DIVISION: IN THE SUPREME COURT
DATE: 13TH MAY, 1963
BEFORE: OLLENNU, BLAY AND AKUFO-ADDO JJ.S.C.
CASES REFERRED TO
(1) Vint v. Hudspith (1885) 29 Ch.D. 322; 54 L.J.Ch. 844; 52 L.T. 741, C.A.
(2) Re Chinery; Ex parte Chinery (1884) 12 Q.B.D. 342; 53 L.J.Ch. 662; 50 L.T. 342, C.A.
(3) Re Riddell; Ex parte Earl of Strathmore (1888) 20 Q.B.D. 512
(4) Winter v. Calder (1933) N.Z.L.R. 289
NATURE OF PROCEEDINGS
APPEAL from a judgment of Mrs. Annie Jiagge J. delivered in the High Court, Accra, awarding the
plaintiff £G1,300 damages for breach of a timber felling agreement. The facts are sufficiently set out in
the judgment of Akufo-Addo J.S.C.
COUNSEL
H. Darkoh for the appellants.
A. Dove for the respondent.
JUDGMENT OF AKUFO-ADDO J.S.C.
The plaintiff (i.e. the respondent to this appeal) brought an action against the defendants, (the appellants
before us) in the High Court, Accra, in which he claimed:
“the sum of £G1,300 being as to £G800 money expended by the plaintiff in pursuance of a timber felling
agreement dated the 14th October, 1960, made between the defendants of the one part and the plaintiff of the
other part which agreement the defendants have broken and as to £G500 general damages for breach of the
said agreement.”
The second and third defendants are the Adikrofo of Emooso and Jejeti respectively in Akim Abuakwa
and the owners of the land, the subject-matter of the plaintiff’s action. The first defendant is the
Omanhene of Akim Abuakwa and the overlord of the land aforesaid.
The plaintiff by his statement of claim averred as follows:
“1. By an oral agreement made in or about August 1960 between the third defendant and the plaintiff the
third defendant granted the plaintiff exclusive timber felling rights over a portion of the Jejeti stool
lands subject to the consent and concurrence of the first and second defendants.
2. In pursuance of the said oral agreement the plaintiff entered on the said lands with the knowledge of
the third defendant and constructed thereon at a cost of £G800 a timber road to enable the plaintiff to
exploit more effectively his timber felling rights.
3. The oral agreement between the third defendant and the plaintiff was confirmed by an agreement in
writing dated the 14th October, 1960, and made between the defendants of the one part and the
plaintiff of the other part.
4. After the plaintiff had finished the construction of the road on the said lands a dispute arose between
himself and Messrs. Darfoor Bros. & Sons, Ltd. as to which of them was entitled to fell timber in the
Jejeti area.
[p.435] of [1963] 1 GLR 432
5. The matter was investigated by the Assistant Conservator of Forests at Koforidua and in a letter dated
the 14th November, 1960, he instructed the police at Anyinam to allow Dafoor Bros. & Sons, Ltd. to
fell timber in the area as they had the valid felling agreement.
6. The plaintiff has since then been prevented from carrying out the timber felling operations on the Jejeti stool lands and as a result he has suffered loss.”
The three defendants filed separate defences in which they all denied the allegation of an oral agreement.
They admitted the written agreement of the 14th October, 1960, but they contended that that agreement to
the knowledge of the plaintiff was subject to the concurrence of the receiver of the Akim Abuakwa stool
revenue and further that the plaintiff was aware of the position that he was not to enter upon the land until
the concurrence of the receiver had been obtained. They went on to aver that the plaintiff’s entry upon the
land before the concurrence of the receiver had been obtained was in trespass and they were not liable for
any damage that he might have suffered in consequence thereof.
The issues settled for trial on the hearing of the summons for directions were:
“(a) Whether or not there was a tree felling agreement between the defendants and the plaintiff.
(b) Whether or not the moneys spent by the plaintiff was done 1[sic.] in pursuance of the tree felling
agreement.
