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JOSEPH SAMUEL ANIE AND ANOTHER
V.
JOSEPH J. ABDILAMSI AND ANOTHER
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
25TH DAY OF MAY, 1942
2PLR/1942/25 (WACA)
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OTHER CITATION(S)
2PLR/1942/25 (WACA)
(1942) VIII WACA PP. 67 – 69
LEX (1942) – VIII WACA PP. 67 – 69
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
DOORLY, J.
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BETWEEN:
JOSEPH SAMUEL ANIE OF SUHUM NOW IN ASHANTI, LESSOR AND ADNAN ASHKAR OF SUHUM – Plaintiff
ADNAN ASHKAR OF SUHUM – Appellant
AND
1. JOSEPH J. ABDILAMSI
2. MERCY OFEBEA ANIE – Defendants-Respondents
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ORIGINATING COURT(S)
Appeal from judgment of the Divisional Court
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REPRESENTATION
Frans Dove — for Appellant
E. C. Quist with J. H. Coussey — for Respondents
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW – LAND:- Lease – Claim to possession thereof – Defence that Lease relied on was executed by purported lessor with no authority to execute same – Legal effect
FAMILY LAW – FAMILY PROPERTY:- Lease of family property executed by member of family without authority –validity of – Acquiescence of family members thereto – Burden of proof thereto –Effect of failure thereof
ETHICS –LEGAL PRACTITIONER:- Visit of plaintiff to defendants’ solicitor while action pending – Call of said plaintiff as witness for the defence by solicitor – Attitude of court thereto
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CASE SUMMARY
The matter in issue was whether the 1st plaintiff had power to grant a valid demise of family property to the 2nd plaintiff without the authority/consent of other members of the family. There was an alleged transfer of managership by the 2nd defendant to the plaintiff and acquiescence therein but it was found that no such transfer or acquiescence took place.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held that:
1. The evidence does not support the alleged transfer of ”managership” by the second defendant to the first plaintiff and in regard to the alleged acquiescence in the first plaintiff’s management by the second defendant and the other children. Appellant also admitted that the first plaintiff did not act with the sanction and consent of his mother, brother and sisters.
2. The circumstances of the visit of the first plaintiff to the defendants’ solicitor while the action was pending were very unusual. It is naturally of very rare occurrence that a solicitor for the defendants should decide to call one of the plaintiffs as a witness, but the fact that such was the case here did not in our opinion justify the defendants’ solicitor in interviewing the first plaintiff. In the circumstances it would have been advisable for the defendants’ solicitor to wait and see whether or not the first plaintiff gave evidence at the trial. In admitting him to an interview, the solicitor was ill-advised as it laid him open to the kind of criticism which has been exposed.
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MAIN JUDGMENT
The following joint judgment was delivered:
KINGDON, C.J., NIGERIA; PETRIDES, C.J., GOLD COAST; AND DOORLY, J.
This appeal arises out of an action filed by the two plaintiffs jointly against the first defendant for recovery of possession of a piece of land at Suhum.
It is common ground that this land was part of the estate if Samuel Anie (now deceased), the father of the first plaintiff, and that it devolved on the widow of the deceased and their six children in accordance with the terms of section 48 of the Marriage Ordinance.
The widow of the deceased obtained leave to be joined as a defendant and is hereafter referred to as the second defendant. She is the mother of the first plaintiff.
The second plaintiff is the only appellant. His claim to possession was based on a lease made between him and the first plaintiff dated 3rd January, 1941, for a term of twenty-five year with an option for renewal. This lease is Exhibit 3. By the terms of the lease the first plaintiff demised the property “on behalf of himself and as representing the widow, children and family of Samuel Anie deceased”.
The defence was that the first defendant was in possess ion by virtue of a demise from the second defendant dated 1st February, 1941, for a term of twenty-five years from 1st March, 1941, (Exhibit 27), that the lease to the second plaintiff (Exhibit 3) was invalid in that it was made by the first plaintiff without the consent and knowledge of the other owners of the property, the second defendant and her other children and that that knowledge and consent were necessary to enable the first plaintiff to grant a valid lease.
The second plaintiff alleged that the first plaintiff had authority to make this demise by virtue of a transfer of the managership of the property of the second defendant and her children by the second defendant to the first plaintiff and/or by acquiescence in his management by the second defendant and her other children, and he contended that this transfer and/or acquiescence conferred upon the first plaintiff the power to grant the lease without the knowledge or consent of his mother, brother and sisters.
Although the hearing of this case extended over many days and the arguments in appeal have been correspondingly lengthy, it seems that the matter in issue is extremely simple, viz.
“Had the first plaintiff the power to grant a valid demise of the property to the second plaintiff?”
In order to decide that issue, the learned trial Judge heard exhaustive evidence on each side in regard to the alleged transfer of ”managership” by the second defendant to the first plaintiff and in regard to the alleged acquiescence in the first plaintiff’s management by the second defendant and the other children. He found that no such transfer of management took place and that there had been no acquiescence in the first plaintiff’s management by the second defendant or her children. These were findings of facts and there is ample evidence on the record to support them. It was on a transfer of ”management” and/or acquiescence that the second plaintiff based his right to possession by virtue of the lease (Exhibit 8); at no time did he allege that the first plaintiff acted with the sanction and consent of his mother, brother and sisters in so doing and there is ample evidence to support a finding that no such sanction or consent were obtained. That seems to us to dispose of this appeal.
It is true that certain other matters came to light at the trial and much play has been made with them by counsel for the appellant in the hearing of this appeal.
The first plaintiff after allowing himself to be made a plaintiff and after supporting the second plaintiff’s case changed his ground at the trial and stated in evidence that when he executed the lease to the second plaintiff he had no authority, written or verbal, from the second defendant, his sisters and brother to execute it and he also stated that after he had executed the lease he told the another second plaintiff to take it to the second defendant for her to execute it also. Secondly, there is evidence that on the day prior to the opening of the hearing of this action, the first plaintiff visited with the defendants the office of the solicitor for the defendants and was given certain information that appears to have made him changed his attitude towards this action.
The form of Exhibit 3 and the conduct of the first plaintiff after executing it make it difficult to believe him when he says that he told the second plaintiff to get the second defendant to execute the document, but his statement that he had no authority from the second defendant, his brother and sisters to grant the lease is amply corroborated by the second defendant and his sisters in evidence.
In any event, the learned Judge when he found that the first plaintiff had no authority to grant the lease had full knowledge of the first plaintiffs change of front and also of his visit to the defendants’ solicitor. It was most important that the trial Judge should have knowledge of the visit, for the fact that the visit took place might well have vitally affected his assessment of the weight to be placed upon the evidence of the first plaintiff at the trial.
It seems advisable that a pronouncement should be made by this Court in regard to the visit of the first plaintiff to the defendants’ solicitor while the action was pending. The circumstances were very unusual. It is naturally of very rare occurrence that a solicitor for the defendants should decide to call one of the plaintiffs as a witness, but the fact that such was the case here did not in our opinion justify the defendants’ solicitor in interviewing the first plaintiff. In the circumstances it would have been advisable for the defendants’ solicitor to wait and see whether or not the first plaintiff gave evidence at the trial. If he did so, there was no difficulty, as he could then have been cross-examined. If he did not give evidence, the defendants’ solicitor, having previously subpoenaed the first plaintiff, was entitled to call him as a witness. There is no question of the first plaintiff having been called to the solicitor’s office; he appears to have gone there voluntarily with the defendants. In admitting him to an interview we consider that the solicitor was ill-advised as it laid him open to the kind of criticism which has been made in the present
The appeal is dismissed with costs assessed at £61 12s.
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