Land-Mortgage-Sale at Execution-Certificate of Purchase ­No Title in Mortgagors-Recovery by True Owner-Power of Court to allow Amendment of Writ-Rules of Supreme Court Order 26, Schedule II.' ,

A, Band C mortgaged certain land to D. After D's death, his representative got judgment against A, Band C. The land was sold in execution to E. Sub­sequently the plaintiffs in the second suit above claimed the land. The Court below upheld the claim, although these plaintiffs had not interpleaded when the land was being sold. The judgment was upheld by the Court of Appeal.

During the hearing in the Court below, various amendments had been made in the writ, some of them at a later stage in the proceedings. The appellant urged that these should not have been allowed. The Court held that under Order 26 Schedule II R.S.C., the making of amendments is a matter entirely within the discretion of the Court and that such amendments may be made at any stage prior to signing final judgment.

]. G. Addo and S. Dove for the Defendant-Appellant.

]. Henley Coussey and B. K. Tamakloe for the Plaintiffs­Respondents.

The following judgments were delivered :­SAWREY-COOKSON, J.

This is an appeal from a judgment by Hall, J. which was delivered on the 26th March last, after a hearing of these two actions which occupied the time of the Court for many days and, entailed the 'taking of the evidence of many witnesses for the one side and the other.

The history leading up to these actions is sufficiently set out in that judgment, which is of considerable length and shows what was the origin of the claims in both actions, but inasmuch as Mr. Silas Dove (who was with Mr. Glover-Addo for the appellant, M~. Coussey and Mr. Tamakloe appearing for the respondentsat the commencement of the hearing of this appeal intimated that there was no appeal in so far as the Bobo v. Anthony action was concerned, it is not necessary to do more than consider that judgment and the evidence upon which it was based in the latter action.

From that judgment it appears that on the 13th April, 1926, three persons named Anni, Gamor and Kohui, who styled themselves Fias of Avenor, executed a mortgage (Exhibit" B ") of certain creeks known as Akporlor, Agbiwe, Zukpewe and Mosuoe and the land adjacent thereto, in favour of one Halm a money lender to secure the repayment of £600 with interest agreed at £118. Not long after the execution of this mortgage Halm died and the administrator of his estate sued the three mortgagors and obtained judgment.

In due course these four creeks, which as the plan exhibited in the action (Exhibit " A") shows were streams leading from the A vu lagoon (also shown on this plan), were attached in execution and an auctioneer named Darkinson was instructed to offer the same at public auction.

At his first two attempts to sell there was no bidding, but on the 29th March, 1928, they were knocked down to a bid of £650 made by the present Defendant-Appellant who on the 8th of June, 1928, obtained his Certificate of Purchase.

I refer to this Certificate of Purchase because (as will appear later) the appellant attaches importance to it.

The learned Judge found that appellant was undoubtedly an innocent purchaser and was able, therefore, to confine his consideration to what he thought was the sole remaining question, i.e. whether or not these three mortgagors had a saleable interest in the property they purported to pass under Exhibit " B."

The learned Judge proceeded to show that according to the plan (Exhibit "A "), the area of land adjacent to these creeks and there shown to be contained within the red dotted line extended approximately to 540 square miles, but that during the hearing of the action the area was reduced by about half that dimension and still later to the land on which the above-named four creeks are seen to be situated. These reductions of the area .claimed came about as the result of amendments of the writ of summons and it is of importance to refer to that fact as will appear from what I shall have to say in that connection at a later stage.

But as soon as the plaintiffs admitted, as they did before the learned Judge, that they had parted with the ownership of two of these four creeks, viz., Zukpewe and Akporlor, aJl that remained to be considered was the question of the ownership of the Agbiwe and Momor creeks and their banks. As soon as this position was reached and made clear, Mr. Glover-Addo submitted to a declaration as to the remainder of the larger area of land with the creeks thereon, as originally claimed, in favour of various sub-chiefs and others whose ownership had been fonnally proved, the learned Judge incidentally intimating, however, when so declaring, that if there were any private owners on that land such declaration would naturally not be binding upon them in that they had not been parties to the action before him.

