", which sub-

sequently was implemented by all parties as shown by their conduct, the mode of

dealing adopted by partners being evidence of the formation and original terms of

a partnership if such terms are not set forth in any document.

Appeal from the judgment of the Supreme Court- Lagos.

E. J. Alex-Taylor for 1st Appellant.

J. I. C. Taylor for 2nd Appellant. I. F. Cameron for Respondent.


The Plaintiff-Respondent claimed from the two Defendants- Appellan ts-

"(1) Declaration that Plaintiff and Defendants are partners in the firm

of S. Thomopulos carrying on business at 6 Davies Street, Lagos and elsewhere

in Nigeria.

" (2) Dissolution of the said partnership.

270

Sterios Thomopuilos & Anor.

v,

John Mandilas

Kingdon. c.j.

Sterios Thomopulos 0- Anor. v. John Mand£las

"(3) An account of the firm's profits and of the share thereo 0 which

" the Plaintiff is entitled and " (4) Payment to the Plaintiff of such share. "

The Plaintiff obtained judgment practically in terms of his writ and the Defendants now appeal against that judg nent.

By his Statement of Claim the Plaintiff averred- " By a verbal agreement made in or about March. 1936. the Plaintiff

.. and Defendants became partners in the business carried on at 6 Davies Street •

.. Lagos and elsewhere in Nigeria under the firm name of S. Thomopulos in

.. terms of which 50 per cent of the profits of the business was to belong to the

.. first Defendant and 25 per cent each to the Plaintiff and the second Defendant, " the losses to be similarly divided." :

Both Defendants in their pleadings traversed this and averred that the 2nd Defendant was in Europe in March. 1936. This last fact is common ground. It is also common ground that the Ist Defendant furnished the whole of the capital of the alleged partnership.

The learned trial Judge in his j udgrnent stated- .. Plaintiff gave evidence and deposed that on or about Christmas, 1935

.. Plaintiff and Defendants met together and argeed to form a partnership to " come into existence in the following March."

and .. The Plaintiff as a witness created a very good impression on my mind

" and 1 believe him when he says a verbal agreement was entered into by the .. parties to form a partnership commencing at the end of the financial year of " 193" ;" (i.e. on the Ist April, J 936)

and .. The first Defendant did not go into the witness box to deny the

.. partnership and I am satisfied from all the evidence hefore me that a part- " nership did in fact exist between the three parties; "

The whole of this Appeal is an attack upon this finding that a partnership did in fact exist between the three parties.

Perhaps the most dangerous attack is that which criticises the evidence given and the j ud rc's findings as compared with the Plaintiff's pleading. The Appellants seek to put the Plaintiff- Respondent upon the horns of a dilemma in regard to the date upon which the alleged pertnership contract was made.

The Plaintiff-Respondent's evidence was- H Whilst in Ondo at Christmas 1935 the Defendants both came and spent

"Christmas with me It was also decided amongst " the three of us that first Defendant should also go home on leave and on " business at the end of the financial year, i.e. 31st March and I should in the .. meantime take entire charge of the business. We also discussed at that " time after the 31st March the business should become a partnership from the " 1st April, 1936. We decided that 1st Defendant should take and suffer " 50 per cent of the profits and losses and 25 per cent to each of us both profits "and losses; this we all agreed to. That was all that was discussed at "Christmas. In March. 1936, I went to Benin to take stock at Benin with " 1st Defendant. I met Ist Defendant there and he told me (that whilst 2nd .. Defendant was in Lagos on his way home) hearsay. vVe discussed the .. partnership and confirmed our Christmas agreement about the partnership . .. We left the drawing up of the agreement of partnership until 2nd Defendant .. returned."

Upon this the Appellants argue-

If the Respondent's case is that the contract was made in December, 1935, that is at variance with his pleading, and since he made out IlO case to support his pleading it was unnecessary for

Sterios Thomopulotf 0- Anor. v. John Mandilas 271

the 1st Defendant to go into the witness box to refute the only case Sterios Thomopulos

that was made out and the Defendants were entitled to judgment. & Anor.

If on the other hand the Respondent's case is that the contract John v.

was made in March, 1936, then the admitted fact that 2nd Defendant Mandilas

was not present refutes the averment that the three parties verbally . entered into a contract of partnership in that month, and, if the ~gdOn,

Judge held that they did, he must be wrong. .

The argument is forceful and escape from the horns of the dilemma not easy. But we think that the Plaintiff-Respondent does manage to escape. If the averment in the Statement of Claim is looked at closely it will be seen that it does not allege that all three (i.e. Plaintiff and both Defendants) were parties to the verbal agreement. Counsel for Respondent puts it thus-

.. Our plea is that' By a verbal agreement made on or about March, 1936, the Plaintiff and 1st Defendant became partners '-Our case is that that verbal agreement was made between Plaintiff and 1st Defendant and it had the effect of binding all three in a partnership agreement. because 2nd Defendant had already agreed to the terms and the subsequent conduct of all three confirmed the fact of the existence of the partnership."

This case is not at variance with the pleading and there is evidence to support it, the only question is whether, in law, a valid partnership can be created in the manner suggested. We are of opinion that it can and consequently that this attack upon the judgment fails.

We think that the correct way to regard what occurred in Christmas 1935 is that at that time there was an " agreement to agree" {to borrow an expression used by Maugham, L.J. in Foley v. Classique Coaches Ltd. (1934 Vol. 103 L.J. K.B.D. p. 550 at p. 554) which did not of itself constitute a binding contract, that that agreement was subse-quently implemented by all three parties so that a partnership actually came into being on the 1st April, 1936 as is shown by the conduct of all; and that the formal implementing of the agreement to agree took place as between the Respondent and 1st Appellant when they met in March, 1936. "The mode of dealing adopted by partners is evidence of the formation and original terms of a partnership if such terms are not set forth in any document."

(24 Halsbury 2nd Edition p. 418 para. 807.)

For the rest the Appeal attacks the learned trial Judge"s findings of fact and belief of the Plaintiff's evidence.

As to this the case is somewhat remarkable in that each side was able to produce documents in which the other side had put on paper exactly the opposite of their present cases. But the difference is that the Plaintiff went into the box and gave an explanation. whereas the 1st Defendant did not. The facts that by agreement all the parties were to bear their share of losses as well as take their share of profits, and that actually they did so bear their share of

losses are strong prima facie evidence of a partnership. and we think that the learned trial Judge was fully justified in coming to the conclusion to which he did upon the facts.

