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TETIEH WORBI AND OTHERS
V.
ADAMALI ASAMANYUAH AND OTHERS
WEST AFRICAN COURT OF APPEAL, GOLD COAST
ACCRA, 23RD FEBRUARY, 1955
W.A.C.A. NO. 19/1954
2PLR/1955/63 (WACA)
OTHER CITATION(S)
2PLR/1955/63 (WACA)
(1955) XIV WACA PP. 669-672
LEX (1955) – XIV WACA 669-672
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
COUSSEY, J.A.
HEARNE, J.A.
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BETWEEN:
(CONSOLIDATED)
1. TETIEH WORBI OF SEGA/KADJA AND AS REPRESENTING THE SEGA FAMILY
2. KPAKPA KWAO
3. C. B. KOJO OCLOO – Appellants
AND
1. ADAMALI ASAMANYUAH
2. WILLIAM AMETEPE GORLEKU
3. JAMES DOKUTCHE ZOGBLAH
4. JACOB K. AMOAH AKOTO
5. ASAFOATSE NGUA OTUMFUOR III
6. WORNOR TETIEH APEYISI
7. AVAFIA VEGBEDOR II
8. NARTEH NYABU, AS REPRESENTING THE TEKPERBIAWE TRIBE – Respondents
AND
TETIEH WORBI AS HEAD OF SEGA/KADJA AND AS REPRESENTING THE SEGA FAMILY – Appellant
AND
1. WILLIAM AMETEPE GORLEKU
2. JAMES DOKUTCHO ZOGBLAH
3. JACOB KWABLAH AMOAH AKOTO FOR THEMSELVES AND AS REPRESENTING THE OHUEWEM TRIBE – Respondents
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ORIGINATING COURT(S)
Appeal in consolidated suits by the plaintiff against decision of the Land Court of the Lands Division of the Supreme Court
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REPRESENTATION
K. A. Rossman — for the Appellants
N. A. Ollennu — for the Respondents
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
NA
PRACTICE AND PROCEDURE ISSUE(S)
JUDGMENT AND ORDER:- Costs – Discretion – General Procedure, Rules, Order 7, rule 3, paragraph 2 – Trial Judge deciding on costs under a misapprehension of fact
JUDGMENT AND ORDER:- Appeals in Civil Cases – Costs in Court below – Intervention by Court of Appeal.
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CASE SUMMARY
The above rule confers on the trial Court “full power to award and apportion costs in any manner it may deem just”.
”The Court has an absolute and unfettered discretion to award or not to award them. This discretion, like any other discretion, must of course be exercised judicially, and the Judge ought not to exercise it against the successful party except for some reason connected with the case “: per Viscount Cave, L.C., in Donald Campbell & Co. v. Pollak (1927), A.C. 811.
The two cases were begun in the Native Court; they were transferred to the Land Court, where they were consolidated. In the first the appellants were the plaintiffs; they lost their claim for damages against the first respondent but obtained a declaration of title by customary law. The persons numbered as respondents 2, 3, and 4, were the plaintiffs in the second case; they were non-suited. The judgment in the consolidated suits made no order as to costs for anyone. The plaintiffs in the first case appealed; the only point really pursued was that of costs.
The proceedings began with an action by appellant No. 1 as plaintiff in the first case suing respondent No. 1 as the defendant for damages for trespass on land; later, defendants No. 2, No. 3 and No. 4 were joined in the first case; at the same time plaintiff No. 2 was joined, and the Native Court made an order to add a claim for declaration of ownership to the land; but the Registrar of that Court omitted to amend the plaintiff’s writ, with the result that the fact that the plaintiffs had already made this additional claim was overlooked. When the cases came up for hearing in the Land Court, counsel for the plaintiffs in the first case applied for leave to amend the writ in the Native Court by adding a claim for a declaration of title, and leave was granted. The trial Judge refused to give the said plaintiffs any costs on the ground that theirs was a belated attempt to set up absolute ownership. It was plain that he had been under a misapprehension as to the true state of affairs, though he had the record of the proceedings in the Native Court, and reference to it would have disclosed that the said plaintiffs had, quite early in the case in that Court, obtained leave to amend their writ and add that claim.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the Appeal on costs) that:
It could not be said that the trial Judge had exercised his discretion judicially, and his order as to costs would be replaced by an order granting the plaintiffs in the first case costs against the defendants other than No. 1 in certain ratios less the costs attributable to the issue of trespass between the plaintiffs and the first defendant.