The learned Judge then thought it convenient to go back to the time when a certain case of Benibi v. Bobo had been decided in February, 1924, in the Native Tribunal presided over by one Anuma II, the then Fia of Avenor, in order to connect the three persons who as mortgagors had executed Exhibit " B " purporting to do so as the three Fias of Avenor with the persons who took certain steps ending in the prosecution to conviction of Fia Anuma. In that consideration the learned Judge referred to a certificate of the then Secretary for Native Affairs (Exhibit " J") showing that at the very time when these three mortgagors executed Exhibit" B" (April, 1926), Anuma II was the only Fia of Avenor recognised by the Government, and dealt with the difficulties which faced Mr. Glover-Addo in his contention that onE. of these three mortgagors was ever recognised as such Fia and so had a right along with the other two mortgagors to execute Exhibit" B."

The learned Judge next dealt with the question of whether the land and creeks mortgaged were tribal property which, as it seemed to him, it could not possibly be unless it could be argued successfully that the judgment in the proceedings taken by the Administrator of Halm's Estate (already referred to) had been against the Tribe, and he (the learned Judge) commented strongly and adversely on the nature of the evidence adduced in order to establish that the approval of the particular tribe concerned (the Fiato Tribe) was ever directly or impliedly obtained to the raising of the loan of £600. The learned Judge, indeed, did not hestitate to stigmatise such evidence, viz., that of the witness Anni and Adjanithe (the latter a certain lawyer's clerk) as lies, being of opinion that both " had every appearance of lying."

Following on this the learned Judge considered the point which was urged upon the Court at some length, viz., the loose use of the tenn " Fia," but he very tersely declined to attach any weight to such an argument and is next found discussing the tenns of the judgment in Benibi v. Bobo (already mentioned) in order to ascertain what its true meaning and intention were, and concluded that it decided (the paraphrasing of the passage in the learned Judge's judgment at the middle of page 139 of the Record of Appeal being my own) that the Avu Lagoon and creeks were to be the property for all time of a certain Tribe (known as the Sevie Tribe) of which Benibi at the time of the Benibi and Bobo action was the head, and that he (Benibi) was the first to question the right of the Tribe to use and enjoy the aforesaid lagoon and its creeks.

Such being the decision of that Tribunal the learned Judge indicated that it had been decided over and over again in these Courts that although Benibi might be a descendant of the original individual owners of the property concerned, yet when that properly had for ages past been given to and enjoyed by certain people, he (Benibi) could not in accordance with the principles of equity and good conscience recover it for his exclusive benefit. Inasmuch, therefore, as Benibi had admitted, and Anni had agreed. with that admission as also had another witness Kwamin Kotoka, that these two creeks Agbiwe and Momoe, flowing as they did from th~ Avu creek and being therefore on Avenor properly, must be held to be affected by the Benibi-Bobo decision and to be the common property of the Avenor nation, or in other words of all the tribes making up the Avenor nation, and therefore no right title or interest in them had passed by Exhibit " B " to Halm which could in turn be passed to the present Defendant-Appellant.

Having so concluded the learned Judge animadverted upon the devices used and the length to which what he terms the Anni faction had to go to justify the mortgage of these creeks by them as so-called Fias of Avenor, before finally,dealing with the standing by a first plaintiff, Fia Sri II and his taking no steps to assert his claim after he became aware that the creeks were to be sold as it is clear he must have been aware some time before that sale took place. For that reason he thought it only right that tl}e Fia and his co-plaintiffs should not be allowed their costs.

Such then is the effect of the judgment appealed from, and Mr. Silas Dove in referring us to the grounds of appeal, after intimating that he would abandon ground 4, proceeded to argue ground 3 first, leaving grounds 1 and 2 to be taken together later. He then sub-divided ground 3. "J udgment contrary to law" and argued that there had been (a) misjoinder, in that plaintiffs' interest were different, (b) amendment of the claim of a vital nature which ought not to have been allowed in that it was made too late after both the plaintiffs' and defendant's cases had been closed, and (c) estoppel-the Plaintiffs now being estopped from asserting their rights because they had stood by with knowledge that the sale was going to take place and allowed the defendant to assume that the judgment debtors, whose property was being sold, had good right, title and interest therein which they could pass to the defendant.

