Chief Dzelit V. Atsitsogbui Kitisu Denu & Ors (1943)
LawGlobal Hub Judgment Report – West African Court of Appeal
Appeal—Point raised for first time in Appeal Court—Action one the case—No claim in trespass—Trespass set up in Appeal Court.
Action on the ease—Action for damages for wrongful sale of property under writ of Fi Fa—Malice—Native Administration (Colony) Ordinance (Cap. 76) (Gold Coast), section 82, sub-section (2)—ibid., section 123.
Facts
The appellant was the unsuccessful- defendant in a suit before a Native Tribunal in which costs amounting to 211 7s 6d were given in favour of the first respondent. Before any further step was taken by the appellant, the first respondent applied to the Tribunal for a writ of Fi Fa to recover 212 5s Od, being 211 Is 6d costs in the suit together with the costs of the writ. Appellant then obtained leave to appeal to the Provincial Commissioner’s Court and deposited in that Court £11 7s 6d costs under section 82 (2) of the Native Administration (Colony) Ordinance (Cap. 76). Respondent next caused the writ of Fi Fa to issue, and costs were incurred preliminary to the sale of the property ,attached which brought the total costs to £17 7s Od. The Registrar of the Provincial Commissioner’s Court notified the second respondent, who was the Registrar of the Native Tribunal of the deposit of costs made by the appellant in the Provincial Commissioner’s Court, but erroneously stated the amount as £7 11s 6d. Second respondent replied that the total costs were then £17 7s Od, and asked to be advised of payment of the balance, which he mentioned was £9 15a 6d. No reply was received. The appeal in the Provincial Commissioner’s Court was dismissed with an order that the costs awarded by the Tribunal should be paid from the amount deposited in Court. Respondents knew of this order, but continued to have reason to believe. that the amount deposited was only £7 11s 6d. The appellant’s property under attachment was then sold, realizing £16 lOs Od.
Appellant sued the respondents for. damages for the wrongful sale of his property, framing his action as an action on the case and pleading malice in his reply to the defence. The second respondent pleaded the protection of section 123 of Cap. 76. At the trial the appellant failed to prove malice and the action was– dismissed.
On appeal it was argued that, though malice had not been proved, first respondent was liable in trespass.
Held
(i) That the second respondent was protected by section 123 of Cap. 76.
(ii)
That the trial Judge’s finding that there was no malice was correct.
(iii) That the appellant could not set up in the Appeal Court the claim in trespass, which was not put forward and was not in issue in the trial Court.
And for these reasons the appeal’ fafied.
Further, in the opinion of the Court, section 82 (2) of Cap. 76 was not intended to deprive a successful litigant of his right to recover costs; the unsuccessful party could not take this right away from him by depositing the costs in Court instead of paying them direct. On the facts, the first respondent acted throughout in accordance with his legal rights, and there was no trespass.
The appeal is dismissed with costs assessed at £15 4s in favour of the first respondent and £15 4s in favour of second respondent.
