JELR 81619 (WACA)    
West Africa Court of Appeal  ·  West Africa [For WACA cases]
Other Citations
1952 14 WACA 468-469
Core Terms Beta
good faith
native authority
execution of the powers
promissory note
akim abuakwa native authority
respect of any act
trial judge
bona fide
direct conflict
execution of a statutory duty
judgment of the court
learned trial judge
nana ofori atta ii
native authority treasury
omanehene of akim abuakwa
president of the native authority
provisions of section
respect of an act
state of affairs
stool of akim abuakwa

Foster-Sutton, P. In this case the plaintiff claimed the return of a promissory note for the sum of £196 12s. 0d. which he alleged had been wrongfully detained by the defendant, and £25 damages for its unlawful detention.

The case came for trial before Morgan, J., who gave judgment against the defendant for the return of the promissory note and awarded the plaintiff the sum of 20/- damages for, what he held to be, its unlawful detention.

The defendant is the Omanehene of Akim Abuakwa and as such President of the Native Authority of Akim Abuakwa. In the year 1947 the Akim Abuakwa Native Authority decided to enquire into, and pay, any debts proved to be owed by any Stool of Akim Abuakwa and they appointed a “Debt Committee” to enquire into any claims submitted.

The plaintiff made a claim against the Anyinam Stool for the sum of £196 12s. 0d., and he was asked to produce documentary proof of the debt. In reply to this request he submitted a promissory note for £196 12s. 0d. which he alleged he had received in acknowledgment of loans made by him, from time to time, to the Stool in question.

The Akim Abuakwa Native Authority, through the medium of the “Debt Committee”, held an enquiry into the claim and, rightly or wrongly, came to the conclusion that the claim was not a genuine one, and they rejected it and impounded the promissory note.

The defendant was sued as Nana Ofori Atta II, Omanhene of Akyem Abuakwa. He pleaded that he was not liable to be sued as President or as a member of the

Native Authority of Akim Abuakwa in respect of an act done by him and his Council in good faith for the protection of the Akim Abuakwa Native Authority treasury against which the plaintiff's claim for the sum of £196 12s. 0d. had been made, and he relied on the provisions of section 8 (1) of the Native Authority Colony) Ordinance, 1944, as a defence to the action. That sub-section reads as follows:-

“No action shall be brought against a Native Authority or any member or servant thereof in respect of any act done in good faith in the execution or intended execution of the powers conferred by this Ordinance.”

The learned trial Judge held that the detention of the promissory note by the defendant was unlawful, but that it had been “done in good faith”, conclusions with which I agree. He, however, went on to say:-

“In my view the act complained of by the plaintiff was not an act done in the execution or intended execution of the powers conferred upon the defendant by the Ordinance,”

finding which, in my opinion, is in direct conflict with his previous finding that e act was done in good faith, since it could only have been done in good faith the defendant honestly believed that he had the power and duty under the Ordinance to impound the document.

The protection afforded by the Ordinance could not apply if it had been published that the defendant had acted maliciously; in that case he would not have been acting bona fide in an endeavour to carry out his duties under the Ordinance. In such a state of affairs he would have abused his position for the purpose of doing a wrong, but that is not the position in this case.

Section 8 of the Ordinance is wanted only if the act complained of is illegal, and since, in the circumstances of this case, I am of the opinion that it could only have been done “in good faith” if it was done in intended execution of a statutory duty, I think the trial Judge erred in holding that the defendant's plea failed.

I would, therefore, allow this appeal, set aside the judgment of the Court below d enter judgment for the defendant with costs to be taxed. The defendant- appellants to have his costs on this appeal fixed at £30 4s. 0d.

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

Appeal allowed; judgment for appellant-defendant.