COURT OF APPEAL, ACCRA
Date: 21 APRIL 1975
APALOO KINGSLEY-NYINAH AND ANNAN JJA
CASE REFERRED TO
Ashittey v. Dodoo, Court of Appeal (full bench), 15 August 1969, unreported; digested in (1969) C.C. 157.
NATURE OF PROCEEDINGS
APPEAL from the decision of the Circuit Court, Sekondi, dismissing the appellant’s action for an account of the proceeds from a coconut farm cultivated by the respondents. The facts are sufficiently stated in the judgment of Kingsley-Nyinah J.A.
COUNSEL
R. S. Blay for the appellant.
Joe Reindorf (with him Ebow Bentsi-Enchill) for the respondents.
JUDGMENT OF KINGSLEY-NYINAH J.A.
The substantive action from which this appeal has sprung began its legal existence in the form of five separate suits whereby the plaintiff-appellant (hereinafter referred to as the appellant) sued his plaint against five different defendants. In each and all of those separate causes, the appellant claimed substantially the very. same reliefs, while the defendants, each and all of them, in the said actions, joined issue with, and challenged, the appellant with the same defences, throughout. All the parties consenting, those several actions were eventually consolidated. Accordingly, therefore, the hearing proceeded on the consensual footing that the trial court was to investigate and determine decisively, one way or another, the agreed issues, namely:
“(a) whether the land was bought by Anwine Kwaw for the community of Twinen and held same in trust for the said community;
(b) whether the plaintiff is entitled to payment of tribute.”
Setting the tone of the action, the appellant had, by his writ of summons, claimed from the defendants (hereinafter called the respondents) “. . . an account of all coconut collected from one coconut farm situate on Nyemasu lands for the past five years and for payment to the plaintiff by the defendant of one-third share of whatever may be found due and owing . . .”
From the pleadings of the appellant it was made clear that the foundation upon which he raised the superstructure of his whole case was ownership by purchase, as evidenced by exhibit A. Issued by the High Court, Sekondi, and dated 28 January 1937, that document was put in to establish Anwine Kwaw’s exclusive ownership (by purchase at an auction sale) of the said Nyemasu lands, and to further the appellant’s claim to the money payments he had set out on the face of his writ of summons and statement of claim as being due from, and owing by, the defendants to him. The value of the coconut farm, subject-matter of the consolidated suit, was said not to exceed ¢15,000.00, which placed the whole matter snugly within the control of the circuit court.
[p.393] of [1975] 1 GLR 391
Not unnaturally, the respondents took up the gauntlet and, stoutly denying the appellant’s claim to ownership in the Nyemasu lands, they alleged that ownership thereof was never vested in Anwine kwaw, the appellant’s predecessor. While they conceded the appearance of Anwine Kwaw’s name on the face of the certificate of purchase exhibit A, they stated that the appellant’s predecessor was not, and that he never had been, personally, owner of the Nyemasu lands. They explained that communal monetary contributions had been made by the people of the village of Twinen who, by popular consensus, had chosen the said Anwine Kwaw “to hold the land in trust for the said village community, members of which had provided the purchase money.” ‘Wherefore, they contended, the appellant’s predecessor, Anwine Kwaw, “never exercised any acts of ownership during his lifetime nor has any successor of his done so since Anwine Kwaw died about 25 years ago.”
There was no difficulty, here, as to what land was in dispute before the trial circuit court. Since both parties to the controversy were agreed that the certificate of purchase of 28 January 1937, served as conclusive proof that the Nyemasu lands, and none other, were indeed sold, the dominant issue that fell for determination was the subsequent position of Anwine Kwaw, the appellant’s predecessor, after the Nyemasu lands had been acquired, in those days; and the standing, also, of the appellant, now, vis-a-vis the property sold and the people of Twinen village who had authorised the purchase. Was Anwine Kwaw an absolute owner thereof, holding the Nyemasu lands absolutely to the exclusion of everybody else? Or was he (and therefore, the appellant) a mere bailiff-caretaker for the people of Twinen; or was he (and the appellant, consequently) a trustee, with the people of Twinen as the beneficiaries?
