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GBADAMASI, ETC.
V.
SALIFU SANI
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST
28TH DAY OF JUNE, 1943
2PLR/1943/25 (WACA)
OTHER CITATION(S)
2PLR/1943/25 (WACA)
(1943) IX WACA PP. 168 – 172
LEX (1943) – WACA PP. 168 – 172
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
GRAHAM PAUL, C.J., SIERRA LEONE
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BETWEEN:
GBADAMASI per A. W. SEY — Plaintiff-Appellant-Respondent-Appellant
AND
SALIFU SANI — Defendant-Respondent-Appellant-Respondent
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REPRESENTATION
K. A. Bossman (Holding E. A. N. Crabbe’s brief) — for Appellant
N. A. Ollennu (Holding J. T. Sackeyfio’s brief) — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Claim for damages for trespass to land — Competition between plaintiff and defendant as purchasers of the same farm — Purported purchase evidenced by receipt and a formal conveyance — Purported purchase of land which included the farm at a sale by auction under a writ of Fi. Fa evidenced by the auctioneer’s receipt — How rivalry resolved
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PRACTICE AND PROCEDURE ISSUE(S)
APPEAL:- Native Tribunal — Original hearing not on the merits — Original judgment bad in law — Original judgment reversed on the merits on appeal — Appellate decision quashed as insufficiently grounded, and original judgment restored — Re-trial.
EVIDENCE:- Practice in Native Tribunal — Giving a witness’s evidence through the mouth of another
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CASE SUMMARY
The plaintiff in a Native Tribunal claimed damages from the defendant for trespass, to land. The substantial issue was a competition between plaintiff and defendant as purchasers of the same farm. The plaintiff’s case was that he had purchased the farm from Kwa Aidoo on 9th March, 1940, the date of a receipt given by Kwa Aidoo for the purchase money, which plaintiff put in evidence together with a formal conveyance by Kwa Aidoo dated 10th May, 1941. The defendant’s case was that he had purchased land which included the farm at a sale by auction under a writ of Fi. Fa against Chief Abusumpim, Kwa Aidoo’s father, and he produced the auctioneer’s receipt dated 21th February, 1941, and the Certificate of Purchase dated 21st March, 1941.
The Tribunal, without addressing itself to the merits of the case, gave judgment for the defendant on the ground that the plaintiff had lost his claim by not issuing an Interpleader Summons when the farm was attached.
The Paramount Chief’s Tribunal, on appeal by the plaintiff, reversed this judgment on the merits, after ordering a view of the farm.
The Provincial Commissioner’s Court without examining the grounds on which the original Tribunal’s judgment was based, allowed the defendant’s appeal against the decision of the Paramount Chief’s Tribunal on the ground that it did not appear’ that the latter Tribunal had sufficient grounds for reversing the judgment of the original Tribunal, which was restored.
At the original trial the evidence of a material witness was given through the mouth of another, who was sworn in his name and gave evidence as though the witness whom he was impersonating were speaking. In sending the case back for retrial, the Court especially directed that this practice should not be followed at the new trial, quoting and affirming the judgment in Adabla v. Agama and ors. (6 W.A.C.A. p. 169).
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held:
(i) The judgment of the original Tribunal was bad in law.
(ii) The Paramount Chief’s Tribunal ought not to have reversed the original Tribunal’s judgment on merits which the original Tribunal had never considered, but should have sent the case back for rehearing on the merits.
(iii) Since the reversal on insufficient grounds of the original Tribunal’s judgment by the Paramount Chief’s Tribunal did not make the judgment a good one, the decision of Provincial Commissioner’s Court in favour of the plaintiff was bad.
And all the judgments of the Courts below were set aside and the case Gbadamosi sent back to the original Tribunal for rehearing.
MAIN JUDGMENT
The following joint judgment was delivered:- per KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL, C.J., SIERRA LEONE (READ BY GRAHAM PAUL, C.J., SIERRA LEONE).
