Mori Bayor V. Commissioner Of Income-tax (1955)

LawGlobal Hub Judgment Report – West Africa Court of Appeal

Income Tax Ordinance—Section 18: assessment—Section 18 (3): new business— Section 52: additional assessment—Section 57: appeal against assessment—Section 57 (4): onus on appellant to prove it is excessive.

Facts

The fiscal year is from 1st -April to ensuing 31st of March. The assessment for a year is based on the income of the preceding year (section 18 (1) ), but where a new business is begun in a year, then section 18 (3) provides that:—
“(a) For the first year the assessable income shall be the amount of the income of that year;

“(b) For the second year the assessable income shall, unless such notice as hereinafter mentioned is given, be the amount of income of one year from the date of the commencement of the trade, business, profession, vocation or employment;

“(c) For the third year the assessable income shall, unless such notice as is hereinafter mentioned be given, be computed in accordance with the provisions of sub-section (1) of this section.’
(No question of notice arises in this case.)

The appellant had been assessed at certain figures for the years 1951-52 and
1952-53;’but in the year 1953, owing to information received of large-scale dealings of his, the Commissioner of Income Tax, acting under section 52, which gives him power to make additional assessments, re-assessed the appellant at much more for 1951-52 and 1952-53 and made a similar assessment for 1953-54.

He did so having regard to the appellant’s total worth just before 1st April, 1951, and to what he estimated to be the increase in total worth between that date and the 31st March, 1953; and he assumed that the appellant had begun new operations from 1st April, 1951, as accounting for the increase in total worth, which he took to represent the appellant’s income over the period.

The appellant appealed to the Supreme Court under section 57. As sub-section (4) thereof throws the onus, on the appellant to prove that the assessment is excessive, he had to satisfy the Judge on two points:—

(1) that the increase (if any) in his total worth was not due to starting a new business but to mere expansion of the old;
(2) that the estimated increase in his total worth was excessive.
On point (1) if he had succeeded, the basis of assessment for 1951-52 would have been the income of the preceding year, instead of the income of 1951-52 itself, which was adopted by the Commissioner by virtue of section 18 (3) (a). (That was the practical effect in this case in the result.) He failed before the Judge and appealed further.

As regards that point: The appellant traded at a certain place. The Commissioner alleged that he also had shops at two other places; thisthe appellant denied in his evidence; whereupon the Commissioner amended his assessment by deleting the item. There were no more questions and no other evidence on the new business which the appellant was supposed to have started and carried on since April, 1951.

As regards point (2): This related to the figures of income estimated by the Commissioner for 1951-52 and 1952-53. The appellant succeeded in having those figures reduced to some extent but was not content and appealed further on this
point also.

The second half of the judgment infra deals with the evidence and the Judge’s views on the value of the furniture and fittings and on the amount of cash dealings of the appellant and the inference of the increase in his total worth: (the details will not be gone into here; the practical effect was on the assessments for 1952-53 and 1953-54 in the result).

Held

(1) The Commissioner’s assumption that the large increase in the appellant’s capital worth was due to his starting a new business after 1st April, 1951, was made at a time when the Commissioner thought that the appellant had begun business in two other localities; as the assumption appeared to have been based in that respect on mistaken facts and there was no evidence to contradict the appellant’s testimony that his only business throughout the period was the old one, the Judge erred in holding that the Commissioner’s assumption had not been displaced.

(2) The onus of proving that the assessments were excessive was on the appellant; but the observations made by the Judge on the value of the appellant’s furniture and fittings and on the amount of his cash and drawings were fully justified on the evidence and ought to be affirmed.

Appeal allowed to the extent of setting aside the re-assessment for 1951-52; the judgment below affirmed as to amount of income in 1951-52 and 1952-53.

