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[CONSOLIDATED]
HENRY A. NA-ANSA
V.
TETTEY KUDSU AND OTHERS
AND
TETTEY KUDSU
V.
HENRY A. NA-ANSA
WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST (GHANA)
18TH DAY OF JUNE, 1938
2PLR/1938/27 (WACA)
OTHER CITATIONS
2PLR/1938/27 (WACA)
(1938) IV WACA PP. 103 – 109]
LEX (1938) – IV WACA PP. 103-109
BEFORE THEIR LORDSHIPS:
DONALD KINGDOM, C.J., NIGERIA
PETRIDES, C.J., SIERRA LEONE
AND STROTHER-STEWART J.
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BETWEEN [CONSOLIDATED CASES]
HENRY A. NA-ANSA — Plaintiff-Respondent
AND
(1) TETTEY KUDSU
(2) CHIEF STEPHEN KAKRI APPO II,
(3) HUNO KWABLAH,
(4) TETTEH KUDEU,
(5) ISAAC K. APO,
(6) ANOH ADJRIABERSA, ALL OF AKOBIA AND
(7) FRANK H. SIMPSON OF CHRISTIANBORG — (Defendants-Appellants)
AND
TETTEY KUDSU — Plaintiff-Appellant
AND
(1) HENRY A. NA ANSA,
(2) NYAWAHE,
(3) KWAO NUKU,
(4) OPATA,
(5) DJAGBO,
(6) KUPLER,
(7) TETTER BANA,
(8) AHULU AND
(9) AMETORDJI, ALL OF KWABIA,
(10) ODONKOR KOFI,
(11) NINAWA NARTEY,
(12) NADUTEY,
(13) ASARE WAYO,
(14) TEI ASAFO,
(15) NOMO NWA AND
(16) OGBODJOR — (Defendants-Respondents)
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ORIGINATING COURT(S)
APPEAL FROM SUPREME COURT
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REPRESENTATION
FRANS DOVE — for Appellants
J. H. COUSSEY — for Respondents
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW — LAND:- Claim for trespass, general and special damages and injunctions — Suit tried without pleadings — Failure of court to allow the admission of key plans — Material change by one party in his case — Joinder of parties not affected formally by claim in court but who could be affected if outcome of case is asserted against them in other forums — Special damages awarded in excess of what was claimed — How treated
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PRACTICE AND PROCEDURE ISSUE(S)
JUDGMENT AND ORDER — SPECIAL DAMAGES:- Amount pleaded — Whether open to court to make an award in excess of same
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held:
1. The trial of these consolidated suits was unsatisfactory in several respects: were tried without pleadings; and questions involved were of such a nature that it was desirable that both sides should be required to state at the outset very clearly their respective contentions and should be bound by them.
2. The plans used for the trial are difficult to follow and the understanding of them is not made easier by the fact that they are not all to the same scale or set at the same angle. It was a case in which all available information by plan which was properly admissible should be before the Court, but the plaintiff succeeded in excluding some of the plans tendered by the defendant.
3. The damages awarded were excessive because the damages claimed were £400 general damage and £100 special damage “being the value of 400 cocoa trees cut down and destroyed on the plaintiff’s land by the defendants.” The trial Judge awarded no general damages but awarded special damages “400 cocoa trees destroyed at 108. each, £200.” Without an amendment of the claim in the writ he could not award special damages in excess of that claimed.
Trial being generally unsatisfactory and judgment of trial Judge lacking clarity, a re-trial ordered with pleadings
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MAIN JUDGMENT
The following is the judgment of the trial Judge:
YATES, J.
These are cross actions for damages for trespass.
In the first action, the claim is for £500 damages for trespass. In 1934, Kudsu brought action against Nyawahe in native tribunal which was transferred to Divisional Court where he obtained judgment with costs, and attached Nyawahe’s land in execution, and on 29th December, 1934, the land, the particulars of which were given by Kudou, was sold to Na-Ansa. Kudou was present at the sale. Later, the Divisional Court gave a certificate of purchase to Na-Ansa, and it is alleged he was in possession nearly two years, when he found a surveyor, one Simpson, cutting a track diagonally across the land, erecting pillars and cutting down cocoa trees and destroying crops.
