Rex V. Akpan Unwa Udo Ekpo (1938)

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Murder, contra. sec. 319 Criminal Code—Offence committed in heat of clan affray, after appellant was wounded and in which deceased’s clan was the aggressor.

Held : Facts warranted reduction of offence to manslaughter and verdict substituted accordingly.

There is no need to set out the facts.

C. N. S. Pollard for Crown.

Appellant in person.

The following joint judgment was delivered :—

KINGDON, C.J., NIGERIA, CAREY AND GRAHAM PAUL, JJ.

In this case the appellant was convicted in the High Court at Ikot Ekpene of the murder of one Sambo. Shortly the facts are that there was a fight between the Ediene clan, of which the deceased was a member, and the Minyit clan, of which the appellant is a member. The Edienes were the actual aggressors in the fight. In the fight the appellant was wounded above the eye by an arrow, the deceased was also wounded by a matchet and fell. After the deceased had fallen the appellant ran up to him and inflicted upon him a fatal wound with a matchet. The learned trial Judge found as a fact that the appellant did the act ” in his anger ” in revenge for his injury. The question which arises is whether the homicide is murder or should be reduced to manslaughter on account of provocation under section 318 of the Criminal Code. The trial Judge held it to be murder on the ground that ” the deceased, himself, offered no provocation to the accused personally.” Upon this point we feel bound to disagree with the trial Judge. The provocation consisted not merely of the arrow wound, but of the whole attack by the Edienes, of whom the deceased was one. To apply the real test, it is clear that upon the facts disclosed the deceased, if he had lived, could have been properly prosecuted in respect of the harm caused to the appellant. He was therefore one of those offering the provocation, and there is no doubt that the appellant committed the act whilst still in the heat of passion caused by this provocation.

For these reasons we think that the offence amounts to manslaughter only. A verdict of guilty of manslaughter is accordingly substituted for the verdict of guilty of murder and in substitution for the sentence of death passed at the trial the appellant is sentenced to two years imprisonment with hard labour.

Rex V. A. T. Amponsah & Ors (1938)

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Murder—Murder or Manslaughter?—Mi.ulirection of Assessors—Substitution of Verdict under sec. 11 !Vest African Court of Appeal Ordinance.

Held: The direction to the assessors not being sufficiently clear verdict substituted.

The facts are sufficiently set out in the judgment.

K. A. Boatman (with him E. P. Asafu-Adjaye) for Appellants.

S. E. Ellis for Crown.

The following joint judgment was delivered :—

PETRIDES, C.J., GOLD COAST, YATES AND STROTHERSTEWART, JJ.

The five appellants were tried and convicted for the murder of one Swabena Donkor Moshie, whom we shall refer to as the deceased.

The first appellant was the Native Administration Superintendent of the Native Prison, Juabeng, Ashanti. The second and third appellants were Government Police Constables stationed at Juaso, Ashanti. The fourth and fifth appellants were warders working under the first appellant.

The case for the Crown was as follows:—

Deceased had been in custody from about the 27th March till the moment of his death on the 30th March, 1938, on suspicion of having stolen money and other things from the house of one Atta Buadu of Apimsu. In the forenoon and afternoon of Wednesday the 30th March, 1938, a series of brutal assaults were committed oil the deceased by the first and second appellants. The assaults consisted of pouring hot water on the head of the deceased and heating him with a stick. The beatings were so persistent and so very severe that the deceased died in his cell about midnight of the same day as the result of the beatings. The body was then taken by the first, second and third appellants with the aid of two witnesses for the prosecution to •a stream on the Apimsu Road about five miles from Juabeng and there buried.

It was not suggested that the third, fourth and fifth appellants took part in the beatings but there was evidence that they were all present when the first and second appellants beat the deceased in the prison precincts and either held the deceased while he was being beaten or did something actively to facilitate the beating by the first and second appellants. There was also evidence that the third and fifth appellants were present when deceased according to the evidence was beaten outside the precincts of the prison. The stick alleged to have been used was produced in this Court: it might aptly be described as a bludgeon.

Although according to the evidence deceased died on the 30th March the body was not discovered till the 4th April. The post-mortem took place the following day when the body was in an advanced state of decomposition. Dr. Harrison, who performed the post-mortem said that he found no evidence of any disease which might have caused death and none of the usual signs of. drowning : he could not state the cause of death but on the hypothesis that the deceased when alive was fit and strong and his body had been subjected to blows with a stick over the eye and about the body, and boiling water had been poured on his head, body and legs the cause of death would in his opinion be shock if he died between four to five hours afterwards. There was evidence that before deceased was arrested he was a strong healthy man. Sergeant Labi stated that when he saw deceased on the 28th March he appeared to be in normal health.

There was in our opinion evidence before the Court below to justify the conclusion that the deceased was brutally assaulted on the 30th March by the first and second appellants and he died as a result of the injuries by them.

It was contended on behalf of the third, fourth and fifth appellants that they never struck the deceased and that they took no part in the assaults committed by the first and second appellants and they should not have been found guilty of murder.

Having regard to the provisions of section 15 (2) of the Criminal Code we are satisfied that there was evidence on which all five appellants could have been found guilty of causing the death of the deceased.

It was further contended that the third, fourth and fifth appellants were subordinates and that subordinates acting under orders of their superior officers which were not necessarily and manifestly illegal were protected. In our opinion it is quite clear that the assaults complained of, if proved, were necessarily and manifestly illegal and the fact that the third, fourth and fifth appellants were subordinates was no defence to the charge.

It was further contended that there was no evidence that any of the appellants intended to kill the deceased. Intention cannot be proved by positive evidence : it may be inferred from overt

It is a principle of English law that a person who does an

v•act must be taken to have intended the natural and probable

A. T.consequences of his act. There is a somewhat similar presumption

Amponsah, created by section 13 (3) of the Criminal Code. The effect of that J. K.

sub-section, on the facts in this case, is that if using reasonable

Boateng,

caution and observation it would appear to the appellants that

Osumanu

Dagomba, there would be great risk of the assaults causing or contributing

Harunato cause the death of the deceased they shall be presumed to have

m_od_ij_{e an}d intended to cause his death unless they believed that the act would Billsprobably not cause or contribute to cause his death.

