Chief J. T. Princewill Amachree V. W. F. H. Newington, District Officer, Degema (1952)

LawGlobal Hub Judgment Report – West Africa Court of Appeal

The above rule reads: “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.”

The nine appellants as co-plaintiffs sued the respondent claiming a single amount for damages for assault and false imprisonment. In the course of the case for the plaintiffs the trial Judge invited Counsel for the plaintiffs to consider whether it was competent for them to bring one action, and Counsel said it was as they were all detained at the same time and in the same places.

He did not call all the plaintiffs to give evidence. At the end of the case the Judge nonsuited the plaintiffs on the ground that it could not be said they had jointly together a ground for instituting a suit for the damage each had suffered, and each must sue separately. The plaintiffs appealed.

Held

Order 4, rule 2, permits joinder of plaintiffs but not joinder of causes of action. There was no joint tort, for the damage caused to each plaintiff could only be personal to each of them. The suit was wrongly constituted and a non-suit was the proper order.

Appeal dismissed.

Alhaji A. Alli & Ors V. Union Trading Company Ltd. (1954

Appeals in Civil Cases—Appealsfrom Supreme Court decisions on appeal from Magistrates—Appeal by special leave—Time for appealing.

Section 12 of the Magistrates’ Courts (Appeals) Ordinance (Cap. 123), provides that:—

“Any person aggrieved by a decision of the appeal Court (viz. the Supreme Court) in a civil case may appeal to the West African Court of Appeal in the same manner as if such appeal were from a decision of the Supreme Court in the exercise of its original jurisdiction and the provisions of the West African Court of Appeal Ordinance and the rules made under the provisions of the West African Court of Appeal Order in Council, 1948, relating to appeals in civil cases shall apply to any such appeal.” (As
amended by Ordinance No. 23 of 1952.)

Section 4 (i) of the West African Court of Appeal Ordinance (Cap. 229), provides that:—
“… where the Supreme Court has affirmed the decision of a Magistrate’s Court the appeal shall lie only by special leave of the Supreme Court.”

Rule 14 (1) and (2) of the West African Court of Appeal Rules, 1950, read:—
“(1) Subject to … no appeal shall be brought after the expiration of fourteen days in the case of an appeal against an interlocutory decision or of three months in the case of an appeal against a final decision, unless the Court below or the Court (viz. of Appeal) shall enlarge the time.

“(2) The prescribed period for appeal shall be calculated from the date of the decision appealed against.

“Provided that where there is no appeal as of right the prescribed period shall be calculated from the date upon which special leave to appeal is granted.”

Shortly put, rule 1 of the Supreme Court (Civil Procedure) (Amendment No. 3)
Rules of 1952 provides that an application for special leave shall be made within fourteen days from the date of the decision and shall be supported by grounds of appeal which prima facie show good cause for leave to be granted (text towards end of judgment infra).

The Supreme Court on appeal from the Magistrate affirmed his decision, and the appellants applied for special leave to appeal from the Supreme Court three months and one day after the date of the Supreme Court judgment. (They, it would seem, were given special leave and lodged their appeal.)

When their appeal came up before the Court of Appeal, the respondents raised a preliminary objection on the ground that rule 1 of the 1952 Amendment No. 3 Supreme Court Rules had not been complied with, and on the ground that the appeal had not been brought within three months of the Supreme Court judgment.

For the appellants it was argued that the prescribed period was to be calculated from the date on which special leave had been granted, in aocordance with the proviso to rule 14 (2) of the West African Court of Appeal Rules, 1950.

Held

The argument for the appellants meant that the appeal could be brought at any time. The preliminary objection was valid on all grounds and the appeal would be struck out

Appeal struck out.

Subuola Alake & Ors V. Bisi Pratt & Ors (1955)

Distribution on intestacy—legitimacy—determinable by law ofthe country of a person’s origin—public policy.

Facts

It had to be determined in this case whether children born out of wedlock to their father are entitled to share in his estate together with the children who are the issue of a marriage contracted under the Marriage Ordinance.

The trial Judge found that by the Native Law and Custom ofthe Yoruba people, the paternity of the two appellants having been acknowledged by the deceased during his life-time, they are to be regarded as legitimate under the law in Nigeria, but further held that it was incompatible with public policy for children bom out of wedlock to be placed on the same footing as those born in lawful wedlock, and accordingly held that the appellants should be excluded from participation in the estate.