M. D. Bassil & Anor V. Abraham Kwaku Honger (1954)

Native Law and CustonF—.Master marrying his own female slave—Position of children and their uterine descendants—Lease of family property without concurrence of principal members.
Estoppel—Testimony in another suit not affectingfamily’s position—Testimony by person not a party to that suit.
Res Judicata—Cases not resting on same foundation: different parties, etc

Facts

One Mama Nassu married some female slaves of his and a lawful wife; the main controversy was whether it was only the maternal descendants of the lawful
wife who had a voice in leasing property of the Mama Nassu family: the maternal
descendants of the slave wives claimed that they had a right to be consulted.

At the material time Acquah (the second appellant above) was the head of the family. He, with the concurrence of the family, authorised someone to make an agreement for a lease with G. & S. Busby (but Acquah denied these facts).

Later, Acquah, with the concurrence of his sisters and niece, who with him were
the descendants on the side of Mama Nassu’s lawful wife, but without the concurrence of the principal members on the side of the slave wives—in fact those
of them he consulted opposed it—executed a lease of the premises in favour of
Bassil (the first appellant above).

The Busbys sued Acquah for specific performance of the agreement for a lease to them, and in that suit members of the Mama Nassu family on the side of the slave wives gave evidence that there had been a valid concurrence to a lease to be given to the Busbys. The trial Judge thought (rightly: see the appeal No. 34/53, George Busby and Another v. Kefi Nassu Acquah, decided on 30th June, 1954) that Acquah by executing a lease in favour of Bassil put it beyond his
power to implement the agreement with the Busbys and refused the Busbys’
claim. (For the Busbys’ appeal see p. 574.)

A. K. Honger, the respondent above, sued as head of the family of G. A. Nelson, according to the title of the suit, in fact as head of the Mama Nassu family, and the defendants Acquah and Bassil (appellants above) agreed to have him regarded as such for the purpose of the suit; the plaintiff (now respondent) claimed that the lease be set aside and obtained judgment.

The defendants appealed and the arguments for them were, as they had been in the trial Court, (1) that the descendants on the side of the slave wives had no right to be consulted, and (2) that (a) having supported the Busbys in the earlier suit, they were estopped from pursuing their present suit, and (b) the Court having held in the earlier suit that the lease to Bassil was a bar to granting specific performance to the Busbys thereby declared upon the validity of the lease to Bassil (which was now in question here).

Held

When a master married his own female slave, their children were by customary law adopted into his family and their uterine descendants are members of his family on the same footing as the free uterine descendants therefore the lease to the first appellant executed by the second appellant and his sisters and niece was not valid as against the other principal members of the family and was of no effect as a lease.

Held also: (a) The attitude of the other principal members of the^family in
the earlier suit in which they were not parties was consistent with the respondent’s claim in the present case; the argument drawn from estoppel failed as there was
no alteration in the family’s position.

(6) The judgments in the above suits did not rest on the same foundation: the parties were not the same nor the cause of action; there were no admissions in the earlier suit on which the defendants could rely in the second suit, nor was the validity of the lease here in question an issue in the earlier suit: therefore there was no res judicata.

Appeal dismissed.

Chief Nsidintak Bassey & Anor V. Chief Asuquo Ekanem & Anor (1953)

Real property—Rights offishing—Watercourse. Minerals Ordinance, section 3—Rights of Crown in rivers, etc.

Facts

In the Supreme Court the plaintiffs (for the people of Idere) sued the defendants (for the people of Atan) for a declaration of title to a fishing pond “property of the plaintiffs ” and for damages for trespass; they succeeded and
the defendants appealed.

The evidence showed that the ” pond ” was part of a series of creeks or streams linked with a river. The plaintiffs (respondents) were the occupiers of land on one bank of the so-called pond and claimed the fishing rights in relation to their rights to that land. The defendants (appellants) alleged that the fishing rights were enjoyed communally by themselves and other people.

The Minerals Ordinance by section 3 (first enacted in 1916) vests the property in and control of all rivers, streams and watercourses in the Crown. It was not adverted to in the Court below and its effect on rights of piscatory in the case was not considered.

There was no evidence whether the streams involved in the case were a part of tidal waters (and affected by Braide v. Adoki, 10 N.L.R., p. 15, which decided that all inhabitants had common rights of piscatory in tidal waters in view of the said section 3) or non-tidal (on which there is no case decided on fishing rights).