By the substance of their defence, the respondents were clearly asserting the presence of some equitable obligation in the transaction which the appellant had made the cornerstone of his claim. They were saying that that transaction between the people of Twinen and the appellant (through his (appellant’s) predecessor) either spelt out quite plainly (or else it could be deduced by necessary implication), a duty binding upon Anwine Kwaw, the said predecessor, (and consequently upon the appellant also), not to deal with the Nyemasu lands, or any part or parts thereof, in any way or manner not consistent with and, therefore, prejudicial to, the rights, benefits and interests of the entire village community of Twinen who had pooled their resources to acquire the Nyemasu lands for themselves. It was the contention of the respondents, therefore, that the appellant’s predecessor had merely held the Nyemasu lands on a resulting trust, with the people of Twinen as the beneficiaries. Wherefore equity expected that both predecessor and successor would remain ever dutifully mindful that the beneficial interests accruing from the trust property must enure to the village community of Twinen, and never to the appellant, a mere fiduciary. It is my opinion that this was a valid ground of defence to which the circuit court was bound to give effect, if there were facts and circumstances sufficiently preponderating to favour either of the parties with a fair decision.
[p.394] of [1975] 1 GLR 391
As already indicated, there were two issues agreed for trial. The determination of the second question, quite obviously, depended upon how the first was resolved. It is clear, then, from the first issue, that the learned circuit judge was being called upon to investigate the transaction adequately and then, having done all things well, to say whether or not any trust had been created. To my mind, this and several other pertinent questions arising would have had to be considered if the judge had taken a fair and proper view of the case before him.
Issue having thus been joined between the parties to the action on those matters which they considered essential for the proper determination of their respective rights, interests and obligations, it fell to the trial circuit judge, as part of his functions, to scrutinise and evaluate, carefully, the whole of the evidence laid before him and then to make specific findings upon those and any other material issues that his investigation would throw up. If he failed to do this, the learned circuit judge would have erred, the gravity of his fault consisting in the fact that by that omission he would have disabled himself from arriving at a proper decision on the available evidence provided for his inquiry, and so not doing substantial justice between the parties.
In Ashittey v. Dodoo, Court of Appeal, 15 August 1969, unreported; digested in (1969) C.C. 157, Akufo-Addo C.J. delivering the judgment of the full bench said, inter alia:
“A successful investigation would necessarily involve a process of fact-finding. One of the primary functions of a judge hearing a case at first instance is fact-finding. A decision by a judge requires, first, the sifting of the evidence bearing on the controversy, no matter how difficult the exercise may be, in order to find out where the truth lies between the conflicting versions pleaded before him. A deliberate omission to perform this function would be an abdication of the judicial function, and a case cannot be said to have been properly heard where such an abdication occurs.”
(The emphasis is mine.) This, of course, postulates the fact that the errant judge was presiding over a court of competent jurisdiction.
The circuit courts of this country, like all the others in the judicial hierarchy, were established for the convenience of such members of the public as are moved and minded to sue their plaint before them; and for the more expeditious despatch of the business of contending litigants. The jurisdiction of the circuit court therefore covers almost the whole field and gamut of civil (and criminal) justice, with inherent power to dispense justice in accordance with the demands of both common and customary law. And while exercising its powers, it is also always expected to draw amply and beneficially upon natural justice, equity, and good conscience.
When this present action was instituted, on 30 August 1972, the Circuit Court, Sekondi (as indeed all circuit courts throughout Ghana), had, under and by virtue of section 32 (1) of the Courts Act, 1971) Act 372):
[p.395] of [1975] 1 GLR 391
“(a) an original jurisdiction in civil matters—
(i) in all personal actions arising under contract or tort or for the recovery of any liquidated sum, where the amount claimed is not more than N¢8,000;
(ii) in all actions between landlord and tenant for the possession of land claimed under lease and refused to be delivered up;
(iii) in all causes and matters involving the ownership, possession, occupation of or title to land where the value of the land does not exceed N¢15,000;
(iv) to appoint guardians of infants and to make orders for the custody of infants;
(v) to grant in any action instituted in the Court, injunctions or orders to stay waste, or alienation or for the detention and preservation of any property the subject matter of that action or to restrain breaches of contract or the commission of any tort;
(vi) in all claims for relief by way of interpleader in respect of land or other property attached in execution of a decree made by a Circuit Court;
(vii) in causes and matters relating to succession to property of any person who had at the time of his death a fixed place of abode within the area of jurisdiction of the Court where the law applicable to the disposition is exclusively customary law; …
(c) any other jurisdiction conferred by this Act or any other enactment.”