Moshie.Having regard to this provision we are satisfied that there

was evidence that all the appellants intended to cause the death Petrides,of the deceased.

C.J.,

YatesWe are satisfied that there was evidence which entitled the

Court below to find all five appellants guilty of murder as defined

tother-

Stewart,in section 232 of the Criminal Code.

JJ.We now pass to the question of misdirection. We are satisfied

that there is no evidence on the record which would have justified the conclusion that any of the appellants had formed the express intention of killing the deceased. This was eminently a case in which the assessors should have been directed as to the difference between murder and manslaughter. They were given the definition of murder according to our code but not that of manslaughter. In thejearned trial Judge’s notes of his summing up we find the following:—

” I pointed out to them that if they were satisfied that the ” prisoners had no intention of killing Kwabena Donkor Moshie ” (bearing in mind the provisions under section 13 and the relevant ” sub-sections of the Criminal Code), then it was within their province ” to give their opinion that the prisoners were guilty of manslaughter.

” In this connexion, I told them that they could give their opinion ” on the question of manslaughter with regard to all or any of the ” prisoners.”

This is the only passage that deals with manslaughter. Before a person can be found guilty of murder the Crown has to prove beyond any reasonable doubt not that the accused has no intention of killing the person in respect of whose death the accused is charged but that he had the intention of killing that person. By reason of section 13 (3) the assessors were entitled, if they were satisfied that it would have appeared to the appellants if they had used reasonable caution and observation that there would be great risk of the assaults causing or contributing to cause death, to presume that the appellants intended to cause the death of the deceased. It was the duty of the trial Judge to point this out to the assessors and to tell them that if they were satisfied that such was the case the presumption of intention was rebuttable if the appellants believed that the assaults would probably not cause or contribute to cause the death of the deceased. It does not appear that this was done.

The passage we have quoted makes it reasonable to suppose that the assessors may have thought that they were being directed that they could not express the opinion that the appellants were guilty of manslaughter unless they were satisfied that the appellants had proved they had no intention of killing the deceased.

It has not been established that there was any misdirection on grounds 2, 3, 4, 5 and 6 of the additional grounds of appeal.

We have been addressed by counsel on grounds of alleged misdirection other than those set forth in the original or amended grounds – of appeal. We are not satisfied that there is any substance in any of these.

It is possible that if the question of whether the offence of murder or manslaughter had been committed had been more clearly dealt with by the trial Judge the assessors would have expressed the opinion that the offence of manslaughter and not murder had been established. Whilst it is certain that they would have expressed the opinion that one or .the other had been committed our own view is that the proper verdict would have been one of manslaughter. For these reasons and acting under the special power of the Court given by section 11 (2) of the West African Court of Appeal Ordinance we substitute for the verdict found by the Court below a verdict of guilty of manslaughter.

Taking into account the evidence given in the Court below we substitute for the sentences passed by the Court below the following sentences of imprisonment with hard labour :—

1st appellant… 15 years.

2nd appellant… 15 years.

3rd appellant…5 years.

4th appellant..4 years.

5th appellant…5 years.

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The sentences to run from the 27th of June the date of conviction.

Rex V. A. M. Animashaun & Anor (1938)

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Perjury contra. sec. 41 of Criminal Procedure Ordinance.

The appellants were summarily convicted for perjury committed in the course of a civil action, and appealed.

There is no need to set out the facts.

C. N. S. Pollard for Crown preliminarily submitted no appeal

lay.

0. Alakija for Appellants opposed.

Held : An appeal lies.

The following joint decision was delivered :—

KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND WEBB, C.J., SIERRA LEONE.

The appellants in this case have been committed to prison as for Contempt of Court under section 41 of the Criminal Procedure Ordinance—the first for three months I.H.L., the second for one month I.H.L.—by Graham Paul, J., sitting as a Judge of the High Court in the Ibadan Judicial Division.

Before so committing the appellants the learned trial Judge placed upon record that it appeared to him that the respective appellants had been guilty of perjury in proceedings before him and he duly complied with the provisions of section 42 of the Ordinance. Upon the appeal being called the learned Crown Counsel has taken the objection that no appeal lies to this Court against a committal as for contempt by a High Court Judge under section 41 of the Ordinance.

He admits that the committal follows upon what is technically a summary conviction, but points out that it is well established law that in England no appeal lies against a committal by the High Court where the contempt is criminal, save upon the question of jurisdiction, and submits that the law is the same here. But in our view this is not so.

The reason why no appeal lies in England is the general rule that no appeal on the merits lies from a summary conviction for a criminal offence in the High Court. But here the law on this point is the opposite, having been changed in 1933. By the wide terms of section 9 of the West African Court of Appeal Ordinance

” Court or the High Court or a Native Court may appeal to the A. ” Court of Appeal • • • •,” the legislation has deliberately Anima-conferred upon all convicted persons the rights given by the _shawl section, regardless of whether the conviction be had upon inform- anor. ation or summarily. It is true, as the learned Crown Counsel

points out, that section 41 of Chapter 20 does not contemplate kingdon, appeal except in accordance with its own express terms and limit- _c ations; but at the time of its enactment no appeal (save by way petrides of case stated) existed in criminal matters from the High Court c.j.,

to this Court. The legislature, when creating a right of appeal in and

1933, must be presumed to have had in mind its effect, inter alia, Webb, C.J. upon the provisions of that section.

We are therefore of opinion that an appeal lies from the convictions in the present case in just the same way as it lies from any other conviction.

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The preliminary objection is accordingly overruled.

Rachel Edith Jones V. John Brown Nichols & Ors (1938)

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Claim by married woman as devisee and legatee under a will against Executors and Trustees thereof and her husband for execution of the trusts of such will, for administration. of the estate by the Court (if necessary), and for accounts and enquiries into unlawful expenditure of trust money. Counterclaim for possession of land and mesne profits.

