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Chief Kofi Teng V. N. J. Annan (1940) LJR-WACA

Chief Kofi Teng V. N. J. Annan (1940)

LawGlobal Hub Judgment Report – West African Court of Appeal

Claim for a declaration of title and recovery of l’ossession–sale to Plaintiff of property previous to an attachment against the vendor —conveyance to Plaintiff subsequent to attachment—sale by auction under attachment to the Defendant—Plaintiff non-suited in an action against the Vendor bringi fresh action against Defendant—decision of res judicata reversed. Appeal allowed.

Held : The judgment for the Plaintiff below is set aside, being based on the ground of yes judicala, whereas the Defendant was not a party to the previous action.

(2) The case is sent back to be retried, and for a decision to be reached on the real issue of fact, as to whether there had or had not been a purchase prior to the attachment.

There is no need to set out the facts.

K. A. Bossman for Appellant.

0 fel Awere (with him E. E. Hammond Laing) for Respondent.

The following joint judgment was delivered :—

KINGDON, C.J., NIGERIA, PEI RIDES, C.J., GOLD COAST AND GRAHAM PAUL, C.J., SIERRA LEONE.

The Plaintiff in this case alleged that on the 11th June, 1937, he bought the property described in the writ of summons for £210 from Saforo Yirenkyi.

On the 18th June, 1937, the property was attached under a writ of Fi. Fa. issued against Saforo Yirenkyi in the Tribunal of the Omanhene of New Juaben.

On the 5th July, 1937, a conveyance to the Plaintiff was executed by Saforo Yirenkyi.

On the 12th July, 1937, the property was sold by public auction under the attachment to the Defendant who received a Certificate of Purchase in respect thereof.

See also  Alexander Alexander Logios V. The Attorney-General of Nigeria (1938) LJR-WACA

On the 22nd December, 1938, the Plaintiff instituted a suit in the Divisional Court against Saforo Yirenkyi claiming the return of his purchase money or, alternatively, damages (1210) for breach of covenant of title. In that suit, so it is alleged by Defendant-Appellant, the fact of the attachment on the 18th June, 1937, was not brought to the notice of the Court, and the Plaintiff relied entirely upon the conveyance dated 5th July, 1937.

Cooper, Ag. J. gave the following judgment on the 16th June, Tr! 1939 :—A;nan

” I find that the sale was intended to be governed by English law.. That

the conveyance (Exhibit ” A “I operated to transfer the legal estate to the Kingdont plaintiff.Petrick* and

” That the mortgage being at most an equitable security does not affect Graham the legal estate._Paul, C.JJ.

” That the sale by auction on 12th july under Fi. Fe. only passed the

right andtitle of the debtor. That he hod divested himself of his title under the conveyance of 5th July and therefore the sale did not affect plaintsIrs legal title which is still good.+

” Non-suit—No order as to costs.”

On the 11th December, 1939, the Plaintiff instituted the present proceedings against the Defendant, his claim being for a declaration of title and recovery of possession of the land described in the writ.

There were pleadings and the most material point is that the Defendant denied the alleged purchase by Plaintiff on the 11th June, 1937. It is clear that this was the vital issue in the case—was there a valid purchase by Plaintiff on the 11th June, 1937 ? If there was, it was prior to the attachment and the Plaintiff acquired a title which was confirmed by the subsequent conveyance. If there was not, the attachment was prior to the conveyance on. which the Plaintiff must found, and consequently the conveyance was inoperative to pass title.

But the Court below entirely ignored this issue and gave judgment in Plaintiff’s favour on quite a different and erroneous ground.

See also  Thomas Pinnock V. G. B. Ollivant & Co., Ltd. & Ors (1934) LJR-WACA

It received in evidence the judgment of Cooper, J. already quoted, and treated that judgment as establishing res judicata against the Defendant.

On appeal the Defendant-Appellant submits first that that judgment was wrongly admitted and secondly that even if admissible it could not possibly operate as res judicata against him, since he was neither a party nor a privy of Saforo Yirenkyi.

We do not agree with him as to the first point ; we hold that the judgment was odmissible, although it is of no real help to the Plaintiff in this case, since the Defendant-Appellant’s second point, viz., that it does not operate as res judicata against him, is obviously right.

Since the ratio decidendi in the Court below was entirely wrong, and since the real issue of fact, upon which the whole case turns, Nos not been decided, the case must be remitted to the Court below icor further decision.The appeal is allowed, the judgment of the Court below,
=chiding the order as to costs, is set aside, and it is ordered that
any sum has been paid by the Appellant to the Respondent by
way of costs, that sum shall be refunded. The case is remitted

to the Court below for the Provincial Commissioner, after hearing. Counsel and, if necessary, further evidence, to decide the issue of fact as to whether there was or was not a valid sale of the property in question by Saforo Yirenkyi to the Plaintiff on the 11th June, 1937 and then to give judgment accordingly in the light of this judgment. The Appellant is awarded the costs of this appeal assessed at 04 13s. 6d. The costs hitherto incurred in the Court below are to abide the ultimate issue and be in the discretion of the Court belc.w after it is decided.In the event of it being impracticable for the Court below to be reconstituted in the same way as it was constituted for the hearing of this case, it is ordered that the whole case shall be heard de novo by the Court below.

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