KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL, C.J., SIERRA LEONE. The plaintiff-appellant’s writ which was afterwards accepted as his statement of claim was as follows:- “The plaintiff was the defendant in suit entitled Atsitsogbi Kitisu “versus Chief Dzelu determined in the Tribunal of the Paramount “Chief of the Awuna State on the 2nd day of September, 1941, in “favour of the said defendant i.e., the first defendant-respondent- “Editor) with costs of £7 10s 0d payable by the plaintiff. “The defendant being aggrieved and dissatisfied with the judgment “of the Tribunal obtained leave to appeal from the said judgment, and “as a condition precedent deposited the costs in the Provincial “Commissioner’s Court in accordance with section 82 Native Adminis- “tration Ordinance.
“On the 25th day of May, 1942, while the appeal was pending the “defendant wrongly caused writ of Fi Fa to issue for the attachment “and sale of one Seine Net and other properties set out in list annexed “marked “A” belonging to the plaintiff, to satisfy the costs which “to his knowledge had been deposited the Appeal Court to abide “the result of the appeal.
“On the 20th day of June, 1942, the Appeal Court dismissed the “plaintiff’s appeal and expressly ordered as follows:- “The costs awarded to the plaintiff-respondent (i.e. the “defendant herein) in the Tribunal below to be paid from the “amount deposited in this Court by the defendant-appellant’ another. “(i.e. the plaintiff herein). “That in spite of the said Order the said defendant and the “Tribunal wrongly caused the properties of the plaintiff to be sold on "the 3rd day of July, 1942, to satisfy the said Tribunal costs.
“The plaintiff therefore claims two hundred pound £(200) “damages against the said defendants jointly and severally for the “wrongful sale of his properties as for non-payment of the costs at a “time when to their knowledge the said costs had been paid into Court “for the said defendant.”
In the case of the second defendant-respondent this appeal can be very quickly disposed of. He pleaded, inter alia, that he was protected by section 123 of the Native Administration Ordinance (Cap. 76). The learned trial Judge found as a fact “the second defendant was acting bona fide as a servant of the attaching Court. We entirely concur with that finding; and the second defendant-respondent is clearly protected against the bringing of this action against him by the terms of the section upon which he relies. In his case therefore the appeal fails.
The case of the first defendant-respondent is not quite so easy. Order 2 rule 2 of Schedule 3 to the Courts Ordinance provides inter alia that the writ shall state briefly and clearly the relief sought for. Here the relief sought appeals from the words “The plaintiff “therefore claims two hundred pounds (200) damages against “the said defendants jointly and severally for the wrongful sale “of his properties”. This is quite clearly an action on the case. To succeed upon it the plaintiff must show that the defendant acted with malice. That this was well understood is shown by the fact that in his reply to the defence the plaintiff expressly pleads malice on the part of both defendants and definitely relies upon establishing it to succeed on his Maim. It is obvious from the terms of the judgment in the Court below that the plaintiff failed in his attempt to establish malice. We also have come to the conclusion, coinciding with the learned trial Judge’s view, that neither of the defendants acted with malice.
That is Sufficient to dispose of the appeal against the first defendant-respondent as the case stands upon the face of the pleadings. But counsel for the plaintiff-appellant has urged that, upon the authority of Clissold v. Cratchley (1910) 2 K.B. 244, even though he has failed to prove malice he is entitled to succeed and that the first defendant is liable in trespass. But neither in the pleadings nor in the proceedings In the Court below is there any suggestion that the plaintiff was seeking to hold the defendants liable in trespass, nor is there any such suggestion in the grounds of appeal to this Court. It was made for the first time
*Page 109 by counsel in arguing the appeal. On this point the present case is essentially different from Clissold v. Cratchley (supra), in which a claim in respect of trespass was expressly included as an alternative relief. Similarly the case of Cubitt v. Gamble (35 Times Reports 223), which appellant’s counsel also quoted in support of his argument, was brought as an action in trespass. We think that it would be wrong to allow the plaintiff-appellant to set up for the first time in this Court a claim to relief which he had not claimed in the Court below and which was not in issue in that Court. For these reasons. the appeal against the first defendant-respondent must also fail.