Held : (i) The lands having been limited in trust for the wife in fee for her separate use the trustees must convey the legal estate according to her direction;

2. The wife being a tenant in common in fee had unity of possession with the other tenants in common ;.
3. Appeal therefore dismissed.

There is no need to set out the facts. S. J. Barlatt for Appellants.

E. F. Luke for Respondent.

On 16th May, 1938, the following joint judgment was delivered :—

KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST, AND WEBB, C.J., SIERRA LEONE.

By the will of Josiah Byron Macaulay, deceased, a plot of land in Freetown was devised to his trustees ” upon trust for my children Joseph Festus, Caleb and Rachel their heirs and assigns as tenants in common “, and the will contained the following provisions :—

” I hereby direct that my said trustees shall during the minority of each of the devisees herein named rent the premises devised to each of them for the best rent obtainable and pay the Profits arising therefrom after deducting all expenses for reasonable repairs and improvements to the guardians of each of such devisees to be applied towards his or her maintenance education and support   And I hereby further direct and declare that all the devises contained in this my will or which shall devolve upon any female shall be held and enjoyed by such female devisee as her sole and separate property independent of the debts engagements or liabilities of any husband.”

At the death of the testator in 1918 there was a partially Hingdon,

Petrides

completed building on the plot; the trustees procured funds,

& Webb,

completed the building and let it to tenants. In 1932 Rachel (the cm_. respondent), who was thirteen years of age in 1918, went into possession of portion of the premises and since 1935 she has been

in receipt of the rents of the remainder. Dispute having arisen between her and the trustees she brought this action against them claiming (inter alia) a declaration that they were not entitled to reimburse themselves for any unauthorised outlay on the premises, a conveyance of her undivided share therein, an account of the rents and profits received by the trustees since the death of the testator and payment of her share of whatever should be found due upon taking the account. The trustees (the present appellants) pleaded that the rents collected by them had not yet been sufficient to discharge the liabilities incurred by them in the completion of the buildings and the maintenace and education of the beneficiaries, and they counterclaimed for possession of the premises and for mesne profits.

The learned Judge held that the appellants were not justified in completing the building on the plot devised to plaintiff and her brother and were not entitled to be reimbursed for the moneys expended thereon, at the same time he refused the respondent’s claim for an account of the rents and profits of the premises. So that in effect the appellants are in the position, at all events as against the respondent, of being able to set off the rents and profits which they have received against such expenditure. From these portions of the judgment no appeal has been taken.

The learned Judge decreed that the respondent should have a conveyance of her interest in the premises and he dismissed the counterclaim with costs. The appellants have appealed against this portion of the judgment.

So far as regards the claim for a conveyance to the respondent of her interest in the premises the law is thus stated in Williams Real Property 22nd Edition p. 320 : —” Not only the income, but also the corpus of any property, whether real or personal, might be limited to the separate use of a married woman. And in the year 1865 it was finally settled that a simple gift of real estate for a wife’s separate use, either with or without the intervention of trustees, was sufficient to give her the power to dispose by her

own act inter vivo., or by will, without the consent or concurrence of her husband, of the whole equitable estate so limited to her. The same rule had long been established with respect to personal estate. And where lands were limited on trust for a wife in fee, for her separate use, she had the right of every cestui que trust in similar case, to require her trustees to convey the legal estate therein according to her direction. (Appleton v. Rowley L.R. 8 Eq. at p. 142).” It is therefore clear that the decision of the learned Judge on this point was correct.

Coming now to the appellants’ counterclaim for possession, it is argued that the respondent had no right to take possession of more than her own share in the premises. But she and her co-beneficiaries are tenants in common in fee, and it is the nature of tenancy in common that tenants in common have a unity of possession. No doubt the co-beneficiaries have an equal right to possession, but there is no claim by them or on their behalf before the Court either for possession or for the shares of the rents and profits to which they are entitled. In the circumstances therefore, we are of opinion that the counterclaim was rightly dismissed.

We see no reason to vary the order as to costs made by the learned Judge. The appellants must pay to the respondent her taxed costs of this appeal.

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In the result, therefore, the appeal is dismissed with costs.

Peter Kwakyi V. Kojo Bandoh (1938)

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Claim for damages for malicious prosecution-onus not discharged.

Facts

The plaintiff and deffindant Isere in dispute over land and the dispute terminated in the former’s favour. Thereppon he entered the land and removed growing crops •contrtry to native. custom. He was criminally charged before the Native Court with stealing and destruction, convicted on both charges, sad sentenced to imprisonment and a fine. He appealed and was acquitted on the first charge but^. as to the second the appellate tribunal was silent. He then brought a successful action for malicious prosecution in the Supreme Court from which the defendant appealed.

Held

The plaintiff failed (1) to negative reasonable and probable cause for hi prosecution;

2. to prove that the criminal proceedings brought against him ultimately ended in Li favour;
3. to prove malice;

and

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Appeal allowed.

Osei Kojo V. Salvado Hurtado Solaz (1938)

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Claim to Possession of land and for Damages for trexpass—No pleadings—Construction of Deed of A.q$ignmient—Oral evidence varying terms thereof admitted and Defendant successful at trial.

Held Such evidence inadmissible and appeal allowed, but possibility of plaintiff having an interest as tenant in common considered and non-suit ordered.

The facts are sufficiently set out in the judgment.

E. C. Quist (H. V. A. Franklin with him) for Appellant. E. 0. Asafu Adjaye for Respondent.

The following joint judgment was delivered :—

KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND WEBB, C.J., SIERRA LEONE.

Plaintiff by his writ claimed :—

1. To recover possession of all that piece or parcel of land with buildings thereon situate at Tamale and known as Commercial Plot No. 1 Daboya Road Marketside but not including the portion of the said plot on which a storey building has been erected, and
2. £150 damages for trespass on the said land.