The Appeal is dismissed with costs assessed at 50 guineas.

272 Rex v. N anwiah Dagarti

Accra, 9th November, 1944

COR. KINGDON AND HARRAGIN, C.J]., AND COUSSEY, J.

REX Respondent.

v.

NANWIAH DAGARTI Appellant.

Criminal Law and Procedure-Trial with Assessors-Murder- Judge's omission to tell Assessors oj benefit. oj reasonable doubt- Criminal Procedure Code, S5. 261 and 264.

Defendant was tried by a Judge sitting with Assessors, to whom, in his summing-up, he omitted to say that defendant was entitled to the benefit of any reasonable doubt. This omission was the only ground of substance in the appeal.

Held, that where a case is tried with a jury or assessors, the judge should explain

to them that Defendant should be given the benefit of any reasonable doubt and record the fact that he did so explain.

Held also, that as the assessors merely gave opinions (and nut a verdict like a

jury) and the decision rested with the judge, it must be presumed that he did not overlook the principle of reasonable doubt in coming to his decision.

Held further, that as appellant had admitted facts in law amounting to murder

properly directed the assessors would have expressed the same opinions.

S. A. Attoh for Appellant.

N - A. Ollennu for the Crown.


There is only one ground of substance upon this appeal, namely Ground 7 (a) :-

"that the learned trial judge omitted to direct the Assessors as to the accused being entitled to the benefit of any reasonable doubt. "

It is true that in the learned trial Judge's notes of his summing- up there is no reference to his having told the assessors that the accused was entitled to the benefit of any reasonable doubt. We regard this as a most serious omission, and cannot emphasise too strongly that in all cases, whether tried with a jury or assessors, the jury or the assessors, as the case may be, should be told by the Judge that the benefit of any reasonable doubt should be given to the accused and the meaning of this should be carefully explained to th.em and it should be recorded in the notes of summing-up that this has been done. Omission to do this may result in the quashing of a conviction on appeal as in the cases of B. R. Lawrence v .. The

Rex v. Namoial, Dagarti. 273 ~

King 1933 A.C., 699 and Rex v. Sawyerr 3 W.A.C.A. p. 155. But we are of opinion that this case differs from those cases in two material particulars, namely :-

(a) It was tried with assessors and not a"jury, and by virtue of the provisions of sections 261 and 264 of the Criminal Procedure Code the decision was vested exclusively in the Judge, and the opinions of the assessors were opinions only and did not amount to the verdict. Although the Judge did not mention it to the assessors, it must be presumed that in coming to his own conclusion he did not overlook the well-known principle of law that the accused is entitled to the benefit of a reasonable doubt; and

(b) In the present case it can be predicated that properly directed the assessors must have expressed the same opinions, because the Appellant admitted facts which must, in law, amount to murder and clearly not to manslaughter only.

For these reasons no substantial miscarriage of justice appears

to be established and Ground 7 (a) fails.

There is no substance in any of the other grounds of appeal and the appeal is dismissed.

Rex v.

Nanwiah Dagarti Kingdon, C.].

18

I

27~ Ate Kwadzo v. Robert Kwasi Adiei


COR. KINGDON AND HARRAGIN, C.ll, AND COUSSEY, J.

ATE KWADZO Defendant-Appellant.

v.

ROBERT KWASI ADJEr Res pondent- Plaintiff.

Claim for declaration of title. to land-Need for plan.

There was a double hearing before the Native Court and two intermediate appeals but the boundaries of the land in dispute to which plaintiff was declared to be entitled remained uncertain.

Held. that before a declaration of title is given the land to which it relates

must be ascertained with certainty. the test being whether a surveyor can from the record produce an accurate plan of such land.

Appeal from the Provincial Commissioner's Court (on appeal from the Avatime State Council, on appeal from the Akome Native Tribunal).

N. A. Ollennu for Appellant.

K. A. Bossman (with him S. Sakyi Djan) for Respondent,


Although this case has been twice heard in the Native Tribunal of Akome and has passed on appeal through the Courts of the Avatime State Council and the Provincial Commissioner of the Eastern Province till it has eventually reached this Court, it is impossible even at this stage to ascertain with any degree of accuracy the boundaries of the land in dispute to which the Plaintiff has been given a declaration of title. The acid test is whether a surveyor, taking the record could produce a plan showing accurately the land to which title has been given. We are quite

certain that no surveyor could do that in this case. This Court has repeatedly pointed out that before a declaration of title should be given the area of land to which it relates must be ascertained with certainty. That has not been done here. The Appeal is

accordingly allowed, the judgment of the Provincial Commissioner's Court, including the order as to costs, is set" aside and it is ordered that if any sum has been paid in pursuance thereof it shall be refunded; the case is remitted to the Provincial Commissioner's Court with the direction that that Court shall rehear the case "entirely de novo with the assistance of a proper plan showing the land in dispute.

Ate Kwadzo v. Robert Kwasi Adjei 275

The judgments in both the Native Tribunal of Akome and Ate Kwadzo

the Avatime judgment in the case will be delivered by the RObe~'

Provincial Commissioner's Court after the rehearing. At the Kwasi Adjei

rehearing all costs incurred in any Court except this Court will be Kingdon,

in the discretion of the Provincial Commissioner. C.].

The Appellant is awarded costs in this Court assessed at £28 17s. 9d.

276 Kwabena Nkansah v. Aboasohene Poakwa & Ors,


COR. KINGDON AND HARRAGIN, C.JJ., AND COUSSEY, J.

KWABENA NKANSAH Plaint~ff-Appellant.

v.

1. ABOASOHENE POAKWA} 2. AFUA FOFIE 3. AFUA POAKWAAH


Right of appeal to TV.A .C.A. Chapter ~O, s. 24 (7) ; Chapter 4, s. 62 (2).

The Wenchi Native Court gave judgment for plaintiff, who again won on appeal to the Magistrate's Court, Wenchi, but lost on appeal to the Chief Commissioner's Court. On further appeal to the W.A.C.A. a preliminary objection was taken that an appeal did not lie.

Held, that an appeal did lie under section 62 (a) of Chapter 4.

The following decision was read by the President:-

We hold that although section 24 (7) of Chapter 80 does not give a right of appeal to this Court in this case, such a right is conferred by section 62 (2) of Chapter 4, and the appeal accordingly lies and is properly before the Court.

