Chief Gbenebichie V. Socrates Awoshika (1952)

LawGlobal Hub Judgment Report – West African Court of Appeal

Land Registration Ordinance—’* Instrument ” requiring registration—Document creating a Family Trust Fund not an ” instrument ”.
Practice and Procedure—Non-suiting wrong where amendment possible.

Facts

The dispute related to rents of family land which the. Family Head gave out on leases effected in his own name. A family meeting was held and certain Resolutions made, to which effect was given by a Memorandum of amendments to the previous ” Constitution, etc.”, which was replaced later by a new “Constitution and Regulations of the Omateye Family Fund”.

The amended Constitution appointed the three respondents as Trustees of the Fund consisting of the rents, and a Committee of Management consisting of the Trustees and four other nominees of the family including the Family Head, to whom £80
was to be paid for life.

The Memorandum of amendments bore the thumb-print of the Family Head and an interpreter’s certificate and the signature of the District Officer as a witness. The new “Constitution” also bore the signatures of the Family Head and of the other members of the Committee. In between he and they executed a document authorising the District Officer to pay amounts on deposit and belonging to the Family and future rents to the Trust Fund.

The Family Head attended several Committee meetings and received his first £80. Later he refused to show the Trustees copies of leases he had granted; he demanded but they withheld the next £80; then he sent a “Notice of Withdrawal” from the Resolutions, and continued to collect the rents but did not hand them over to the Trustees, who then sued the Family Head and nine othersjointly and severally for a sum which the plaintiffs alleged the defendants received on leases of family property for the use of the Fund of which the plaintiffs were the Trustees.

The Family Head put in a separate defence saying he had received the rents but was not liable to account, and in his evidence denied understanding the documents he had signed.

The trial Judge did not believe him but non-suited the Trustees on the ground that the action had been improperly brought against ” the defendants jointly and severally in their capacity as members of the Committee of Management. . .
against the defendant (the Family Head) as-one member of that Committee ”, and ordered the parties to bear their own costs. The first defendant—the Family Head—appealed and is referred to as the appellant; the plaintiffs also appealed but are referred to as the respondents in the judgment infra for clearness’ sake: they are the Trustees of the Fund to whom the Family Head should have handed
over the rents he collected.

The Family Head argued that the suit against him should have been dismissed on the ground that the Trustees (the plaintiffs) did not prove their case against him, and that the case was fought on the footing that he was sued in a representative capacity as a member of the Committee of Management. (The Writ of Summons stated his name and the nine others, and below the ten names of the defendants were the words “ Committee of Management The Itsekiri National Fund ”; and in a paragraph of the Statement of Claim the defendants were described as the Itsekiri National Fund and the Family Head as the agent of that Fund.)

His other ground was that the Memorandum and the new Constitution were “ instruments ” within the meaning of the Land Registration Ordinance and not being registered as required by section 6 thereof, could not have been admitted in evidence in view of section 15. He also argued that if the new “Constitution” were held to be binding upon him, he would be divesting himself of his responsibilities as Head of the Family contrary to customary law, which knew nothing of trusteeship.

For the Trustees (who also appealed) it was argued that they ought not to have been non-suited; that the evidence established the Family Head’s liability and the Judge should have amended the proceedings.

Held

(1) The documents in question were not an assurance, nor were they intended to be one; their main object was to create a trust fund into which family rents should be paid; they were not ” instruments ” within the meaning of the Land Registration Ordinance, and they were properly admitted in evidence.

(2) The documents were binding on the Family Head: he understood them and accepted a benefit under them, viz. the payment of £80 in accordance with the documents.

(3) The Family Head was sued with the others jointly and severally; descriptive statements could not turn the suit into one against them in a representative capacity; no amendment was necessary, but if any had been necessary, the trial Judge ought to have made it and settled the real controversy instead of non-suiting the plaintiffs.

(4) The Family Head admitted having received the money claimed by the Trustees and the issue fought was his liability to pay that money to them; the Trustees ought to have had judgment in their favour.

Cross-Appeal of the Trustees allowed: appeal of the Family Head dismissed.