Zik Enterprises Ltd. & Ors V. The Hon. Obafemi Awolowo (1955)

Torts—Libel—Whether article refers to plaintiff—Whether language supports innuendo or extrinsic evidence proves it.
Appeals in Civil Cases—Test of intervention in damages.
Damages—Test ofintervention on appeal.

Facts

The respondent as plaintiff brought two suits for libel against the respective appellants as defendants; they were consolidated, and the judgment was in his
favour.

The first suit alleged two libels. The first one read:—
“Action Group threatens crisis to win over the Government. Political observers believe that the motive behind the delegation to the Government concerns the Iga Idunganran Civil Case, the Ilorin boundary and other issues affecting directly or indirectly the Action Group.

It is believed also that the party may endeavour to use power politics to enable the Government to yield to certain demands which the Action Groupers feel must be conceded in order to avert a constitutional crisis. Apart from the walk-out threat reliable sources believe also that Action Group Ministers may resign en bloc in order to effect the demands of the party over the issues at stake.

Meanwhile, it is understood that the Government will be represented in the proposed parley with Government by (names).”

The innuendo alleged was (briefly) that the plaintiff and the other Ministers held the conference with Government in order to interfere with the course of justice in the case mentioned in the article. On appeal two points were taken: that the words complained of did not refer to the plaintiff as an individual but to the Action Group as a whole; also that the innuendo was not proved.

Both those points were also taken in regard to the second Ebel alleged in the first suit. The article was headed “ Government turns back Action Group with No to all demands It stated:—

“The Ikenne trial also re-echoed in the parley, but the Government felt that it was an issue for the Legal Department and the Court, and not the concern of the Governor. On this matter the Governor refused to make a statement.”

The innuendo alleged was (briefly) that the plaintiff (to whom there were references in the article) and the other Ministers had asked the Governor to interfere in the course of justice in the conviction of someone then on appeal.

The plaintiff called evidence to prove the innuendoes he alleged in regard to the two articles, but none spoke of knowledge of any special facts which caused him to form his opinion. It seemed from the judgment that the Judge was affected by the third article, which formed the subject of the second suit; but the third article did not contain any reference to the two earlier articles (those in the first suit).

The third article, which was complained of in the second suit, referred to the plaintiff,, the leader of the Action Group and Minister of Local Government, and the innuendoes pleaded were that he and the other Ministers had planned to get Government to interfere in the two cases mentioned in the two earlier articles, and were unfit to hold their offices.

(The third article is rather long; the text is given at p. 702.) Evidence was called to establish the innuendoes.

The two points raised on appeal in regard to the second suit were the same as those raised in regard to the first suit. A third point about both suits related to the damages awarded (£2.000 in the first suit and £500 in the second suit).

Held

(1) As regards the first article, in the first suit; Upon a reasonable construction it could not be regarded as referring to the. plaintiff; it aimed at the policy of the Action Group as a party, not at any particular individual: therefore the claim in regard to the first article failed.

(2) As regards the second article, in the first suit:—
(a) It was capable of referring to the plaintiff and it was reasonable for the witnesses to think that it did; but
(b) The plaintiff had the onus of proving that the article conveyed to the mind of a reasonable person the imputation he pleaded, but the inference suggested by the innuendo was not such as a reasonable person would draw: therefore the claim in regard to the second article failed.

(3) As regards the third article, the one complained of in the second suit;—
(a) There were references to the plaintiff and the words complained of, in conjunction with the relevant circumstances, made it reasonable for the witnesses to think that the article referred to the plaintiff; and

(b) There were passages in the article which supported the innuendoes alleged, and, further, the two earlier articles provided evidence of circumstances entitling reasonable men who knew them to understand the third article in the defamatory sense alleged by the plaintiff: therefore the judgment in regard to the second suit was right.

Held also: It was not shown that the trial Judge had acted upon any wrong principle in assessing damages, and the damages awarded in respect of the second suit would not be interfered with (any more than those in respect of the first suit if the judgment in that respect had been upheld).

Obiter: As regards the first article in the first suit: the imputation alleged in the innuendo was not one which a reasonable man would draw.

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Appeal allowed in respect of the first suit but dismissed in respect of the second suit.

