KWAKU DUAH V. KWAME DAPAA

Manyo-Plange, J. In this case, the plaintiff claimed by his Writ of Summons as successor to Kwaku Duah, deceased, for a declaration of title as such successor to House No. 58 Zongo Extension, Kumasi, the property of Kwaku Duah, deceased, and for cancellation of an Indenture of Sale dated 16th October, 1933, purported to have been executed by the late Kwaku Duah as vendor, and Kwaku Boakyias purchaser; the said sale being fraudulent.

When the case came up for hearing the plaintiff was represented by Counsel, but the defendant appeared in person. Counsel for the plaintiff asked for pleadings stating that the action was a complicated one. In what respect it was complicated he did not state. The learned trial Judge ordered pleadings to be filed, statement of claim within 15 days and statement of defence to be filed within 15 days from service of statement of claim. There are no reasons recorded for the order for pleadings.

Statement of claim was filed by the plaintiff and this was duly served upon the defendant on the 12th May, 1950. No defence having been filed within the time ordered, on the 13th July, 1950, the Court was moved ex pater for judgment to be entered for the plaintiff in default, The learned trial Judge ordered Notice to be served upon the defendant and this was accordingly done. Notice of Motion was served upon the defendant on the 4th of August, 1950. The Motion came up for hearing three weeks, later, that is on the 25th August, 1950, The defendant appeared and he admitted service upon him of the documents, but gave no reasons for his failure to file a statement of defence in time or to apply for an extension, of time within which to do so and judgment was entered for the plaintiff. It is against this Judgment that the defendant has appealed to this Court.

The first ground of appeal was on the question of Jurisdiction, namely, as the claim was for ownership of land, the Supreme Court had no jurisdiction to deal with the matter. On the authority of Adu Kofi v, Chief Kwesi Brentuo (1), to determine the question of jurisdiction, it is the Writ and the pleadings that one is to look at, to find out what is the real matter in issue, In this case, I am of the opinion, looking at the Writ and the pleadings, that the real matter in issue was, whether the Deed of Indenture, purported to be an Indenture for sale, was a genuine document or a forgery, The fact that the question of ownership follows upon the determination as to the genuineness or otherwise of the document, did not necessarily make the issue one of ownership. In my view it was the genuineness of the document that was the real issue in the case and the Supreme Court was competent to try it; therefore the appeal on this ground, must fail.

The next point which was taken was ground 3 (a) of the grounds of appeal, Counsel for the appellant has contended and in my view, rightly so, that the order for pleadings was a nullity in that the provisions of Order 25, rules 1 and 2 were not complied with by the learned trial Judge. By rule 1 of Order 25, suits shall ordinarily be heard and determined in a summary manner without pleadings; but, where it appears to the Court (for reasons recorded in the minutes) that the nature and circumstances of any case Court are that the plaintiff, a carpenter, was some time in April, 1950 informed by the defendants, who are respectively the Paramount Chief and a member of the Tribal Authority of Bo, Kakua Chiefdom, that the land on which his house at Bo stands had been leased by the Tribal Authority to a Syrian and he was offered a sum of money to vacate the land. The plaintiff refused the offer or to vacate. Shortly after, Lahai Margao, also a member of the Tribal Authority, instituted an action in the Native Court presided over by the first defendant as Paramount Chief against the plaintiff for recovery of possession of the house in question and £100 as compensation. The Writ was issued on the 25th April and was returnable on the 10th May. Before the return date, to be precise, on the 3rd May, the plaintiff wrote to the District Commissioner, South Western Province, applying for an Order for the transfer of that suit to the Magistrate’s Court on the ground that the first defendant was already biased in the matter and that he and the plaintiff Lahai Margao had, before the action was taken, requested the plaintiff to vacate the house. This application for transfer was not granted. That there was some ground for it is revealed by the fact, which is now not disputed, that on the 1st May, 1950 the first defendant as Paramount Chief and second defendant and Lahai Margao and three others acting together as the Tribal Authority had, for valuable consideration, purported by lease to demise land which included a portion of the land on which the plaintiff's house stands, to the Syrian Elias Abdo Zaidan.

Margao, the plaintiff in the suit alleged that the house had been given to the plaintiff-appellant to occupy 'as a caretaker by Margo’s father and a brother who was a predecessor of the first defendant as Paramount Chief and he sought to recover possession on the ground that the plaintiff now claimed to be owner of the house and had failed to give the plaintiff Margao the customary respect due to him by Native Law.

The Native Court was under a duty imposed by section 26 of Cap. 149, the Native Courts Ordinance, to keep a Minute Book and to record therein, inter alia, (1) the names of the President and members of the Court present, (2) the nature of the suit, (3) the amount of fees or costs, (4) the judgment given and (5) the President of the Court should sign or make his mark, at the foot of the page in which such judgment shall have been entered.

