.
Claim for an account for moneys
received under an
agreement-Document tendered in
evidence.
Held: Document, even if genuine,
fails to disclose liability of
respondent to account, and
appeal dismissed.
A. Sawyerr
(with him Ofei Awere) for
Appellant.
Frans
Dove (with him C. C.
Lokko) for Respondent.
The following judgment was
delivered:-
YATES, ACTING C.J., GOLD COAST.
This is an appeal by the
plaintiff-appellant from a
judgment of the learned Chief
Justice dated 25th June, 1934.
The writ of summons dated the
17th March, 1933, sets out " The
plaintiff is " the owner of the
market at Bissa in the Manya
Krobo District " known as Bissa
Market, and the person entitled
to receive the " tolls paid in
respect of the said market. From
1928 to ID32 the " defendant has
been collecting the tolls paid
in respect of the " said market,
and has not paid the said tolls
or any portion of " them to the
plaintiff. The plaintiff claims
from the defendant " an account
of all such tolls collected by
the defendant, or his " agents,
from the plaintiff's said market
at Bissa from 1928-1932, " and
payment to the plaintiff of
whatever amount might be found "
to have been collected by the
defendant, or his agents, on the
" taking of such an account".
The case first carne on for
hearing before Barton, Acting J.
who held that it was a case
coming within section 43
sub-section 2
(c)
of Cap. III and therefore the
Court had no jurisdiction. The
plaintiff appealed, and the
appeal was heard by the 1Vest
African Court of Appeal on
November 2nd, 1933, and upheld,
the Court holding there was
nothing on the writ or pleadings
to show the lower Court had no
jurisdiction. At t.hat hearing
learned Counsel for the
appellant argued, as he has
argued before us, there was an
oral agreement between the
parties whereby the tolls
collected should be divided as
follows, viz., one-third to go
to the plaintiff, one-third to
the defendant, and one-third to
the Sanitary Board of Bissa for
the upkeep of the market., and
that oral agreement was reduced
to writing. It is clear
therefore that this action is
founded upon that agreement. It
is an action for an account to
be taken between the parties
based upon the terms of that
agreement, and it was solely
upon that argument the West
African Court of Appeal ill
November, 1933, allowed the
appeal and. held the Court below
had jurisdiction.