In arguing that there had been misjoinder of the plaintiffs it seemed to me that Mr. Silas Dove found himself in an obvious difficulty the moment he had to admit, as he was, of course, bound to admit, that Fia Sri is the Paramount Chief of Awuna which state comprises the land of the sub-state of Anyaku and Avenor. On being asked by the learned President whether all it really amounted to was that the other two sub-chiefs were joined to assist Fia Sri in his claim to a portion of his rights, all that he had to say further in support of his contention was that it was not necessary to have joined the two sub-chiefs, or at any rate Attipoe as Chief of Anyaku, as it was clear that no Anyaku land was concerned in the claim. But the answer to this contention, in my Opinion, is that it is admitted that Anyaku lands and A venor lands adjoining each other as they do and all, as I have already indicated, being portion of the A wuna State, and moreover there having been such a doubt to start with as to what extent of land the defendants were claiming, it was a reasonable and proper course to take to join all three plaintiffs. As I have already indicated the plaintiffs claim was gradually narrowed down and amended as the hearing proceeded and it became clear as to what was the true area of the land in dispute, but that fact does not warrant the view that therefore the original joinder was wrong and in some sense, which is obscure to me, vital to the success of the plaintiffs' claim. And so at this stage I come naturally to consider whether the several amendments were rightly or wrongly allowed by the learned Judge to be made.

Now it would appear hardly I\ecessary to state that the object of amending claims during the hearing is that the real issues between the parties may be ascertained and finally determined, so far as it is possible to do so, at the one hearing; but as Mr. Silas Dove appears to think that there is a stage in the hearing beyond which such amendments cannot be allowed, I have gone into certain of the cases which were cited to us. For instance in Rainy v. Bravo (L.R. 4 p.e. 287) their Lordships, after stating that a certain amendment ought to have been applied for and made either at the end of the plaintiffs' case or before the Judge had pronounced his decision or begun to consider it, went on to say " However when the Judge, after taking time to consider, was delivering his judgment and giving reasons for it the appellant, then perceiving that the judgment was to be against him, applied for the first time to the learned Judge to make the amendment." Then follow those important words "Their Lordships do not say that· it was too late for learned Judge to have exercised the power of amendment if he had thought fit to do so, but it was a matter entirely in the discretion of the Judge at the trial whether at so late a period he would make the amendment or not, and on this occasion he declined to make it but offered the appellant a non-suit "-which offer I may add the appellant refused and their Lordships expressed their regret (for reasons I need not add here) that the offer was declined. But I mention the fact because of the offer which was made by the learned trial Judge in this case to Mr. Glover-Addo when objecting to Mr. Coussey's application to amend by re-inserting in the claim the four creeks already mentioned. The main ground of Mr. Glover-Addo's objection appears to have been (according to the learned Judge's notes at page 125 of the Record of Appeal) that by such insertion the claim became a new writ evidence having been led after they had been previQusly taken out of the writ. Whatever Mr. Glover-Addo may have meant by this contention the learned Judge thereupon asked Mr. Glover-Addo whether or not, in the event of his allowing the amendment, he would like to reopen defendant's case and call further evidence-and Mr. Glover­Addo replied that he did not wish to do so. What offer would have been fairer? If it were a fact that Mr. Glover-Addo genuinely felt that his client was in any material manner likely to be embarrassed by the amendment, surely he would have accepted the offer.

Reverting now to the judgment of the Privy Council in Rainy v. Bravo, it is perhaps worth adding that their Lordships in conclusion stated that they had decided that there was a circumstance in that case such as would justify them in exercising the power which they undoubtedly had of directing the allowance of an amendment to be made even at the last moment and allowed a new trial but only on payment by the appellant of all costs which had been incurred.