Chapter 80 section 24 (7) reads :-

.. Any person aggrieved by any order or decision of the Chief Commis- .. sioner's Court made or given on appeal under subsection (2) or (3) or (I!) .. may within thirty days from the date of such order or decision appeal .. therefrom to the 'West African Court of Appeal."

and Chapter 4 section 62 (2) provides :-

" An appeal against any order or decision given under paragraphs (a)

and (b) of sub-section (I) shall lie to the West African Court of Appeal ".

Kwasi Agyako u. Nazir Zok & Ors.

Accra, 23rd November, 1944

COR. KINGDON AND HARRAGIN,C.JJ., AND COUSSEY,J.

KWASI AGYAKO FORMERLY F. K. AGYAKO Plaint~t!-Appellant.

277

1. NAZIR ZOK 2. MOHAMED HAMIDI 3. LATIF MADJOVB 4. NANA YAW DARANKA,

HENE OF KUMASI

v.

TAFO- }


Land-recovery of possession--damages-injunction-pleadings- estoppel.

Fourth Defendant-Respondent leased the land to the Plaintiff- Appellant. The overlord's consent was not obtained. The terms of the lease included the payment of "homage fee." Plaintiff- Appellant defaulted and Defendant-Respondent re-entered. Ultimately 4th Defendant-Respondent leased the land to 1st and 3rd Defendants-Respondents, whereupon the Plaintiff-Appellant brought this action :-

Held-Trial Judge should have exercised discretion and ordered pleadings- Defendants-Respondents should have denied liability and disclosed defence- estoppel should be pleaded, but if obvious should succeed although not pleaded- Kumasi Native Customary Law precludes leases without consent of overlord.

Appeal allowed.

E. O. Asafu-Adjaye for Appellant.

H. A. Hayfron-Benjamin for Respondents.


The Plaintiff-Appellant caused to issue out of the Divisional Court at Kumasi a writ addressed to four persons, namely 1. Nazir Zok, 2. Samih Madjoub, 3. Mohamed Hamidi and 4. Latif Madjoub in the following terms :-

.. The Plaintiff's claim is-

.. (1) to recover possession of .. AU that piece or parcel of land situate .. lying and being at Kumasi in the vicinity of the Wesley College .. and bounded and measuring as follows: that is to say on the ... North hy the Government Cemetery 150 yards more or less on .. the South hy an Estate formerly the property of Messrs. Elder .. Dempster and Company Limited and now in the possession of .. the Mcthodist Missionary Society ISO yards more or less ou the .. East by the Kumasi-Tumale Motor Road 150 yards more or less .. and on the West by the Kumasi Water Supply Reservoir 150 .. yards more or less" on a portion of which the Defendants have 'J caused buildings to be erected without Plaintiff's knowledge .. and consent.

278

Kwasi Agyako

v. Nazir Zok

& Ors,

Kingdon. C.].

Kwasi Agyako v. Nazir Zok e- Ors.

.. (2) damages for use and occupation by the Defendants of thal " portion on which they have caused buildings to be erected. and

.. (3) for an Injunction to restrain the defendants their servants or "agents from anyway dealing with the said land or cont nuing " possession thereof."

Of these four persons, Nos. 1, 3 and 4 were served and duly defended the action, but No.2. Samih Madjoub, being absent from the Gold Coast, could not be served and took no part in the action, which proceeded in his absence.

In this Judgment Nazir Zok, Mohamed Hamidi and Latif Madjoub are referred to as the first three Defendants-Respondents.

Since Samih Madjoub is one of the persons alleged. to he in possession of part of the land in dispute of which the Plaintiff- Appellant claims recovery of possession, the absence of Samih Madjoub from the proceedings is most unfortunate from the Plaintiff-Appellant's point of view since any judgment which he might have obtained in the Court below or may obtain in this Court cannot operate against Samih Madjoub.

At the end of the first day's hearing, after the Plaintiff had given his evidence in chief and been cross-examined and partly re-examined, Nana Yaw Dabanka, Tafohene of Kumasi, was brought into the suit as a 4th Defendant. (In the Court below he is referred to as 5th Defendant but in this Judgment will be referred to as 4th Defendant-Respondent.) It would have been far more satisfactory if he had heen made a Co-Defendant at the outset.

But these were not the only unsatisfactory features of the trial. It proceeded, as provided by Order 25 rule 1 of the Rules of Court, without pleadings, but in our view the suit was clearly one in which the learned trial Judge should have exercised the discretion vested in him by the rule and ordered pleadings. However since there were no pleadings it was most important that the provisions of Order 35 rule 12 should be observed. The rule reads ;-

" In cases where written pleadings have not been filed. or the parties "or either of them is incapable of understanding their effect with sufficient .. accuracy. the preceding rules respecting the order of proceeding at the .. hearing shall be varied by the Court so far as may be necessary. In "particular, the statement of the defendant in defence where he does not .. admit the whole cause of action, shall be heard immediately after the .. plaintiff has concluded the statement of his claim and of the grounds thereof, "and before any witnesses are examined, unless in any case the Court shall " see reason to direct otherwise."

Instead of the proceedings at the trial following this rule. the Plaintiff gave his evidence immediately after a comprehensive opening by his Counsel; and after the evidence of Plaintiff and his witnesses, the evidence for the Defence was heard before there was any suggestion on the record of any submissions by Counsel

for the Defendants. Nowhere does it specifically appear even

Kwasi Agyako v. Nazir Zok 6- Ors. 279

that the Defendants denied liability, far less is the nature of their Kwasi

defence (if any) disclosed, save so far as it may be gathered by the A~~~O

cross-examination and evidence. Even when it comes to the final Nazir Zok

addresses all that is recorded in regard to the Defendants' cases & Drs.

~s "Mr. Benjamin addresses Court." This Court is left entirely Kingdon.

In the dark as to the nature of the address or as to what pleas c.j,

Mr. Benjamin may have set up on behalf of the respective Defendants. The absence of pleadings, or, failing written pleadings, the absence of any verbal plea by Defendants' Counsel in answer to the opening by Plaintiff's Counsel was most unfortunate.

The facts of the case are that in 1934 the 4th Defendant- Respondent, as Tafohene, and five of his councillors leased the land in dispute for a term of 50 years to the Plaintiff-Appellant. The land is situated in the Kumasi Division and according to custom the Kumasihene should be a consenting or confirming party to the lease. He did not consent to or confirm this lease to the Plaintiff-Appellant but there is no reason to suppose that he would not have done so if he had been so requested, for there is no apparent reason why he should have refused.

