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 Kwaman 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.
It 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. It 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 sum 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 Kwaman 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 as a fact that Nkrumah wrote not only the plaintiff’s 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 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 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.
Mr. Quist, in replying, referred the Court to section 18 of the Supreme Court Ordinance, and submitted that the Court had the power to make the declaration on the alternative claim.
In my opinion, the decision of the Full Court in the case of Antu v. Buedu applies to the present case. Although the Court was justified in hearing evidence as to the alternative issues embodied in the writ of summons to enable it to come to a definite conclusion on the facts proved before it, yet there being no cross actions before the Court, the learned Judge was not justified in entering judgment for the plaintiff on one part of the claim and for the defendant on the other part. The claims were in the alternative and not joint, and the plaintiff was entitled to judgment if either of them succeeded.
Again, although the Court below was right in taking evidence on the question of the alternative claim in order that it might come to the conclusion as to whether the deed should be cancelled or not, it had no jurisdiction to decide the question whether or not there was a sale according to native law or custom, and its finding on that point could not bind the parties The judgment of the Court below must therefore be varied by setting aside that portion of the judgment which ordered that judgment should be entered for the defendant upon the alternative claim.
As regards the question of costs in the Court below. In my opinion the plaintiff having succeeded on one of the alternative claims must have the costs of the last hearing in the Court below, such costs to be taxed. As regards the costs of the previous two hearings in the Court below, each side must pay its own costs. Appeal allowed with costs assessed at the sum of £86 55. 6d.
KINGDON, C.J. NIGERIA. I concur. WEBBER, J. I concur.