Kwabena Yeboah V. The Queen (1954)

LawGlobal Hub Judgment Report – West African Court of Appeal

Criminal Law and Procedure—Committal for trial for misdemeanour—
Informationfor murder—Adjournment oftrial without reason recorded—Crown not calling someone who had confessed to the murder—Crown not calling all witnesses on back of information.
Criminal Procedure Code (Cap. 10), section 192^4 ; section 240.

Facts

(The substance of the case was that a body of armed men came to install their favourite as a Chief in the appellant’s village, and a riot ensued in which some persons were killed. The appellant was found guilty of murdering one but the Court of Appeal thought it was manslaughter in the circumstances.)

The appellant was committed with others for trial for misdemeanours but the Crown filed an information against him for murder; it was objected for him that the depositions did not warrant it and he was prejudiced thereby. Section 192A of the Criminal Procedure Code reads:—

“ Notwithstanding anything in this Code contained, where a person charged has been committed for trial, the information against him may include, either in substitution for or in addition to counts charging the offence for which he was committed, any counts founded on facts or evidence disclosed in any preliminary investigation or deposition taken before a Magistrate in his presence, being counts which may lawfully be joined in the same information; provided that nothing in this section contained shall prevent the preferring of two or more informations against any accused person in respect of facts disclosed in any one summary enquiry.”

After plea, the appellant’s trial was adjourned to the next assize, but no reason for the adjournment was recorded, contrary to section 240 of the Code (text in judgment infra); it was argued that the trial at the next assize was a nullity for want of jurisdiction.

The Crown did not call all the persons named on the back of the information. In fact, following the committal, the Crown put in three informations against three distinct persons for murder, and in the present appellant’s trial called only those whose evidence was relevant to his case; and counsel for the appellant did not apply to cross-examine any of the others.

Someone had confessed to the murder of which the appellant was accused. The Crown did not call him because his confession was untrue and was later by him retracted. The defending counsel was aware of the confession but did not call the man or ask for his statement.

It was complained on appeal, in these two respects, that the Crown had not put before the trial Court all the material evidence.

Held

(1) The information was founded on evidence sufficiently disclosed in the preliminary investigation to found the charge of murder, as provided for by section 192A of the Criminal Procedure Code, and the appellant was not prejudiced thereby.

(2) The omission to record the reason for adjourning the trial to the next assize did not affect the jurisdiction of the Court, nor was there anything to show that the appellant was prejudiced by that omission.

(3) No purpose would have been served by offering the evidence of witnesses whose testimony related to the other murders, nor was there any obligation to call a man who, out of a desire apparently to exculpate the appellant, had made a confession which did not accord with other facts known and proved and was untrue; moreover it was open to defending counsel to call him and to ask for any of the others who were not called by the Crown.

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Verdict of manslaughter substituted.

Kwarena Yeboah V. Chief Kofi Taibil (1952)

LawGlobal Hub Judgment Report – West African Court of Appeal

Appeals from Native Court—Power to re-hear—Judgment of Native Court set aside—Native Courts (Colony) Ordinance, 1944, section 50.

Facts

The above section authorises the appeal Court, namely the Court hearing an appeal from the Native Court, to re-hear the cause. The point in the present case was whether after the judgment of the Native Court was set aside there could be a hearing de novo in the appeal Court.

To begin with there was a judgment in the Native Court and then a judgment in the appeal Court (then the Court of the Chief Commissioner); later, on appeal from him, the West African Court of Appeal declared the trial before the Native Court to be a nullity and directed the Chief Commissioner’s Court to set aside the judgment of the Native Court and hear the case de novo; the Chief Commissioner’s Court set that judgment aside and adjourned the hearing to be made de novo sine die. Subsequent legislation replaced the Chief Commissioner’s Court by the Land Court as the appeal Court, and the case was transferred to the Land Court.

The Land Court Judge doubting whether he had jurisdiction to deal with the
case, asked for the opinion of the West African Court of Appeal and was told
to carry out its order as the successor of the Chief Commissioner; whereupon the
Judge made an order for a plan and pleadings.

The co-plaintiff in the case appealed on the ground that the Judge had no jurisdiction as the trial had been declared a nullity and the Native Court’s judgment had been set aside, which left nothing in the appeal Court to adjudicate upon.