By the terms of the lease the Plaintiff-Appellant was to pay an annual "homage fee" of £4 on the 1st of September in each year. It was a.lso a term that the 'grantor could re-enter on the land .if the annual homage fee be unpaid for three months, but that in the event of re-entry the Plaintiff-Appellant was to be entitled to resume occupation of the land on payment of the homage fee due.

The Plaintiff-Appellant went into possession and the " homage fees" for 1935, 1936 and 1937 were paid and received. But that for 1938 was, according to Plaintiff-Appellant, refused for inadequate reason although four times tendered. It was proved that the fee was sent to the 4th Defendant-Respondent by registered post in November, 1938 but that in spite of three reminders from the postal authorities the 4th Defendant- Respondent did not collect the letter.

On 27th March, 1939 the 4th Defendant-Respondent informed the Plaintiff-Appellant that he had re-entered the land owing to Plaintiff-Appellant's neglect to pay the homage fee. The. Plaintiff- Appellant refused to accept this position and warned the 4th Defendant-Respondent against meddling with the land.

On the 15th October, 1942 the 4th Defendant-Respondent with the consent. of the Kumasihene (who had by then become Asantehene) leased the land to the 1st and 3rd Defendants- Respondents (not, as the learned trial Judge incorrectly states 'in his judgment to the 1st and 2nd Defendants). In pursuance of

this lease the 1st and 3rd Defendants-Respondents entered upon the land and each built a house upon it, they also gave a portion

280

Kwasi Agyako

v. Nazir Zok & Ors.

Kingdon, C.J.

Kwasi. Agyako v. Nazi.r Zok 0- Ors. of the land to Samih Madjoub and the 2nd Defendant-Respondent, Mohamed Hamidi, and these two persons also built a house on the land, making a total of three houses altogether, each of which is said to have cost £1,500.

The 3rd Defendant-Respondent swore that they knew nothing about the Plaintiff-Appellant or his claim, and that if they had they would not have touched the land. The learned trial Judge dismissed the Plaintiff's claim giving only one ratio decidendi as' follows :-

.. Anyhow, in an action of this sort the onus is on the plaintiff to prove .. title. I am satisfied from the evidence of the Secretary of the Kumasi .. Divisional Council, whom I believe, that according to native customary "law. the Tafohene of Kumasi had no right to lease any land to anyone .. without the knowledge, consent or confirmation of his Paramount Chief. "i.e. the Kumasihene (now also recognized as the Asantehene) .

.. I find, therefore, that the plaintiff's lease on which his claim is based .. is not a valid lease and his action must therefore fail."

It is now that the absence of pleadings is seen to be so unfortunate, because had this point upon which the case was decided been raised by pleading the Plaintiff-Appellant would have had a complete answer to it by pleading estoppel.

It is clear that the 4th Defendant-Respondent, who executed the lease and put the Plaintiff-Appellant into possession and received at least three years' homage fees, must be estopped from now setting up a plea that the lease is invalid since he himself executed it improperly, and it is equally clear that the first three Defendants-Respondents, who derive title from the 4th Defendant- Respondent are also estopped. (13 Halsbury (2nd Ed.) para. 572

p. 505).

It is of course, a rule of pleading that estoppel must be specifically pleaded. In this case there were no pleadings and consequently no plea of estoppel, but we are of opinion that in the circumstances that should not prevent the Plaintiff-Appellant from succeeding upon what is such an obvious answer to the point decided against him in the Court below. But that, in our view, is not the only reason why he should succeed, for we disagree with the learned trial Judge's finding that the Plaintiff's lease is not a valid lease. It is true that the Secretary of the Kumasi Divisional Council said :-

" According to native custom the Tafohene cannot grant lease of .any "land to anyone without the consent of the Kumasihene. I see this lease- "Exhibit' 1 '. It is a lease made between the Tafohene and the Plail.:.tiff- .. it was made in 1934. The Asantehene's name is not in this .Iease, The .. Asantehene was recognized as such in 1935. but his name should have "appeared on ~~bit • 1 ' as Kumasihene. This lease is definitely not valid .. according to na.tive custom."

And the 4t~ Defendant-Respondent said "if a sub-chief grants a lease of land without the consent of the Paramount Chief then that lease is not valid" ; but these men could not be expected to appreciate any difference between a lease being void or merely

Kwasi Agyako v. Nasir Zok 0- Ors.

voidable. In this connection the evidence of Agyeman, the Registrar of the Asantehene's Divisional Court is material. He

Kwasi Agyko

v.

281

said " A lease for 50 years of any land within the Kumasi Division must be confirmed by the Kumasihene otherwise it is invalid."

We think that there can be no doubt that a lease made without the consent of the K.umasihene is not void ab initio but is voidable at the instance of the Kumasihene (not at the instance of the lessor).

We, therefore, hold that the original lease dated 19th September, 1934 from the 4th Defendant-Respondent to the Plaintiff-Appellant, not having been voided, still subsists and prima facie entitles the Plaintiff-Appellant to possession of the' land in dispute.

It remains to consider whether the possible defence that the 4th Defendant-Respondent had lawfully re-entered upon the land owing to non-payment of homage fee could succeed. If it were not that the rights of the parties could be clearly ascertained from the documents in evidence we should have to send the case back to the lower Court to determine this point. But, apart from the Plaintiff-Appellant's own sworn evidence, we think that the documents prove beyond doubt that the homage fee due on the 1st September, 19.38 was duly tendered by the Plaintiff-Appellant and was refused by the 4th Defendant-Respondent without good cause, and that the act of the 4th Defendant-Respondent in re- entering in March, 1939 was unlawful and did not put him into the position of being able to make a fresh valid grant in derogation of the Plaintiff-Appellant's rights. That the Plaintiff-Appellant never acquiesced in the position is clear from his letters. On the 30th March, 1939 he wrote in Exhibit 5a :-

" I must state in conclusion that our agreement still holds good and .. any attempt on your part to lease a part of my plot to anyone will lead to "serious troubles."

