Alternative claims-No
cross-action-Court without power
to enter judgment for Plaintiff
on one claim and for defendant
on the other-Section
58 of the Native
Administration Ordinance.
The plaintiff claimed to have a
deed of conveyance cancelled (1)
upon the ground of fraud and (2)
alternatively upon the ground
that the plaintiff had never
conveyed any land to the
defendant. The Divisional Court
gave judgment for the plaintiff
on the first issue raised and
for the defendant on the second
or alternative issue.
Held, on appeal, that· since
there was no cross-action the
plaintiff was entitled to
judgment if he succeeded on
either of the alternative
grounds upon which he based his
claim, and that no judgment
could be entered for the
defendant in respect of the
ground which failed. Held,
further, that in any case
section 58 of the Native
Administration Ordinance
precluded the Court from
deciding the question raised by
.the alternative ground of
claim, namely, whether or not
there had been a conveyance of
the land in accordance with
native custom.
Antu v. Buedu,
F.C. 1926-29 page 470,
considered and applied.
W. Ward Brew
for the Plaintiff-Appellant.
E. C. Quist for
the Defendant-Respondent. The
following judgments were
delivered ;-
MICHELIN, ACTING C.J. THE GOLD
COAST COLONY.
This is an appeal by the
plaintiff from the judgment of
Howes, J. dated the 19th July,
1932, in which he entered
judgment for the plaintiff on
the first part of his claim, and
for the defendant on the second
part of such claim.
On the appeal coming on for
hearing before this Court, by
consent of Counsel on each side
one Isaac Edward Nkrumah was
substituted for the plaintiff
Chief Yaw Krampa, who had died
since the judgment in the Court
below was delivered.
In the writ of summons upon
which this judgment was given
the plaintiff claimed in a
representative capacity as head
of his family for and on behalf
of the other members of such
family that the deed of
conveyance dated the l0th of
April, 1919, alleged by the
defendant to have been executed
by the plaintiff and conveying a
piece of land situate at K waman
in the Winneba District and in
the Agona Division, the property
of the plaintiff's family, be
delivered up to this Court for
cancellation on the grounds of
fraud, or in the alternative a
declaration that the plaintiff
has never conveyed any piece or
parcel of land to the defendant.
I t seems clear to me from the
wording of the writ that the
plaintiff sought to set aside
the deed on two alternative
grounds :(1) On the ground of
fraud, and
(2) On the ground that there had
been no conveyance of the land
purporting to have been conveyed
by this deed.
The deed is set out at page 198
of the record. I t purports to
be dated the l0th April, 1919,
and to have been executed by Yaw
Krampa of the one part, and
Gaddiel Albert Sackey of the
other part, by which in
consideration of the S11m of £81
17s. paid by the purchaser (Sackey)
to the vendor (Krampa) the
vendor conveyed to the purchaser
a piece of land situate at Agona
K waman known as " Echi-Akyi"
which the vendor covenanted was
then held by him in fee simple.
It purports to have been signed
by the vendor and purchaser
respectively, the vendor being
illiterate by the making of his
mark, and both signatures are
witnessed by five illiterate
persons whose marks are
witnessed by one Edwin F.
Nkrumah. It also appears to have
been registered in the Accra
Deeds Registry, the execution
having been proved by the oath
of the said Edwin F. Nkrumah.
The learned Judge in the course
of his judgment found ~ a fact
that Nkrumah wrote not only the
plaintiffs name as vendor but
also those of all the witnesses
to the conveyance without their
knowledge, and he held therefore
that the conveyance purporting
to' have been made between the
plaintiff and defendant was void
and must be delivered up to the
Court for cancellation as prayed
in the writ of summons. At the
same time he held that the land
purporting to have been conveyed
by this deed was actually sold
by the plaintiff and his family
to the defendant by native
custom prior to the execution of
this deed, and that the
plaintiff's alternative claim
therefore failed.
On an application being made to
him to review this judgment,
such application was refused and
this appeal was subsequently
taken.
Five grounds of appeal were
originally filed, but in arguing
the appeal, Mr. Brew confined
his submissions to the first
ground, viz. Error in Law which
he stated was as follows :-
(a)
The Court misdirected itself as
to the interpretation of the
writ of summons.
(b)
If the finding of the learned
Judge on the alternative claim
was correct, he could not give
judgment for the defendant.
In arguing this ground, he
submitted that the Court had no
jurisdiction to hear the second
part of the claim unless the
second part meant conveyed by
deed, and in this respect
referred the Court to sections
43
(2c)
and 58 of the Native
Administration Ordinance. He
also referred the Court to page
81 of the record, where in the
course of defendant's evidence,
he admitted that the conveyance
sought to be set aside was the
only title deed he had to the
land, and that he relied upon
this conveyance as evidence of
the transaction.
He also referred to the judgment
of the Full Court in the case
waw of Antu v. Buedu, F.C.
1926-29,470, in which it was
held that there not being
cross-actions before the Court,
after having given judgment
Edward for the plaintiff in
respect of a portion of his
claim, it was not competent to
enter a Judgment for the
defendant in regard to the
remainder of such claim