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J. A. ANNOH
V.
SAKYI DJAN AND ANOTHER
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST
7TH DAY OF MARCH, 1944
2PLR/1944/7 (WACA)
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OTHER CITATION(S)
2PLR/1944/7 (WACA)
(1944) X WACA PP. 121 – 127
LEX (1944) – WACA PP. 121 – 127
BEFORE THEIR LORDSHIPS:-
DONALD KINGDON, C.J., NIGERIA
GRAHAM PAUL, C.J., SIERRA LEONE
DOORLY, AG. C.J., GOLD COAST
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BETWEEN:
J. A. ANNOH — Plaintiff-Respondent-Appellant
AND
1. SAKYI DJAN,
2. NICHOLAS AKOTO KOVE alias N. R. A. GBECKOR — Defendants-Appellants-Respondents
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ORIGINATING COURT(S)
1. PROVINCIAL COMMISSIONER’S COURT
2. TRIBUNAL OF THE PARAMOUNT CHIEF OF THE AKWAPIM STATE IN THE GOLD COAST COLONY
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REPRESENTATION
Akujo Addo — for Appellant
K. A. Bossman — for first Respondent
S. Sakyi Djan — for second Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW — LAND:- Declaration of title — Claim for damages for trespass — Family property — Statutes of general application — Judgment of Native Tribunal restored
DEBTOR AND CREDITOR — JUDGMENT DEBT:- Claim for return for deposit payment on property where vendor’s right to sell defeated by his family’s better claim — Order Native Tribunal attaching property in satisfaction of judgment debt — Validity of
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CASE SUMMARY
The second respondent bought the premises from A. P. Plange and paid a deposit. Thereupon the Plange family intervened claiming the property to be family property. In consequence A. P. Plange failed to convey the property to the second respondent who sued for the return of his deposit; he succeeded and proceeded to execution by a writ of Fi. Fa. on the premises.
At the subsequent auction on 7th July, 1941, the first respondent bought the premises, but before this, in 1940, the appellant had purchased the same from the Plange family. Thus the proper issue in the Court below was the competition between the two sales.
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
1. Held: The second respondent not being a party to the appeal proceedings in the Court below when re-trial was ordered, should not have been a party to such re-trial.
2. Held further, that a Native Tribunal has no power to attach property, and consequently the supposed attachment in May 1940 had no legal efficacy to create priority to the pure by the appellant in the same year.
3. Held Further, that the Statute 13 Elizabeth Cap. 6 is a Statute of general application applicable to the Gold Coast by section 70 of the Courts Ordinance, and consequently the absence of proof of fraud on the part of the appellant 111pporta the latter’s claim to declaration of title.
4. Appellant’s appeal against first respondent allowed; judgment of Native Tribunal restored as regards appellant and first respondent, but set aside as regards second respondent.
Cases referred to:-
Laryea v. Quao (6 W.A.C.A. 228)
Miller v. Kwayisi (1 W.A.C.A. 11)
Braithwaite v. Folarin (4 W.A.C.A. 76)
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MAIN JUDGMENT
The judgment of the Court was delivered by Graham Paul, C.J. (Sierra Leone):-
The Appellant was Plaintiff and the Respondents were the Defendants in a suit in the Tribunal of the Paramount Chief of the Akwapim State in the Gold Coast Colony. Judgment was given, by the Tribunal but it was set aside on appeal by the Provincial Commissioner’s Court which ordered a retrial de novo. In this connection it may be mentioned at once that the second Respondent was not a party to the appeal proceedings and Appellant’s Counsel now admits that the second Respondent was unaffected by the order made on appeal for a retrial and was improperly treated by the Tribunal as still a party when the re-hearing was taken. It will be necessary later to refer to that feature of this appeal.
The claim in the original case and in the retrial was as follows:-
“The Plaintiff’s claim against the Defendants is for a Declaration of Title in respect of all that piece or parcel of land situate, lying and being at Nsawam in the Akwapim State and bounded on the North by E. S. Anofi’s land measuring 208· 00′ feet more or less, on the South by High Street leading to Accra measuring 140 · 60 feet more or less, on the East by Nsawam-Aburi Motor Road measuring 85·70 ·feet more or less and on the West by A. P. Flange’s land and measuring 94.00 feet more or less.
“The Plaintiff further claims from the second Defendant Fifty Pounds (£50) damages for unlawful trespass committed upon the above-described property, the said trespass consists in entry and placing Auction Notice thereon.”