And on the 28th April, 1939 he. wrote (Exhibit 6a) :-

" I acknowledge with thanks the receipt of your letter dated the 20th " inst. From this I learn that you have re-entered and taken possession of "the plot leased to me in 1934 for fifty years on the ground that I paid in "the rent too late. After a careful reading of our agreement I find that you "have no grounds, legally speaking, for the attitude you have taken. I .. advise you, therefore, to withdraw the letter.

" Should you, however, decide to ignore this advice, then I must warn "you in the most emphatic terms not to meddle with my plot; for if you .. did the Iezality of your action will be subjected to a severe test in the Court "of Law."

These letters of the Plaintiff-Appellant make his attitude so plain, namely that he had no intention whatever of abandoning his claim to "the land, that we feel compelled to disagree with the learned trial Judge when he says" According to the evidence the Plaintiff had, for all practical purposes, abandoned this land."

Nazir Zok & Ors.

Kingdon,

C.J.

28'2

Kwasi Agyako

v. Nazir Zok & Or5.

Kingdon, C.].

Kwasi Agyako v. Nazir Zok 0- Ors.

We think it makes no difference to the Plaintiff-Appellant's

rights that, until shortly before action brought, there had been no actual tender of the homage fees due in 1939, 1940, 1941 and 1942. The fee for 1938 had been refused when tendered and the Plaintiff-Appellant had been deprived of possession on the specious excuse that it had not been paid. The Plaintiff-Appellant is in our view entitled to recover the possession of which he had been deprived before there was any homage fee due and untendered.

As to the claim for damages, Counsel for Plaintiff-Appellant has intimated in this Court that he will not press this claim, but will be content to have his right to possession and undisturbed enjoyment of his occupation restored to him. We accordingly make no order upon the claim for damages.

The Plaintiff-Appellant is entitled to the injunction which he seeks, but we think that in equity the first three Defendants- Respondents should be allowed a reasonable opportunity to remove whatever they have put upon the land.

The appeal is allowed, the judgment of the Court below including the order as to costs, is set aside, and it is ordered that if any sum has been paid in pursuance thereof it shall be refunded; it is ordered that judgment be entered for the Plaintiff-Appellant granting him recovery of possession of the piece or pared of land described in his claim and an injunction restraining the Defendants-Respondents their servants or agents from in any way dealing with the said land or continuing in possession thereof, save that the first three Defendants-Respondents shall have the right at any' time within four months from the date of this judgment to enter upon the said land by themselves and jor servants and jor their agents and to remove therefrom whatever they may have put upon the said 'land provided that in so doing they do no greater damage to the said land than is reasonably necessary for the said purpose.

The Plaintiff-Appellant is awarded costs in this Court assessed

at £41 3s. 9d. and in the Court below to be taxed.

Rex o. Emmanuel Joseph Cobolah 283


COR. KINGDON AND HARRAGIN, C.J]., AND'DOORLY, J.

REX ... Respondent.

v.

EMMANUEL JOSEPH COBOLAH Appellants.

Criminal Law, Procedure, and Evidence-Expert evidence on handwriting-Privilege not to produce proceedings-Discretion as to the calling of a witness-Judgment immediately after hearing-Cap. 4, s. 77.

Defendant was convicted at Assizes of falsifying accounts and of stealing on ample evidence. On appeal it was argued that a policeman could not give expert evidence on handwriting; that the proceedings in the Government Inquiry relative to the falsification of accounts should not have been withheld on the plea of privilege; and that the Court should have called a witness whom the Crown did not; and he took exception to the Judge's reading out his judgment immediately after the close of the hearing.

Held (1) that a policeman who had made a study of handwriting could give

expert evidence in the Gold Coast;

(2) that evidence taken at an inquiry could not be admitted as evidence in the trial if in the opinion of the Colonial Secretary it was in the public interest not to produce it;

(3) that the trial Judge had rightly used his discretion in refusing to call a witness whom either party could have called;

(4) that there is nothing to prevent a Judge from writing his judgment after the close of all the evidence subject to any amendment he may wish to make on the Bench due to the 'submissions of Counsel.

Appeal by Defendant from the Accra Assizes.

F. Dove for Appellant.

K. A. Bossman for Crown.

The judgment of the Court was delivered by Harragin,

C.]., Gold Coast.

The Appellant in this case was convicted by Coussey, ]. at the Accra Assizes on the 9th of August, 1944, on twelve counts, six having relation to falsification of accounts whilst the remainder were for stealing under section 271 of the Criminal Code. Against these convictions he has appealed to this Court.

On the facts there is no substance in the appeal. There was ample evidence upon which the trial Judge could find the accused guilty, and indeed it is difficult to see how he could have come to any other conclusion.

284:

Rex v.

Emmanuel Joseph Cobolah

Harragin, C.].

Re% v. Emmanuel Joseph Cobolah

Counsel for the Appellant has, however, argued the several

points of law set out in his Grounds of Appeal. In Ground 1 the submission is made that a policeman is unable to give expert evidence as to handwriting. This is based on the old case of Rex v. Crouch (4 Cox, page 163) and certain other cases which follow that ruling, but the facts in the case of Rex v. Crouch are different from those that appear in this case. In Rex v. Crouch a policeman with no particular training in handwriting happened to see the accused sign his name once, and on the strength of that signature sought to give expert evidence as to the accused's handwriting on certain documents. The policeman had no special training in comparing handwritings and the Court rejected this expert evidence. In this case the expert evidence submitted on behalf of the Crown was that of a policeman who had made a study of handwriting whilst attached to the Metropolitan Police, and we are of the opinion that his evidence as an expert was rightly admitted by the trial Judge for the reasons given in his finding. In any event it is clear under Cap. 4, section 77, that his evidence was admissible in this Colony whatever may be the position in England.

In Ground 2 the Appellant takes exception to the Court below having permitted the Colonial Secretary or his representative to plead" Privilege" when asked to produce the proceedings in an Inquiry which had been instituted by Government in relation to these falsifications of accounts. There is no substance in this argument as, quite apart from the law which permits the plea of " Privilege", if in the opinion of the Colonial Secretary it is in the public interest. the evidence taken at that Inquiry could under no circumstances be admitted as evidence in this case. It is possible that, had a request been made for a copy of the evidence given by one particular witness at the Inquiry, the request might have been acceded to, but as the whole proceedings not unnaturally would include the findings of the Inquiry, it was certainly not in the public interest that it should be produced.

