J. R. O. LARBI
V.
OPANYIN OPONE KWABENA

JELR 80745 (WACA)    
West Africa Court of Appeal  ·  West Africa [For WACA cases]
 · 
Other Citations
1952 14 WACA 299-300
CORAM
FOSTER-SUTTON, P., COUSSEY, J.A., AND WINDSOR-AUBREY, J.
Core Terms Beta
first appellant
land
second respondents
appellants
damages
premises
respondents
first respondent
trial judge
declaration of title
fact
second appellant
appeal
auctioneer
cases
distinct acts of trespass
evidence
interpleader proceedings
joint tortfeasors
judgment
landlord
learned trial judge
order
third appellant
aggregate amount of the injury
alia
case
common act
demise
effect
first argument
foregoing reasons
ignorance
inter alia
reasons
record
rights
second respondent
second respondent society
writ of execution

 Foster-Sutton, P. The first appellant, pursuant to a decree for money obtained by him against one Asong Kwasi, applied for, and obtained, a writ of execution and an order for sale of the property of the judgment-debtor.

Purporting to act under the writ and order the first appellant caused land belonging to the first respondent and premises erected on that land belonging to the second respondent Society to be seized and sold.

The second appellant is the auctioneer who effected the sale and the third appellant is the agent of the purchaser. The respondents then sued the appellants, the first respondent claiming a declaration of title to the land seized, which is described in the writ of summons, and the second respondents a declaration of title to the premises on the land which, after a demise of a portion of the land to them by the first respondent, they had erected upon the land, and the second respondents further claimed the sum of £100 damages for trespass.

On overwhelming evidence to that effect the learned trial Judge found as a fact that the land in question belonged to the first respondent and the premises to the second respondents, and he further found that “the smallest enquiry”, which was not made, must have satisfied the first appellant that the properly seized and sold was not that of the judgment-debtor. The trial Judge also found as a fact that the second appellant knew that the premises seized and sold were the property of the second respondents “and not that of the judgment-debtor”; and he accordingly gave judgment for the respondents, granting the declarations asked for, and awarded the second respondents the sum of £60 damages for trespass against the first appellant and £30 and £10 damages against the second and third appellants, respectively.

On behalf of the appellants it was argued, inter alia, that the respondents were estopped from bringing their action because, firstly, they had been unsuccessful in six interpleader summonses against the first appellant, and, secondly, the Society had acknowledged the first appellant as their landlord by paying rent for the premises to him.

The first argument was also addressed to the learned trial Judge and apart from the reasons given by him for rejecting it, with which I agree, the appellants omitted to put in evidence the full record of any of the interpleader proceedings, thereby failing to lay any proper foundation for the submission.

It is the fact that in order to prevent themselves from being ejected from their own premises, and in ignorance of their rights, the second respondents paid rent for the premises to the first appellant for a period of some months, but I know of no equitable doctrine which operates to deprive a person of his property in circumstances such as these.

Appellants’ counsel also submitted that the trial Judge erred in apportioning between joint wrong-doers the damages which he found the second respondents had sustained, and he cited, in support of this contention, London Association for Protection of Trade v. Greenlands Ltd. (1) and Chapman v. Ellesmere (2). In both those cases it was held that in assessing damages against joint tortfeasors one set of damages must be fixed, and that they must be assessed according to the aggregate amount of the injury resulting from the common act, but in the case before us the appellants were guilty of separate and distinct acts of trespass, not one joint act of trespass. That being so I am of the opinion that the trial Judge was right in awarding damages, as he did, in respect of each separate act of trespass.

For the foregoing reasons I would dismiss this appeal with costs fixed at £19 15s. 0d.

Coussey, J.A. I concur. Windsor-Aubrey, J. I concur.

Appeal dismissed.