SEY vs. CROMWELL AND ANOTHER [1973] 2 GLR 412

CASES REFERRED TO

(1) Nana Ofori Atta II v. Nana Abu Bonsra II [1958] A.C. 95; [1957] 3 W.L.R. 830; [1957] 3 All E.R.

559; sub nom. Akyem Abuakwa Stool v. Adansi Stool (1957) 3 W.A.L.R. 171, P.C.

(2) Sasraku v. Okine (1930) 1 W.A.C.A. 49.

(3) Ord v. Ord [1923] 2 K.B. 432; [1923] All E.R. Rep. 206; 92 L.J.K.B. 859; 129 L.T. 605; 39 T.L.R.

437, D.C.

(4) Wytcherley v. Andrews (1871) L.R. 2 P. & D. 327; 40 L.J.P. & M. 57; 25 L.T. 134; 35 J.P. 552; 19 W.R. 1015.

(5) Nelson v. Nelson (1949) D.C. (Land) ‘48-’51, 118.

NATURE OF PROCEEDINGS

ACTION for a declaration that the house in dispute was vested in the plaintiff by virtue of her appointment as a customary successor. The facts are fully stated in the judgment.

COUNSEL

E. B. Gaisie for the plaintiff.

A. Forson for the first defendant.

JUDGMENT OF CHARLES CRABBE J.

The plaintiff is seeking, in this case, a declaration that a house situate at Agona junction known as the Ghana National Trading Corporation retail stores, hereinafter referred to as G.N.T.C., formerly the property of the late Joseph O’Neil Cromwell, is vested in her by virtue of her appointment as customary successor of the late George O’Neil Cromwell, a devisee of the late Joseph O’Neil Cromwell. She is also asking for the payment of the sum of ¢432.00 being accrued rents in respect of the store in that house rented to the second defendants at the rate of ¢24.00 per month, which rent has been outstanding since March 1969. She is also claiming as well mesne profits.

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By her statement of claim the plaintiff states that she is the customary successor to, and legal representative of the estate of, George O’Neil Cromwell. The first defendant is the daughter of late Joseph O’Neil Cromwell. The late Joseph O’Neil Cromwell by his will bequeathed his property at Agona junction to the late George O’Neil Cromwell and his wife Ama Esson. The property was shared between them and the house, the subject-matter of this action, was given to the late George O’Neil Cromwell. When George O’Neil Cromwell died, members of his family, the Ntwaa family of Dixcove, met and Matilda Brace, the original plaintiff was appointed his successor. She was granted letters of administration at Sekondi by the High Court on 8 February 1969. Some time in October 1969, the first defendant brought an action against G.N.T.C. who were the tenants of the plaintiff, claiming rents for the store. Upon application by the second defendants the plaintiff was joined as a third party but this joinder was subsequently set aside on 11 August 1970, for the failure of the second defendants to take the necessary steps. The second defendants have refused to pay the rent to the plaintiff since March 1969, and the first defendant has threatened to remove the second defendants’ property from the store.

For her part, the first defendant avers that when the plaintiff ‘s predecessor failed to protect her interest in a suit at the circuit court, judgment was entered for the first defendant. Consequent upon that judgment, the second defendants paid to the first defendant the rents due on the property. She contends that the sum claimed by way of rent has already been paid to the entitled person by an order of a court of competent jurisdiction and that that order had not been set aside. Since the circuit court case was disposed of, the second defendants had left the premises. The issues agreed for the trial were:

“(a) Whether or not the plaintiff is estopped.

(b) Whether or not the said house was bequeathed to the late George O’Neil Cromwell and his wife.

(c) Whether or not the plaintiff is entitled to her claim.”

In her evidence Madam Johanna Sey, also called Aba Yehan, said that when her mother, the original plaintiff in this case, died she was granted letters of administration. George Cromwell was her cousin. When he died letters of administration were given to her mother Matilda Brace. The late Joseph O’Neil Cromwell was the father of the late George Cromwell and the first defendant in this case. Joseph Cromwell left a will.

After probate of the will had been granted, the properties of Joseph Cromwell were given to the son George Cromwell and the wife of Joseph Cromwell, Ama Esson. It is one of the properties of the late Joseph Cromwell which came into the hands of the son George Cromwell which forms the subject-matter of this action. This property is the store let to G.N.T.C. and situate at Agona junction. When George Cromwell died Matilda Brace, the mother of the present plaintiff, was entrusted with the property of George Cromwell as successor, having been so appointed by

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the family. As a result of the letters of administration granted to Matilda Brace all moneys by way of rent in respect of this G.N.T.C. retail store were paid to Matilda Brace. Later the manager of G.N.T.C. approached Matilda Brace and told her that one Kate Cromwell, the first defendant in this case, was laying claim to the building. As a result an action had been taken against G.N.T.C. Matilda Brace was joined as a third party in that case, she being later struck out as a third party in the suit.