The requirements 1, 2, 3, and 4 supra were observed, but the judgment is not signed or marked by the first defendant who was the Presiding Chief.

The record shows that the plaintiff Lahai Margao himself sat as a member of the panel and it is idle for the defendants to allege, as they do, in the face of the record and of the plaintiff's evidence on the point, that Margao did not Sit as a member of the Court, The learned Chief Justice did not come to an express finding on this point, contenting himself by remarking that ,. if on the other hand Lahai Margao did sit as a Judge in his own case, a flagrant breach of one of the basic principles of the administration of justice was committed “, As set out below we are clear that this breach is fundamental so as to vitiate the proceedings.

The record shows that the case was concluded and judgment entered on the 10th May, 1950, in the terms that defendant (the present plaintiff-appellant) should give a compensation of £25 to the plaintiff (Margao) and give up possession of the house forthwith,

For nine days (the defendants say six days) the plaintiff was confined in the first defendant’s lock-up; and the issue is whether this imprisonment was in pursuance of an Order of the Native Court to enforce the judgment or at the direction of the defendants acting arbitrarily and for their own ends and not in lawful execution of the judgment of the Court. The learned Judge observed early in his judgment that the defendants admit the imprisonment, but allege that it was done in lawful execution of the judgment.

After, however, reviewing the evidence as to the proceedings in the Native Court and observing that the task of showing that the imprisonment was unlawful should be comparatively easy, and here the learned Chief Justice apparently overlooked the fact that the burden was not upon the plaintiff to establish that his imprisonment was unlawful, but upon the defendants to justify the imprisonment, he found that the plaintiff was untruthful as to the terms of the Native Court judgment, whether the plaintiff was ordered to comply forthwith of with the judgment or was given time to do so, and the learned Judge concluded his judgment as follows:-

“The onus is on the plaintiff to prove his case and if he is to succeed he must produce an effect in my mind that the balance of probability is in his favour,” and he held that the plaintiff had failed to discharge this burden “notwithstanding the errors and deficiencies in the record of the case before the Native Court and some untruths told by the defendants and their witnesses.

With respect, the learned Chief Justice in our opinion approached the facts upon a wrong view as to the onus of proof. In In re Moulton, Graham v. Moulton (1), the Master of the Rolls said:-

“We are aware of the great weight properly attributable to the opinion of the Judge who has seen and heard the witnesses; but an appeal is a rehearing; and we cannot avoid the responsibility of forming a judgment on the matter for ourselves. If it should appear that there was a misapprehension on the part of the Judge as to what the antecedent presumptions were, and where the onus of proof lay, it might seriously affect the weight of his opinion as to credibility of witnesses. Their story may be probable or improbable, according to the view taken as to what they must be presumed to have thought about the matter. Now, with the greatest deference to the learned and careful Judge who tried the case, we cannot help thinking that this disturbing factor is present in this case.”

In the case now under review, if it is borne in mind that the burden was upon the defendants to justify the imprisonment we find that the defendants' story of a sitting of the Native Court on the 18th May cannot be reconciled with the Minute Book of the proceedings which shows that the case was disposed of on 10th May. If there was a further sitting of the Court on the 18th May as is alleged to deliver judgment then, in compliance with section 26 of Cap. 149 already referred to it would and should have been recorded. There is no such record and the only reasonable conclusion from that omission is that judgment was in fact delivered on the 10th May and that there were no further proceedings or order in the. suit. Then the defendants have failed to explain why, upon judgment being delivered on the 10th May (on which date we must hold on the evidence admissible it was delivered) if the defendant then and there defied the judgment, and declined immediately to observe its terms as the defendants allege, he was not immediately imprisoned to enforce it. How is the interim period of inactivity on the part of the Native Court explained? It seems to us to follow that the imprisonment was not upon a lawful order of the Native Court for there was in fact no further order of the Native Court, and the defendants have failed to justify the plaintiff's detention which, on the evidence, was brought about by. them and not by the Native Court and was therefore unlawful.

On this view of. the case which, in our opinion, is the correct one, there was no onus on the plaintiff to establish the illegality of his imprisonment and the question whether his version of the period of grace which he alleges was allowed him by the Native Court, as distinct from the two defendants, to satisfy the judgment is immaterial to the real issue. As to Lahai Margo’s part in the proceedings in the Native Court, it was held in Frome United Breweries v. Bath justices (2), that a member of such a body engaged in a judicial proceeding cannot be both a party and a judge in the same dispute and that if he has made himself a party he cannot sit or act as a judge and if he does so the decision of the whole body will be vitiated. On is ground also the defendants failed to justify the imprisonment as that of a lawful order of a Native Court for the judgment, itself void, was rightly set aside by the District Commissioner on appeal although perhaps on another ground.

For these reasons we allowed the appeal.

Appeal allowed.