Exception was also taken to the fact that the trial Judge did not exercise his discretion to call a certain witness by the name of Akuetteh. This is entirely a matter for the discretion of the trial Judge, and it cannot be suggested that his decision was unreasonable. The general rule is that the calling of a witness by the Judge after the close of the case for the defence should be limited to cases where something has arisen on the part of the prisoner ex improviso, which no human ingenuity could foresee (Archbold's Criminal Pleading Evidence and Practice, 31st Ed. p. 481).

Counsel for the Appellant made capital out of the fact that the Crown had failed to call a witness who might have been able to throw some light on the matters at issue but he certainly cannot

Rex v. Emmanu,el Joseph Cobolah 285

take any legal objection to the fact that the trial Judge did not Rex

use his discretion to assist either the prosecution or the defence Emma:~el

by calling a witness which one of them might well have called. Joseph Cobolah

Ground 9 of the Grounds of Appeal is unique. In that ground exception is taken to the fact that the trial Judge read his judgment immediately after Counsel for the Crown had replied. No comment could have been made upon this if the trial Judge had delivered a verbal judgment which was taken down by a shorthand writer, and we are therefore unable to understand why the trial Judge should not himself, in a commendable attempt to expedite the trial, write down the judgment he intends to give after the close of all the evidence, subject to any amendment that he might like to make on the Bench due to the submissions of Counsel. It may be a disappointment to Counsel for the defence that his address is unable to sway the mind of the Judge but it is certainly not unusual and it cannot be a legitimate ground of appeal.

The appeal is dismissed.

Harragin, C.J.

M. Khoury. By deed of assignment fendants-Respondents

Elias J. Moubarak

assigned his one-half undivided interest and share in the lease-hold

Gabriel Michel 0- Anor. II. Frederick 0- An!)r.

Accra, 4th December, 1944.

COR. KINGDON AND HARRAGIN, C.JJ., AND DOORLY, J.

GABRIEL MICHEL AND JOSEPH

MICHEL BIKHAZI, TRADING UNDER

THE NAME OR STYLE OF BIKHAZI

BROTHERS OF SEKONDI Plaintiffs-AppeUants.

v.

FREDERICK AND MAGID KHOURY,

TRADING UNDER THE NAME OR STYLE

OF F. & M. KHOURY OF SEKONDI Defendants-Respondents.

Land-Lease-assignment-partition or sale.

By a Lease Executrices-Trustees demised certain premises

to Elias J. Moubarak and the De F. &

premises to the Plaintiffs-Appellants, who then gave notice to the

tenants and the Defendants-Respondents of intention to occupy;

but the Defendants-Respondents objected to occupation and use,

or to partition. Judgment was given for sale of Plaintiffs-Appellants

share in the property; the Defendants-Respondents to have first

option of purchase.

Held,' Plaintiffs-Appellants had right to insist on partition. Difficulty of partition is no reason for refusing it.

Held f!4rthu that sections 2. 3 and 4 of the Partition Act. 1868 (31 & 32 Viet .. c.40) have no application because they depend upon request from party having the right to make it, and here there was no such request.

Appeal allowed.

Cases referred to ;- Pembuton v. Barnes (L.R. 6 CII. Ap. 081i) overruled by

Pitt v. Jones (5 A .C. 651)

Mayfair Property Coy. u. johnston (1894) 1 Ch. 508

C. C. Carter for Appellants.

K. A. Bossman for Respondents.


By their writ in the Divisional Court of Sekondi the Plaintiffs'

claim was as follows :-

" By a Lease dated the 10th January. 1940. for the consideration there- .. in mentioned Fanny Wood and Sarah Yawson the Executrices-Trustees of "J. D. Wood (dec.) demised to Elias J. Moubarak and F. & M. Khoury portion .. of the Testator's land situate at Lagoon Road, Sekondi, for the term of thirty " (30) years.

Gabriel Michel 0- Ano,. fI, F,ederick 0- An01'.

.. Bya Deed of Assignment dated the 6th September 19'3 the said Elias .. J. Moubarak for the consideration therein mentioned assigned his one-half .. (i) undivided interest and share in the said leasehold premises together with .. the buildings thereon to the Plaintiffs herein.

" After the said Assignment the Plaintiffs gave notice to quit to O. K. .. Stores, the tenants occupying the stores in the said buildings and also to the .. Defendants of the Plaintiffs intention to occupy and to use the said stores .. for their own business; but the Defendants have objected to the Plaintiffs' .. occupation and use of the said stores, or to a mutual partition of the said .. buildings and premises.

" The Plaintiffs claim :-

.. (a) A division or partition of the said property among the parties .. interested."

Or, in the alternative, a sale of the said buildings and premises .. including the lease-hold interest, and distribution of the proceeds " among the parties interested .

.. The Plaintiffs also claim such further and other relief in the premises as

.. to the Court may seem just."

There were pleadings and the evidence of both sides was heard. At the conclusion of the case the learned trial Judge in giving judgment made the following order:-

.. I order a sale not of the whole property but of the Plaintiffs' share in .. the property. I also order that the Defendants should be given the first .. option of purchasing the same after it has been valued by three independent .. persons having regard to the price paid by the Plaintiffs to Moubarak."

He awarded the Defendants the costs of the action. Against that order the Plaintiffs appeal to this Court.

It is clear that the order cannot stand because it is based upon

the decision of Hatherley, L.C., in the case of Pemberton v. Barnes (Law Rep. 6 Ch. Ap., 685) and it was never brought to the notice of the Judge that that decision was overruled by the judgment of the House of Lords (Hatherley, L.C., dissenting) in the case of

Pitt v. Jones (5 A.C., 651).

The result is that the Plaintiff is left with his right to insist on partition.

In our view none of the sections 2, 3 and 4 of the Partition

Act, 1868 (31 & 32 Vict. C. 40) have any applicability to this case, because the operation of all of them depends upon a request, from a party or parties having the right to make it, that the Court will order sale instead of partition. Here there has been no such request; certainly the Defendants-Respondents have not made one; their attitude throughout has been one of strenuous resistance to either partition or sale; nor do we think that the fact that the Plaintiffs claim in the alternative a sale can be construed as a request to the Court to order a sale instead of partition.

The learned trial Judge stated :- " It is clear to the Court that a partition of the premises among the present

"parties having regard to the evidence would undoubtedly produce much .. difficulty."

But the case of Mayfair Property Company v. Johnston (1894) 1 Ch., 508 is authority for the proposition that difficulty of partition is no reason for refusing partition.