Held

If the judgment of the Native Court is first set aside, there cannot be a re-hearing of the cause in the appeal Court as there is no judgment left for the appeal Court to reverse, vary or confirm. In this case after the Native Court’s judgment was set aside by the Chief Commissioner’s Court (then the appeal Court) there was nothing pending there for transfer to the Land Court as its successor, and the Land Court had no jurisdiction to make the order appealed from.

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Appeal allowed: order of Land Court set aside.

Tetteh Worbi & Ors V. Adamali Asamanyuah & Ors (1955) – consolidated

LawGlobal Hub Judgment Report – West African Court of Appeal

Costs—Discretion—General Procedure Rules, Order 7, rule 3, paragraph 2—Trial Judge deciding on costs under a misapprehension offact.
Appeals in Civil Cases—Costs in Court below—Intervention by Court of Appeal.

Facts

The above rule confers on the trial Court44 full power to award and apportion
costs in any manner it may deem just”.
“The Court has an absolute and unfettered discretion to award or not to award them. This discretion, like any other discretion, must of course be exercised judicially, and the Judge ought not to exercise it against the successful party except for some reason connected with the case ”: per Viscount Cave, L.C., in Donald Campbell & Co. v. Pollak (1927), A.C. 811.

The two cases were begun in the Native Court; they were transferred to the Land Court, where they were consolidated. In the first the appellants were the plaintiffs; they lost their claim for damages against the first respondent but obtained a declaration of title by customary law.

The persons numbered as respondents 2, 3, and 4, were the plaintiffs in the second case; they were nonsuited. The judgment in the consolidated suits made no order as to costs for anyone. The plaintiffs in the first case appealed; the only point really pursued was that of costs.

The proceedings began with an action by appellant No. 1 as plaintiff in the first case suing respondent No. 1 as the defendant for damages for trespass on land; later, defendants No. 2, No. 3 and No. 4 were joined in the first case; at the same time plaintiff No. 2 was joined, and the Native Court made an order to add a claim for declaration of ownership to the land; but the Registrar of that Court omitted to amend the plaintiff’s writ, with the result that the fact that the plaintiffs had already made this additional claim was overlooked.

When the cases came up for hearing in the Land Court, counsel for the plaintiffs in the first case applied for leave to amend the writ in the Native Court by adding a claim for a declaration of title, and leave was granted. The trial Judge refused to give the said plaintiffs any costs on the ground that theirs was a belated attempt to set up absolute ownership.

It was plain that he had been under a misapprehension as to the true state of affairs, though he had the record of the proceedings in the Native Court, and reference to it would have disclosed that the said plaintiffs had, quite early in the case in that Court, obtained leave to amend their writ and add that claim.

Held

It could not be said that the trial Judge had exercised his discretion judicially, and his order as to costs would be replaced by an order granting the plaintiffs in the first case costs against the defendants other than No. 1 in certain ratios less the costs attributable to the issue of trespass between the plaintiffs and the first defendant.

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Appeal on costs allowed.

Chief Joseph Wobo & Ors V. The Attorney-General (1952)

LawGlobal Hub Judgment Report – West African Court of Appeal

Real property—Agreement to sell—Part performance—Agreement to accept a sum and an annual amount for ever.
Contract—Abandonment of—Question of evidence.

Facts

Appellants, as plaintiffs suing asrepresentatives of certain people and successors of former Chiefs and headmen, sued for a declaration of ownership of certain land and cancellation of two documents on the ground that the parties were not ad idem when the documents were executed.

They lost and in their appeal argued besides that the documents were not agreements for sale. The first document, made in 1913, agreed to grant certain land to Government in consideration of an amount received; the second, made in 1928, recited that it was supplemental to the first, the terms of which were to be varied by an immediate payment of a specified larger amount and so much per annum thereafter for ever; in other respects the first document was to remain in force and be read with the second as if incorporated in the first.

The amount mentioned in the first document as received was not in fact received; and it was argued for the appellants that Government’s conduct amounted to abandonment of the contract, which could not be revived by the second document. In fact Government did enter, before the second document, into possession of some of the area mentioned in the first; moreover the second document was executed by the same chiefs and headmen as before (except one chief who died and whose place was taken by his successor).