There were no pleadings but at the trial it was agreed that the issue to be determined was the construction of the Deed of Assignment dated 24th April, 1936. This deed, which is hereinafter referred to as the Deed of Assignment, was made between the defendant, as vendor, and the plaintiff, as purchaser. The whole plot, the subject matter of the action, is shown on plan, exhibit

tit all

By Indenture of Lease dated the 13th January, 1932, the then Chief Commissioner, Northern Territories, on behalf of the Governor of the Gold Coast, demised Commercial Plot No. 1 Tamale to the defendant his heirs etc. and assigns from the 1st January, 1933, for the term of fifty years. Paragraph 4 of this indenture contained a covenant not to assign etc. the demised premises without the consent in writing of the Chief Commissioner on behalf of the Government.

It will be seen from the Deed of Assignment that it is stated that the defendant agreed to assign to the plaintiff the land described in the schedule thereto with the building thereon for the unexpired residue of the term of fifty years and that the defendant obtained the licence and consent of the Chief Commissioner to assign ” the said premises.”

By this Deed of Assignment the defendant assigned to the plaintiff his heirs, assigns, etc. ” All that piece or parcel of land ” described in- the schedule hereto and all the estate right title ” interest claim and demand whatsoever of the said Vendor unto ” and upon the said land and every part thereof.”

This schedule is in the following terms : —

 ” All the messuage and premises known as Commercial ” Plot No. 1 Daboya Road Market Side consisting of one ” store and one petrol store and half part of the said plot ” and also the shelves, counters and other fixtures in the said ” store and petrol store and forming part thereof and ” appurtenant thereto but not including the uncompleted ” storied building on a portion of the said plot.”

This schedule is very unhappily drawn. The buildings present no difficulty. It is clear that the uncompleted storey building which is to be retained by the vendor is marked ” A ” on plan ” 0,” and that the two stores that were to pass to the purchaser are marked ” B ” and ” D.” Although by the Deed of Assignment only one half of the plot was to pass, it was not stated how that half was to be ascertained. It is quite clear that on the proper construction of the deed the purchaser acquired ” B ” and ” D ” and an undetermined one half of the plot. The consent of the Government to this assignment was put in at the trial from which it will be seen that the Government consented to an assignment by the defendant to the plaintiff ” of all the term ” and interest of and in a portion being approximately one half ” of the plot known as Commercial Plot No. 1 Tamale comprised ” in and demised by an Indenture of Lease dated the 13th ” January, 1932   11

The learned trial Judge found that the plaintiff acquired not one-half of the plot but the whole plot. It is obvious that he came to this conclusion because he accepted the plaintiff’s evidence that ” the defendant agreed to sell me the whole plot together with ” all the buildings thereon with the exception of the uncompleted ” storey building facing the market.” This statement was dearly inadmissible as it added to and altered the terms of the Deed of Assignment.

Dealing with the inadmissibility of extrinsic evidence to add

to deeds, Norton on Deeds, 2nd Edition at page 135, says :—

” A further rule relating to the interpretation of deeds ” is that the deed only is to be construed, and that no evidence ” of extrinsic circumstances is admissible to add to, contradict, ” vary, or alter the terms of a deed.

” This rule is not, properly speaking, a rule of interpretation; it is a rule of law limiting the subject-matter ” to be interpreted to that contained in the deed itself.

” It would be inconvenient that matter_s in writing ” made by advice and on consideration, and which finally ” import the certain truth of the agreement of the parties, ” should be controlled by the averment of the parties to be ” proved by the uncertain testimony of slippery memory. ” And it would be dangerous to purchasers and farmers, ” and all others in such cases, if such nude averments ” against matter in writing should be admitted.

” To add anything to an agreement in writing by ” admitting parol evidence, which would affect land, is not ” only contrary to the statute of frauds and perjuries, but ” to the rule of common law, before that statute was in ” being.”

And at page 136 :—

” ` By the general rules of the common law, if there be ” a contract which has been reduced into writing, verbal ” evidence is not allowed to be given of what passed between ” the parties either before the written instrument was made, ” or during the time that it was in a state of preparation, `.` so as to add to or subtract from, or in any manner to ” vary or qualify the written contract; but after the agree” meat has been reduced into writing, it is competent to the ” parties, at any time before breach of it, by a new contract ” not in writing, either altogether to waive, dissolve, or ” annul the former agreements, or in any manner to add to, ” or subtract from, or vary or qualify the terms of it, and ” thus to make a new contract which is to be proved, partly ” by the written agreement, and partly by the subsequent ” verbal terms engrafted on what will be thus left of the ” written agreement.’ “

Respondent’s counsel has contended that, as the defendant did not object to the reception of this evidence at the time it was offered as required by Order 6 Rule 29 of Schedule 2 of the Courts Ordinance, this Court should not exercise its discretion and entertain an objection to its reception at the hearing of this appeal. We cannot accede to this contention as the rule that extrinsic evidence is inadmissible to add to or alter a deed is a rale of law limiting the subject-matter to be interpreted to that contained in the deed.

It may well be that the plaintiff has an interest in the whole plot as a tenant in common with the defendant. His counsel has however frankly admitted that it was no part of his case that the plaintiff and the defendant were tenants in common. It is quite clear from his opening that his case was that the plaintiff was

entitled to the exclusive possession of the whole plot except the

v.unfinished storey building and that this was the issue that was

Salved°tried.

}forted°

Soles.Considering, as we do, that on the proper construction of the

Deed of Assignment the plaintiff was not entitled to exclusive

Kingdom, possession of the whole plot (excepting the building marked
” A “), we hold that he failed to establish any right to the relief

Petrides,he claimed on the grounds on which he relied and which were “in

C.d.,issue at the trial.

and

Webb, C.J.We cannot close our eyes to the fact that had the plaintiff’s

claim been put forward on the ground that he was a tenant-in-common he might have been entitled to some relief. Had plaintiff claimed on this basis factors might have arisen other than those in issue on the claim as put forward by him in the Court below.