Held on appeal

There being no evidence on whether or not the waters in which rights of fishing were claimed were a part of tidal waters, the judgment of the Court below would be set aside and a non-suit entered; and the Law Officers would be informed in view of section 3 of the Minerals Ordinance.

Judgment set aside; non-suit entered.

Hussein Kalil Basma V. Allie Noureldine (1952)

LawGlobal Hub Judgment Report – West Africa Court of Appeal

Landlord and Tenant—Breach of covenant—Re-entry or Forfeiture—Notice of breach—Discretion of Court—Conveyancing Act, 1881, section 14 (1) and (2)—Circumstances—Compensation.

Facts

Shortly put, sub-section (1) of the above section requires a Lessor to give the lessee notice of breach of covenant and call on him to remedy it and make compensation, and sub-section (2) enables the Court in an action for forfeiture to grant relief to the lessee having regard to the conduct of the parties and the circumstances.

The appellant gave the respondent notice on 18th May, 1949, under the covenant for repairs, and again on 24th May, 1950, under the covenant to pay rates; the appellant sued for recovery of possession on 27th June, 1950, alleging default in the respondent on the covenants; the trial began on 21st November, 1951, and the Court visited the premises next day.

The respondent, in spite of receiving notice of the rates in November, 1949, did not pay them, and appellant paid them, with the poundage for delay, on 11th May, 1950 (before suing); he refused the tender of the amount he paid and respondent paid it into appellant’s banking account on 30th May, 1950 (before the action). The appellant justified his refusal on the ground that no compensation was offered.

As regards repairs the respondent testified that he had made the repairs stated in the notice of 18th May, 1949, but his architect testified to the contrary, and the visit of the Court showed that the respondent hurriedly painted a portion of the premises and laid linoleum to cover rotten boards requiring replacement.

The respondent expressed regret and undertook to repair to the satisfaction of the appellant, and the Court thought it was a proper case for relief and discretion in respondent’s favour.

The appellant appealed on the ground that the trial Judge “exercised his discretion on wrong principles or no principles at all”.

Held

So far as compensation in regard to rates paid by Hie appellant was concerned, that could only mean interest between the 11th and the 27th May, 1950, when tender was made, which was a negligible amount.

In regard to repairs, however, the notice was given on 18th May, 1949, but the repairs had not been made by the 22nd November, 1951, when the Court visited the premises; moreover the respondent had alleged in his defence that he had carried out the repairs stated in the notice—which was untrue—and also tried to mislead the
Court by hasty painting at the last minute and covering of rotten boards: his conduct disentitled him to relief and the Judge was wrong in exercising his discretion in the respondent’s favour in the circumstances.

Appeal allowed.

J. B. Bardi & Anor V. L.H Maurice (1954)

LawGlobal Hub Judgment Report – West Africa Court of Appeal

Tort—Libel—Plea of justification—Fair comment—Statements of fad—Allegation of disreputable motive—Publication to persons not interested. Practice and Prodecure—Description not meaning representative suit.

Facts

The respondent sued with the above description after his name, and one argument in the appeal was that he had sued in a representative capacity.

The appellants wrote of him that his “tenure as Sekondi-Takoradi Ibo Head was suspicious and inimical to the welfare and interests of the Ibos at large, we the undersigned . . . decline our confidence, etc.”. They circulated this to various bodies and persons and also had it published in a newspaper.

The trial Judge ruled against the defendants (appellants) and the argument for them in their appeal was justification and fair comment—defences that they had e in the court below without success.

Held

(1) To succeed on the plea of justification the appellants-defendants had the onus to justify the imputation complained of by the respondent, but they had failed to do so.

(2) They had alleged a disreputable motive, and that was an allegation of fact to be supported by evidence. Therefore the defence of fair comment failed.

(3) The appellants published the libel to persons who had no interest in the subject and were unjustified in what they had done

Appeal dismissed.