It need hardly be emphasized, therefore, that where a statute confers such a jurisdiction, a judge of that court must need exercise his judicial functions within the limits of that jurisdiction, and be ever mindful of the indispensable principle that a judge ought, always, to regard equity.
Since, therefore, the pleadings of the parties before the trial circuit judge, and the very first issue on the facts of the summons for direction clearly demanded an investigation of the relationship created by the purchase of the Nyemasu lands by the village community of Twinen, through the appellant’s predecessor, the trial circuit judge had no choice but, dutifully, to resolve that issue decisively, paying due obeisance to equity. That he was well alive to his obligation is shown by the following passage from his judgment. He said, inter alia, after stating the case for the appellant, and that for the co-defendant:
“By this, the co-defendant contends that the people of Twinen headed by the chief of Twinen are the beneficial owners of Nyemasu lands and that the stool of Twinen is entitled to ebusa tributes paid by all tenant farmers on Nyemasu lands . . .”
Commenting upon the address of councel for the co-defendant, the learned circuit judge continued thus:
[p.396] of [1975] 1 GLR 391
“Counsel for the co-defendant who is the same counsel for the defendants in his address submitted that by reason of the fact that the people of Twinen contributed money for Anwine Kwaw who bought Nyemasu lands in his, name, Nyemasu lands must be deemed to be held in trust for the people or stool of Twinen.”
Having said this and shown, thereby, that he was indeed aware of what both sides to the dispute before him wanted determined, it was expected that the learned circuit judge would take the next step necessarily dictated by the state of the pleadings, the issues raised, the oral testimony, and counsel’s addresses, and then proceed to make a definitive pronouncement upon the claim instituted by the appellant and the challenge posed thereto by the respondents. But he never did so. Instead, and for some strange and unaccountable reason, the learned judge promptly disqualified himself from looking into, and determining, those vital matters with the following amazing and discrepant statement:
“To this submission my short answer is that the co-defendant made no counterclaim for a declaration of trust by this court for the people of Twinen and secondly that relief for declaration of trust can properly be sought at the High Court and not the circuit court. I will not pretend therefore to be dealing with an issue of trust for the purpose of holding that Nyemasu land is held, or has been held, on trust for the people of Twinen.”
How could the learned judge seriously suggest to the parties, in one breadth, that he would have examined and dealt with the issue of trusts if that matter had been raised on a counterclaim for a declaration, while at the very same time telling them that he was washing his hands clean and dry of it because that question was anathema to his court?
In my opinion the refusal of the learned circuit judge to carry out that investigation into a matter so clearly cognisable by the circuit court, was an unfortunate omission to perform his judicial function, and a misapprehension of his equitable jurisdiction to grant relief where one was so clearly established as due. He was wrong, in my opinion, in misdirecting himself to feel satisfied that he had no jurisdiction to entertain and resolve that clearly pertinent and crucial issue of trust. And he was twice wrong, I further hold when, by staying his hand, he proceeded to give effect to his erroneous view of the matter. Instead of “passing the buck” the way he did, at that late stage, and pushing the responsibility on to the High Court even after his attention had been drawn to the crucial issues; instead of thus shirking his responsibility, and then delaying the due and prompt inquiry into what, to the parties before him, was an important matter of rights and obligations, the learned circuit judge could, when the matter first came up before him have sought better counsel by either stating a case, or else by reporting the pendency of the whole cause for its transference from the circuit court. I do not think he was justified in
[p.397] of [1975] 1 GLR 391
leading the parties on, putting them to expense, only to tell them, at the very last, that the very first issue raised by them for his determination was beyond his jurisdiction. It is granted that he could, proprio motu, take the point at any stage of the proceedings. But to my mind the circumstances of this case called for a hastened, more timely, but certainly not a deferred, exercise of his motion.
Nowhere in the whole of the record of proceedings is it shown that at any time before, at, or during the hearing of this action, any respondent ever pleaded particularly in objection of the jurisdiction of the circuit court. As I understand the circumstances, therefore, it became expedient for the interests of justice that, if the trial circuit judge had misgivings about his jurisdiction, he made those doubts known to the parties as soon as the summons for directions stage was reached.