Case cited:-
(1) Donald Campbell &, Co. v. Pollak (1927), A .C. 811.
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MAIN JUDGMENT
The following Judgment was delivered:
FOSTER-SUTTON, P.
These proceedings commenced by the first plaintiff suing the first defendant in the Ada Native Court “B” claiming damages for trespass in respect of a small area of land which is outlined in yellow on the plan admitted in evidence, during the hearing which ultimately took place in the Land Court, as exhibit “7”. The civil summons in that case was issued on the 9th December, 1946, and the plaintiff sued as Headman of Sega/Kadja representing the Sega Family.
On the 23rd April, 1947, the second, third and fourth defendants applied before the Ada Native Court “B” to be joined as defendants as representing the Ohuewem tribe; and on the 6th May, 1947, an application by the second plaintiff was granted by the same Court joining him as a co-plaintiff; an application by the plaintiffs to amend their civil summons by adding a claim for a “declaration of ownership to the said land” was granted on the same day. The area of land in respect of which a declaration of title was sought is shown edged in pink on the plan, exhibit “7”.
The third plaintiff and the other defendants were joined at subsequent stages of the proceedings.
On the 12th May, 1947, the second, third and fourth defendants sued the first plaintiff, as Head of the Sega/Kadja, representing the Sega Family, in the same Native Court, claiming the sum of £50 as mesne profits in respect of tolls alleged to have been wrongfully collected by him at the Kadja Market, which is situate in the area of land claimed by the plaintiffs in the first suit. They also claimed in their civil summons to be owners of the area of land shown edged in green on the plan, exhibit “7”. This area represents a substantial portion of the area of land in respect of which the plaintiffs in the first suit were claiming a declaration of title.
Both suits were transferred by an order of transfer, dated 3rd July, 1947, made by Quashie-Idun, J., for trial in the Land Court of the Lands Division of the Supreme Court; and by consent an order for pleadings was made on the 14th August, 1947.
The case eventually came for trial before Jackson, J., on the 22nd June, 1951, who made an order consolidating them, and judgment was delivered on the 23rd October, 1951, dismissing the claim against the first defendant for damages for trespass, granting the plaintiffs in the first suit “a declaration that by customary law that Family are regarded as having been the first people to settle within this area and that upon that basis they are recognised by customary law as being the owners of all that land which is shown on the plan exhibited in Court and marked as No. ‘7’ and which is delineated in red”, and non-suiting the plaintiffs in the second suit; the learned trial Judge declined to make any order as to costs in favour of any of the litigants.
The plaintiffs in the first suit then appealed to this Court, their chief ground of complaint, apart from the order as to costs, being that certain statements made by the learned trial Judge in his judgment went far beyond the necessities 0£ the position, and were calculated to prejudice the successful parties in the future.
When the appeal came for hearing before us counsel for both sides agreed with the view we expressed, that is to say, firstly, that the only effect of the judgment so far as the claim for a declaration of title is concerned, is to grant the appellants a declaration of title to the area of land shown edged in pink on the plan, exhibit “7”, in accordance with native customary law with all its incidents, the rest of the judgment relating to the declaration being merely obiter ; secondly, that without prejudice to the future, such declaration does not amount to an order for ejectment of the several families and tribes from the areas of land at present occupied by them; and thirdly, that the effect of the judgment in the second suit, regarding Market tolls, is merely to non-suit the plaintiffs, the rest of the judgment on that subject being merely obiter, Mr. Bossman who appeared for the appellants did not pursue the appeal against that part of the judgment which dismissed the claim for damages for trespass against the first defendant, but he submitted that the learned trial Judge misdirected himself in refusing to award costs to his clients who were the successful parties in both suits.