Another case to which our attention was shown was Edevain v. Cohen 43, Ch.D. at pages 189 and 190 in particular, but it only decided that application for leave to amend was allowable or not entirely in the Judge's discretion, and the fact that the Judge had refused it was in itself a strong reason to induce the Appeal Court also to refuse it. There the Appeal Court thought that the particular amendment was not necessary in order to bring out the real question between the parties quite contrary to what, as it appears to me, was the object of the learned Judge in allowing the amendment in the present case. Yet another case, viz., (James v. Smith (1891) 1 Ch. at page 389 in particular) was cited, and there Kekewich J. held that the Defendant was bound to have pleaded the Statute of Frauds if he intended to rely on it, though he need not have pleaded any particular section. He apparently pleaded section 4, and having been held to have failed on that section., applied for leave to amend it to section 7 at the last moment. Kekewich J. then stated that there was no Judge on the Bench who was more ready than he was to always allow amendments, even at the last moment, provided there was no surprise, and he only refused to allow it then because it would be introducing a laxity in pleading which he felt he ought not to introduce. Now it will be apparent that so far from being in favour of Mr. Silas Dove, these authorities lay it down most clearly that amendments may be allowed in the discretion of the Judge even up to the last moment provided no surprise results, in order that the real issue between the parties may be finally disposed of.

To use the words of Cotton, L.J. in the case cited by Mr. Coussey.

Kurtz v. Spence 36 Ch.D. at pages 773 and 774-" When by an amendment the real substantial question can be raised between the parties ought we to refuse to allow the amendment having regard to the rule and to the direction in the Judicature Act, that as far as possible in any proceedings all questions shall be decided so as to prevent multiplicity of actions, if, of course, it can be done without injustice to the defendants."

Now did any injustice result to the defendant in this case? And in answering that question I must now consider briefly the Certificate of Purchase (Exhibit F) (referred to· early on in the judgment) to which as I then remarked the appellant attached importance.

That importance mainly consisted in the fact that its mere possession was conclusive as to the right, title and interest of the purchaser in the land described therein; but if authority were required for holding that a Certificate of Purchase is conclusive of no more than that the person declared by it to be the purchaser had in fact acquired the land described in it by purchase, such authority will be founded in a judgment by Michelin, J. in the case of Opare Kwadjo v. A. L. Cudjoe (see Vol. 10 of Div. Court Judgments page 225 et seq.).

In that certificate, however, will be seen a description of the whole area of the land acquired by the defendant when he bought it at public auction for £650. And there can be no doubt, as Mr. Coussey argued before us, that the case was fought throughout on broad issues, viz., had the three mortgagors Anni, Gamor and Kokuo any right title and interest in all that area of land, and all the creeks situated thereon, which could be passed to and vested in defendant, or were the plaintiffs entitled to a declaration of ownership in respect of the creeks or the land or in respect of the creeks and the land. Those being the broad issues it is difficult to understand how it can successfully be argued that an amendment which came about as the result of certain admissions by the defendant's witnesses and of the receiving in evidence of the Native Tribunal's judgment (Exhibit T) which affected those issues, could result in surprise or injustice to the defendant. There remains the question of estoppel to be considered, which in my opinion can be briefly settled by referring to the case decided by Michelin, J. (Kwadjo v. Cudjoe) to which I have just referred. There the learned Judge dealt with the doctrines of laches and acquiescence very fully, and much that he then said on the subject can be applied to the facts and circumstances of the case before us. Here, as in that case, there might have been a speedier method of asserting and proving the plaintiffs' claim to the land and creeks thereon which defendant acquired at public auction; but unless it can be held that there was an unreasonable delay in bringing this action, as I certainly cannot hold, the plaintiff is not estopped.

There is no doubt that there is no obligation to interplead on all occasions, but subject to there being no laches or acquiescence on the part of a claimant, the right to bring an action such as the plaintiffs brought in this instance remains.

Having there disposed of ground 3, I will proceed to consider as briefly as possible the remaining grounds 1 and 2, viz., that the judgment was against the weight of evidence and, as naturally follows if that ground is maintainable, that judgment should have been entered for the defendant.

In arguing this ground it was quickly apparent that Mr. Silas Dove had very little to say as compared with the lengthy arguments he addressed to us on the other grounds, and the explanation is to be found in the difficulty he must have experienced from the opinion the learned Judge expressed on some of the defendants' witnesses and the admissions which some of these witnesses were driven to make under pressure of cross-examination. The learned Judge saw and heard those witnesses, and it is not for this Court to quarrel with the view he expressed, e.g. of Palomera's evidence on the point as to whether plaintiff had waived their right. That view was that his evidence did not much impress him in the light of Fia Sri's and Darkinson's (the Auctioneer's evidence. Still less would this Court be entitled to disregard the learned Judge's opinion (to which I have already referred) of the value to be attached to the evidence of two important witnesses, Anni and Adjanithe, when seeking to establish a point of the greatest importance to the defendant's case, i.e. the necessary consent of the Elders and others to the raising of the loan.