At that stage of general stock-taking, the trial judge was under an obligation, placed upon him by Order 30 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A), to consider all those points and matters that the court was required to deal with on the summons for directions. It was at that propitious point that the crucial questions and doubts raised by the first issue ought to have been ventilated and discussed, and the necessary directions given, so that both time and costs might be saved To the extent, therefore, that the learned circuit judge dismissed the plea of the appellant; and to the further extent that he also failed to carry out an incisive, analytical inquest into the substance of the defence of the respondents, so as to determine the extent to which, if at all, their challenge had adequately met, rebutted, and destroyed that right to redress so seriously urged by the appellant, I am satisfied that the learned judge failed to have proper regard to equity and that he thereby denied substantial justice to the parties before him more particularly, to the respondents.
It now remains to mention the appellant’s claim for “an account of all coconuts collected from one coconut farm situate on Nyemasu lands for the past five years,” and his demand for “a one-third share of whatever may be found due and owing” from the respondents. By this the appellant was saying, in effect, that since his title was valid and such, therefore, as he could properly litigate; and because those moneys which had accrued, as tribute, from the Nyemasu lands were rightfully due to him as the bona fide owner through legitimate purchase, the respondents who, as tenants, had so improperly withheld payment, must be made to restore to him one-third of the total; or else they must be directed to account to him for those moneys.
Regarding the trial circuit judge’s handling of this aspect of the claim, also, I am satisfied that he went wrong. I have no doubt at all in my mind that if the trial circuit judge had examined the matters set before him with requisite judicial care and attention, he would have enabled himself, if the facts and circumstances warranted it, to do necessary equity by apportioning out to the parties, in equal shares, whatever benefits and burdens had accrued from the transaction because equity is, as it were,
[p.398] of [1975] 1 GLR 391
equality. Quite obviously, therefore, if a trustee-beneficiary relationship was established by the evidence as having subsisted between the appellant’s predecessor and the village community of Twinen, then the entire sub-stratum of the appellant’s claim to the payment, to him, of tribute-moneys, would have gone, and the doom of his action against the respondents would, most assuredly, have been sealed.
All in all, and as I read and appreciate the record, very crucial issues had been seriously raised, both of fact and of law. These could, very adequately, have been settled by evidence carefully investigated. Since, therefore, the real matters in controversy between the parties were not adequately probed by the learned trial circuit judge who clearly did not trouble “to find out where the truth lies between the conflicting versions pleaded before him”; and because the circumstances of the matter leave us in no doubt at all that substantial justice and fair equity was not done at the trial, I am of the opinion that the justice of the case will be fully met, and equity gratified, if this court exercised her powers under rule 31 of the Court of Appeal Rules, 1962 (L.I. 218), and ordered the remission of this whole case to the Circuit Court, Sekondi, to be reheard by a circuit judge other than his honour Judge A. E. Sampson, from whose judgment this appeal has lain.
JUDGMENT OF APALOO J.A.
I also agree that this case should be tried afresh in the circuit court. The plaintiff is the successor of a man called Anwine Kwaw of Twinen. The latter in his lifetime was the ostensible purchaser of the lands called Nyemasu lands and he obtained in his own name, a certificate of purchase. The defendants are all farmers and cultivated coconut on these lands at varying periods of time.
The plaintiff claimed that according to custom, the defendants were liable to pay a third of the proceeds to him as landlord. He accordingly sought an account of all coconuts collected from the farm situated on the Nyemasu lands for the past five years and for payment to himself a third-share of any sums found due and owing. The defendants admit the custom but claimed that the person entitled to such third is the stool of Twinen because it is in truth the beneficial owner of such land and that they made such payments to it. They admit that the plaintiff’s predecessor in fact bought the land and obtained a certificate of purchase but they said the purchase money was raised by the stool and subjects of Twinen and that although the plaintiff’s ancestor had the bare legal title, he held it on trust for the stool and subjects of Twinen. The plaintiff disputes this and said Anwine Kwaw bought the lands in his own right and with his own funds and was the legal as well as the beneficial owner.
As the defendants relied on jus tertii and as that right was laid in the stool, the occupant of the Twinen stool was, on his own application joined to the action as co-defendant. On being joined, he proceeded to assert title to the lands on the same grounds on which the defendants did.
[p.399] of [1975] 1 GLR 391
Accordingly, the crucial issue which fell for determination and which was decisive of this case was: Did the people of Twinen raise the purchase money with which Anwine Kwaw bought the Nyemasu lands or did the latter buy the lands with his own funds and for his beneficial enjoyment’?