Held

The evidence in this case is that under Yoruba Law and Custom all legitimate children are entitled to share in their father’s estate, and as the appellants have been held to be legitimate they are entitled to so share, and the question of their parent’s marriage is not relevant, and this would not be contrary to public policy.

Appeal allowed.

Kwasi Akyeampong as successor to Kwanbena Nkromah V. Kwaku Atakora & Ors (1952)

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Mortgage—Sale without due notice.

Facts

Appellant’s predecessor in title (deceased K.N.) mortgaged three farms to the respondent Kwaku Atakora by deed containing a power of sale with a proviso that this power shall not be exercised unless there was default in payment “on demand, and also for . . . one month next, after a notice in writing requiring such payment shall . . . have been given” (full text in judgment below).

The loan was £220, repayable after a certain time, but before that time was up the
respondent (Kwaku Atakora) gave the appellant (as successor to the deceased) notice to pay, and without further notice the farms were sold, after the date on which payment was due, for £378.

There were two other mortgages already due for payment, one for £225 in favour of K.E., the first co-defendant, and the other for £48 in favour of K.A., the second co-defendant.

The respondent Kwaku Atakora and the first codefendant paid off the second co-defendant, and shared the proceeds of sale.

The appellant (as plaintiff below) sued the respondent Kwaku Atakora (as defendant) claiming £158 (viz. £378, the proceeds of sale, less £220 due to this defendant) which would have been the balance but for the other mortgages, or in the alternative to set aside the sale or to have damages.

That defendant caused the other three co-defendants (the third being the auctioneer) to be joined. The trial Judge dismissed the claim.

The plaintiff appealed and his main ground was that the notice of intention to sell was not legal or proper in that when it was given the debt was not due for repayment under the mortgage deed, and the sale was therefore wrongful.

Held

The proviso in the deed meant that if on the date on which repayment was due, after demand, the debt was not paid, then the mortgagee, if he wished to exercise the power of sale, must give notice in writing requiring payment and could only sell if there was default for a month after notice. The sale was therefore wrongful, but as the sale took place about three months after the due date and there was no evidence that the appellant could have repaid the debt or that he suffered any damage from the wrongful sale, his appeal would be dismissed.

Appeal dismissed.

Appolus Akwu V. Commissioner Of Police (1952)

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Magistrates’ Courts Ordinance, sections 20 and 21—Jurisdiction ofMagistrate, Grade III, in criminal cases.

Sections 20 and 21 of the Magistrates’ Courts Ordinance read as follows:—
“ 20. Subject to the provisions of this and of any other Ordinance, or Law, a magistrate of the first grade shall have full jurisdiction in criminal causes and power as hereinafter set forth:—

“(1) For the summary trial and determination of criminal cases as follows:—
“(a) where any person is charged with committing an offence or with doing any act or with omitting to do any act required by law, the commission or omission of which is in any case punishable either by fine not exceeding two hundred pounds or by imprisonment not exceeding two years or by both; power to impose the punishment
specified by law;

“(b) (i) where any person is charged with committing an offence or with doing any act or with omitting to do any act required by law, the commission or omission of which isstated by the enactment declaring such to be both an offence and to be one punishable or triable or liable to be dealt with on summary conviction or summarily or in a summary manner; power to award the maximum sentence of imprisonment and to order the payment of the maximum fine or penalty or forfeiture provided by such enactment or both such imprisonment and such fine or penalty or forfeiture where by law both may be imposed;

“(ii) where any enactment provides that an order for the payment of money may be made on summary conviction or summarily or in a summary manner in respect of any act or omission; power to order the payment of the sum which may be ordered
according to the provisions of the enactment providing for the making of the order;

‘(c) where any person is charged with committing an offence or with doing any act or with omitting to do any act required by law, the commission or omission of which is an offence, not stated to be triable on summary conviction or summarily or in a summary manner and is stated by the enactment declaring such to be an offence that is punishable either by a fine exceeding two hundred pounds or by imprisonment exceeding two years or both, but taking into account the circumstances of the particular offence with which such person is charged and the character and antecedents of the accused himself the court is of opinion that the charge then before the court appears to be one of such a nature that, if proved, it would be adequately punished by any of the following punishments:—