James Sam Bansah Of Swedru V. G. B. Ollivant, Ltd. (1954)

LawGlobal Hub Judgment Report – West Africa Court of Appeal

Appeals in Civil Cases—Appealfrom Judge’s refusal to review hisjudgment—Special leave to appeal not obtained—Such refusal an interlocutory decision—Cap. 5, section 3 (3).

A Judge’s refusal to review his judgment is an interlocutory decision and if special leave to appeal from the refusal has not been obtained, the appeal from the refusal is not properly before the Court of Appeal; therefore the Court has no power to grant leave to amend the notice of appeal.

Appeal struck out.

Mrs. F. Bamgboye & Ors V. The Administrator-General & Anor (1954)

LawGlobal Hub Judgment Report – West Africa Court of Appeal

Executors and Administrators—To what extentreal estate may he administered— Administration (Real Estate) Ordinance of 1917 (Cap. 2), section 2 and the second proviso—The Administrator-General’s Ordinance of 1938 (Cap. 4), section 30 (1).

Facts

Section 2 of Cap. 2, the Administration (Real Estate) Ordinance of 1917, provides that “real property of whatsoever nature of which the intestate might have disposed by will . . . shall for the purposes of administration be deemed to be part of the personal estate . . . and be administered accordingly ”; but the second proviso imposes these limitations:—

“Provided also that the real estate shall not be administered unless the administrator shows to the satisfaction of the Court that the personal estate is insufficient to pay the intestate’s debts and the expenses of his funeral, and of taking out administration.”

By section 2 of the Administrator-General’s Ordinance of 1931 (Cap. 4),
“assets ” are defined to include (besides movables) certain immovable property
and ” estate ” (besides goods, etc.) all interests in land and chattels real.

And section 30 (1) of Cap. 4 provides that ” the Court on the application of the Administrator-General or of any person interested in the assets of an estate or in the due administration thereof, may give to the Administrator-General directions as to any estate in his charge in regard to the administration of any such estate.”

(Mention is also made in the judgment of section 16 (1) of Cap. 4, but Crown Counsel conceded that the order under appeal could not be protected by section 16 (1).)

The above-named deceased died intestate and his estate was being administered by the Administrator-General under a grant to him of letters of administration.

The estate included an area of land, and the Administrator-General applied for leave to sell a portion stating in his affidavit that the price offered was reasonable, that the would-be purchaser intended to create a building estate, and that this would enhance the value of the remaining land; and, in a further affidavit, that the liquid cash in his hands was running short as some children had withdrawn much for education under orders of the Court, that other children were contemplating applying for similar advances, and that the proposed sale of a portion of the land would make more ready cash available.

The note of the Judge making the order prayed for stated that, ” It is more than likely that more money will be wanted for the education of the children and it is therefore not unwise to realise some liquid assets now when a reasonable price can be obtained ”.

For the appellants it was argued, on the basis of the second proviso to section 2
of the Administration (Real Estate) Ordinance of 1917 (Cap. 2), that there was nothing in the affidavitsto show that there was a case for the sale of land.

Counsel for the Administrator-General did not rely on that Ordinance but on section 30 (1) of the Administrator-General’s Ordinance of 1938 (Cap. 4). (The attitude of counsel for the other respondent, the purchaser, seemed to be that his client’s conveyance was protected by some statutory provision; which was not relevant to the question whether the order giving leave to sell was valid.)

Held

The administration of an intestate’s real estate is governed by the special provision in section 2 of the Administration (Real Estate) Ordinance of 1917, there being nothing in the later general provision in section 30 (1) of the Administrator-General’s Ordinance of 1938 to affect that special provision; the order appealed from had been made per incuriam and could not be supported.

Appeal allowed; order set aside.

Matthew Olajide Bamgbose V. John Bankole Daniel & Ors (1954)

LawGlobal Hub Judgment Report – West Africa Court of Appeal

Marriage Ordinance of the Colony of Lagos of 1884—Section 41—Distribution of intestate’s estate—Children of customary marriages—Dw/ndu/iow under Statute of Distribution, 1670, and Act of 1685—Legitimacy by law of country of origin—Nigeria.