(c) Whether or not the receiver of Akim Abuakwa stool revenue concurred in the tree felling agreement.
(d) Whether there was a breach of the said agreement by the defendants.
(e) Whether the plaintiff is entitled to his claim.”
On the 18th December, 1961, when the suit came before Jiagge J. It was adjourned to the 9th February,
1962, and the following are the court’s notes of the proceedings on that day:
“Counsel for defendants at this point applies for an adjournment to announce settlement in two weeks.
Counsel for plaintiff: I have no objection provided that a settlement is announced in two weeks.
Court: Adjourned to the 9th February, 1962. Defendant to announce settlement.”
The suit came before the same judge on the 9th February, 1962, and the following are the notes recorded
of that day’s proceedings:
“Court:
Mr. Twum Barima for plaintiff.
Mr. Ofosu Asante for defendants, absent.
Plaintiff begins: . . .”
The plaintiff then proceeded to lead evidence, and called no witnesses.
[p.436] of [1963] 1 GLR 432
At the conclusion of the plaintiff’s evidence the learned trial judge pronounced judgment in favour of the
plaintiff for £G1,300 as claimed. No reasons were assigned for the judgment, the record of which reads,
“Court: Judgment for plaintiff for £G1,300. Costs (inclusive) 45 guineas.”
It is from this decision that the defendants have appealed to this court. Learned counsel for the defendants
made two points in his submissions in support of the appeal, namely, (a) that it was wrong of the learned
trial judge to have proceeded with the hearing of the suit on the 9th February, 1962, because the suit was
adjourned to that date for settlement to be announced, and as no settlement was announced on that day the
trial judge should have fixed a date for hearing and adjourned the suit to that date; and (b) that on the
evidence tendered by the plaintiff the trial judge was wrong in pronouncing judgment for the plaintiff
because the plaintiff was not in law entitled to succeed.
The defendants seek two alternative reliefs by their notice of appeal: either the judgment be set aside and a re-trial ordered or the judgment be reversed. The second alternative would mean, although not stated in
so many words, dismissing the plaintiff’s claim and entering judgment for the defendants.
Before considering the two points raised by the appeal some remarks appear to be called for on the
absence of the defendants’ counsel in court on the 9th February, 1962, a date fixed by the court at the
request of counsel for the announcement of settlement. Apart altogether from any consideration of
counsel’s dereliction of his duty to his clients by failing to attend court, such conduct on the part of
counsel shows no respect to the court. It may be as alleged in the grounds of appeal that on the 9th
February, 1962, negotiations for settlement were still proceeding and that that fact was known to the
plaintiff and his counsel, but that is all the more reason (if any reason were needed for counsel’s
attendance in court in a case in which he had been engaged) why counsel should appear in court and tell
the court the state of the negotiations at the time and perhaps apply for a further adjournment.
The point made by counsel that it was wrong of the learned judge to have proceeded to the hearing of the
suit on the 9th February, 1962, is in my view well founded. When orders were made by a court in a suit
pending before it for hearing, it is, I think, essential that such orders shall be observed strictly according
to their tenor, for otherwise an element of uncertainty surrounds the taking of vital steps in the progress of
a suit and parties and their counsel can always call in aid such uncertainty to excuse their defaults.
When a suit is adjourned for settlement it is usual to adjourn it to a date for hearing subject to a settlement
being announced on the adjourned date. In such circumstances a court is entitled to proceed to hear the
suit if no settlement is announced. Where, however, as in this case the suit was adjourned specifically to
the 9th February, 1962, for settlement
[p.437] of [1963] 1 GLR 432
to be announced the learned judge was wrong in hearing the suit, not withstanding the inexcusable
absence of counsel for the defendants.
It was submitted by learned counsel for the plaintiff that in the circumstances the defendants’ remedy was
not by way of appeal but by an application to the court below under Order 36, r. 18 of the Supreme
[High) Court (Civil Procedure) Rules, 1954, to have the judgment set aside and the suit re-tried. Counsel
submitted, in reliance on the English case of Vint v. Hudspith2 that the appeal was therefore incompetent.