“(i) imprisonment for not more than two years;
” (ii) a fine not exceeding two hundred pounds, such fine to be enforced in default of payment by distress or by imprisonment for not more than two years;
“(iii) in each of the above cases with or without whipping and any additional or alternative punishment in respect of offences for which such punishment may legally be inflicted;

“(iv) any lesser penalty or order which a magistrate in the exercise of his summary jurisdiction may impose or make, power to impose such punishment;

“Provided that the person so charged, if the magistrate decides to proceed in accordance with sub-section (1) (c) shall be informed by the magistrate before any evidence is taken of his right to be tried in the Supreme Court and such person consents to be tried by the magistrate:

“Provided further that if the magistrate shall not so inform the person charged the trial shall be null and void ab initio unless the person charged consents at any time before being called upon to make his defence to being tried by the magistrate, in which case the trial shall proceed as if the person charged had consented to being tried by the magistrate before the magistrate proceeded to hear evidence in the case;

” (2) To receive and inquire into all charges of indictable offences, and to make such orders in respect thereof as may be required by the provisions of any Ordinance or Law for the time being in force in relation to procedure in respect of indictable offences.

” 21. Subject to the provisions of this and of any other Ordinance or Law the jurisdiction and powers of magistrates of the second and third grades in criminal causes shall be as follows:—

“(a) magistrates of the second grade: all those set out in section 20, save that the maximum fine of not exceeding two hundred pounds and the maximum period of imprisonment of not exceeding two years mentioned in that section shall be replaced by a sum of not exceeding one hundred pounds and a period of not exceeding one year and such limitation shall extend to any cause or matter whether or not the offence be one declared to be punishable or triable or liable to be dealt with on summary conviction or summarily or in a summary manner;

“(d) magistrates of the third grade: all those set out in paragraph (a) herein save that the maximum fine and the maximum period of imprisonment shall in no cause exceed a sum of twenty-five pounds or a period of three months* imprisonment respectively.”

This was a Case Stated (W.A.C.A. No. 3782) and the effect of it is that a Magistrate, Grade III, can try an offence punishable up to £200 fine or two years’ imprisonment or both, without the defendant’s consent, but can only impose a fine up to £25 or imprisonment up to three months. With the defendant’s consent, he can try an .offence punishable with more than £200 or two years but, again, he can only impose up to £25 or up to three months at most.

Held

It follows, therefore, that our answer to the question asked is in the negative.

Question answered on the case stated, In the negative

Lajide Onamogba Akuru V. Olubadan-in-council (1954)

Native Law and Custom—Land tenure in Ibadan. Evidence—Traditional evidence on family or communal land—Evidence Ordinance (Cap. 63), section 44. Real Property—Declaration of title—Discretion—Laches and acquiescence.

Facts

Section 44 of the Evidence Ordinance provides that ” where the title to or interest in family or communal land is in issue, oral evidence of family or communal tradition concerning such title or interest is relevant ”.

The appellant claimed against the Ibadan Native Authority a parcel of land as belonging to his family, and damages for wrongful leasing to firms and collection of rents by the defendants.

His case was that his ancestor had settled on the land in 1824 and occupied it until 1900 when the Bale’s Council established a market there with the permission of the plaintiff’s family, who collected the tolls, but that in 1904 the Native Authority began to allow European traders to build on the land and received the rents without giving the family any share.

The family did not protest at the time; later, when in 1919 a commission was enquiring into land holdings of non-natives, the family did not air any grievance; nor did they in 1937 claim any compensation in respect of some of the land acquired compulsorily by Government.

The case of the Native Authority was that Ibadan was acquired by conquest and the land vested in the head of the community, who could evict occupiers on payment for improvements and use the land for public purposes or for newcomers likely to benefit the community.

The trial Judge was in doubt whether evidence of tradition could be given for the plaintiff but considered it nevertheless and found it worthless; he also thought that the plaintiff was estopped by laches and acquiescence from maintaining his claim.

The plaintiff appealed from the dismissal of his suit.

Held

(1) Traditional evidence for the plaintiff was admissible undersection 44 of the Evidence Ordinance, but in this case it was worthless.

(2) A declaration of title is a discretionary remedy, and even if the appellant had made out a claim to full ownership up to 1904, the laches and acquiescence of his family since then destroyed any right they may have had to such a declaration.

Appeal dismissed.