In this suit the appellant, as plaintiff in the Tribunal of Agona Duakwa, claimed against the respondent as defendant as follows:-
“The plaintiff claims from the above-named defendant fifty pounds (.£50) damages for unlawful entry into the plaintiff’s cocoa farm situate, lying and being at Obrakyire, and plucked and still plucking the cocoa, which said cocoa farm was originally the property of Kwa Aidoo who sold the said cocoa farm to the plaintiff as per Receipt and Deed of Conveyance with plan annexed.
”The plaintiff seeks the relief of the Tribunal to refrain the defendant, his labourers or any of his servants from further entry on the said cocoa farm.”
The Tribunal, after hearing evidence, directed that the farm in question should be inspected by five members of the Tribunal including the Registrar, which was done. The Tribunal having heard the report by their linguist on behalf of the five inspecting members and further evidence (of the auctioneer Numo) gave judgment for the defendant. From that judgment the plaintiff appealed to the Paramount Chief’s Tribunal of the Agona State which reversed the judgment of the Tribunal below and entered judgment for the plaintiff· with costs in both Tribunals. The defendant then applied to the Paramount Chief’s Tribunal to review its judgment, whereupon the Paramount Chief’s Tribunal ordered that the land be viewed and on hearing the report of the viewers finally confirmed its previous judgment in favour of the plaintiff.
On appeal to the Provincial Commissioner’s Court the judgment of the Paramount Chief’s Tribunal was reversed and the original judgment of the Agona Duakwa Tribunal upheld. From that judgment of the Provincial Commissioner’s Court the plaintiff has appealed to this Court.
Broadly speaking the issue between the’ parties was a competition between two purchasers of the same cocoa farm.
The plaintiff’s case was that on 9th March, 1940, he bought the cocoa farm in question for £70 from one Kwao Aidoo, the son of Chief Kobina (or Gobblah) Abusumpim. The plaintiff put in evidence (1) the relative receipt by Kwao Aidoo for the £70 which is dated 9th March, 1940 and (2) a formal conveyance by Kwao Aidoo dated 10th May, 1941.
The defendant’s case was that he had purchased land including the cocoa farm in question at a public auction side. under a Writ of Fi. Fa. executed against the said Chief Abusumpim. The defendant produced his receipt from the auctioneer dated 27th February, 1941, and his Certificate of Purchase dated 21st March, 1941.
One must now look at the judgment of each of the Courts below to see what was in each Court the ratio decidendi.
The original Tribunal expressed some question about the plaintiff’s documentary evidence but decided the case in defendant’s favour on the special ground that the plaintiff had lost his claim to the farm by not issuing an Interpleader Summons when the farm was attached. It is not contended before us-and it could not be held-that this was a good ground for a judgment against the plaintiff. The plaintiff had a right to choose his remedy; either by Interpleader Summons or by independent action. The original Tribunal, in, basing its judgment solely on this bad ground of law, did not address itself to the real merits of the case at all, and in particular did not trouble to resolve their expressed suspicions as to the documentary evidence. It is obvious that the most careful. examination of the evidence is necessary in a case like this where there is direct competition between, on the one hand, a purchaser who bought in good faith at a public auction under a Writ of Fi Fa issued against the father, and on the other hand, a purchaser who claims that he acquired under a private purchase from the son, there being no definite evidence as to how, when, or why, the father divested himself in favour of his son. The date of Exhibit ” A ” is for instance, of the utmost importance as regards priority and ,there are features about the elate of that document, signs of erasure, movement of the stamps after signature, delay in getting the conveyance executed, etc., which certainly justify the suspicion which the original trial Tribunal entertained, but found it unnecessary- to investigate because of the legal ground upon which they wrongly thought they could dismiss the plaintiff’s claim.
In its final review judgment on appeal the Paramount Chief’s Tribunal found as follows:-
“On appeal, this Tribunal ordered a viewing of the farm in dispute and according to the inspection report the farm claimed by the appellant cannot be said to be outside the area described in the writ of Fi Fa and sold by public auction and purchased by the respondent. But it would appear that the respondent in taking possession of his purchase occupied more land than be actually purchased; namely the southern portion of the land originally owned by Chief Kobina Abusumpim.
