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CHIEF KOFI TENG
V.
N. J. ANNAN
WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST (GHANA)
30TH DAY OF MAY, 1940
2PLR/1940/70 (WACA)
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OTHER CITATION(S)
2PLR/1940/70 (WACA)
(1940) VI WACA PP. 154 – 156
LEX (1940) – VI WACA PP. 154 – 156
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BEFORE THEIR LORDSHIPS:
KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST (GHANA)
GRAHAM PAUL, C.J., SIERRA LEONE
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BETWEEN:
CHIEF KOFI TENG — Plaintiff-Respondent
AND
N. J. ANNAN — Defendant-Appellant
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REPRESENTATION
K. A. Bossman — for Appellant
Ofei Awere with E. E. Hammond Laing — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW — LAND:- Claim for a declaration of title and recovery of possession — Sale to Plaintiff of property previous to an attachment against the vendor — Conveyance to Plaintiff subsequent to attachment — Sale by auction under attachment to the Defendant — Legal effects
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PRACTICE AND PROCEDURE ISSUE(S)
ACTION:- Plaintiff who was non-suited in an action against the Vendor — Where brings fresh action against Defendant — Prior decision set up as res judicata — Proper treatment of
JUDGMENT AND ORDER:- Order of non-suiting — Legal effect — Whether can be set up as a bar against a fresh suit
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held:
(1) The judgment for the Plaintiff below is set aside, being based on the ground of res judicata, whereas the Defendant was not a party to the previous action.
(2) The case is sent back to be retried, and for a decision to be reached on the real issue of fact, as to whether there had or had not been a purchase prior to the attachment.
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MAIN JUDGMENT
The following joint judgment was delivered:-
KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL, C.J., SIERRA LEONE
The Plaintiff in this case alleged that on the 11th June, 1937, he bought the property described in the writ of summons for £210 from Saforo Yirenkyi.
On the 18th June, 1937, the property was attached under a writ of Fi, Fa, issued against Saforo Yirenkyi in the Tribunal of the Omanhene of New Juaben.
On the 5th July, 1937, a conveyance to the Plaintiff was executed by Saforo Yirenkyi.
On the 12th July, 1937, the property was sold by public auction under the attachment to the Defendant who received a Certificate of Purchase in respect thereof.
On the 22nd December, 1938, the Plaintiff instituted a suit in the Divisional Court against Saforo Yirenkyi claiming the return of his purchase money or, alternatively, damages (£210) for breach of covenant of title. In that suit, so it is alleged by Defendant Appellant, the fact of the attachment on the 18th June, 1937, was not brought to the notice of the Court, and the Plaintiff relied entirely upon the conveyance dated 5th July, 1937.
Cooper, Ag. J. gave the following judgment on the 16th June, 1939:
“I find that the sale was intended to be governed by English law. That the conveyance (Exhibit “A”) operated to transfer the legal estate to the plaintiff.
“That the mortgage being at most an equitable security does not affect the legal estate.
“That the sale by auction on 18th July under Fi. Fa. only passed the right and title of the debtor. That he had divested himself of his title under the conveyance of 6th July and therefore the sale did not affect plaintiff’s legal title which is still good.
“Non-suit. No order as to costs.”
On the 11th December, 1939, the Plaintiff instituted the present proceedings against the Defendant, his claim being for a declaration of title and recovery of possession of the land described in the writ.
There were pleadings and the most material point is that the Defendant denied the alleged purchase by Plaintiff on the 11th June, 1937. It is clear that this was the vital issue in the case: was there a valid purchase by Plaintiff on the 11th June, 1937? If there was, it was prior to the attachment and the Plaintiff acquired a title which was confirmed by the subsequent conveyance. If there was not, the attachment was prior to the conveyance on which the Plaintiff must found, and consequently the conveyance was inoperative to pass title.
But the Court below entirely ignored this issue and gave judgment in Plaintiff’s favour on quite a different and erroneous ground.
It received in evidence the judgment of Cooper, J. already quoted, and treated that judgment as establishing res judicata against the Defendant.
On appeal the Defendant-Appellant submits first that that judgment was wrongly admitted and secondly that even if admissible it could not possibly operate as res judicata against him, since he was neither a party nor a privy of Saforo Yirenkyi.
We do not agree with him as to the first point; we hold that the judgment was admissible, although it is of no real help to the Plaintiff in this case, since the Defendant-Appellant’s second point, viz., that it does not operate as res judicata against him, is obviously night.
Since the ratio decidendi in the Court below was entirely wrong, and since the real issue of fact, upon which the whole case turns, has not been decided, the case must be remitted to the Court below for further decision.
The appeal is allowed, the judgment of the Court below, including the order as to costs, is set aside, and it is ordered that if any sum has been paid by the Appellant to the Respondent by way of costs, that sum shall be refunded.
The case is remitted to the Court below for the Provincial Commissioner, after hearing Counsel and, if necessary, further evidence, to decide the issue of fact as to whether there was or was not a valid sale of the property in question by Saforo Yirenkyi to the Plaintiff on the 11th June, 1937 and then to give judgment accordingly in the light of this judgment. The Appellant is awarded the costs of this appeal assessed at £24 13s. 6d. The costs hitherto incurred in the Court below are to abide the ultimate issue and be in the discretion of the Court below after it is decided.
In the event of it being impracticable for the Court below to be reconstituted in the same way as it was constituted for the hearing of this case, it is ordered that the whole case shall be heard de novo by the Court below.
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