I agree with counsel that the defendants should have applied to the court below for relief under Order 36,
r. 18 and indeed, in my view, it is desirable that in such circumstances such an application should first be
made if for no other reason than that it is a less expensive procedure than that of an appeal. But failure to
do so does not disentitle the aggrieved parties from exercising their undoubted right of appeal to this court
under section 8 of the Courts Act, 1960,3 which gives this court the jurisdiction to hear appeals from any
judgment of the High Court in any civil cause and from any decision given by the High Court in any other
matter whatsoever. The case of Vint v. Hudspith4 cited by counsel is not applicable, for there the plaintiff failed to appear
and the suit was struck out and judgment entered for the defendant. I doubt whether such an order made
pursuant to the provisions of Order 36, r. 17 of the Supreme [High] Court (Civil Procedure) Rules can be
said to be a judgment or a decision from which an appeal can be brought in this court. A judgment must
ascertain or establish a previously existing liability of a defendant to a plaintiff (see Re Chinery; Ex parte
Chinery5 or it must determine in favour either of a plaintiff or of a defendant the question whether there
was a pre-existing right of a plaintiff against a defendant (see Re Riddell; Ex parte Earl of Strathmore,6
per Lord Esher M.R.), and a decision according to the New Zealand case of Winter v. Calder7 implies the
exercise of judicial determination as the formal and the definite result of examining a question. An order
dismissing a plaintiff’s action for want of prosecution does not answer to the attributes of a judgment or a decision, and I am doubtful whether such an order is appealable under section 8 of the Courts Act, 1960.
However, it is not necessary to reach a firm decision on that point and I would prefer to leave the matter
open. In the case before us, however, the learned judge heard the evidence of the plaintiff and her judgment
implies that she was satisfied that the plaintiff did discharge the burden of proof which rested on him as
plaintiff, and her judgment as far as procedure went was in accordance with the provisions of Order 36, r.
16. The judgment being a judicial determination
[p.438] of [1963] 1 GLR 432
of the defendants’ liability to the plaintiff is one from which an appeal can properly be taken in this court.
The fact that the defendants could have pursued an alternative remedy provided by Order 36, r. 18 does
not put them out of court if they chose to pursue the remedy of appeal to which they were equally legally
entitled under section 8 of the Courts Act. 1960.
But for the other point raised which is a point of law and which challenged the legality of the plaintiff’s
action, I would without hesitation grant the defendants’ first relief by setting aside the judgment and
remitting the case to the court below for re-trial. The point of law raised was, in effect, that the plaintiff
had no cause of action in that there was at the material time no contract in law between the plaintiff and
the defendants such as could ground an action for breach. This point can be determined on the plaintiff’s
evidence and it was fully argued by counsel. There is therefore no point in remitting the case to the court
below for this court can properly determine that issue.
It will be recalled that the defendants in their defence alleged that the agreement of the 14th October,
1960, was subject to the concurrence of the receiver of the Akim Abuakwa stool lands revenue, and one
of the issues settled for trial was whether such concurrence was obtained. By section 14 of the Akim
Abuakwa (Stool Revenue) Act, 19588
“The management of Stool lands of the Akim Abuakwa State so far as vested by the Local Government
Ordinance in any local authority and by the State Councils (Southern Ghana and Southern Togoland)
Ordinance in the Akim Abuakwa State Council shall be transferred to the Receiver of Stool Revenue and,
accordingly, all the functions of a local authority under section 73 and sections 75 and 76 of the Local
Government Ordinance and of the Akim Abuakwa State Council under section 16 of the State Councils
(Southern Ghana and Southern Togoland) Ordinance shall be performed by the Receiver.”