For the defence, Mr. Frans Dove says that the surveyor was sent on the land by Tettey Kudou to demarcate the boundary between his land and Ansa’s land in consequence of the trespass which was being committed by Na-Ansa; and he denies the surveyor cut down cocoa trees.
In the second action Kudsu v. Na-Ansa, plaintiff claims £200 damages from Na-Ansa for trespassing upon his land and taking cocoa and foodstuffs, and pleads ownership and possession of the land in dispute.
It is as well here to get out the material parts of the certificate of purchase which was granted to Na-Ansa by the Divisional Court on 3rd July, 1935:
“All that piece or parcel of land situate lying and being at Kwabia with buildings, cocoa trees and palm trees thereon and bounded on the North by Akobia land on the South by Kofi’s land on the East by Gano (Kumakuma) land and on the West by Tetter Kwadjo (Korkormah) land, which said messuages “lands and tenements were sold in execution of a decree by Order of this Court dated 27th September,
These boundaries correspond with those set out in the writ of Fi Fa and in the notice of sale and it is somewhat extraordinary, but it is admitted by both sides that in each of these documents the points of the compass are wrong and the proper boundaries should be:
“On the North by Gano or Kumakuma land on the South by Tetter Kwadjo Akorkorma land on the West by Akohia land and on the East by Kofi’s land.”
On May 5th, 1936, this Court ordered a plan showing the boundaries of the land set out in the certificate of purchase be made, and by agreement Mr. Young was appointed surveyor, and he prepared one which was put in evidence. Upon it the land claimed by Na-Ansa, i.e., the land set out in the certificate of purchase, is shown edged in pink, and the land claimed by Tettey Kudsu edged in green.
In the course of the trial, viz.: on 11th December, 1936, Mr. Dove asked that a second survey be made showing what land Tettey Kudsu alleges was sold to Na-Ansa that comes within the boundaries as set out in the certificate of purchase which is not shown on Young’s plan, and I thereupon ordered this to be done, and Mr. Laryea was appointed surveyor and he made a plan which was produced in evidence on 27th September, 1937.
On referring to this plan, it will be seen the land alleged to be described in the certificate of purchase and not shown on Young’s plan is a long narrow strip to the East, stretching from a point on the Jaketi Akobia road near Kofi’s village on the North to an Okumnadue tree on the South. As a result of this survey – apart from the fact that it led to serious disturbance during which a man was killed this additional land was claimed by seven other persons who had to be joined as defendants in the second action, and the particular areas they claim are shown on a further plan superimposed on Young’s plan and put in and marked Exhibit “17″.
From the above plans it will be seen that what is in dispute is this: whether the southern boundary of the land sold in execution to Na-Ansa is the line marked pink in Young’s plan, or whether, as alleged by Tettey Kudsu, this boundary runs along a line of pillars erected by him along the Bissa track and referred to during the trial as the T.K. track, from pillar T.K. 12 on the South to pillar T.K. 28 on the North and en passant. I say I take no notice of pillars T.K. 29 and T.K. 30 shown on Laryea’s plan as they were not there when Young’s plan was prepared. In other words the land in dispute is substantially the area marked green on Young’s plan and blue on Laryea’s plan, though the area marked blue goes a little further North than it does on the green.
It now becomes necessary to deal with the history of the land and the evidence. There are two large tracts of land in the vicinity-Kwabia land and Akohia land. Akohia land was purchased about sixty years ago by Tettey Kudsu’s father and he succeeded. According to the evidence of Tettey Kudsu in the case of Kudsu v. Nyawahe and Others about nine years ago he had a dispute with one Oklah then the head of the Kwabia people about the boundary and Oklah sued him before the Konor. At the trial, councillors were sent to cut the boundary, and it was agreed that the boundary they cut was the boundary between them; and in view of what transpired later it is most important to see where this boundary was, and I am satisfied from the evidence and find as a fact that this boundary started at an Osa tree near pillar T.24 and ran in a S.W. direction to an Adongba treo shown in the S.W. corner of the land marked pink in Young’s plan, and not as contended now by Tettey Kudsu in a S.E. direction.
It is now necessary to refer to the case of Kudsu v. Nyawahe and Others which is the fons et origo of these present actions; and the question is, where did Nyawahe trespass? Nyawabe in giving evidence said he thought his boundary extended to an Odum tree which is not shown in any of the plans but which it is agreed is further to the West than the Adong ba tree, but the Court found against him in Kudsu v. Nyawahe. I believe when he said this, Syawahe was telling the truth so the locus in quo of the trespass in that case was well to the West of the land in dispute in this case and not upon any of the land in dispute in this case, as is suggested by Tettey Kudsu.
