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J. R. O. LARBI AND OTHERS
V.
OPANYIN OPONE KWABENA AND ANOTHER
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
23RD DAY OF MARCH, 1953
APPEAL NO. 77/52
2PLR/1953/34 (WACA)
OTHER CITATION(S)
2PLR/1953/34 (WACA)
(1953) XIV WACA PP. 299 – 300
LEX (1953) – XIV WACA 299 – 300
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
COUSSEY, J.A.
WINDSOR-AUBREY, J.
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BETWEEN:
1. J. R. O. LARBI
2. MR. J. KOJO BRUCE
3. APAW FIANKO PER SAMUEL KWABENA DONKOR ALL OF SUHUM – Appellants
AND
1. OPANYIN OPONE KWABENA, SUCCESSOR TO THE LATE ATTUKA DECEASED
2. THE SUHUM CO-OPERATIVE PRODUCERS MARKETING SOCIETY LIMITED – Respondents
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ORIGINATING COURT(S)
Appeal against decision of the Supreme Court
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REPRESENTATION
Koi Larbi — for Appellants
N. A. Ollennu — for Respondents
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
DEBTOR AND CREDITOR LAW:- Execution of judgment – Sale of third person’s property through auctioneer – Liability thereto – Award of Damages – How determined
TORT AND PERSONAL INJURY LAW:- Trespass to property – Award of damages – Whether separate against several tort-feasors for distinct torts
REAL ESTATE AND PROPERTY LAW:–Paying rent in ignorance of one’s rights to prevent ejection – Whether can operate as estoppel against claims in trespass
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CASE SUMMARY
The first appellant having obtained judgment against X, caused land belonging to the first respondent, on which the second respondent had built under a demise, to be seized and sold through the second appellant as auctioneer to the third appellant as agent of the purchaser. The trial Judge granted the respondents a declaration of title to the land and the building respectively and awarded the second respondents separate damages against each appellant.
The appellants submitted that (a) the respondents having failed in several interpleader proceedings against the first appellant were estopped from suing, (b) the second respondents had acknowledged the first appellant as their landlord by paying rent to him, and (c) that there should have been only one amount of damages against all the appellants as joint tort-feasors.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the Appeal) that:
(1) Estoppel failed as (inter alia) no full record of any interpleader proceedings had been put in so as to lay a foundation for the submission.
(2) The second respondents paid rent to prevent ejection and in ignorance of their rights, which did not deprive them of their property.
(3) The appellants were guilty of separate and distinct acts of trespass, consequently separate amounts were right.
Cases cited:-
(1) London Association for Protection of Trade v. Greenlands Ltd. (1916) 2 A.C.16.
(2) Chapman v. Ellesmere (1932) 2 K.B. 431.
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MAIN JUDGMENT
The following Judgment was delivered:
FOSTER-SUTTON, P.
The first appellant, pursuant to a decree for money obtained by him against one Asong Kwasi, applied for, and obtained, a writ of execution and an order for sale of the property of the judgment-debtor.
Purporting to act under the writ and order the first appellant caused land belonging to the first respondent and premises erected on that land belonging to the second respondent Society to be seized and sold.
The second appellant is the auctioneer who effected the sale and the third appellant is the agent of the purchaser.
The respondents then sued the appellants, the first respondent claiming a declaration of title to the land seized, which is described in the writ of summons, and the second respondents a declaration of title to the premises on the land which, after a demise of a portion of the land to them by the first respondent, they had erected upon the land, and the second respondents further claimed the sum of £100 damages for trespass.
On overwhelming evidence to that effect the learned trial Judge found as a fact that the land in question belonged to the first respondent and the premises to the second respondents, and he further found that “the smallest enquiry” which was not made, must have satisfied the first appellant that the property seized and sold was not that of the judgment-debtor. The trial Judge also found as a fact that the second appellant knew that the premises seized and sold were the property of the second respondents “and not that of the judgment-debtor”; and he accordingly gave judgment for the respondents, granting the declarations asked for, and awarded the second respondents the sum of £60 damages for trespass against the first appellant and £30 and £10 damages against the second and third appellants, respectively.
On behalf of the appellants it was argued, inter alia, that the respondents were estopped from bringing their action because, firstly, they had been unsuccessful in six interpleader summonses against the first appellant, and, secondly, the Society had acknowledged the first appellant as their landlord by paying rent for the premises to him.
The first argument was also addressed to the learned trial Judge and apart from the reasons given by him for rejecting it, with which I agree, the appellants omitted to put in evidence the full record of any of the interpleader proceedings, thereby failing to lay any proper foundation for the submission.
It is the fact that in order to prevent themselves from being ejected from their own premises, and in ignorance of their rights, the second respondents paid rent for the premises to the first appellant for a period of some months, but I know of no equitable doctrine which operates to deprive a person of his property in circumstances such as these.
Appellants’ counsel also submitted that the trial Judge erred in apportioning between joint wrong-doers the damages Which he found the second respondents had sustained, and he cited, in support of this contention, London Association for Protection of Trade v. Greenlands Ltd. (1) and Chapman v. Ellesmere (2). In both those cases it was held that in assessing damages against joint tort feasors one set of damages must be fixed, and that they must be assessed according to the aggregate amount of the injury resulting from the common act, but in the case before us the appellants were guilty of separate and distinct acts of trespass, not one joint act of trespass. That being so I am of the opinion that the trial Judge was right in awarding damages, as he did, in respect of each separate act of trespass.
For the foregoing reasons I would dismiss this appeal with costs fixed at £19 15s. 0d.
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COUSSEY, J. A.
I concur.
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WINDSOR-AUBREY, J.
I concur.
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Appeal dismissed.
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