Sections 73 and 76 of the Local Government Ordinance, 1958,9 are not immaterial for the purpose of this
appeal. Section 75 of that Ordinance provides as follows:
“(1) Any disposal of any interest or right in land which involves the payment of any valuable consideration
or which could, by reason of its being to a person not entitled by customary law to the free use of
land, involve the payment of any such consideration, which is made—(a) by a Stool; or (b) by any
person who, by reason of his being so entitled under customary law, has acquired possession of such
land either without payment of any consideration or in exchange for a nominal consideration; shall be
subject to the concurrence of the . . . Council, . . . for the area concerned, and shall be of no effect
unless and until such concurrence has been obtained and certified in writing under the hand of the
chairman or clerk of the council.”
[p.439] of [1963] 1 GLR 432
The combined effect of section 14 of the Akim Abuakwa (Stool Revenue) Act, 1958, and section 75 of
the Local Government Ordinance, 1951, is to make the concurrence of the receiver of Akim Abuakwa
stool revenue a condition precedent to the effectiveness of any disposal of any interest or right in Akim Abuakwa stool land. By the plain language of the two sections aforesaid the disposal of an interest or right in Akim Abuakwa a stool land takes effect from the date on which such concurrence is given and signified in writing by the receiver. The requisite concurrence of the receiver to the agreement of 14th October, 1960, was given on the 20th January, 1961. It follows therefore that the only contract
recognisable at law that existed between the plaintiff and the defendants was one that became effective on
the 20th January, 1961.
The plaintiff averred, and the defendants denied, the existence of an oral agreement in pursuance of
which, the plaintiff alleged, in August 1960 he entered upon the land and constructed a road in
preparation for his timber felling operations. The learned judge’s judgment in favour of the plaintiff
necessarily implies an acceptance by her of the conclusion of an oral agreement as alleged by the plaintiff
and the consequent entitlement of the plaintiff to damages in respect of the money expended by him in
making the road. Granted the existence of the oral agreement, the learned judge should have gone further
to determine the validity of such an agreement in the light of the statutory provisions regulating
agreements for the disposal of an interest or a right in Akim Abuakwa stool land. Obviously such an
agreement could not without the concurrence of the receiver of the Akim Abuakwa stool land confer any
interest or right in the land on the plaintiff. The only concurrence by the receiver of which evidence was
given was that given to the written agreement of the 14th October, 1960, and which is dated the 20th
January, 1961. It follows that before the 20th January, 1961, the plaintiff had no interest in the land that
would entitle him in law to enter upon it and construct a road.
The acts alleged by the plaintiff to have been committed by the defendants and which provided for him
the foundation of his allegation of breach of contract took place according to the plaintiff’s own evidence
before the 20th January, 1961. The plaintiff could only found an action for breach of contract on acts
committed by the defendants on or after the 20th January, 1961, and of such acts there is not a tittle of
evidence on the record. The plaintiff ‘s entry upon the land in August 1960 was therefore unlawful and if
he has suffered any financial loss thereby he has only his own imprudence to quarrel with.
Learned counsel for plaintiff submitted that the concurrence by the receiver on the 20th January, 1961,
should be considered as relating back to the plaintiff’s entry on the land under the oral agreement and
therefore as validating that entry. The language of the relevant statutory provisions is too plain to permit
of such an agreement. The law says that “any disposal of any interest or right in land . . . shall be of no
effect unless and until
[p.440] of [1963] 1 GLR 432
such concurrence has been obtained . . .” Such clarity of language must militate uncompromisingly
against any suggestion of a retrospective operation of the receiver’s concurrence.
It follows from the premises that the learned judge was wrong in giving judgment for the plaintiff. I
would therefore allow the appeal and set aside that judgment together with the order for costs.
Consequently I would dismiss the plaintiff’s action and enter judgment for the defendants.
JUDGMENT OF OLLENNU J.S.C.
I agree.
JUDGMENT OF BLAY J.S.C.
I also agree.
DECISION
Appeal allowed.
Judgment for the defendants.
J. D.