Gabriel Michel & Anor.

v. Frederick & Anor.

Kingdan,

C.J .

288

Gabriel Michef& Anor.

v. Frederick & Anor.

Kingdon, C.].

Gabriel Michel & Anor. v. Frederick & Anor.

So far as we are able to tell without being able to inspect the

property there should be no great difficulty in partitioning the property by making the dividing line the imaginary line dividing into two equal halves the lower part of the staircase and continuing such imaginary line vertically and . longitudinally throughout the property. But since there may be difficulties which are not apparent to us, we make no definite order that that is to be the line of partition.

The appeal is allowed, the judgment of the Court below, including the order as to costs, is set aside, and it is ordered that if any sum has been paid in pursuance thereof it shall be refunded; the case is remitted to the Court below to make an appropriate order partitioning the property as prayed by the Plaintiffs and to make and give all consequential orders and directions.

The Plaintiffs-Appellants are awarded costs in this Court assessed at £47 105. Ll d., and in the Court below to be taxed, Counsel's costs being determined by the judge.

Rex v. Ernst Friedrich. 28~

Accra, 5 December, 1944

COR. KINGDON AND H.\RRAGIN, C.J]', AND M'CARTHY, ]. REX

Respondent.

v.

ERNST FRIEDRICH ... Appellant.

Criminal Law-Criminal Code, s. 271 (1) ; s. 34-Stealing by means of employment; defence of lawful appropriation.

Appellant was charged on seven counts with stealing by means of employment on certain dates; but he was convicted on counts 4, 5 and 6 only. There was no concealment or attempt at concealment of the respective appropriations: in every case his account was debited with the cost of the goods appropriated. He was manager of de Santos' business with practically a free hand, and de Santos had written to him to say: "Regards the lime- Franklin venture, of course I will be in it ". The goods set out in counts 4 and 6 were appropriated by the Appellant to be used in the " lime" venture. As regards the goods set out in count 5, Appellant said he sold them to Abdo, who credited Appellant's personal debts. On appeal it was argued that Appellant's appropriation was lawful and exonerated within the terms of 5. 3-1, the necessary proof being furnished by his acquittal on counts 1 and 2; and in regard to count 5, that de Santos had previously approved his having materials for his personal use and charging himself at stock prices. At the dates set out in counts 1 and 2 Appellant's account with de Santos was in credit.

Held (1) that before section 34 comes into operation it must be proved that it was lawful .. to appropriate the particular moneys or other things or any of them .. ;

(2) that the acquittal on counts 1 and 2 having been due to the trial Judge's giving Appellant the benefit of the doubt, in view of his account being in credit, was no proof that the appropriation was lawful, and the Judge was right in ignoring s. 34 in regard to those counts;

(3) that in regard to counts 4 and 6, as Appellant had a f.ractically free hand and Santos had said he would join the" lime ' venture, Appellant was entitled to an acquittal in respect of the goods he gave for that venture;

(4) that in regard to count 5, Appellant was dishonest in giving Abdo goods belonging to de Santos for the purpose of repaying his own debts.

Appeal from the Accra Assizes.

E. C. Quist (with him K. A. Bossman and J. Sarkodee Adoo) for Appellant,

Akufo Addo for Respondent.

29(}

Rex

v.

Ernst

Friedrich

Kingdon,

C.J.

Rex fJ. Ernst Friedrich


The Appellant was charged at the Accra Assizes upon the following seven counts :-

.. First Count.

" Stealing by means of employment;

" Contrary to section 271 (I) of the Criminal Code.

" Particulars of offence.

" Ernst Friedrich on or about the 31st day of May, 1943 at Accra in the

"Eastern Province stole 75 gallons of petrol and 4 gallons of Ery-oil all to the

"value of £12 12s. property of Manoel Assumcao de Santos of w~ch he had

"the control by reason of his employment as manager of the business of the

" said Manoel Assumcao de Santos.

" Second Count,

" Stealing by means of employment:

" Con+rary to section 271 (I) of the Criminal Code.


" Ernst Friedrich on or about the 30th day of June, 19,13, at Accra in the

"Eastern Province stole 56 gallons of petrol and 4 gallons of Ery-oil all to

.. the value of £9 5s. property of Manoel Assumcao de Santos of w~ich he had

.. the control by reason of his employment as manager of the business of the

.. said Manoel Assumcao de Santos .

.. Third Count.


" Contrary to section 271 (I) of the Criminal Code .

.. Particulars of offence .

.. Ernst Friedrich on or about the 28th day of July. 1943. at Accra in the

"Eastern Province stole one typewriter property of Manoel Assumcao de

" Santos of which he had the control by reason of his employment as manager of

" the business of the said Manoel Assumcao de Santos .

.. Fourtb Count.


.. Contrary to section 271 (1) of the Criminal Code.


" Ernst Friedrich on or about the 1st day of September, 1943 at Accra

•. in the Eastern Province stole 37 empty lime drums and 8 gallons of petro

.. all to the value of £29 19s. 8d., property of Manoel Assumcao de Santos of

" which he had the control by reason of his employment as manager of the

" business of the said Manoel Assumcao de Santos.

« Fifth Count.

(. Stealing by means of employment:

" Contrary to section 271 (1) of the Criminal Code.

" Particulars of offence .

.. Ernst Friedrich on or about the 21st day of September, 1943 at Accra

" in the Eastern Province stole 4 dozen brass bolts, 2 dozen paint brushes,

'44 pairs of assorted hinges, 12 cylinder latch locks, 11 drums of distemper,;

"2 drums of paint, 235 pieces of gutter brackets. 78 gutters 2 pieces of board,

" 2 lb. of wire nails, and 4 tins of turpentine all to the value of £70 9s. 5d., pro-

" perty of Manoel Assumcao de Santos of which he had the control by reason of

" his employment as manager of the business of the said Manoel Assumcao .. de Santos .

.. Sixth Count .

.. Stealing by means of employment:

.. Contrary to section 271 (1) of the Criminal Code .

.. Particulars of offence .

.. Ernst Friedrich on or about the 28th day of September, 1943 at Accra

.. in the Eastern Province stole 1 gallon of turpentine, II gallons of Oxide

"paint, 50 pieces of nuts and bolts and 75 empty oil drums all to the value of

.. £57 148. 3d. property of Manoel Assumcao de Santos of which he had the

"control by reason of his employment as manager of the business of the said .. Manoel Assumcao de Santos.