Having this in mind we give judgment as follows:

We set aside the judgment of the Co_urt below and enter in lieu thereof a judgment of non-suit with liberty to the plaintiff to take proceedings if he thinks fit to protect any rights he may have as a tenant-in-common of any part of the plot.

We award the appellant the costs of this appeal which we assess at 144. Os. 3d. We direct that the appellant’s costs in the Court below shall be taxed and paid by the respondent. Court below to carry out.

FURTHER ORDER BY COURT.

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Any rent paid into Court by the appellant in pursuance of the Order of the Court below is to be paid out to the appellant.

Ofoley Solomon & Ors. V. Alexander Mensah Allotey & Ors (1938)

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Declaration of title to real properties devised by Will—Family properties—Injunction—Head of Family.Issues (1) Is the present plaintiff the head of the family and therefore entitled to maintain action?(2) Are the properties devised in the said Will family properties or properties self acquired by the testator?Jurisdiction—Section 48 (2) (c) (f) of Native Administration Ordinance and Section 76 of Courts Ordinance—Ruling of West African Court of Appeal in Yamuah IV v. Kwa Owuayem Sekyi contrasted.

CASE STATED FOR OPINION OF WEST AFRICAN COURT OF APPEAL.

This is the case, part heard before me, in which the plaintiff claims as head of the family of the late Nee Adjabeng Ankrah of Accra, on behalf of herself, and the members of the said Nee Adjabeng Ankrah family, a declaration of title that a number of real properties are family properties, and an injunction restraining the defendants from dealing with them pending the hearing and determination of the said claim.

All the parties are natives.

The subject matter of the claim amounts in value of several thousands of pounds.

The properties claimed were devised to certain of the

Solomondefendants in the Will of William Adjabeng Solomon, known as

^as Head ^of Nee Adjabeng Ankrah II, which Will is dated the 30th day of

theMay, 1928. Probate of the said Will was granted by this Court

Family

on the 23rd November, 1936, to two of the defendants—a third

Alexander executor having renounced probate. The said William Adjabeng

MensahSolomon acted as head of the said family for a large number of

Alloteyyears. Two separate defences have been filed, one on behalf of

& ors.the executors and trustees of the said Will, and such devisees as

have not renounced their devises, claiming that the said real

Kingdon,properties are not family properties, but were acquired by

C.J.,the said testator by his own exertions, with his own money, and

Bannerman for himself ; and the other by four other members of the family,

& Doorly, who claim the said real properties as family properties, but say

JJ.  that the present plaintiff is not the head of the family, and cannot, therefore, maintain the present claim. One of these four defendants claims to be head of the family by election in accordance with native custom, and has instituted a separate action on behalf of the said family, which separate action is also pending before this Court.

As all the lawyers engaged in the case contended I had jurisdiction, and were anxious for me to try the case, which they described as urgent, I allowed the case to be opened, and certain evidence to be called in order to ascertain the real issues involved.

I came to the conclusion that the issues were two: (1) Is the present plaintiff the head of the family, and therefore entitled to maintain the action? (2) Are the properties devised in the said Will family properties, or properties self acquired by the testator?

Section 48 (2) (c) and (f) of the Native Administration Ordinance confers jurisdiction on a Paramount Chief’s Tribunal, where the parties are natives, and the cause of action arose within the State of such Paramount Chief in :—

” (c) Suits relating to the ownership, possession, or ” occupation, of lands situated within the State of ” such Paramount Chief, and

” (f) Suits and matters relating to the succession to the

property of any deceased native who had at the ” time of his death a fixed place of abode within ” the State.”

Section 76 of the Courts Ordinance gives me the power where a question arises as to the rights of any native under native law and custom to refer such question to a competent Native Court for determination.

I could refer both the issues in the present case to such a Native Court, and if they were decided by such Native Court I could adopt such decisions, and the case would be disposed of without my having to try them.

This practical test of the issues involved seems to me to show

Ofoley

that the case is one properly triable by a Paramount Chief’s Solomon

 Tribunal under section 48 (2) (c) and (f) of the Native Adminis- as _e Head of

th

tration Ordinance, and therefore not within my jurisdiction.

Family

Some of the counsel in the present case contend that I havev.
jurisdiction to try the case under the proviso to section 48 of the Alexander Native Administration Ordinance as the properties have been Mensah devised under a Will, and that therefore the parties have by Allotey implication agreed that their obligations shall be regulated ⁸⁴ “⁸. according to the provisions of some law other than native law.

Kingdon,

But can it be said that the mere fact that a testator devises C.J.,

by Will certain property automatically makes the case one which Bannerman comes within the proviso to section 48 of the Native Adminis-

tration Ordinance, and that in a case which involves only the “. question whether the property devised is family property or not,

the parties to such action shall be taken to have agreed to be bound by English law? The present case is not a case of the Court being asked to construe the Will, nor do the issues involved affect the Will itself, except indirectly, in that if the issues were decided in favour of plaintiff, and the properties were found to be family properties, certain of the devisees would have nothing to take.

It is difficult to see how the plaintiff, who does not recognise the Will, or take any interest under it, can be taken, either expressly or impliedly, to have agreed to be bound by law other than native law.

A case of my own, namely Yamtuz /V v. Kwa Owuayem Sekyi, Suit No. 50/1932, tried by me at Cape Coast, and in which I gave judgment on the 28th March, 1935, has been quoted as showing that I have jurisdiction to try the present case. It was a case similar to the present case except that the properties claimed in it were all personalty. The case went to the West African Court of Appeal, where (inter alia) the question of jurisdiction was raised. The decision of the West African Court of Appeal or. the 3rd day of March, 1936, in that case was : ” It appears ” clear to this Court that from the nature of the transaction out ” of which this matter arose, the parties by implication have ” agreed that their obligation in connection with such transaction ” should be regulated substantially according to the English law ” as to Wills. The jurisdiction of the Paramount Chief’s ” Tribunal was therefore ousted, the case was properly cognisable ” by the Supreme Court and this ground of appeal fails.”