If the former is the case, then Anwine Kwaw held the legal title on a resulting trust for the stool and people of Twinen, if the latter is the truth, Anwine Kwaw was the legal as well as the equitable owner and the defendants can have no valid answer to the claim of his successor. This was the issue settled for determination. Both sides tendered evidence in support of their various positions. The evidence was, as is usual in this type of cases, conflicting and the learned judge came under a duty to decide which of the conflicting versions was true. He cannot determine the consequential issue of law otherwise. The learned judge however declined to decide this because, as he put, it, “the co-defendant made no counterclaim for a declaration of trust by this court for the people of Twinen and secondly, that relief for declaration of trust can properly be sought at the High Court and not the circuit court.” As, however, the plaintiff produced the certificate of title in the name of Anwine Kwaw, the judge expressed himself as satisfied that the latter had legal title to the lands. But he declined to accede to the plaintiff’s claim for accounts because in his own words:
“The plaintiff led no evidence on accounts and did not solicit anything of the kind from the defendants under cross-examination. Indeed nothing was said of accounts capable of assisting the court to determine how much the plaintiff is entitled to.”
He accordingly dismissed the action. The plaintiff claims that that decision was wrong and should be reversed. It was urged for the plaintiff that as the judge found legal title to be vested in the latter and as he was unable to hold that that title was held on a resulting trust for the stool and people of Twinen, he should have acceded to the plaintiff’s claim to accounts
In my opinion, that contention is right. The judge clearly confused the legal right to accounts with “account” in the ordinary sense of counting or reckoning of money received and expended. The defendants themselves admit that they are liable to pay one-third of the proceeds of the coconuts to the landlord. How much they received is a matter peculiarly within their knowledge. The plaintiff is entitled to a third of whatever they got. The latter cannot determine his actual entitlement until the defendants submitted a statement showing all their receipts. The plaintiff asked for such statement and an order that he should be paid a third of these receipts. The judge thought the plaintiff should have produced evidence either by himself or through cross-questioning of the defendants, how much he was entitled to. That was wrong. If he knew this, his claim would have been for a debt or a liquidated sum and not for accounts. The judge seems to have thought, again quite wrongly, that the plaintiff’s writ claimed a specific sum of money. His claim was purely for accounts and a payment to himself of a third of the receipts from the coconut farms. Had the judge not burked a decision on the substantial issue between the plaintiff and the stool, we should have put him right by ordering accounts simpliciter.
[p.400] of [1975] 1 GLR 391
But the plaintiff will not be entitled to an order for accounts if, as the stool of Twinen and the defendants assert, the real beneficial owner of the land was the stool and not the plaintiff’s ancestor. On that issue, there was plenty of evidence either way. The judge’s reason for declining to determine it is that the stool did not counterclaim for a declaration of trust and even if it did, he had no jurisdiction to entertain such a claim. Again I think the judge was quite wrong. Stripped of the form in which it was raised, the real question in controversy between the plaintiff and the stool was, who actually provided the purchase money for the Nyemasu lands and was the real as opposed to the nominal owner of it? It is that person who is entitled to the enjoyment of the land. The value of the land was said not to exceed ¢15,000.
Clearly the circuit court had jurisdiction to deter mine a dispute relating to ownership of land “where the value of the land does not exceed ¢15,000.” This case fell within the jurisdiction of the circuit court and was properly cognisable by it. But in order to determine the instant controversy, the judge had to apply the common law of this country to the facts found by him to answer the question whether notwithstanding appearances to the contrary, the plaintiff’s ancestor held the land as a bare trustee for the stool of Twinen which in truth is the beneficial owner. And by section 17 of the Interpretation Act, 1960 (C.A. 4), the common law includes the doctrines of equity.
Surely, the stool need not counterclaim for a declaration of trust before the judge can determine an issue which merely involves the application of the doctrines of equity to proved facts. Unless a circuit court has no jurisdiction to apply the common law of this country in adjudicating disputes, it must be wholly wrong to say the circuit court had no jurisdiction in this case. I think it has, and accordingly, this case must go back for this issue to be determined. I agree therefore with the order which my brother has proposed.
JUDGMENT OF ANNAN J.A.
I also agree to the order proposed.
DECISION
Appeal allowed.
Re-trial ordered.
S.O.