Rex v. Ernst Friedrich

" Seventh Count,


291 Rex

v.

" Contrary to section 271 (I) of the Criminal Code. " Particulars of offence.

"Ernst Friedrich during the month of December, 1943 at Accra in the "Eastern Province stole 200 corrugated iron sheets all to the value of £20 "and 175 pieces of timber all to the value of £14 18s. property of Manoel " Assumcao de Santos of which he had the control by reason of his employment " as manager of the busi.ness of the said Manoel Assumcao de Santos."

He was acquitted upon counts 1, 2, 3 and 7, but convicted upon counts 4, 5 and 6, and sentenced to 3 months' I.H.L., on each of those counts the sentences to run concurrently. Against those convictions he has appealed to this Court. It will be convenient to consider ground 2 (c) of the grounds of appeal first. It reads :-

.. (e) The Learned Trial Judge misdirected himself in law inasmuch as he " failed to consider the effect of section 34 of the Criminal Code (Cap. 9) in "relation to charges 4, 5 and 6 upon which he convicted the Accused and "having regard to the facts and circumstances established in the Accused's ., favour."

We have given very careful consideration to this ground and to the, terms of section 34 of the Criminal Code. That section reads :-

Ernst Friedrich

Kingdon, c.j.

"34. If it is proved, on behalf of a person accused of having stolen or .. committed a fraudulent breach of trust in respect of moneys or other things, "that it was lawful for him to appropriate the particular moneys or other " things, or any of them, and that he was only bound to account for the " amount or value thereof, he shall not be deemed guilty in respect of the moneys " or things which he has appropriated, unless proof is given against him that " he has admitted that the appropriation of them was dishonest or proof is "given that he has concealed or absconded with them or with the proceeds of " them, or that he has concealed or denied, or attempted to conceal, or refused .. or omitted to disclose according to his duty, the fact of the receipt or disposal " of them, or it is made to appear that he knew that the effect of the disposal " of them would be tb disable him from accounting for the amount, value, or " proceeds of them according to his duty."

It will be seen that before the section comes into operation it must be proved that it was lawful" to appropriate the particular moneys or other things or any of them." It has been submitted on behalf of the Appellant that the fact that he was acquitted on counts 1 and ~ constitutes, of itself, the necessary proof; but we cannot agree with this proposition.

In acquitting on counts. 1 and 2 the learned trial Judge said :-

"From these figures it may be seen that when the goods mentioned in "counts 1 and 2 were appropriated by accused his account with de Santos "was in credit and I am not prepared to say on the evidence, although de " Santos had not at that time agreed to come into the Lime Venture, that the .. accused knew or believed that de Santos' consent to the appropriation would .. not have been given."

As we understand that it means that the Judge gave the Appel- lant the benefit of the doubt as to whether or not the appropriation was criminally dishonest ; that is something very different from proof that it was lawful. We are therefore of opinion that the learned trial Judge rightly ignored the provisions of section 34 of the Criminal Code; and this ground of appeal fails. The remainder of the argument submitted to us was directed to show that there

•

292

Rex

Ernst


v.

was no proof of guilty knowledge or dishonest appropriation on the part of the Appellant and that the learned trial Judge mis-

Friedrich

Kingdon,

C.J.

directed himself in this respect.

At the outset it must be pointed out in Appellant's favour- and this particular point applies equally to counts 4, 5 and 6-- that there was no concealment or attempt at concealment of the respective appropriations. In every case suitable entries were made debiting the Appellant's account with the cost of the goods appropriated; but this, though a strong point, is not conclusive of innocence.

The convictions on counts 4 and 6 on the one hand and on count 5 on the other must be dealt with separately.

To deal with counts 4 and 6 first.

It is common ground that the goods set out in these counts were appropriated by the Appellant to be used in what has been termed fl the lime venture", it is also common ground that the Appellant was manager of the business of de Santos with practically a free hand, and it is in evidence that prior to the dates of the appropriations de Santos had written to the Appellant :-

.. Regards the lime-Franklin venture, of course I will be in it I am "sure it will pay O.K. Also I am sure that Franklin must have gone into .. details and will not rush to put his own money in it if the prospects were not '·good."

In our view it is possible that these facts taken together may have led the Appellant to believe that de Santos would approve of his stock of materials being used to benefit a venture in which he had declared his intention of joining. If that is so the appropriations were not dishonest and Appellant is entitled to an acquittal; we think, in any case, he is entitled to the benefit of the doubt on these counts. The learned trial Judge did not put the facts and argument on these counts in quite this way and we think that, in so far as he omitted to do so the omission amounted to a misdirection.

For these reasons the appeal against the convictions on counts 4 and 6 is allowed, the convictions and sentences upon those counts are quashed and it is directed that in respect of counts 4 and 6 a judgment and verdict of acquittal be entered.

The facts on count 5 are very different.

Appellant's own evidence as to this transaction is :-

"The things I sold to Abdo I acquired first from de Santos and then I .. sold them to Abdo. Abdo Bros. paid for the goods. I had debts with .. Abdo Bros. and to repay my debts I gave them these goods. They did not .. pay for the materials in cash. My debts to Abdo were my own personal .. debts. I gave the materials to Abdo Bros. on the same basis as that which .. de Santos would have done."

That basis was cost price, although the value of the materials had become greatly enhanced.


The Appellant's justification for this appropriation is

exceedingly weak. In fact he attempts two justifications; first he says that de Santos had previously approved his having materials from store for his personal use and I understood that whenever I needed things for my personal use I could take them and charge myself at stock prices."

But they are two very different things to take materials for personal use and to take them in order to use their value in liquida- ting a debt. Secondly Appellant says, in effect, that in giving the materials to Abdo at cost price he was merely carrying out de Santos' policy of helping his fellow contractors; but if this were the case the obvious course was to pass the entry straight into de Santos' books as a credit sale to Abdo.

In all the circumstances we are in entire agreement with the

learned trial Judge's finding upon this count.

" I am satisfied that accused n-either knew nor believed that de Santos' .. consent would have been forthcoming. The appropriation was therefore " dishonest."

The Appellant's appeal upon count 5 is dismissed and the conviction and sentence upon that count arc upheld.

293

Rex v.

Ernst Friedrich Kingdon. C.].

IU~1Ill!rw •••• _ •• _. ••

SELECTED JUDGMENTS WEST AFRICAN COURT OF APPEAL

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