” In the opinion of this Tribunal, therefore, the appeal succeeds in favour of the plaintiff-appellant with costs to be taxed.
“No order as to damages for trespass.”
The Provincial Commissioner’s Court on appeal held as follows:-
“It does not appear that the appellate Tribunal had sufficient grounds for reversing the decision of the Duakwa Tribunal.
“The appeal succeeds and the judgment of the Duakwa Tribunal is upheld.
“Costs to be taxed and to be paid by plaintiff-appellant-respondent.”
As has already been indicated, the whole ground on which the Duakwa Tribunal judgment proceeded was bad, and the proper judgment for the Paramount Chief’s Tribunal would have been to send the case back to the original tribunal to be reheard and decided on its merits. The Paramount Chief’s Tribunal on appeal ought not to have reversed the original Tribunal’s judgment on merits which the original Tribunal had never considered.
The Provincial Commissioner’s .Court did not expressly in its judgment examine the ground upon which the original Tribunal’s judgment was based, but upheld that judgment only on an examination of the reasons given by the Paramount Chief’s Tribunal for reversing it. That an Appeal Court reverses a bad judgment expressly on bad grounds does not. of course make the bad judgment a good one.
The only course open to this Court, however regrettable the consequent delay may be, is to ensure that the issue between these parties is properly tried on its merits. To that end all the judgments of the Courts below are set aside and the case is sent back to the Agona Duakwa Tribunal to be retried de no-vo with a direction that the plaintiff’s failure to interplead does not bar him from bringing this action.
Also it is especially directed that if the oral evidence of either party of facts within his knowledge is required for this case he should not give it through the mouth of another person as was done at the original trial. It cannot be too strongly emphasized that it is a bad practice to allow a letter writer or anyone else to stand up in the witness box and impersonate some one else, giving sworn evidence as if he really were that other person.
This Court has alreadv drawn attention to the undesirability of this practice in the unreported case of Adabla v. Agama & Ors. decided at Accra on 6th June, 1940. The following is an except from the judgment in that case:-
“There is one other matter to which we think it necessary to allude. It is the practice which seems to obtain in some Native Tribunals of allowing one person to stand so completely in the shoes of another that he is actually sworn in the name of that other and gives evidence as though he were that other person speaking the present case it was suggested that the practice had also found its way into the Provincial Commissioner’s Court and that the person appearing from the record as being sworn in the name of Afianu was not Afianu at all but Adabla; this was not confirmed, but in another case which has come to our notice a man giving evidence in a Native Tribunal actually began his evidence to the effect ‘I am the wife of so-and-so. This demonstrates the absurdity of such a practice and the practice fails under the acid test which is who can be prosecuted for perjury, if perjury is committed?’ The practice should be discouraged.”
We emphatically re-affirm these views.
In this Court the appellant contended that the Paramount Chief’s Tribunal’s judgment should be restored and he has failed in that contention. In the Provincial Commissioner’s Court the respondent was wrongly successful in his contention but the appellant did not in that Court oppose the respondent’s contention on sound grounds. In the Paramount Chief’s Tribunal the appellant was successful but in that Court neither party applied for the case to be sent back which was the only correct course. In the original Tribunal each party allowed himself to be impersonated as a witness by another person with the most unsatisfactory results, For all these reasons the fair course is that each party should bear his own costs in all the four Courts and that all orders awarding costs in the Court below should be set aside and any sums paid under any such order should be refunded. It is ordered accordingly.
As regards costs, the appellants are awarded costs in. the Court below including the costs of the proceedings before the Referee for the following reasons:-
(1) There was no evidence that the respondent asked for an account before action taken.
(2) The respondents sought to surcharge the accounts as filed to an amount in cash and kind of about £800 and except as to £256 2s 9d the appellants have succeeded on that issue, i.e., approximately to a two-thirds extent.
(3) The appellants have succeeded completely on the issues raised in paragraphs (3) and (4) of the Writ of Summons.
The appellants’ costs in the Court below are to be assessed as to counsel’s fees and taxed as to other costs in the Court below.
The appellants are awarded costs of the appeal in this Court assessed at £89 8s 6d.
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