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Appeal Court, 30th May, 1940.
Claim for a declaration
of title and recovery of
possession-sale to Plaintiff of
property previous to an attachment
agonist the vendor. - conveyance
to Plaintiff subsequent to
attachment-sale auction under
attachment to the
Defendant-Plaintiff non-suit~ in
an {1ction against the Vendor
brings fresh action against
Defendant-decision of res judicata
reversed. Appeal allowed-;
Held: The judgment for the
Plaintiff below is set aside,
being based on the ground of
res judicata, whereas the
Defendant was not a party to the
previous' action.
(2) The case is sent back to be
retried, and for a decision to be
reached on the real issue of fact,
as to whether there had or had not
been 11- purchase prior to the
attachment.
There is no need to set out the
facts.
K.
A. Bossman
for Appellant.
Ofei Awere
(with him E. E. Hammond Laing)
for Respondent.
The following joint judgment was
delivered :--
KINGDON, C., NIGERIA, PETRIDES,
C.J., GOLD COAST AND GRAHAM PAUL,
C.J., SIERRA LEONE.
The Plaintiff in this case alleged
that on the 11th June, 1937, he
bought the property described. in
the writ of summons for £21
from Saforo Yirenkyi ..
On the 18th June, 1937, the
property was attached under a writ
of Fi. Fa. issued against
Saforo Yirenkyi in the Tribunal of
the Omanhene of New Juaben.
On the 5th July, 1937, a
conveyance to the Plaintiff w
executed by Saforo Yirenkyi.
On the 12th July, 1937, the
property was sold by public
auction under the attachment to
the Defendant who received a
Certificate of Purchase in respect
thereof.
On the 22nd December, 1938, the
Plaintiff instituted a suit in the
Divisional Court against Saforo
Yirenkyi claiming the return of
his purchase money or,
alternatively, damages (-£210) for
breach of covenant of title. In
that suit, so it is alleged by
Defendant Appellant, the fact of
the attachment on the 18th June,
1937, w: not brought to the notice
of the Court, and the Plaintiff
relied entirely upon the
conveyance dated 5th July, 1937.
Cooper, Ag. J. gave the following
judgment on the 16th June,
1939:-
" I find that the sale
was intended to be governed by
English law. That the conveyance
(Exhibit " A ") operated to
transfer the legal estate to the
plaintiff.
••
That the mortgage being at most an
equitable security does not affect
the legal estate .
••
That the sale by auction on 12th
July under Fi.Fa. only
passed the right and title of the
debtor. That he had divested
himself of his title under the
conveyance of 5th July and
therefore the sale did not affect
plaintiff's legal title which is
still good.'
"Non-suit-No order as to costs."
On
the 11th December, 1939, the
Plaintiff instituted the present
proceedings against the Defendant,
his claim being for a declaration
of title and recovery of
possession of the land described
in the writ.
There were pleadings and the most
material point is that the
Defendant denied the alleged
purchase by Plaintiff on the 11th
June, 1937. It is clear that this
was the vital issue in the case
was there a valid purchase by
Plaintiff on the 11th June, 1937?
If there was, it was prior to the
attachment. and the plaintiff
acquired a title which was
confirmed by the subsequent
conveyance. If there was not, the
attachment was prior to the
conveyance on. which the Plaintiff
must found, and consequently the
conveyance
was
inoperative to pass title.
But the Court below entirely
ignored this issue and gave
judgment in Plaintiff's favour on
quite a different and erroneous
ground.
It
received in evidence the judgment
of Cooper, J. already quoted, and
treated that judgment as
establishing res judicata
against the Defendant.
On
appeal the Defendant-Appellant
submits first that that judgment
was wrongly admitted and secondly
that even if admissible it could
not possibly operate as res
judicata against him, since he
was neither a party nor a privy of
Saforo Yirenkyi.
We
do not agree with him as to the
first point; we hold that the
judgment was admissible, although
it is of no real help to the
Plaintiff in this case, since the
Defendant-Appellant's second
point, viz., that it does not
operate as res judicata
against him, is obviously right.
Since the ratio decidendi
in the Court below was entirely
wrong, and since the real issue of
fact, upon which the whole case
turns, has not been decided, the
case must be remitted to the Court
below for further decision.
The
appeal is allowed, the judgment of
the Court below, including the
order as to costs, is set aside,
and it is ordered that if any sum
has been paid by the Appellant to
the Respondent by way of costs,
that sum shall be refunded. The
case is remitted to the Court
below for the Provincial
Commissioner, after hearing
Counsel and, if necessary, further
evidence, to decide the issue fact
as to whether there was or was not
a valid sale of the property in
question by Saforo Yirenkyi to the
Plaintiff on the 11th July 1937
and then to give judgment
accordingly in the light of ('
judgment. The Appellant is awarded
the costs of this app assessed at
£24 13s. 6d. The costs hitherto
incurred in the Co below are to
abide the ultimate issue and be in
the discretion of Court below
after it is decided.
In
the event of it being
impracticable for the Court be\!
to be reconstituted in the same
way as it was constituted for
hearing of this case, it is
ordered that the whole case shall
be he de novo by the Court
below.
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