G. D. Laryea V. R. C. Quao (1940)

LawGlobal Hub Judgment Report – West African Court of Appeal

Claim for declaration of title and damages for trespass—Non-suit of plaintiff-appellant—Insufficiency of grounds for depriving defendant-respondent of costs—Appeal dismissed.

Held : The Trial Judge had not exercised his discretion as to costs judicially and although the successful defendant-respondent had not entered a cross-appeal on this issue, he is entitled to costs to be taxed in the Court below.

The facts are fully set out in the judgment.

K. A. Bossman for Appellant. E. C. Quist for Respondent.

The following joint judgment was delivered :-

KINGDON, C. J., NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL, C.J., SIERRA LEONE.

In this case the plaintiff sued the defendant in the Tribunal of the Gbese Division of the Ga State claiming (a) a declaration of title to all piece or parcel of land situate lying and being at Fanofa and bounded on the North by Dedei Korley’s property measuring 467′ more or less on the South by Korle We Family and measuring 389′ more or less on the East by Ayikumah Teiko’s property and measuring 20C more or less and on the West by Ayetey Ogbleku and C. O. Aryee’s properties and measuring 403′ 5″ more or less and known as my property and (b) for £25 damages for trespass for unlawfully erecting pillars on the said land above delineated.

The case was transferred to the Supreme Court and came before Cooper, Ag. J., who after a long hearing non-suited the plaintiff on the ground that he had failed to carry the burden of proof laid on him either as to Title to the land or such possession as would support an action for trespass. The learned Trial Judge deprived the defendant of his costs recording ” As the defendant has not appeared himself, and as the case has been fought there appear to be no merits on either side, there will be no order as to costs.”

This is another of those all-too-numerous cases unfortunately tried without pleadings with resultant waste of time both in the Court below and in this Court. In the Court below plaintiff’s Counsel opened ” Gbese Manche and Korle priest agreed to give

the plot described in writ to plaintiff.” He went on to try and set up by oral evidence a case that the land belongs to the Gbese Stool and that the proper persons to transfer it are the Gbese Stool and the Korle We Family. He then put in a document Exhibit ” A ” upon which he relies. In that document .the ” joint-donors ” are ” Nii Ayi Bonte Gbese Mantse and Nii Tetteh Kwei Molai Acting Korle Priest x x x acting for themselves and representing the family of Korle We.” The document recites that the family of Korle We is seized ” for an estate in fee-simple in possession free from all incumbrances of and is otherwise well and truly entitled to the land.” It purports to convey in the following terms ” in consideration of the good will that the Family aforesaid hath for the Donee and in consideration also of the services rendered by the Donee for and to the said Family and in further consideration of the sum of forty pounds (4O) to the family paid by the Donee on or before the execution hereof (the receipt whereof the joint-donors for and on behalf of the Family aforesaid doth hereby acknowledge) the joint-donors aforesaid for and on behalf of the Family of Korle We which is the Beneficial Owner Do Hereby Grant And Convey unto the Donee.”

It is clear that there is a direct conflict between the oral and documentary evidence upon which plaintiff relies, and whether it be taken that Exhibit ” A ” disproves plaintiff’s own case or that the oral evidence of plaintiff’s own witnesses proves Exhibit ” A ” to be worthless, it is obvious that no Court could possibly give to plaintiff the declaration he seeks upon such contradictory evidence. The learned Trial Judge had in our view no option but to non-suit the plaintiff on his claim for a declaration of title unless it were to dismiss the claim altogether. As to the claim for trespass it is sufficient to say that we agree with the finding that such possession as would support the action was not proved.Although the defendant-respondent has not filed any counter-
appeal he now asks us, in exercise of our powers under Rule 32 of
the Rules governing appeals to this Court, to award him his costs
in the Court below, of which he was deprived by the Trial judge.
In the ordinary way the defendant would have been entitled to
costs, but the Trial Judge had discretionary power to deprive him
of them. That discretion however must be exercised judicially.
In this case two reasons are given by the Trial Judge for his
decision. The first is that the defendant had not appeared himself.
We regard this as no reason at all, the defendant was under no
obligation to appear, if he could defeat the plaintiff’s claim without
doing so. The second is that there appeared to be no merits on
tither side. This again we regard as an insufficient reason, since
e defendant did not have to show merits in order to succeed, it
wes sufficient if he showed that the plaintiff had none, which he
If a further reason was that the Judge found it ” impossible
believe any of the witnesses called on one side or the other who

have any interest in the case,” some of whom, he says, ” were lying deliberately, some were inaccurate through ignorance,” this again is not a sufficient reason to deprive the successful party of his costs. We have come to the conclusion therefore that in depriving the defendant of his costs the learned Trial Judge did not exercise his discretion judicially, and that the defendant is entitled to his costs in the Court below as well as in this Court.

We cannot leave this case without referring to a passage in the judgment of the learned Trial Judge. He says ” The dispute about this worthless piece of land took up the time of this Court for eight days and some of the most unattractive traits of the inhabitants of Accra were revealed—covetousness and lying.” We deprecate this wholesale reflection upon the inhabitants of Accra, which we regard not only as uncalled for, but also, in our experience, as without justification.

The appeal is dismissed with costs assessed at £34 ls. and it is further ordered that the judgment of the Court below shall be varied by awarding to the defendant costs in that Court to be taxed.