Immediately, Matilda Brace instituted the present action against the first defendant and the G.N.T.C. to determine who owns the property. According to the plaintiff, the first defendant belongs to the Ebiradzi family. Her father, the late Joseph Cromwell, belongs to the Ntwaa family. The mother of George Cromwell was also an Ntwaa. All of them belong to the Ntwaa clan. Kate Cromwell is the only person not a member of the Ntwaa clan.

The wife of the late Joseph O’Neil Cromwell testified that when her husband died he left a will in which she was mentioned leaving property for her and his son George Cromwell. According to the will she and the son were to take the property at Agona junction. These properties were a block building, a swish building and an orange farm. The properties were divided amongst the two of them by the family. She was given the swish building; the block building was given to the son, George. She was also given the orange farm. The store rented to the G.N.T.C. which is the subject-matter of this action is the building given by the family to George Cromwell. According to her, Kate Cromwell, the first defendant, and a daughter of George Cromwell did not succeed her father George.

For the second defendants the registrar of the circuit court gave evidence about the action taken by the first defendant against G.N.T.C., the joining of Matilda Brace as a third party and the judgment given against G.N.T.C. in the sum of ¢432.00 with costs of ¢100.00. A former manager of G.N.T.C. gave evidence regarding the rents paid in respect of the property, the subject-matter of this action, to the first defendant.

The evidence of Madam Ama Esson is very important in this case. She deposed as to the division of the property left for her and George by the late Joseph O’Neil Cromwell. She got the farm and the swish building. George got the block building which is the subject-matter of this action. She withstood the test of cross-examination and I believe her. Indeed this is all the cross-examination of this witness:

“Q. You said the property was shared; were you there or some people came round and told you, you were to take a particular one.

A. After the proving of the will, the family and myself went to Agona junction where the property was situated and they divided it.

Q. Tell us, your husband was Ahanta.

A. Yes, and I am Ahanta too.

Q. You also know that George did not belong to the same family as his father.

A. He belongs to the same family.”

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Exhibit B shows that when the late George O’Neil Cromwell died the original plaintiff in this case was granted letters of administration. There is no evidence that there was a caveat which was not removed. So the property of the late George O’Neil Cromwell became vested in Matilda Brace the original plaintiff and mother of the present plaintiff. Exhibit A shows that when Matilda Brace died the present plaintiff, Johanna Sey also known as Aba Yehan, was the person to whom letters of administration were granted.

In exhibit C, the will of the late Joseph O’Neil Cromwell the testator had stated that:

“In consideration of good and truthful services rendered unto me by my wife Ama Esson . . . I bequeath unto her and my son George O’Neil Cromwell all of my properties at Agona junction including furniture and all utensils also fruit trees.”

When, therefore, the family divided the property and George got his share he took absolutely the store which forms the subject-matter of this case, in addition to the other properties left by the testator, his father. Unfortunately, George unlike his father did not leave a will, as the evidence shows. So when he died intestate what happened? This is answered by exhibit B. On the grant of the letters of administration the property in dispute became vested in Matilda Brace as administratrix. The first defendant did not give evidence. By her statement of defence, her contention is that the amount being now claimed had been paid by the second defendants “to the entitled person [namely, herself] by an order of a court of competent jurisdiction and this order has not been set aside.” How she came to be the “entitled person” is not shown.

But exhibits 1 to 4 show the action which the first defendant took and what happened in that action. Exhibit 1 is the writ the first defendant issued against the second defendants claiming the sum of ¢190.00 being accrued rents and mesne profits at the rate of ¢24.00 per month. In exhibit 1 it is stated that “the plaintiff [now the first defendant in the present action] sues as the customary successor to the late G. O. Cromwell.”

By exhibit 2 the original plaintiff in the present suit entered appearance as a third party. Exhibits 3 and 4 show that she was joined as a third party. As part of exhibit 4 is the following:

“11. 8.70.

In the Western Circuit Court holden at Takoradi on Tuesday, the 11th day of August 1970: Coram: His Honour Isaac Amuah, Esquire, Circuit Judge.

Case No. C. 123/69 Kate Cromwell .. .. .. .. Plaintiff vrs.

The District Manager .. .. .. Defendant Matilda Brace .. .. .. .. Third party Forson for plaintiff.