Facts

On appeal from the judgment of the West African Court of Appeal dated 2nd June, 1952 (in last preceding pages).

One John St. Matthew Daniel died intestate and his estate fell to be distributed in accordance with section 41 of the Marriage Ordinance, 1884 (not the Marriage Ordinance of 1914 as was assumed in the Court of Appeal in Nigeria, but there is no material difference affecting the appeal); he was born to his parents after their marriage under the Ordinance.

Before their marriage the parents had had a son named Pedro, who (it may be assumed for the purposes of this case) became legitimated by the subsequent marriage of his parents by virtue of the Legitimacy Ordinance, 1929; and Pedro married under the Marriage Ordinance, and the
appellant claimed to be his only child. It was said that John married several wives in polygamous form under native law and custom, and that the respondents were children of his from those wives.

The appellant claimed as lawful nephew of the deceased John to succeed to the whole estate; the respondents claimed as children of the deceased to exclude him. The contest turned on the interpretation of the said section 41 (text in judgment infra) which provides that where any person who is issue of a marriage under the Ordinance dies intestate—

“The personal property of such Intestate and also any real property of which the said Intestate might have disposed by Will shall be distributed in accordance with the provisions of the law of England relating to the distribution of the personal estates of Intestates, any native law or custom to the contrary notwithstanding.”

In Nigeria a man may marry more wives than one under native law and custom (so long as there is no subsisting marriage between him and a wife married to him under the Marriage Ordinance) and the children are legitimate.

All the parties in the case were natives of Nigeria and domiciled in Nigeria. (It remained to be proved, under the order of the Court of Appeal, whether the
respondents were children of wives married to the deceased John in customary’ form, but for the purposes of the case it may be assumed that they were.)

The argument for the appellant before the Judicial Committee was (1) that children under the Statute of Distribution, 1670, and the Act of 1685 (which is the relevant law of England for the purposes of the Nigeria Marriage Ordinance) meant children who could claim kinship with the deceased through monogamous marriage (viz. marriage under the Marriage Ordinance), and (2) that the Statute of Distribution could not be applied to polygamous unions because of the difficulty of applying its provisions to a plurality of wives. (Note: in this case there was no claim-by any wife to a share in the estate of the deceased.)

For the respondents the argument was that by the law of their domicile of origin they were legitimate children of the deceased and accordingly came within the class of persons entitled to succeed under the English Statute.

Held

(1) Section 41 of the Marriage Ordinance of 1884 applies the Statute of Distribution to a limited class of persons domiciled in Nigeria, and the effect of the application of the statute in the cases to which it applies is to fix the order of succession according to a table different from that prevailing under native law and custom, leaving it to the Courts to determine, in accordance with the settled principle that the legitimacy or illegitimacy of a child is to be determined by the law of that country which is the country of its origin, where at the time of its birth its parents were domiciled, who are the particular individuals who fall within any particular classin the succession table; and the statute cannot be limited in its local application in Nigeria to children who are the issue of monogamous unions;

(2) Whatever difficulties may arise in the case of the mothers of the children in this case (as to which no opinion is expressed) the claims of the children as lawful children of the deceased must be considered independently and are not affected by the question whether the status of their mothers as wives of the
deceased can or cannot be recognised.

Appeal dismissed.

Matthew Olajide Bamgbose V. John Bankole Daniel & Ors (1952)

Marriage Ordinance (Cap. 128), section 36 (1)—Distribution of intestate’s estate—Issue of customary marriage.

Facts

The above named deceased, John St. Matthew Daniel, was bom to his parents after they married in church (viz. under the Marriage Ordinance). Before their marriage, they had another son named Pedro, who later married in church and had a son, Matthew Oladije Bamgbose, the above appellant. John himself did not marry in church. He died intestate.