At the conclusion of the retrial the Tribunal gave judgment for the Plaintiff against both Defendants for the declaration of title sought, and for £25 damages for trespass against the second Defendant. From that judgment the Defendants appealed to the Provincial Commissioner’s Court which allowed the appeal and reversed the judgment of the Tribunal. From that judgment the Plaintiff has appealed to this Court.
The main question upon which the decision of this appeal depends is short and definite but the history of fact leading up to that question requires narration at some length.
That history begins with dealings which the second Respondent had with one A. P. Plange in regard to the land now in question. The second Respondent agreed to buy, and A. P. Plange agreed to sell, the land in question. A deposit was paid by second Respondent on account of the agreed price, but before the balance was paid some members of the family of A. P. Plange wrote to the second Respondent to say that the property belonged to them so he should not buy it. The second Respondent took no notice of that letter, called upon A. P. Plange to give him a deed of conveyance and, when he refused to do so, sued A. P. Plange and got judgment in the Tribunal of the Paramount Chief of Akwapim for the refund of his deposit, etc. On getting that judgment, the second Respondent issued a Writ of Fi. Fa. to recover the amount of the judgment and “attached” the same property now in question.
Whether the property was really in any legal sense “attached” will be later dealt with. The judgment of the Tribunal was dated 27th March, 1940. The Writ of Fi. Fa. was issued on 20th May, 1940. On the 22nd May, 1940, A. P. Plange appealed to the Magistrate’s Court and obtained a stay of execution pending decision of the appeal. Judgment in the appeal was not given until 4th June, 1941. The reason for the delay of over a year in the appeal being decided does not appear.
The Appellant came into the historical picture when in 1940 he purchased the property in question. He says he purchased it from the Plange Family by Guaha custom, and by formal Indenture of Conveyance which is in evidence and is dated 13th August, 1940. The Indenture of Conveyance is expressly granted by A. P. Plange as Vendor” seised in fee simple in possession free from incumbrances “, but the Indenture is witnessed by the members of his family who had written to the second Respondent warning him not to buy from A. P. Plange.
There seems upon the record of the evidence at the trial no reason to doubt that the Plaintiff bought from the Plange Family. He said so on oath, was not contradicted, and was apparently believed by the Tribunal. That he took an Indenture of conveyance in ordinary English conveyancing jargon expressly from A. P. Plange is true. The witnessing of the conveyance by members of the family apparently satisfied him, and indeed members of the family willingly witnessing a conveyance would find it difficult to attack it later on the ground that it was not with their consent. Whatever suspicion there may be upon the evidence as to the bona fides of the Plange family in all these dealings there is nothing in the evidence against the Plaintiff’s bona fides, either alleged, suggested, or proved. When he bought, he quite openly occupied the land and made a drain and started building on it and no one interfered.
In this Court a great deal was made of the fact that the Appellant in his evidence founded on a sale by the Plange Family and yet put in evidence a conveyance by Plange himself. Nothing seems to have been made by the Defendants of that point at the trial, nor is it specifically mentioned in any of the 12 joint grounds of appeal of the two Respondents in their appeal to the Provincial Commissioner’s Court. It is not surprising that this should be so, for it might well be beyond the ingenuity of the parties to conceive such a case. To oppose the Plaintiff’s claim on the ground that he had a conveyance not from the Family but only from A. P. Plange who, according to their own case, was the proper person to grant such a conveyance seems to pass beyond the bounds of mere ingenuity. In support of this plea the first Respondent’s Counsel quoted the case of Laryea v. Quao (6. W.A.C.A., 228). But in that case it did not appear, as it does in the present case, that the Defendant’s case supported explicitly the validity of the Plaintiff’s documentary evidence of title.
It is noteworthy that although the Defendant’s case at the trial was quite definitely that the property in question belonged to A. P. Plange, and not to the Plange Family, the Defendants by their evidence blew hot and cold on this very question. They called Peter Quarcoo Plange to swear that it was not family Property and Silke, the caretaker of the land, to swear that it was family property. It is not surprising that the Tribunal upheld the Appellant’s case by their finding of fact: “That the Plaintiff had title to the land transferred to him before the sale of the land on 7th June, 1941.” No reason appears in the judgment of the Provincial Commissioner’s Court or in the arguments before this Court why that definite finding of fact by the trial Tribunal should not be accepted.