It was also argued for the appellants that payment of an amount per annum was payment by instalments and until final payment Government were tenants at will; also that the second document was void for uncertainty as regards price, and the area of land conveyed: but there was a plan attached to the first document and a surveyor’s evidence left no doubt that the latter point was groundless.

As regards the allegation that the parties were not ad idem, there was an oath of proof that the signatories had the documents interpreted to them and understood them, and received the money stated in the second document.

Further, on the very day the second document was executed, a third document was
executed by which Government granted a portion of the land in question to the Chiefs and headmen and people concerned, and one of the Chiefs acknowledged
the grant. Moreover, later, the Chiefs and people concerned sent a petition complaining that the sum paid per annum was inadequate, acknowledging the
second document and asking for revision.

For the Attorney-General it was argued that the two documents were assurances and the Court was invited so to hold.

Held

(1) The evidence showed that the parties were ad idem; nor was there any uncertainty as to the area of land in question or as to price, both having been specified and the land having been shown on a plan besides.

(2) The first agreement was not abandoned: under it Government entered into possession of a portion of the land, and that agreement was mentioned again in the second agreement, which was incorporated in the first.

(3) There is nothing to prevent a vendor of land from agreeing to accept an immediate payment and so much per annum for ever instead of a larger lump
sum down.

(4) By the first document the Chiefs and others agreed “to grant and sell”, and it is referred to in the second document as an agreement “for the sale and purchase”; these words do not operate as a transfer, but the documents constitute a binding contract of sale and there having been part performance of it, the appellants held the land (less the portion granted to them by the Governor) as trustees of the Governor and were bound to execute a conveyance of the land to him if so required.

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Appeal dismissed.

T. O. Williams & Anor V. J. T. Nelson Cole & Ors. (1952)

LawGlobal Hub Judgment Report – West African Court of Appeal

Mortgage—Sale at auction—No conveyance—Purchaser not taking possession—Mortgagor’s Claim to possession against outsider in possession.

Facts

The owner mortgaged his property to one S; both mortgagor and mortgagee died later. One of the executors of the mortgagee’s estate took possession of the property and claimed title to it; and after his death the mortgagor’s children sued the executors of his estate.

The facts were as follows:—
The mortgagee’s executors, purporting to act under the power of sale, put the property up to auction and sold it to a bank for £750 but executed no conveyance to the bank. One of those executors, namely P. H. Williams, was a director of the bank; he allowed £100 to be paid and kept the balance of £650 on deposit with the bank. The bank did not take possession.

Later the bank went into liquidation, and the liquidators sued the executors of the mortgagee’s estate claiming specific performance of the contract of the sale of the property to the bank or repayment of the purchase price.

The action was settled by the executors paying the liquidators £400. Later still a beneficiary under the mortgagee’s will sued P. H. Williams for breach of trust in allowing the £650 to remain on deposit with the bank and obtained judgment.

Thereupon P. H. Williams taking advantage of his position as an executor of the mortgagee’s estate and of the situation created by the beneficiary’s action against him, took possession of the property and claimed title to it.

After his death the children of the mortgagor sued the executors of his estate claiming (i) a declaration of title to the property, and (ii) recovery of possession. They failed and appealed.

In the appeal it was argued for the executors of P. H. Williams that the mortgagor’s children were estopped from denying the sale to the bank, of which they must have known, and that they had lost any interest they might have had when the property was sold to the bank.

Held

(1) The bank did not take possession after the sale, nor was the property conveyed to the bank; and the sale was called off at the settlement of the suit brought by the liquidators of the bank against the mortgagee’s executors; so the legal estate remained in the mortgagee’s estate.

The executors of the mortgagee’s estate not being a party in this dispute, the mortgagor’s children could not have a declaration of title to the property.

(2) The mortgagor’s equity of redemption was not extinguished by any valid and effectual sale of the property; it was not a purchaser at the sale but P. H. Williams who was in possession, and as against him and his executors the appellants as children of the mortgagor had a better right to possession.

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Appeal allowed: judgment for possession.

