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AMPONSA TANDOH
V.
COMPAGNIE FRANCAISE DE L’AFRIQUE OCCIDENTALE OF ACCRA AND ANOTHER
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST
16TH DAY OF MAY, 1944
2PLR/1944/26 (WACA)
OTHER CITATION(S)
2PLR/1944/26 (WACA)
(1944) X WACA PP. 186 – 187
LEX (1944) – WACA PP. 186 – 187
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
DOORLY, AG. C.J., GOLD COAST
M’CARTHY, J.
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BETWEEN:
AMPONSA TANDOH — Plaintiff-Appellant
AND
COMPAGNIE FRANCAISE DE L’AFRIQUE OCCIDENTALE OF ACCRA AND KWAME POKU — Defendants-Respondents
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REPRESENTATION
Akufo Addo — for Appellant
Akilagpa Sawyerr with J. Sarkodee Adoo — for Respondents
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ISSUE(S) FROM THE CAUSE(s) OF ACTION
DEBTOR AND CREDITOR – JUDGMENT DEBT:- Sale of mortgaged property – Application to have same set aside on several grounds including actual fraud and collusion – Duty of court in considering evidence – Effect of failure thereto
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PRACTICE AND PROCEDURE ISSUE(S)
ACTION – NO CASE SUBMISSION:- Duty of court where there is no a case submission – Failure thereto – Legal effect
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CASE SUMMARY
Plaintiff sued claiming that the sale of his mortgaged property be set aside on several grounds and damages for wrongful sale. When his case was closed the Judge recorded “I do not call on the defence” and accepting a statement from another Counsel that Plaintiff’s Counsel did not wish to address the Court, gave judgment for Defendants, on the ground that there had been no fraud, without considering the other points raised by Plaintiff’s pleadings and evidence.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the appeal):
That where at the close of Plaintiff’s case, the Defence submits that there is no case to answer, the proper course is to ask the Defence if it is calling evidence: if the answer is in the affirmative to hear it, and if in the negative to hear argument on the submission.
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MAIN JUDGMENT
Appeal by Plaintiff.
The judgment of the Court was delivered by the President:-
In this case at the close of the case for the Plaintiff the learned trial Judge recorded:-
“I do not call upon the defence.”
He then accepted a statement from another Counsel that Counsel for Plaintiff who was absent did not wish to address the Court, and then delivered judgment for Defendants with costs.
This Court recently considered in a Nigerian Appeal the duty of a Court when on the close of Plaintiff’s case, a submission is made on behalf of the Defence that there is no case to answer. It was pointed out, following recent English pronouncements, that the proper course is for the Judge to ask Counsel for Defence if he wishes to call evidence, and if the answer is in the affirmative to hear the Defendant’s evidence; if in the negative to hear argument on the submission. A fortiori, we are of opinion that on the close of Plaintiff’s case a Court ought not to decide nor call upon the Defence without asking if the Defence wishes to call evidence. We are of opinion that owing to the wrong procedure followed by the Court in this case, Counsel for the Plaintiff was not given sufficient opportunity to address the Court upon his case. In the result, the learned trial Judge appears to have entirely overlooked and failed to deal with most material facts of the Plaintiff’s claim.
The Plaintiff asked to have the sale of his property mortgaged to 1st Defendants to secure one Sappon in respect of cash advances made to Sappon by 1st Defendants set aside on the grounds of:-
(1) Actual fraud and collusion,
(2) Sale at gross undervalue from which the Court should assume fraud in equity.
(3) Irregularity in the sale, the Plaintiff not having been given notice of the correct amount due from Sappon in respect of cash advances.
Plaintiff further claimed damages for wrongful sale. Of all these various matters, the only one with which the judgment of the learned trial Judge deals is the question of whether or not the sale ought to be set aside on the ground of actual fraud and collusion. He decided that there was no actual fraud or collusion and so saw no reason to set aside the sale.
But he entirely failed to consider or give a judgment upon any of the other points raised by the Plaintiff’s pleadings and evidence. For these reasons we are of opinion that the case must be sent back to the Court below for retrial.
The appeal is allowed, the judgment of the Court below, including the order as to costs, is set aside, and it is ordered that if any sum has been paid in pursuance thereof it shall be refunded; the case is remitted to the Court below to be retried de novo by a different Judge. The Appellant is awarded costs in this Court assessed at £38 11s. against the Respondents jointly and severally. The costs in the Court below both those already incurred and those to be incurred at the retrial will be in the discretion of the Judge at the retrial.
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