Sasraku III & Anor V. Sir E. Mate Kole & Anor (1934)

LawGlobal Hub Judgment Report – West African Court of Appeal

Claim for an account for moneys received under an agreement—Document tendered in evidence.

Held: Document, even if genuine, fails to disclose respondent to account, and appeal dismissed.

A. Saw yerr (with him Nei Awere) for Appellant. Frans Dove (with him C. C. Lokko) for Respondent. The following judgment was delivered :—

YATES, ACTING C.J., GOLD COAST.

This is an appeal by the plaintiff-appellant from a judgment of the learned Chief Justice dated 25th June, 1934. The writ of summons dated the 17th March, 1933, sets out ” The plaintiff is

the owner of the market at Bissa in the Manya Krobo District ” known as Bissa Market, and the person entitled to receive the ” tolls paid in respect of the said market. From 1928 to 1932 the ” defendant has been collecting the tolls paid in respect of the ” said market, and has not paid the said tolls or any portion of

them to the plaintiff. The plaintiff claims from the defendant

an account of all such tolls collected by the defendant, or his ” agents, from the plaintiff’s said market at Bissa from 1928-1932, ” and payment to the plaintiff of whatever amount might be found ” to have been collected by the defendant, or his agents, on the ” taking of such an account “.

The case first came on for hearing before Barton, Acting J. who held that it was a case coming within section 43 sub-section 2 (c) of Cap. 111 and therefore the Court had no jurisdiction. The plaintiff appealed, and the appeal was heard by the West African Court of Appeal on November 2nd, 1933, and upheld, the Court holding there was nothing on the writ or pleadings to show the lower Court had no jurisdiction. At that hearing learned Counsel for the appellant argued, as he has argued before us, there was in oral agreement between the parties whereby the tolls collected should be divided as follows, viz., one-third to go to the plaintiff, one-third to the defendant, and one-third to the Sanitary Board of Bissa for the upkeep of the market, and that oral agreement was ruced to writing. It is clear therefore that this action is founded 11^–pon that agreement. It is an action for an account to be taken

between the parties based upon the terms of that agreement, and it was solely upon that argument the West African Court of Appeal in November, 1933, allowed the appeal and held the Court below had jurisdiction.

It is contended by Counsel for the respondent that no such agreement was ever made, and that it has been concocted by the appellant for the purposes of this case. It is not however necessary to go into this question. Assuming there was a genuine document in the terms of Exhibit ” H ” the appellant would be bound by its terms. There is nothing in that document conferring a right, or imposing a duty, upon the respondent to collect the market tolls, and moreover he never executed it.

There can therefore be under that agreement no liability upon the respondent to account to the appellant.

The appeal must therefore be dismissed with costs assessed in this Court at £59 4s. and the judgment of the Court below stand.

KINGDON, C.J., NIGERIA. I concur.

GRAHAM PAUL, J. I concur.