But the question of trespass or no trespass has been argued at such length in this Court and such important issues as regards the practice under, and effect of, section 82 of the Native Administration Ordinance (Cap. 76) have been raised that we think it desirable to express our views on the various points.
The first point to be mentioned is that, by the expression in his writ “to satisfy the costs which to his knowledge had then “ been deposited in the Appeal Court to abide the result of the “appeal” , the plaintiff is seeking to import into the wording of sub-section (2) of section 82 of Cap. 76 something which is not there; the sub-section says nothing about the costs abiding the result of the appeal, on the contrary it expressly provides that the Court shall not grant a stay of execution. As we understand the sub-section it is intended to enable a would-be appellant to avoid finding himself out of time for appealing in the event of his successful opponent being slow to recover costs, but it is not intended to deprive a successful litigant of his right to take proceedings promptly to recover his costs.
If a would-be appellant elects, without informing the respondent, to make a deposit in either of the two Courts in which such a deposit may be made, that is his affair and it does not exempt him from his ordinary liability to pay the costs. to the successful party. He cannot keep that party out of his costs by depositing an amount in Court instead of paying the costs to the party.
As to the facts of the present case, it will be convenient to set them out in chronological order, anti then consider whether the first defendant did anything which could amount to trespass. Here are the relative dates:-
2nd September, 1941.-Decree for total costs of £11 7s 6ti issued in the Native Tribunal of the paramount chief, of the Awuna State in the suit Kitisu v. Dzelu (Ex. E).
Exact date not stated.-First defendant applied to the tribunal for a writ of Fi Fa against the plaintiff to recover the sum of £12 5s which included the above sum of £11 7s 6d and costs of the Fi Fa.
16th September, 1941.-Plaintiff deposited in the Provincial Commissioner’s Court the sum of £11 7s 6d. 3rd October, 1941.-Conditional leave to appeal granted in Kitisu v. Dzelu.
25th May, 1942.-Defendant caused writ of Fi Fa to issue for attachment of Seine Net and other properties of plaintiff.
Subsequently.-Costs were incurred in moving articles attached prior to sale, bringing the total costs up to £17 7s.
2nd June, 1942.-Registrar of Provincial Commissioners’ Court notified second defendant of the deposit made in the Provincial Commissioner’s Court but by an error wrongly gave the amount deposited as £7 l1s 6d instead of £11 7s 6d.
4th June, l942.-Second defendant notified Registrar of Provincial Commissioner’s Court that total costs then amounted to £17 7s and asked to be advised of payment of balance of £9 15s 6d (£17 7s less £7 l1s 6d). No reply was received.
20th June, 1942.-Acting Deputy Provincial Commissioner heard the appeal in Kitisu v. Dzelu in his Court and dismissed it. He made an order :- “The costs awarded to “the plaintiff-respondent i.e. present first defendant- “respondent in the Tribunal below to be paid from the amount “deposited in this Court by the defendant-appellant i.e. present “plaintiff-appellant.”
Both defendants-respondents knew of this order; but still had good reason to believe that the amount deposited was only £7 l1s 6d. 2nd or 3rd July, 1942.-Property of plaintiff seized under writ of Fi Fa sold by auction realising £16 10s.
14th July, 1942.-Writ in this action issued.
Upon these facts we are of opinion that the first defendant acted throughout in accordance with his legal rights and at no time committed any trespass against the plaintiff’s goods. At the time he caused a Fi Fa to issue he was clearly entitled to do so, on the view we have already expressed as to the effects of a deposit in Court under section 82 of Cap. 76. The subsequent expenses incurred were reasonable and proper and were recoverable from the plaintiff. Later when the goods were actually sold we think that this course was lawful and proper, because, although the Acting Deputy Provincial Commissioner had made an order for the costs to be paid from the amount deposited, that amount was not in fact sufficient to cover the amount then due.
Accordingly, even if we had thought it proper to allow the appellant to claim in this Court relief by way of damages for trespass, his claim would not have succeeded.
The appeal is dismissed with costs assessed at £15 4s in favour ; of the first respondent and £15 4s in favour of second respondent.