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The plaintiff ‘s first witness sworn on the Bible in Fante. Thomas Essien. I am a farmer residing at Upper Discove. I belong to Twafo clan. I am the head of family. I know Cromwell senior. He was a member of the Twafo clan. Cromwell is dead. When Cromwell was alive he built a house at Agona junction. He lived in this house. The defendant rented part of this building. Before he died he said that the house would go to his children. George Cromwell had five issues who are now alive. G. O. Cromwell junior took over the management of this house when Cromwell senior died. G. O. Cromwell junior shared the rents with his sisters and brothers. G. O. Cromwell is dead. When Cromwell junior died the plaintiff succeeded him. The defendant is still renting the house at Agona junction.

Sworn on the Bible in Fante. Kate Cromwell. I am a petty trader residing at Takoradi. My father is known as G.O. Cromwell senior. He is dead. He built a house at Agona junction. He rented a portion of the premises to the Ghana National Trading Corporation. He gave the building to the children and asked Cromwell junior to take over the management of the building. Cromwell junior is dead. When Cromwell junior died the plaintiff ‘s first witness asked me to take over the administration of the building. The Ghana National Trading Corporation is still renting the premises. Since Cromwell junior died the defendant has not paid any sums by way of rent to me. The purpose of this is to claim arrears of rent and mesne profit. The arrears of rent was ¢192.00 at the time of suing, i.e. ¢24.00 per month from 1 January 1969 to 30 September 1969. From October 1969 to 31 July 1970, ¢240.00 giving a total balance of ¢430.00. I am asking for judgment.

Hughes: Applied that the third party proceedings be set aside under Order 16A, r. 7 (3) of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A). The defendants have not complied with Order 16A, r. 7 (1).

Per curiam:

I am satisfied that the plaintiff has established her claim.

Judgment is therefore entered in favour of the plaintiff against the defendant in the sum of ¢430.00 being arrears of rents and mesne profits. Costs in favour of the plaintiff and against the defendant ¢100.00 inclusive of costs of counsel.

In view of the fact that the defendant did not apply to this court for directions under Order 16A, r. 7 (1), the third party proceedings are hereby set aside. Costs against the defendant ¢21.00.

(Sgd.) Isaac Amuah Circuit Judge.”

The above are the proceedings relied upon by the first defendant to estop the plaintiff in the present case. Whatever may be the merits of the judgment in the circuit court, it is a judgment which has not been

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appealed against. How far then can it be set up as estoppel in favour of the first defendant and against the plaintiff.

For this counsel for the first defendant relied on Nana Ofori Atta II v. Nana Abu Bonsra II [1957] 3 W.L.R. 830, P.C., Sasraku v. Okine (1930) 1 W.A.C.A. 49, Ord v. Ord [1923] 2 K.B. 432 and Order 16A, rr. 3 and 4 of L.N. 140A. In the Nana Ofori Atta case before the Judicial Committee of the Privy Council, it is stated in the headnote at p. 831, that the principle stated by Lord Penzance in Wytcherley v. Andrews (1871) L.R. 2 P. & D. 327 at p. 328 that, “ ‘if a person, knowing what was passing, was content to stand by and see his battle fought by somebody else in the same interest, he should be bound by the result, and not be allowed to reopen the case,’ was not limited to wills and representative actions, and while it might have been found appropriate in England only in special conditions, there was no reason why in West Africa it should not be applied to conditions which were found appropriate for it there. The principle was, in the absence of technical legal reasons to the contrary, applicable in the present case, and accordingly the appellant stool, having knowingly stood by while its subordinate fought the question of title in the same interest, was estopped from litigating the matter afresh.”

In Sasraku v. Okine, (supra) there was a dispute concerning certain land; and there were cross actions to determine title. But there had been a previous action with reference to the same land in Jatchie v. Nkum. There was an appeal which was not decided, the parties entering into a compromise. Sasraku sought to tender the judgment, but not the compromise. This the court refused to admit unless the compromise was tendered at the same time. The Court of Appeal upheld the refusal of the trial court.

In Ord v. Ord (supra) it was held that inasmuch as the issue in the first action was, in the absence of particulars of adultery, such acts of adultery as should appear in evidence, and in the second action, again in the absence of particulars, such acts as should similarly appear, the matter was not necessarily res judicata, and that the case must go back for a new trial to ascertain the nature of the present allegations of adultery.

It seems to me that there is some distinction between these cases and the present suit. In Ord v. Ord (supra) the court held that as there were no particulars of adultery and there was no evidence of adultery the matter is not necessarily res judicata and that the case should be tried anew for the allegations of adultery in the second case to be ascertained. In Sasraku v. Okine (supra) the judgment is based on the refusal of the judge in not admitting in the second case the judgment which was sought to be tendered. And the court held that both the judgment and the compromise should have been tendered and as that was not done the trial judge was right in his refusal.