Kwabena Wiafe & Ors V. The Queen (1953)

LawGlobal Hub Judgment Report – West African Court of Appeal

Criminal Law and Procedure—Nature of corroboration of accomplice not explained—Where no miscarriage of justice—Discrepancies in evidence—Whether verdict unreasonable.

Facts

In spite of a favourable summing up, the jury, after deliberating for nearly an hour, returned a unanimous verdict of guilty of murder.

The complaints were that the Judge, though telling the jury that two witnesses must be regarded as accomplices requiring corroboration, did not explain of what sort, and that the conflicts in the evidence made the verdict unreasonable.

Held

(1) The Judge ought to have explained the nature of the corroboration needed but in fact there was corroborative evidence and the omission had not caused a miscarriage of justice.

(2) The questions at issue were questions of fact for the jury to decide, and they had the advantage of seeing the witnesses : theirs was a considered verdict, which could not be said to be unreasonable.

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Appeals dismissed.

Joseph Forster Weredu V. West Coast Company Limited (1955)

LawGlobal Hub Judgment Report – West African Court of Appeal

Tort—Trespass—Conversion—Goods seized by third party, not for defendant’s use—Defendant agreeing to buy the goods—Defendant’s mark put on goods—Defendant not taking possession, nor denying plaintiff’s right.

“A person who knowingly receives from another a chattel which the latter has wrongfully seized, and afterwards on demand refuses to give it back to the owner, does not thereby become a joint trespasser, unless the chattel was seized for his use Wilson v. Barker and Mitchell, 1833, 110 E.R. 587.

“It is clear that there can be no conversion by a mere bargain and sale without a transfer of possession ” (viz. of the goods of another): Fowler v. Hollins, L.R., 7 Q.B., p. 627, per Collins, J.

“Apart from mere dicta, no case, so far as I am aware, can be found where a man not in possession of the property has been held liable in trover unless he has absolutely denied the plaintiff’s right, although, if in possession of the property, any dealing with it, inconsistent with the owner’s right, would be a conversion ”: England v. Cowley, L.R. 8 Ex. 126, at 131, per Kelly, C.B.

The plaintiff (above appellant) sued claiming (inter alia) the value of logs and damages for trespass and conversion of the logs, alleging that the defendants had Stopped hifi tomes, cancelled Jus property mark on the logs, substituted their own property mark on them, and ” appropriated and converted the logs to their own use ”.

The trial Judge found that the Stool (or State) within whose area the logs had been felled were, rightly or wrongly, determined to protect what was considered to be Stool property and they, and not the defendants, stopped the lorries and seized the logs. The Stool offered the logs to the second defendant, who agreed to buy them provided they were delivered at a certain port. The third defendant, an employee of the first defendant, put on the Company’s property mark.

When the plaintiff’s solicitor wrote to the second defendant to complain that the latter had seized his logs, the second defendant passed the letter to the Stool, who wrote to the solicitor that it was they who had appropriated the logs and agreed to sell them to the Company. The Company withdrew from the affair; they had not attempted to move the logs.

Held

(1) It was not the defendants (respondents) who seized the logs but a third party; nor did the third party seize them for the defendants’ use; therefore, the defendants were not liable in trespass.

(2) The mere fact that the second defendant agreed to buy the logs of which there had been no delivery to him, and of which he was, therefore, never in possession, did not of itself amount to conversion by him or his Company of the logs.

And putting the Company’s mark on the logs could not in the circumstances be said to be an appropriation and conversion of the logs to the Company’s use; it was apparently done only as a means of identifying the logs the second defendant had agreed to purchase: for the defendants had not attempted to move the logs, and, when the plaintiff’s solicitor wrote, they asserted no right but abandoned all interest in them.

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Appeal dismissed.

E. D. J. Wellington Of Accra V E. Quartey Papafio & Anor (1952)

LawGlobal Hub Judgment Report – West African Court of Appeal

Mortgage—Nature of Mortgagee’s security—Devolution on administrator. Native Law and custom—Succession in Ga customary law—Alienation of family property.

Facts

A mortgagee’s security is personal estate devolving on the administrator if the mortgagee dies intestate.