Chukwura Akunne V. Matthias Ekwuno & Ors (1952)

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Native Law and Custom—Special tenure in an area re tenants and tappers. Appeals in Civil Cases—Objection to evidence not objected to below not entertained.

Facts

In the Court below the plaintiffs claimed a declaration of title to certain land, damages for trespass and for placing wine tappers on the land, and an injunction.

The defendants consented to the declaration sought but not to damages or injunction. The plaintiffs alleged that the defendants held the land under an ordinary farming tenancy, and that they had failed to pay the tribute; the defendants alleged a special form of customary tenure and payment of the tribute.

The trial Judge found in defendants’ favour, concluding his judgment with a statement that the agreement empowered them to put tenants and tappers on the land without having to obtain the plaintiffs’ consent every time. The plaintiffs appealed: their Counsel argued against the findings of the Judge; also that certain evidence was inadmissible; but no objection to it was made at the trial.

Held

The findings of the Judge of that special form of tenure in the area were supported by the evidence; the onus was in any case on the plaintiffs, but they failed to satisfy the Judge.

Per curiam: The Court would not entertain argument on evidence being inadmissible when no objection had been made to it at the trial.

Appeal dismissed.

D. C. Asante Akuffo & Anor V. L. D. Asante (1953)

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Tort—Goods taken under term in contract.

Facts

The plaintiffs had given a memorandum with this term: ” If we fail to undergo the above agreement of paying the said sum of £300 he has right to cease (meaning seize) the lorry and sell to cover the balance due.”

They sued contending that nevertheless the memorandum did not give the defendant power to seize the lorry. The trial Judge held that in view of that term between creditor and debtor, the defendant had the right to seize the lorry. The plaintiff appealed.

Held

The appellant had conferred on the respondent the right to seize the lorry and the licence was properly exercised; consequently no action lay in trespass.

Appeal dismissed.

S. E. Akrobotu V. Ametame Normeshie & Ors (1953)

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Native Courts—Jurisdiction—Land in Vui—Native Court “B” of Keta—Native Courts (Colony} Ordinance, 1944, section 3 and section 14 (1).

Facts

Under the above section 3 “The Governor in Council may by order provide for the constitution of Native Courts which shall exercise jurisdiction in accordance with this Ordinance within such area as may be defined in the order ” etc.; and under section 14 (1) “All land causes shall be tried and determined by a Native Court having jurisdiction over the area in which the land which is the subject-matter of the dispute is situated ”.

The plaintiff (appellant above) sued in the Native Court ” B ” of Keta in respect of land in Vui; on appeal the judgment was set aside by the Native Court of Appeal on the ground that Vui was not within the jurisdiction of the trial Court, and this was upheld in the Land Court, from which there was this further appeal.

There being no evidence on the record, the Court of Appeal remitted the case to the Land Court to take certain evidence, which turned out against the trial Court having jurisdiction over cases arising in Vui.

Held

The jurisdiction of a Native Court depends on statute and the burden of proof is upon the party who asserts the jurisdiction; here the evidence was unanimous that the trial Court had no jurisdiction in the case.

Appeal dismissed.

Johnson Akpiri V. The West African Airways Corporation (1952)

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Landlord and Tenant—Person operating a canteen—” Tenant ” under section 2 (1) of Recovery of Premises Ordinance (Cap. 193).

Facts

The Corporation agreed with the appellant that he should operate a canteen for their staff, and he was allowed to use free of rent the Corporation’s premises.

Later the Corporation wrote to him to vacate them and hand the keys to their representative; but he did not. They re-took possession; and he sued for unlawful ejectment.

The Corporation pleaded he was a mere licensee; and the trial Judge held that the plaintiff had not shown any demise of an interest in land, and gave judgment for the Corporation. The plaintiff appealed, and the question turned on whether he was a “tenant” within the said section 2 (1) as, if he was, the Corporation should have taken the steps provided in the Ordinance.

That sub-section defines a tenant to include “any person occupying premises whether on payment of rent or otherwise but does not include a person occupying premises under a bona fide claim to be the owner of the premises”.

Held

The word “occupying” must be given its ordinary dictionary meaning; the appellant was occupying the premises as was clear from the respondent’s letter to him to vacate them and hand the keys; he was a tenant within the meaning of the Ordinance.

Appeal allowed.