It was a case in which personalty amounting to several thousands of pounds had been devised by a wealthy stool holder. The plaintiff in that case claimed that the personalty was stool property and not self acquired.

If the judgment in that case is to be of general application. and that in every case where property, real or personal, is devised by Will, the Supreme Court has jurisdiction then clearly I itavt.

jurisdiction in the present case. I have my doubts, however, as

Solomonto whether that was the intention of the West African Court of

” ^{Head of} Appeal. the

FamilyNo doubt in the present case, where valuable properties are

v.concerned, the parties are anxious for the issues to be tried by the

Alexander Supreme Court instead of by a Paramount Chief’s Tribunal.

Mensah

AlloteyThe present case will be a very lengthy one. No less than

seven senior members of the Bar are engaged in it, and it would

& ors.

be a serious loss of time, and money, if it turned out I had no

Kingdon,jurisdiction. I think, therefore,—and counsel in the case think

C.J.,the same,—that the opinion of the West African Court of Appeal

Bannerman should be taken on the points of jurisdiction involved.

& Doorly,

The points on which the opinion of the West African Court

JJ.

of Appeal is asked are :—

1. Is a case ousted from coming within the jurisdiction of a Paramount Chief’s Tribunal under section 48 (2) (c) and (f) of the Native Administration Ordinance by the mere fact that some, or all, of the property, real or personal, has been devised by a Will P
2. Have I, on the facts stated in the present case, jurisdiction to try it?

Frans Dove for Plaintiff.

J. H. Coussey (with him A. W. Kojo Thompson) for first, second, seventh, eighth and ninth Defendants and the two Co-Defendants.

D. M. Abadoo (with him Wei Awere) for third, fourth, fifth and sixth Defendants.

The following opinion of the Court was given :— KINGDON, C.J., NIGERIA, BANNERMAN AND DOORLY, JJ.

The Court is asked its opinion on the following two questions :—

1. Is a case ousted from coming within the jurisdiction of a Paramount Chief’s Tribunal under section 48 (2) (c) and (f) of the Native Administration Ordinance by the mere fact that some, or all, of the property, real or personal, has been devised by a Will?
2. Have I, on the facts stated in the present case. jurisdiction to try it?

The first question is put in wide and general terms, far wider than the question which arises in the present case. We answer it in the negative,

The question in this and similar cases turns on one of fact to Ofoley be decided by the trial Judge on the particular facts of each Solomon

individual case—Does it appear from the nature of the transaction as Head of out of which the cause or matter shall have arisen that the parties the expressly or by implication agreed that their obligations in Family connection with the transaction should be regulated substantially

Alexander

in accordance with English law?Mensah

The answer to the learned trial J udge’s second _questi_on i_s Allotey

ors.

theref ore—

Jr

If you decide the facts so as to answer the above question Kingdon,
in the affirmative, the answer to your question is in c j

the affirmative.Bannerman

If you decide the facts so as to answer the above question & ^DwrlY’
in the negative, the answer to your question is in ‘^LL

the negative.

It is ordered that the costs of all parties upon this case stated shall be costs in the cause. They are assessed at fifteen guineas in the case of each party.

Offiong Egbo Archibong Bassey & Ors. V. Chief Ntoe Eteta & Ors (1938)

LawGlobal Hub Judgment Report – West African Court of Appeal

Land—Grant under Native Customary Law—Subsequent leases by grantor to European firms—Claim by grantees to share of rents.

Facts

Plaintiffs, alleging that they were the grantees under Native Customary Law of certain lands extending to the beach at Atimbo on the Qua River, which had, subsequently to such grant, been leased by defendants to European firms, claimed two-thirds share of the rents from such leases. Defendants alleged (1) that such portions of the lands as were ” beach lands ” could not be the subject of such a grant, and (2) plaintiffs at most are entitled to £10 a year only by virtue of an agreement alleged to have been made by the Head of plaintiffs’ family.

Held

(1) Defendants’ contention that ” Beach lands ” could not be subject of grant overruled in view of judgment of Divisional Court in 1915 holding ” permission to use the land extended to the beach.”

2. Defendants not entitled to grant leases, but plaintiffs having adopted the leases are entitled to an equitable share of the rents.
3. Matter not affected by alleged agreement.
4. Such share fixed at two-thirds.

O. W. J. Grozmann V. John Buada & Ors. (1938)

LawGlobal Hub Judgment Report – West African Court of Appeal

Application to set aside an Order made ex-parte to draw money out Divisional of Court.CourtSale under Fi Fa—Legal estate together with equity of redemption sold—irregularity in notice of sale.

Held: Whole property was intended to pass and did in fact pass and that sale was in order.

Appellant appealed against judgment to West African Court of Appea which dismissed appeal.

Appeal dismissed the Court being unable to set aside the Judge’s order authorising payment.

There is no need to set out the facts.

Frans Dove for Appellant.

J. TV . Mead for Respondent.

The following joint judgment was delivered :—

KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND YATES, J.

In previous proceedings between the same parties before the same Judge the appellant sought to set aside the sale of property taken in execution by the judgment-creditor on the ground that there were irregularities in the conduct of the sale.

One of the five irregularities relied on was that the notice of sale purported to sell the whole property whereas the judgment-debtor had only an equity of redemption the property having been mortgaged to Mary Joseph by a legal mortgage.

The point haVing been put in issue the Judge decided it. In his judgment dismissing the application the Judge held, inter alia_s that the whole interest in the property, free of the mortgage, was intended to be and was in fact sold.

Appellant appealed against that judgment. In the fourth of his grounds of appeal it will be seen that he alleged that the decision that the sale under the notice of sale was of the whole interest of the mortgagee Mary Joseph was erroneous in law.

This Court dismissed that appeal on the ground that it agreed with the trial Judge that there were no irregularities in the sale by which the appellant was damnified so as to entitle him to get the sale set aside. The judgment was silent as to what estate passed to the purchaser.