I will now deal with the present cases, and the question is, what was the land Na-Ansa purchased at the auction on December 20th, 1934. The boundaries are described firstly in the writ of Fi Fa and secondly in the notice of sale. Now before the sale intending purchasers asked Tettey Kudsu, who was present, to show the boundaries of the land to be sold. Tettey Kudsu agreed and what happened is best described in the evidence of Na-Ansa himself:
“We started from Kumakuma corner and walked towards Kofi’s land-then to Kofi’s village to call him to show his boundary. He came. We walked with him from N.E. to S. Kofi showed his boundary at the corner of Tettey Kwadjo’s land-there were no pillars at this time. Tettey Kudou then begged Kofi to come along with him and show Tetteh Kwadjo’s boundary up to Akohia boundary. We went as far as Adongba tree. On the right hand we were told was Nyawahe’s land which was to be sold. When we reached the Adongba tree and faced N., Kudou said the land on the right is the land to be sold. My land Akohia land is on the left”.
After this evidence was given Tettey Kudsu realised that he was in a serious quandary, for the evidence of Na-Ansa if believed, and I do believe it, shows that the boundaries shown by Kudsu agreed with the boundaries set out in the certificate of purchase and notice of sale, viz:— that the S. boundary of the land sold to Na-Ansa was Akokormah land and not the T.K. line which he asserted, so he applied to the Court for a further survey to be made, and the Court ordered a survey to be made, showing what land Tettey Kudsu alleges was sold to Na-Ansa that comes within the boundaries of the certificate of purchase which is not shown on Young’s plan.
On January 5th, 1937, Mr. Laryea, surveyor, went to make a survey, and it must be remembered it was essential to Tettey Kudsu’s case to show that Na-Ansa had a southern boundary with Akokormah land, and he was shown an Okumjadue tree to the East of the boundary at T.K. 12 on Young’s plan. The surveyor started cutting a line N. towards the Jaketi road, but met with obstruction from very angry people who claimed the land as theirs; and it was only after police protection was afforded the survey was possible. The people who claim the land are seven in number and some of them have given evidence, and I am satisfied beyond all doubt that their claims are correct and this additional strip as shown on Laryea’s plan never belonged to Nyawahe. He never claimed it and it never was sold to Na-Ansa.
In my view the evidence is overwhelming. I am satisfied that the land purchased by Na-Ansa was the land marked pink on Young’s plan, and since the purchase on 29th December, 1934, he has been the owner in possession; and further that Tettey Kudsu never owned any land to the East of the Adong ba tree. It therefore follows that a serious trespass on this land has been committed by Tettey Kudsu and much damage has been done as a direct outcome of that trespass and, therefore, Na-Ansa is entitled to damages which I assess as follows:-
400 cocoa trees destroyed at ten shillings each, £200; but I am satisfied that the further claim, viz: 200 loads of cocoa taken, valued at £120 has not been proved.
In the first case therefore, Na-Ansa v. Tettey Kudou, I give judgment for the plaintiff for $200 with costs to be taxed; and in the second case, Tettey Kudsu v. Na-Ansa, I give judgment for the defendant with costs to be taxed.
DECISION OF THE WEST AFRICAN COURT OF APPEAL
The following judgment was delivered by the appeal Court:
KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND STROTHER-STEWART, J.
The trial of these consolidated suits was unsatisfactory in several respects. First of all they were tried without pleadings and the questions involved were of such a nature that it was desirable that both sides should be required to state at the outset very clearly their respective contentions and should be bound by them.
In point of fact the defendant, Tettey Kudsu, was allowed to make a very material change in his case half way through the proceedings when on the 11th December, 1936, his counsel suggested for the first time that there was a mistake in the plan in evidence known as “Young’s plan”. The plans throughout are difficult to follow and the understanding of them is not made easier by the fact that they are not all to the same scale or set at the same angle. It was a case in which all available information by plan which was properly admissible should be before the Court, but the plaintiff Na-Ansa succeeded in excluding some of the plans tendered by the defendant, Tettey Kudsu. The rejection of this evidence is one of the main grounds of appeal.