The appearance of the second Respondent as the second Defendant in this suit is explained by his being the judgment creditor who had issued the Writ of Fi. Fa. upon which, on the cessation of the stay of execution by reason of the decision of the pending appeal, a sale of the property took place. It is by reason of that sale that the first Respondent comes into the Picture; he bought the property at the sale, and that is why the Appellant made him a defendant in this suit.
Now that it has been shown how the first and second Respondents came to be Defendants in the Appellant’s suit it will be convenient to see what their respective cases were in their defence. In the course of the Tribunal’s most lucidly expressed judgment the respective cases of the Defendants before it are stated as follows:-
“The case for the 1st Defendant is that on the 7th June, 1941, he attended an auction sale at Nsawam. He became the purchaser of the land in dispute for £80, without knowing the owner of the property before the sale, or the creditor at whose instance the property was being sold, but he got the Summons in this case a few days after the sale and on the 7th July, 1941, obtained a Certificate of Purchase (Exhibit F) in respect of his purchase, and on the same day the Tribunal gave Judgment against him from which he appealed to the Court of the Provincial Commissioner. He did not know who was called Sampson O. Djan but he may be able to identify him if he were to see him.
The case for the 2nd Defendant is that he recovered Judgment in this Tribunal on the 27th March, 1940 against A. P. Plange, and on the 22nd May, 1940 the land in dispute was seized in execution by attachment Notice and Auction Notice being put on a palm tree standing on the land in dispute. After the attachment a telegram was received by the Tribunal from the District Commissioner staying execution, because an appeal had been lodged. At the time of the attachment of the land, there was a building being erected on the land.
2nd Defendant then referred to the following legal authorities which he said he relied upon for his defence: (1) Miller v. Kwayisi (1. W.A.C.A. II); (2) Order 44 Rule 15 of the Courts Ordinance; (3) Braithwaite v. Folarin (4. W.A.C.A. 76.)”
Having regard to the claim and the basis of it, namely the sale and Indenture of conveyance on the one hand, and the cases for the two Defendants on the other, it is clear that the issue before the Tribunal was a competition between the sale embodied in the conveyance of 13th August, 1940 and the sale under the Writ of Fi. Fa. which according to the receipts Exhibits D and E was not completed until 21st June, 1941. In this competition, the first Respondent, founding upon a sale nearly a year later than that upon which the Appellant claimed, could not succeed unless he could relate his sale back to something anterior in date to the sale to the Appellant, and the first Respondent seeks to date the sale to him, for priority purposes, back to May, 1940, when the Writ of Fi. Fa. was issued and a Tribunal Messenger was by the Tribunal entrusted with the execution of the Writ, and, according to the first Respondent’s case effectively” attached” the property.
Instead of examining the evidence as to what was, or was not, done in May, 1940 by way of execution of the Writ of Fi. Fa., and there is some difference and difficulty in the evidence on this point, it is enough to state clearly two propositions:
(1) That “attachment” of property is a creature of statute. Neither the Common law of England, nor any proved or judicially accepted native custom, gives any virtue or priority to mere “attachment” as against a subsequent purchaser, and
(2) that the Legislature of this Colony has not thought fit to enact for Native Tribunals any efficacy of “attachment ” done by a Messenger of the Tribunal or otherwise. And the unfortunate result is that such attachments have no legal efficacy at all.
Founding, as he had to found, upon the efficacy of the alleged “attachment” in May, 1940, and faced as he was by these two propositions just stated to which he could give no answer, first Respondent’s Counsel had to fall back upon the Statute 13 Elizabeth Cap. 5, which, as an English statute of general application prior to 24th July, 1874, applies here. He quoted from the Provincial Commissioner’s judgment in this case the following important paragraph:-
“There is no doubt that Plange must have known of the Order of attachment prior to his negotiations with the Plaintiff-Respondent and as the learned Judges recorded in the judgment of the W.A.C.A. of Kofi v. Adjei referred to above, there is an omission in the procedure governing seizure and sale of property by Tribunals ”which might suitably be remedied by making of further regulations” but until such time as these regulations are made if it can be reasonably presumed that a party had information that a Writ had been issued by a Tribunal, any attempt to alienate the property mentioned in that Writ must be considered as an attempt to defeat the Law.”
and argued that the Provincial Commissioner had in view the Statute of Elizabeth as “the law” which Plange had attempted to defeat. This may well have been so, for in the Tribunal the second Defendant had quoted the Nigerian case of Braithwaite v. Folarin (4 W.A.C.A., 76) which drew attention to this statute and to its being a statute of general application.