Subject to the qualification contained in paragraph 2, rule 3 of Order 7 of the General Procedure Rules confers upon the Court “Full power to award and apportion costs, in any manner it may deem just”. The position here regarding costs is, therefore, as was stated by Viscount Cave, L.C., in Donald Campbell & Co. v. Pollak (1) where he said” the Court has an absolute and unfettered discretion to award or not to award them. This discretion, like any other discretion, must of course be exercised judicially, and the Judge ought not to exercise it against the successful party except for some reason connected with the case”. It follows that if there are grounds upon which the trial Judge can properly exercise his discretion, their sufficiency is a matter for his discretion, which will not be interfered with by this Court.
In the present case the learned trial Judge prefaced his decision on the question of costs by saying:
“The declaration of title asked for by the Segas after the action had been before the Courts for several years was a belated attempt to set up absolute ownership-a claim which was resisted and denied in whole by the defendants.”
It is the case that on the 22nd June, 1951, the first day of the hearing in the Court below, counsel for the plaintiffs in the first suit applied for, and was granted, leave to amend the “writ in Native Court Suit 105/1946” by adding a claim for a declaration of title, but this application was only rendered necessary because the Registrar of the Native Court failed to make the amendment to the writ adding such a claim, which he was directed by the President of the Ada Native Court to make, on the 6th May, 1947. The record of the proceedings before the Ada Native Court was transmitted to the Land Court, and a reference to it would have disclosed the true position.
For the learned trial Judge to say, therefore, that this was a belated attempt, after the litigation had been before the Courts for several years, to set up a claim to ownership, indicates that he was under a misapprehension as to the true state of affairs.
It seems to me quite clear that once the second, third and fourth defendants entered the fray the case ceased to be a simple claim in trespass. They demonstrated their intention of claiming ownership to a large area of land in the locality by the wording of the civil summons they filed on the 12th May, 1947; as the learned trial Judge said in his judgment, as the case progressed the title to an area of land some forty-five square miles in extent was put in issue, but it seems to me that this was largely due to the initial intervention of the second, third and fourth defendants.
There is no note in the record before us that counsel drew the Court’s attention to the earlier application for amendment of the plaintiffs’ writ, but as I have already indicated, the position is set out in the record of the proceedings before the Native Court, which was before the Land Court.
Since the learned trial Judge acted under a misconception as to a material fact, I am of the opinion that it cannot be said he exercised his discretion judicially, and I would accordingly set aside his order as to costs, and substitute the following:-
(1) As between the plaintiffs and the first defendant, Adamali Asamanyuah, no order as to costs.
(2) As between the plaintiffs in the first suit (defendants in the second suit) and the second, third and fourth defendants (plaintiffs in the second suit), the latter to pay to the former two-thirds of the taxed costs, excluding any costs attributable to the issue of trespass between the plaintiffs and the first defendant.
(3) The balance of the taxed costs to be paid in the following proportions: one-sixth by the eighth defendant, Narteh Nyabu, and the remaining one-sixth in equal proportions by the fifth, sixth and seventh defendants.
This apportionment seems to me to do substantial justice between the parties having regard to the part taken by them in the litigation.
The appeal in so far as the claim for damages for trespass against the first respondent, Adamali Asamanyuah, is concerned, is dismissed with costs fixed at £20.
The appellants have succeeded in obtaining a clarification of the judgment, and on their appeal affecting the second, third, fourth, fifth, sixth, seventh and eighth respondents as to costs, but neither side were responsible for the obiter of the learned trial Judge, and the appeal as to costs might have been avoided had the appellants drawn the trial Judge’s attention to the fact that the claim for a declaration of title was made as far back as May, 1947. In all the circumstances I would fix the appellants’ costs, to be paid in equal proportions by each of the respondents numbers 2 to 8, at £83 16s. 0d., being half the amount they would have been awarded in ordinary circumstances.
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COUSSEY, J. A.
I concur.
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HEARNE, J. A.
I concur.
Appeal on costs allowed.
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