Under Ga customary law, upon intestacy, the self-acquired property of the deceased becomes family property; it is only children of a six cloth marriage who are entitled to a right of support out of the estate; all members of the family traced through the maternal ancestor have a joint interest, and no part of the estate can be alienated to the children unless the parties so agree.

The admitted facts in the case were that in 1935 someone mortgaged land to the deceased, the father of the plaintiffs, who went into possession; he died in 1937, and then his mother took out letters of administration of his estate; she put the mortgaged property up for sale in 1939, and the first defendant was the highest bidder; she died in 1940. The first defendant took no interest in the case.

The second defendant pleaded possession under a conveyance in 1941 from the uterine brother and sister of the deceased mortgagee through his mother, these vendors being then the principal members of the family.

The plaintiffs alleged that after their father’s funeral, the family met and the property in dispute, which had been mortgaged to their father, was ” given” to them, his children, with a life interest in the deceased’s mother for her maintenance, and that after his mother’s death in 1940 part of the rent was given to her daughter.

(There was no corroboration that the plaintiffs ever collected the rent.) They also alleged that they succeeded their father and his father and mother.

The plaintiffs’ writ did not allege that they were children of a six cloth marriage. It was stated in evidence by one witness but not confirmed by another, a member of the family, and the Native Court of trial made no finding on the point; nor did the Court find that there had been distribution or allocation of a share to the children.

It appears that the plaintiffs thought, erroneously, that the mortgagee, their father, had acquired the freehold. The Native Court was of opinion that when he died the property became a family property of Aku Aba (namely his mother) and “descendible to the plaintiffs ”. Judgment was for the plaintiffs; the appeal to the Supreme Court was allowed, and the plaintiffs appealed from its decision.

Held

Even if it be assumed that the plaintiffs were children of a six cloth marriage, under Ga customary law on the death of their father, his chattel interest as mortgagee became the property of his family traced through the maternal ancestor, and could not pass to his children except by transfer, of which there was no evidence.

The plaintiffs not having established a title, their claim against the second defendant in possession could not be upheld.

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Appeal dismissed.

Viesa & Ors V. B. C. K. Asinor Of Kadjebi (1954)

LawGlobal Hub Judgment Report – West African Court of Appeal

Native Lands—Acquisition by non-naiive without previous consent required by law.
The Administration (Togoland under British Mandate) Ordinance (Cap. 96), section 3 (3a).
The Administration (Togoland under British Mandate) (Amendment) Ordinance, No. 15 of 1940, section 3A (2).

Facts

Section 3 (3a) of the Administration (Togoland under British Mandate) Ordinance (Cap. 96), reads:—
“ (3) (a) In the case of any laws relating to the transfer of land which are in force in any part of Togoland under British Mandate under the terms of Article V or Article VI of the Togoland under British Mandate Order in Council, 1923, the provisions of any such law shall be construed together with and subject to the provisions of paragraph 2 of Article V of the British Mandate for Togoland; which paragraph is in the following terms:—

“No native land may be transferred, except between natives, without the previous consent of the public authorities, and no real rights over native land in favour of non-natives may be created except with the same consent.”

Section 3A (2) of the Administration (Togoland under British Mandate)
(Amendment) Ordinance, No. 15 of 1940, reads:—
“3A. (1) In the interpretation of this section, ‘ Native ’ means a person who belongs to a tribe indigenous to Togoland under British Mandate.
‘ Native of the Southern Section ’ and * Native of the Northern Section ’ respectively mean a person who belongs to a tribe indigenous to the Southern Section or the Northern Section, as the case may be.

“Provided that where a section of a tribe which is indigenous to Togoland under British Mandate, or to the Southern Section or to the Northern Section, as the case may be, does not belong to Togoland under British Mandate, or to the Southern Section, or to the Northern Section, as the case may be, a member of such section of the tribe shall not be a native within the meaning of this definition.”

The respondent had sold lands to the appellants and given them possession; but as the appellants, who were M non-natives ”, had not obtained the previous consent of the authorities required by law, they acquired no title or interest.

When sued by the respondent for the land, they lost, and they appealed, arguing that he was in pari delicto and that they ought in equity to be confirmed in their possession against him.

Held

Their contract of purchase being illegal and void by statute, there was no contract on which to found a right of possession.

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Appeal dismissed.