After his death a number of persons, John Bankole Daniel and eleven others, No. 1 respondents above, claimed his estate as being his children bom of wives married to him under native law and custom; but their claim was opposed by the above appellant relying on the decision in In re Adeline Subulade Williams, 7 W.A.C.A. 156, and seeking meanwhile to establish his relation to the deceased John by proceedings under the Legitimacy Ordinance for a decree that his own father (Pedro, bom before the parents married) became legitimated as a son to the parents of the deceased John by their subsequent marriage.

The above appellant failed in the Supreme Court and lodged an appeal in the proceedings under the Legitimacy Ordinance.

To revert to the proceedings relating to the estate of John, the deceased. The above respondents moved the Court for an order that the real estate be partitioned amongst them and for another order requiring the Administrator-General to distribute amongst them the surplus of the personal estate; and the above appellant moved the Court for an order staying the distribution of the estate until his appeal in the legitimacy proceedings should be determined. The Supreme Court ordered partition and distribution amongst the respondents, and the appellant appealed.

In this appeal both sides relied on section 36 (1) of the Marriage Ordinance,
which provides that:—

” Where any person who is subject to native law or custom contracts a marriage in accordance with the provisions of this Ordinance, and such person dies intestate, subsequently to the commencement of this Ordinance, leaving a widow or husband, or any issue of such marriage; and also where any person who is the issue of any such marriage as aforesaid dies intestate subsequently to the commencement of this Ordinance—

“The personal property of such intestate and also any real property of which the said intestate might have disposed by will, shall be distributed in accordance with the provisions of the law of England relating to the distribution of the personal estates of intestates, any native law or custom to the contrary notwithstanding

“Provided that. . . ” (text in the judgment on appeal infra).
The appellant relied on the interpretation and application thereof in In re Adeline Subulade Williams, 7 W.A.C.A. 156 (which excluded persons whose rights depended on native law and custom, and was favourable to appellant’s claim), the respondents on the later decision (which was favourable to their claim as appears below) in In re Sarah I. Adedovoh and ten others, W.A.C.A. cyclostyled report dated 23rd November, 1951, declining to follow the decision in In re A. S. Williams as one given per incuriam.

The Court of Appeal was now being asked to say which was the right decision on the meaning and effect of the section aforesaid, which was the fundamental point of substance in the dispute.

If the Court of Appeal adopted the later decision there was still the question of whether the respondents were in fact children of customary marriages as they
claimed.

Held

(1) The decision in In re A. S. Williams was given per incuriam; the later decision in In re Sarah I. Adedovoh and ten others was the right decision and the one binding the Court in applying section 36 (1) of the Marriage Ordinance: the status of the respondents—that is to say, whether they are the legitimate children of the intestate—is to be determined, according to the law of England, by reference to the law of the domicile of their parents at the time of their birth, viz. the native law and custom applicable to each of the respondents.

(2) The evidence that the respondents were legitimate children of the intestate
under customary law was inadequate, and the orders for partition and distribution should not have been made.

Appeal allowed: order for hearing de novo.

Kwamin Badu V. Kofi Donkoh (1955)

LawGlobal Hub Judgment Report – West Africa Court of Appeal

Native Courts—Appeals in matters relating to land. Jurisdiction—Appeals from Native Courts—Land matter.

Facts

The plaintiffs (above appellants) as heads of three houses of a Family, out of the four) sued the defendant claiming delivery up of Stool properties comprising certain specified lands and their plans and the Family Stool and its paraphernalia, and averring that he had been removed from the headship of the Family. The defendant’s line of defence was that the Stool had been founded by someone of his house, which had broken away from the other three houses and which owned the lands and the Stool.

The Judge of the Land Court, to which appeal was made, declined jurisdiction, and the question before the Court of Appeal was whether or not this was a suit relating to land; if not, the appeal lay to the Magistrate’s Court.

Held

The real matter in controversy was the ownership of the lands; the removal of the defendant was an ancillary matter averred to show the plaintiffs’ right to claim possession of the land and other property; and the allegation of a joint family was incidental to thejus tertii set up by the defendant.

Appeal by plaintiffs from the Land Court sitting on appeal from the Native
Court on point ofjurisdiction: No. 7 of 1954.

Appeal allowed; case remitted to the Land Court.