Claim for declaration of title
and damages for
trespass-Non-suit of
Plaintiff-appellant-insufficiency
of grounds for depriving
defendant-respondent of
costs-Appeal dismissed.
Held: The Trial judge had not
exercised his discretion as to
costs judicially and although
the successful
defendant-respondent had not
entered a cross-appeal on this
issue, he is entitled to costs
to be taxed in the Court below.
The facts are fully set out in
the judgment.
K. A. Bossman
for Appellant.
E. C. Quist for
Respondent.
The following joint judgment was
delivered :-
KINGDON, C.J., NIGERIA, PETRIDES,
C.J., GOLD COAST AND GRAHAM
PAUL, C.J., SIERRA LEONE.
In this case the plaintiff sued
the defendant in the Tribunal of
the Gbese Division of the Ga
State claiming (a) a
declaration of title to all
piece or parcel of land situate
lying and being at Fanofa and
bounded on the North by Dedei
Korley's property measuring 467'
more or less on the South by
Korle We Family and measuring
389' more or less on the East by
Ayikumah Teiko's property and
measuring 20(/ more or less and
on the West by Ayetey Ogbleku
and C. O. Aryee's properties and
measuring 403' 5" more or less
and known as my property and
(b) for £25 damages for
trespass for unlawfully erecting
pillars on the said land above
delineated.
The case was transferred to the
Supreme Court and came before
Cooper, Ag. J., who after a long
hearing non-suited the plaintiff
on the ground that he had failed
to carry the burden of proof,
laid on him either as to Title
to the land or such possession
as would support an action for
trespass. The learned Trial
Judge deprived the defendant of
his costs recording " As the
defendant. has not appeared
himself, and as the case has ~en
fought there appear to be no
merits on either side, there
will be no order as to costs."
This is another of those
all-too-numerous cases
unfortunately tried without
pleadings with resultant waste
of time both in the Court below
and in this Court. In the Court
below plaintiff's Counsel opened
" Gbese Manche and Korle priest
agreed to give the plot
described in. writ to
plaintiff." He went on to try
and set up by oral evidence a
case that the land belongs to
the Gbese Stool and that the
proper persons to transfer it
are the Gbese Stool and the
Korle We Family. He then put in
a document Exhibit " A " upon
which he relies. In that
document the" joint-donors" are"
Nii Ayi Bonte Gbese Mantse and
Nii TettehKwei Molai Acting
Karle Priest x x x acting for
themselves and representing the
family of Karle We." The
document recites that the family
of Korle We is seized "for an
estate in fee-simple in
possession free from all
incumbrances of and is otherwise
well and truly entitled to the
land." It purports to convey in
the following tenus " in
consideration of the good will
that the Family aforesaid hath
for the Donee and in
consideration also of the
services rendered by the Donee
for and to the said Family and
in further consideration of the
sum of forty pounds (£40) to the
family paid by the Donee on or
before the execution hereof (the
receipt whereof the joint
donors for and on behalf of the
Family aforesaid doth hereby
acknowledge) the joint-donors
aforesaid for and on behalf of
the Family of Korle We which is
the Beneficial Owner Do Hereby
Grant And Convey unto the Donee."
It is clear that there is a
direct conflict between the oral
and documentary evidence upon
which plaintiff relies, and
whether it be taken that Exhibit
" A " disproves plaintiff's own
case or that the oral evidence
of plaintiff's own witnesses
proves Exhibit " A " to be
worthless, it is obvious that no
Court could possibly give to
plaintiff the declaration he
seeks upon such contradictory
evidence. The learned Trial
Judge had in our view no option
but to non-suit the plaintiff on
his claim for a declaration of
title unless it were to dismiss
the claim altogether. As to the
claim for trespass it is
sufficient to say that we agree
with the finding that such
possession as would support the
action was not proved.
Although the
defendant-respondent has not
filed any counterappeal he now
asks us, in exercise of our
powers under Rule 32 of the
Rules governing appeals to this
Court, to award him his costs in
the Court below, of which he was
deprived by the Trial Judge. In
the ordinary way the defendant
would have been entitled. to
costs, but the Trial Judge had
discretionary power to deprive
him of them. That discretion
however must be exercised
judicially. In this case two
reasons are given by the Trial
Judge for his decisioIl. The
first is that the defendant had
not appeared himself. We regard
this· as no reason at all, the
defendant was under no
obligation to appear, if he
could defeat the plaintiff's
claim without doing so. The
second is that there appeared to
be no merits on either side.
This again we regard as an
insufficient reason, since the
defendant did not have to show
merits in order to succeed, it
was sufficient if he showed that
the plaintiff had none, which he
did. If a further reason was
that the Judge found it "
impossible to believe any of the
witnesses called on one side or
the other who have any interest
in the case," some of whom, he
says, " were lying deliberately,
some were inaccurate through
ignorance," this again is not a
sufficient reason to deprive the
successful party of his costs.
We have come to the conclusion
therefore that in depriving the
defendant of his costs the
learned Trial Judge did not
exercise his discretion
judicially, and that the
defendant is entitled to his
costs in the Court below as well
as in this Court.