The Statute of Elizabeth was no doubt very sound legislation in England in 1571, for it remained in force in England till 1925. It was simply declaratory of the Common law of England as it was in 1671 and the Common law of the England of 1671 may no doubt be soundly applied to the Gold Coast in 1944, and it undoubtedly does apply to the Gold Coast by section 70 of the Courts Ordinance – the repeal in 1925 not applying here.
To plead this statute however is a very serious and onerous pleading. It is not necessary to quote the quaint language of the statute but two things are clear and definite:
(1) That to void a conveyance under the statute, fraud must be alleged and proved and
(2) That the Act does not extend to any rights or interest which any person has obtained under a conveyance for good consideration and bona fide, however fraudulent the grantor may have been in granting the conveyance.
In its judgment the Provincial Commissioner’s Court apparently set aside the trial Tribunal’s judgment on the ground that Plange knowingly had attempted “to defeat the law”. Even assuming that the Provincial Commissioner’s Court was right in finding that Plange knowingly “attempted to defeat the law “, which on the evidence is by no means certain and was not found by the trial Tribunal, that cannot affect the rights of the Plaintiff under the conveyance which he obtained for good consideration and bona fide. Throughout the course of the trial no suggestion was made that the Plaintiff in taking the conveyance acted otherwise than bona fide, or that there was no good consideration for his conveyance. Neither Defendant alleged fraud or mala fides against the Plaintiff. It was not even suggested to him in cross-examination that he knew of a creditor’s attempt to get the property sold for his debt, and there is certainly no evidence that he did. Nothing is more definite in English Procedure than that a party founding upon fraud of the other party in a suit must specifically allege and prove that fraud. That is a canon of English legal procedure but it is also a canon of natural justice and common sense. No fraud on the part of the Appellant having been alleged in the defence of either Respondent in the trial Tribunal, it is obvious that the Statute of Elizabeth cannot be used against the Appellant to defeat his claim under his conveyance.
For these reasons it seems clear that the judgment of the Tribunal, in so far as it gave the Appellant the declaration of title which he sought, must be restored and to that extent the judgment of the Provincial Commissioner’s Court set aside.
It is now necessary to deal with the position of the second Respondent and his plea that he was not a party to the appeal which resulted in the first judgment of the Tribunal being set aside and a retrial ordered, and that therefore he ought not to have been a party at all in the retrial. This plea might have raised nice questions, but Appellant’s Counsel in this Court has conceded that the order for retrial did not affect the second Respondent, and that in the retrial he should therefore not have been a party. Upon that concession by Appellant’s Counsel the judgment of the Tribunal on the retrial in so far as it purports to affect the second Respondent must be set aside. It has, however; been made clear to this Court that the Appellant was in no way responsible for the order of the Provincial Commissioner’s Court setting aside, on the face of it without qualification in favour of the second Respondent, the first judgment of the Tribunal and therefore it would not be just to mulct the Appellant in the costs which the second Respondent has incurred by the proceedings in the Tribunal subsequent to the order for retrial. The second Respondent as an Appellant to the Provincial Commissioner’s Court did raise this question in his grounds of appeal, and therefore is entitled to his costs in that Court and in this Court.
The Appellant’s appeal against the first Respondent is allowed, the judgment of the Provincial Commissioner’s Court in so far as it affects the case between the Appellant and the first Respondent, including the order as to costs, is set aside and it is ordered that, if any sum has been paid to the first Respondent by the Appellant in pursuance of that order, it shall be refunded; the judgment of the Tribunal of the Paramount Chief of Akwapim is restored in so far as it applies t9 the case between the Appellant and the first Respondent, the Appellant to have in that Tribunal taxed costs of his case against the first Respondent. The judgment of the Provincial Commissioner’s Court in so far as it affects the case between the Appellant and the 2nd Respondent is upheld including the order as to costs, and it is declared that the original judgment of the Tribunal in favour of the 2nd Respondent, delivered upon the first hearing of the suit stands good; the Appellant is awarded against the first Respondent costs in this Court assessed at £43 13s. 3d.; and in the Provincial Commissioner’s Court to be taxed: the second Respondent is awarded against the Appellant costs in this Court assessed at £29 4s.
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