It is clear that the very point which the appellant wanted the Court below to decide in his favour in the proceedings the subject matter of this appeal, was one of those raised by his counsel on his previous application and decided against him.

In the 2nd Edition of Everest & Strode on Estoppel at page 56 it is stated that ” as regard judgments in persona* or inter partes, ” the general rule is, that an allegation upon record, upon which ” issue has been once taken and found, is, between the parties ” taking it and their privies, conclusive according to the finding ” thereof, so as to estop the parties from again litigating that fact ” once so tried and found “.

It having been held in the first proceedings that the whole of appellant’s property did in fact pass to the purchaser we are of the opinion that the appellant was estopped from alleging the contrary in the Court below notwithstanding the terms of the certificate of title of the 29th December, 1937.

It results from the finding of the Judge in the Court below that the legal estate in and equity of redemption of the property seized and sold realised £1,420, less auctioneer’s charges £99 7s. 11d., i.e., £1,320 12s. ld.

This sum was paid into Court by the Deputy Sheriff and out of it the trial Judge ordered the payment of £389 7s. 9d. to 0. W. J. Groszmann, the execution-creditor, in respect of the judgment debt and costs. We are not asked to set aside or vary that order.

Out of the balance of £931 4s. 4d. remaining the trial Judge authorised the payment of £825 and costs amounting to £19 4s. Od. to 0. W. J. Groszmann on his solicitor undertaking that these two sums would be paid to Mrs. Mary Joseph the mortgagee. It results from our conclusion that we are unable to set aside the Judge’s order authorising the payment of this sum of £844 4s. Od.

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The appeal is dismissed with costs assessed at £23 19s. Od.

Nchirahene Kojo Ado V. Buoyemhene Kwadwo Wusu (1938)

LawGlobal Hub Judgment Report – West African Court of Appeal

Title to Land—Native Law and Custom not to over-ride Equity—The test applicable.

Held: Following the Boketsi case (Renner Reports 239-243) Quassi Bayaidee v. Quarmina Mensah (Renner Reports 45) and Kodwo Nkomo’ v. Kwamin Etsiaku (1922) F.C. ’22, 1 (p. 5) that if the defendant can show that over a lengthy period of occupation he has been led to regard the land as his own and has spent moneypn its improvements the plaintiff is now estopped from setting up his claiM of ownership, but if defendant cannot show this the plaintiff is entitled to a declaration of title.

Appeal allowed, and case remitted to Court of Chief Commissioner for evidence relevant to this test to be taken.

There is no need to set out the facts. A. G. Heward-Mills for Appellant. T. Hutton-Mills for Respondent.

The following joint judgment was delivered :—

KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND YATES, J.

This case began in the Asantehene’s Divisional Court ” B ” held at Kumasi with the following issue :—

” The plaintiff swore the Great Oath that a parcel of ” land known and called Taa Kokoti ‘ belongs to ” him and that he occupied it before the defendant ” overtook him there and the defendant also ” responded that the said land belongs to him and ” with it he serves Nana Hemaa.”

Before that tribunal the plaintiff’s case was that it was his ancestor who permitted the defendant’s ancestor to go and settle on the land in dispute (which is also called Buoyem).

The defendant’s case was that it was the Asantehene Nana Poku Ware who gave his ancestor the land.

It is not disputed that defendant has been in undisturbed occupation of the land for nearly 200 years without payment of any tribute to plaintiff, but the plaintiff alleges that what was made to mark the incident of the grant of the land to defendant’s ancestor was that there should be no adultery fee between plaintiff and his people on one side and defendant and his people on the other. Both parties relied upon the evidence of one Kwaku Attah, Nchirahene which is summarised by the tribunal as followsIC* Ado

” That the plaintiff’s ancestor owned the land originally ” and that the defendant’s ancestor overtook the ” plaintiff’s ancestor living on the said land and ” that because the plaintiff went away and did not ” return to re-occupy the land the defendant has ” been known and acknowledged as the owner, ” receiving from outside people farming the said ” land or hunting thereon all customary dues; but ” that if the plaintiff were living on it even to-day, ” such customary dues would have been given him ” instead of the defendant.”

The tribunal regarded this evidence as entirely against the defendant, disbelieved the defendant’s version that his ancestor was given the land by Nana Poku Ware, and gave judgment for the plaintiff with costs.

The defendant appealed to the Asantehene’s Court ” A,” which heard both parties, but did not take any fresh evidence. The defendant-Appellant however tendered before this tribunal two certified copies of an alleged demarcation of boundary between him and Tuobodombene said to have been laid between them by Commissioner T. E. Fell on 22nd November, 1905 and 27th July, 1908, respectively. The respondent objected to these papers being accepted in evidence in that he was not a party to the suit which necessitated the alleged boundary being drawn up. The objection was upheld and the documents rejected.

The Court decided the appeal in the following terms :—

” This Court, having read the appeal record and also ” the appellant’s grounds of appeal and having ” examined both parties on certain knotty points ” about the disputed land, is satisfied that the ” judgment of the Court below is in order and while ” it does not propose to disturb it, it feels that it ” will not be equitable to eject the appellant from ” the disputed land or to deprive him of a share of ” the proceeds thereof, in view of the fact that the ” appellant and his stool subjects or followers have ” been living on the land since the past (200) two ” hundred years, i.e. since the days of the ” Asantehene Nana Poku Ware. The Court ” therefore makes the following equitable arrange” ments between the parties :—

” (a) The appellant and his followers should ” continue to live on the disputed land free ” from all tributes,

” (b) Tributes payable by strangers farming on the ” land should be divided into tripartite : one” third to go to the Golden Stool as prescribed

by custom; one-third to go to the appellant ” and the remaining one-third to go to the ” respondent as land owner.

” (e) Mining rights and treasure trove should be ” similarly divided.