As to this it is sufficient to say that in our view the learned trial Judge rightly rejected the two plans marked for identification “B” and “C” respectively, at the time when they were first tendered, but that when the plan “C” was tendered again after the defendant Tettey Kudsu had been allowed to alter his case it should have been admitted.
As to the third plan tendered and rejected, it purported to be made by order of the Court but it included the superimposition of plans which had been tendered and rejected. Although, as we have already indicated, one of those plans should, in our view, have been admitted, both had, in fact, been rejected, and unless and until they had been admitted it was wrong for the surveyor to include in his new plan the superimpositions in question and we think that the Court was right in rejecting the plan and ordering a new one to be made complying with but not going beyond its original order. In the result the Court was deprived of the advantage of having before it the full contentions of all the parties.
A further unsatisfactory feature is that to which exception is taken in ground 2 of the grounds of appeal. The learned trial Judge admitted a further copy of Young’s plan merely for a witness to show a spot marked upon it with a cross, but in his judgment he referred to other additions which had been made to the original Young’s plan and never properly proved.
Another ground of appeal is the alleged improper joinder of the seven co-defendants in the second action; as to this our views are as follows:
By Order 3 Rule 5 of Schedule 3 of the Supreme Court Rules it is provided that where it shall appear to the Court at or before the hearing of a suit that all the parties who may be likely to be affected by the result have not been made parties the Court may direct that such parties shall be made either plaintiffs or defendants as the case may be.
Strictly speaking none of those who were joined by the order of joinder could be affected by a judgment for trespass as no such relief was claimed against them. This would not be clear, however, to the native mind and the fact that they had stood by and done nothing might be regarded by a native tribunal, should there be litigation about the lands which those who were joined claimed, as some sort of admission that they did not set up a claim to the land. In the circumstances, we do not think that the Judge was wrong in allowing them to be joined er abundante cautela.
A further ground of appeal is that the judgment against defendant Frank Herman Shang Simpson was wrong in law.
This led us to examine the judgment to see if judgment was in fact given against Simpson and we find it impossible to say. Indeed the whole final judgment given is lacking in clarity.
It reads:
“In the first case therefore, Na Ansa v. Tettey Kudsu, I give judgment for the plaintiff for £200 with costs to be taxed; and in the second case, Tettey Kudsu v. Na Ansa, I give judgment for the defendant with costs to be taxed.”
Now the first case is not Na Ansa v. Tettey Kudsu, it is Henry A. Na Ansa v. Tettey Kudsu, Chief Stephen Kakri Appo II, Huno Kwablah, Tetteh Kudeu, Isaac K. Apo, Anoh Adjriabersa, all of Akobia, Frank H. Simpson of Christianborg.
It is impossible to say what judgment (if any) has been given in respect of the defendants other than Tettey Kudsu.
Again the second case is not Tettey Kudsu v. Na Ansa; it is Tettey Kudsu v. (1) Henry A. Na Ansa, (2) Nyawahe, (3) Kwao Nuku, (4) Opata, (5) Djagbo, (6) Kupler, (7) Tetter Bana, (8) Ahulu and (9) Ametordji all of Kwabia, (10) Odonkor Kofi, (11) Ninawa Nartey, (12) Nadutey, (13) Asare Wayo, (14) Tei Asafo, (15) Nomo Nwa and (16) Ogbodjor.
And again it is impossible to say what judgment (if any) has been given in respect of the defendants other than Na-Ansa.
A further ground of appeal is that the damages were excessive, and this in any case must succeed because the damages claimed were £400 general damage and £100 special damage “being the value of 400 cocoa trees cut down and destroyed on the plaintiff’s land by the defendants.” The learned trial Judge awarded no general damages but awarded special damages “400 cocoa trees destroyed at 108. each, £200.” Without an amendment of the claim in the writ he could not award special damages in excess of that claimed.
For the various reasons indicated we are of opinion that the trial was so unsatisfactory that a re-trial is necessary.
The appeal is accordingly allowed, the judgments of the lower Court, including the orders as to costs, are set aside, and the case is remitted to the Court below to be re-tried. We are of opinion that it is desirable that the re-trial should be had before a different Judge and upon pleadings.
The appellants are awarded costs against the respondents jointly and severally assessed at £75 128. 2d. The costs already incurred in the Court below will be costs in the cause.