The learned Judge remarked that he did not believe a word of what they said in that connection, and that each of them had every appearance of lying.

In my opinion the learned Judge's suspicions of the action of these three so-called Fias of Avenor were well founded, and he was also right in rejecting the argument that the term" Fia " was loosely used. It is clear to me, on the contrary, that Fia Sri II did and wrote nothing to warrant this contention. It is true that in certain letters which he wrote when, after Anuma's temporary suspension from being Fia of Avenor Kokui he had been put in his place as regent, he addressed them as Chiefs, but that may well have been only a courtesy extended to them and in any case it is clear that there never were three Fias of Avenor.

Suffice it to say that the learned Judge thought so badly of the conduct of these three self-styled Fias that he took the rare course of ordering Exhibit B to be impounded.

There remains the one question to be considered, viz.,-Was the learned Judge justified in punishing the plaintiffs as he did by depriving them of their costs on account of their inaction. It has been argued by Mr. Glover-Addo in his reply to Mr. Coussey that this Court should not disturb the learned Judge in the discretion he exercised in this respect.

That is a good argument, and although I might have exercised that discretion differently, that in itself is not a good reason for interfering with the manner in which the learned Judge exercised it.

Finally I have come to the conclusion that the learned Judge made the only declaration necessary in view of the issues having been narrowed down as they were during the hearing-narrowed down from a claim which involved some 540 square miles of territory to one which comprised only two creeks and their banks. This extraordinary reduction in the area points very strongly to my mind to the speculative nature of the deal on the defendant's part. He evidently thought and hoped to acquire a small kingdom, but had he acted as a prudent man and investigated before purchase, he might soon have discovered that there was no title in any part of that territory which could pass to him. He did no such thing, however, and has had to suffer the consequence of his imprudence. It is clear that his appeal must be dismissed with costs assessed at £52 17s. 6d.

MICHELIN, J.

I have had the privilege of reading the judgment of my brother Cookson, and while I concur with him in the conclusions at which he has arrived, I should like to add a few words in connection with a point taken by Mr. Glover-Addo in replying to Mr. Coussey's address on behalf of the Respondents.

He submitted that if Fia Sri claimed a declaration in Avenor land he could only claim through Doglo Anuma II who was the Fia of Avenor and who should have been joined as one of the plaintiffs. I am unable, however, to agree with this contention.

In the case of Tijani v. Scorchwey, 2 Nigeria L.R. 407, which came on for hearing on appeal before the Privy Council. Their Lordships, in the course of their judgment, held that a chief or headman has charge of all the land in his territory, but that he was only in the position of a trustee and as such held the land for the use of the community, and the land still remaind the property of the community.

They further held that this was a pure native custom prevailing along the whole length of the Coast of West Africa.

In Casely Hayford on Native Institutions at page 45, it is stated as follows:-

"Thirdly, there are the general lands of the State over which the King exercises paramountcy. It is a sort of sovereign oversight which does not carry with it the ownership of any particular land."

In my opinion the Paramount Chief had ample authority to institute the suit on behalf of the various tribes owning land within his territory, and the fact that the Fia of Avenor was not joined as a party did not in any way vitiate the judgment.

He was fully aware that the Paramount Chief was instituting this action on behalf of his State and actually gave evidence in support of the plaintiffs in the Court below.

Although the learned trial Judge in the course of his judgment stated as follows :-

" In view of the judgment in Benibi v. Bobo, I am of opinion that the proper course is to make a declaration of title as to the whole area in favour of the Fia of Awuna and others, save and except as to the creeks Lukpewe, Akporlor and their banks and I so order," this judgment does not vest the ownership of the lands in the Paramount Chief but in the particular State upon which the area in question is situate and of which he is Paramount Chief. The Paramount Chief merely claims in a representative capacity

on behalf of such States.

DEANE, C.J. THE GOLD COAST COLONY.

I concur.