” The appellant must however pay the taxed costs of the ” respondent in this and the Court below for bring” ing unnecessary litigation.”

As to this it is to be observed that the tribunal went far outside the scope of the suit before it, which was solely to determine whether or not the plaintiff was, as against the defendant, to be declared the owner of the land in dispute. Apparently the ” A ” tribunal answered this question, as did the ” B ” tribunal in the affirmative.

The defendant then appealed to the Court of the Chief Commissioner of Ashanti. The appeal was heard by Mr. Bewes, Acting Assistant Chief Commissioner, appointed to preside over the Chief Commissioner’s Court. After hearing the parties, he dismissed the appeal, treating that part of the judgment of the Asantehene’s Court ” A ” which deals with the sharing of the produce from the land as merely an expression of what that Court considered would be an equitable arrangement between the parties and not as an order of Court. In giving his judgment the Acting Assistant Chief Commissioner said :—

” Now the action before the Native Court was to decide ” who was the owner of the land. Following ” Watson, J., in Agyeman v. Yarmoah (1913) D. and ” F. 11-16, 56 who made a pronouncement that ‘ it ” has been held by the Courts of the Colony that ” mere use and occupation for some time cannot

oust an original title, in other words there is no ” such think in native customary law as a ” prescriptive right,’ I have come to the conclusion ” that the judgment of the Native Court was ” correct when it decided that the Nchirahene was ” the owner. They were also correct in deciding ” that it would be inequitable to oust the defendant ” from the land, that it does not seem that the ” plaintiff was asking for this. His action appears ” to be only to establish his title to the land with a ” view to obtaining later a share of any valuable ” minerals.

” To this extent therefore I uphold the judgment of the ” Court below.”

From that judgment the defendant now appeals to this Court and the appeal comes before us with the decision of three inferior Courts unanimously in favour of the respondent. We are naturally extremely reluctant to go counter to this unanimity, and in fact we do not propose to reverse any of the findings of the lower Courts, but we do consider it incumbent upon us to consider the case from rather a different angle, namely, how the rights of the parties are affected by the doctrines of equity which are well recognised by the Courts of the Colony as applying in such cases as this.

All three Courts below have rejected the defendant’s story that his ancestors were put on the land by Asantehene Nana Poku Ware, and though we have been invited by appellant’s counsel to reverse this finding of fact, we are certainly not prepared to do so. But defendant’s counsel has then submitted—and the point is taken for the first time in this Court, so that it has not been considered by the lower Courts—that even if defendant’s ancestor originally went into occupation of the land by permission of plaintiff’s ancestor as alleged by plaintiff, the plaintiff is now estopped from coming to the Courts to ask for a declaration of title by his conduct in standing by for nearly 200 years and allowing the defendant to treat the land as his and incur expense in regard to it.

The three Courts below have found that it was the plaintiff’s ancestor who put defendant’s ancestor on the land and that in accordance with native law and custom the plaintiff remains the owner. We accept the finding and entirely agree that in accordance with strict native law and custom the plaintiff remains the owner. But there is a long series of decisions in which it has been laid “dawn that the Courts will not allow the strict native law and custom to be invoked in such cases as this when the effect is, in equity, unjust. The principle may be said to have been first enunciated in an obiter dictum in what is known as the Bokitsi case. In that case Mr. Justice Morgan said :—

” Assuming, however, that they had proved that at some ” former period it had been so attached, but that ” the /amfuris had, without any definite permission ” being granted to them, occupied it without paying ” tribute, and under such circumstances (as in the

present case) as would cause them to believe them” selves to be the owners of the land, and to incur ” pecuniary responsibilities in consequence of that ” belief, we think it right to state that in our ” opinion it would be contrary to the principles of ” equity to allow the native law to apply in its ” entirety such law being, as we understand it, that ” the original owner of land who has not specifically ” divested himself of his ownership can, after any ” length of time and under any circumstances,

” obtain recovery of his land from persons setting up ” an adverse title, whatever may be the detriment ” caused to such persons by the fact that the original ” owner chose to sleep on his rights.” (Bokitsi case ” (1902) Sarbah’s F. L. R. 159 at p. 160; Renner ” 239).

This dictum has been frequently approved and acted upon, and one other only of the cases need be referred to. In the case of Kodwo Nkoom v. Kwamin Etsiaku (1922) F.C. ’22, 1 at page 5 Smyly, C.J., said :—

” This ground is based on two reported cases, Concession ” No. 38 (Bokitsi No. 1) (Renner Reports 239-243), ” and Quassi Bayaidee v. Quarmina Mensah (Renner ” Reports, 45). Both these cases decide that the ” native law and custom that the original owner can ” go to sleep on his rights, and subsequently recover ” his land from persons setting up an adverse title ” whatever may be the detriment caused to such ” persons was contrary to the principles of equity. ” The test as to whether the native law and custom ” should be followed or not would appear to be, ” whether the adverse possession was of such a kind ” as to lead the persons so holding adversely to ” believe they were the owners, and as such to have ” incurred pecuniary responsibilities.”

We think that in the present case a similar test should be applied and that, if the defendant can show that during his 200 years’ occupation he has been led to regard the land as his and has spent money in improving it or in defending his rights to it, then the plaintiff should now be estopped from setting up his claim of ownership, but if the defendant cannot show this then the plaintiff is entitled to his declaration. But there is not sufficient data before us to enable us to apply the test since the point was not raised in the Courts below and the only evidence tendered by the defendant bearing on the question was rejected in the Asantehene’s Court ” A.”

The appeal is accordingly allowed and the judgments of the three lower Courts, including the orders as to costs are set aside and the case is remitted to the Court of the Chief Commissioner to allow each party to call before it such evidence as he may wish which is relevant to the test indicated. The Chief Commissioner’s Court having heard such evidence should then give judgment in accordance with the principles herein set out, and should make such order as it thinks proper in regard to the costs already incurred in the three lower Courts and to be incurred before it.

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The appellants is awarded costs in this Court assessed at £22 Is. Ild.