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In the Ofori Atta case (supra) it was a question of standing by while another fought one’s battle for him. But in the instant case the issue at the circuit court was a claim for accrued rents and mesne profits. The plaintiff did not stand idly by. She took steps and was joined as a third party which was set aside. She took steps to protect her interests. Her action was set aside on the technical ground that Order 16A, r. 7 (1), had not been complied with. The decision of the circuit court was given on 11 August 1970. On 12 September 1970 the original plaintiff issued her writ.

It was not incumbent upon the original plaintiff, that is, as the third party in the circuit court proceedings, to apply for directions. It was open to the defendant in that case to do so. The defendant in that case did not apply for the directions. The third party was not therefore given liberty to defend the action through no fault of her own. It seems to me then, that inasmuch as the third party was not given the liberty to defend the action and the third party proceedings were set aside, no action subsisted between them, that is to say, between the third party and the plaintiff before the circuit court. Since no action subsisted between them, I do not see how either of them can be said to be estopped by a judgment to which they were not parties. The wording of rules 8 and 9 of Order 16A clearly show that there were no proceedings under Order 16A such as would entitle the first defendant in the instant case to successfully raise the issue of estoppel.

The original plaintiff did not take part in the trial nor did she take any part therein as was just. The circuit court did not order proceedings to be taken, nor did it order pleadings, or documents to be delivered.

Finally no directions were given “for having the question and the right and liabilities of the parties most conveniently determined and enforced and as to the mode and extent in or to which the third party shall be bound or made liable by the decision or judgment in the action.”

The issue of who is the customary successor to the late George O’Neil Cromwell was not gone into. That was the basis of the claim of the first defendant before the circuit court. That is the basis of the claim before this court. Had the circuit court determined as between the two ladies which is the customary successor there would subsist a judgment in which both were parties, the subject-matter was the same and the issue was the same. That cannot be said for the judgment of the circuit court. Indeed the learned circuit court judge “entered judgment in favour of the plaintiff against the defendant . . .” not against the defendant and the third party. I hold, therefore, that the plaintiff is not estopped by the judgment of the circuit court forming part of exhibit 4.

The issue whether or not the store was bequeathed to the late George O’Neil Cromwell is answered by the will, exhibit C, and the unchallenged evidence of Madam Ama Esson. Exhibit C is the will of the late Joseph O’Neil Cromwell. The beneficiaries were George O’Neil Cromwell and Ama Esson. All the properties in Agona junction were left to George O’Neil Cromwell and Ama Esson. The evidence of Ama Esson establishes

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that the store was given to George O’Neil Cromwell, she taking the swish building and the “fruit trees.”

On the issue whether or not the plaintiff is entitled to her claim, the real available evidence is that of the plaintiff and her witnesses. The evidence of the witnesses for the first defendant established that a judgment had been obtained against the second defendant and that the second defendants had paid rents accrued by that corporation to the first defendant as a result of the circuit court case.

There is no evidence before this court to challenge the evidence of the plaintiff, generally, and as regards her appointment as successor to the late Madam Matilda Brace who had, herself, succeeded the late George O’Neil Cromwell. There is no evidence before this court to challenge the worth and weight of exhibits A and B. Exhibit B was granted to the late Matilda Brace, the original plaintiff, on 8 February 1969 in respect of the death of George O’Neil Cromwell. Exhibit A was granted on 18 November 1971 in respect of the death of Matilda Brace.

When the first defendant signed her writ in respect of the store on 15 October 1969, which writ was sealed on 23 October 1969, Matilda Brace, the original plaintiff in this case, had been granted letters of administration some eight months previously. The first defendant thus had no status, no capacity, to sue for the rents. Exhibits E and F show that the second defendant cannot claim to be unaware of the standing, status, and capacity of the plaintiff in this case. They had had actual notice. They had been given sufficient warning: Nelson v. Nelson (1949) D.C. (Land) ‘48-’51, 118.

In the result I find that the plaintiff has established her claim and must succeed and is entitled to the declaration she seeks and the reliefs she is asking. It is thus this day adjudged and declared that the house situate at Agona junction known as G.N.T.C. retail store the property of the late George O’Neil Cromwell, the devisee of the late Joseph O’Neil Cromwell, is vested in the plaintiff by virtue of her succession to her mother, the late Matilda Brace, and by virtue of the letters of administration granted to her consequent upon the death of her mother Matilda Brace.

I order that the sum ¢432.00 representing accrued rents in respect of the store rented to the second defendants be paid by the defendants to the plaintiff exclusive of mesne profits the payment of which I also order. I award costs of ¢150.00 against the defendants.

DECISION Judgment for the plaintiff. S.O.