.

C

 

 

Appeal" Court

21 Nov., 1932

 

v.

                                                             

 

 

 

 

 

Undefended List-Order 2 rule 11 of Schedule 2-No grounds of defence shown-Refusal to grant leave to defend-Review of such refusal.

Two suits for liquidated money demands were entered for hearing in the " Undefended List" under Order 2 rule 9 of the Second Schedule of the Rules of the Supreme Court, the cause of action being the same in each case. Each defendant applied for leave to defend under rule 11 of the same Order, but the Court below refused both applications and gave judgment against each defendant though for considerably less than the full amount claimed. Subsequently the Court" reviewed" its refusal to grant leave to defend in those cases on further affidavits being filed setting out new alleged grounds of defence, but declined to depart from its original ruling in either case.

Held, on appeal, that the ruling of the Court below refusing to grant leave to defend was based entirely upon findings of fact from which the Court of Appeal saw no reason to dissent. The appeal was therefore dismissed, but the judgments of the Court below were varied by reducing the amount in each case in consequence of the Court of Appeal discovering that the rents for which judgment had .been giV61l were not payable in advance, as had been assumed by Counsel on both sides and the Judge in the Court below. In such circumstances the respondent was not to be deprived of his costs of the appeal.

J. A. Milne for the Plaintiff-Respondent.

F. Awoonor Williams for the Defendants-Appellants.

The following judgments were delivered:-

DEANE, C.J. THE GOLD COAST COLONY.

In these two matters the plaintiff claimed from the defendants respectively the sums of £1,852 and £620 as rent due under an agreement by which inter alia the defendants agreed to pay £2 per acre for the rent of certain lands. The cases were placed on the undefended list and came on for hearing before the Judge at Cape Coast on the 4th of March, 1932. At the hearing, which was really the hearing of an application for leave to defend under rule 11 Order 2 Schedule 2 of the Rules of the Supreme Court the documents bearing on the case were placed before the Court by consent of Counsel for the parties, viz.:-the Agreement and the survey made showing the acreage affected by it on behalf of the plaintiff, and two letters C and D on behalf of the defendant, the case of Amuakwa v. Kwa Gurah being first taken. Now the affidavit filed in order to obtain leave to defend by that defendant

,.

 

 

262

Amuakwa v.

Gurah and Amuakwa

v.

Amuquan­doh Peyin

Deane, C.].

 

 

Amuakwa V. Gurah and Amuakwa v. Amuquandoh Peyin.

disclosed two defences (1) that the Agreement had been cancelled, and (2) that the matter was in the hands of the Omanhene for settlement.

The first defence was in opposition to the documents in evidence in the case, and in fact was never seriously put forwani nor is it put forward now.

The second defence that the matter was in the hands of the Omanhene for settlement did not amount to a statement that the matter had been withdrawn from the Court by an Agreement of the parties to submit it to arbitration, and when Counsel for the defendants trierl to set up arbitration he was met by a statement of the plaintiff's counsel, which he did not contest, that the plaintiff had never agreed to arbitrate (see page 35 of the record).

On the defences disclosed in the affidavit of defence, therefore, there was no good reason shown for granting leave to defend. and the Judge apparently thought so and gave judgment against defendant Kwa Gurah.A similar judgment for £620 was afterwards entered against Kwa Amuquandoh Peyin on admission of the debt by his counsel, who no doubt thought that was the only course he could take in view of what had happened in the previous case.

Now in the course of the argument in the matter of Amuakwa v.

Kwa Gurah the defendant's counsel had set up a defence which was really not contained in his affidavit of defence at all viz.:­that the defendant had not understood the meaning of the word " acre" contained in the agreement when he signed the same.

The learned Judge apparently treated this contention as disposed of when counsel for the plaintiff pointed out that the defendant could not repudiate the agreement while taking the benefit of a reduction in the amount of the back rent which was given as consideration, his judgment being in the following terms "I am satisfied that the defendant and plaintiff thoroughly understood the terms of the agreement, and defendant acted upon the part which suited him. If defendant thinks he has been misled, he can bring an action to set it aside on the ground of misrepre­sentation. But upon the documents I must find for the plaintiff, and there will be judgment accordingly for £1,852 lIs. with costs assessed at £29 2s. 6d." showing clearly that the judgment went upon the documents submitted in the case and that the learned Judge really regarded the defence as to not understanding the agreement, which had been raised by counsel, as lying outside the limits of the case and a matter which might, jf necessary, be raised in another action brought to set aside the agreement. He in fact considered that the defendants had disclosed no defence in their respective affidavits of defence, and gave judgment accordingly.

Judgment having thus been entered against both defendants on 4th March, 1932, a new counsel was brought in by defendants to assist the old one, and on the strength of a fresh affidavit in which

Amuakwa v. Gurah and Amuakwa v. Amuquandoh Peyin.

 

 

263

 

the fonner defence of cancellation was abandoned and the tentative Amuakwa arguments of their Counsel at the fonner hearing were now deposed Gura;~nd to, an ex parte order was obtained for review of those judgments Amuakwa and for stay of execution pending such review. Then on the Amu;~an­matter coming before the Court for argument on the 9th of April, doh Peyin 1931, the Court decided to review its previous judgments to the - J extent of taking evidence on the question whether or no the Deane, C .. defendants had understood the meaning of the word " acre " when

they signed the agreement, but refused to allow the question of arbitration, which had been set up in the affidavit supporting the application for a review, to be raised on the ground no doubt that,

as is stated on page 35 of the record at the first hearing of the case,

the defendants' counsel had not contested the plaintiff's assertion

that he had never agreed to a submission. Counsel has again in

this appeal attempted to raise this question of arbitration, but in

my opinion this Court should not listen to that plea since, in the

interests of justice, I do not think this Court should encourage

parties, who indicate through their counsel that they cannot

support a particular case, afterwards to repudiate their counsel

and set up that very case except for very good reasons which are

not forthcoming in this appeal.

The sole question therefore which was open to defendants to litigate about at the review trial was the question whether or no they had understood the word acreage when they signed the agreement. The learned Judge heard evidence on the point from both sides, and after hearing the witnesses he confinned his previous judgment and gave judgment for plaintiff on the 12th of April, 1932. The defendants appealed.

At the hearing of the appeal a preliminary objection was taken by plaintiff's counsel that the appeal was taken against the judgment of the 4th of March which had been superseded by the judgment of the 12th of April, but the Court allowed the record to be amended so as to read the 12th of April.

The grounds of appeal are lengthy, but they in effect proved to be two in number (1) that the plaintiff had not discharged the onus upon him of proving that the defendant understood the agreement which they signed, (2) that the Court on review did not give the defendants an opportunity to call all their witnesses. As counsel for the defendants admitted, in the course of the hearing. that all the witnesses which he tendered were heard and that he never offered to get other witnesses, I do not think we need concern ourselves with the second ground of appeal.

The other ground of appeal remains-It is entirely a question of fact: the learned Judge was dearly aware of the rule of law as laid down in the Privy Council case of Atta Kwamina v. Kobina Kufuor P.c. 1874-1928, 28 and arrived at his decision with the principle therein laid down in his mind as shewn by his decision t{) review at page 36 of the record.

M4

Amuakwa v.

Gurah and Amuakwa

v.

Amuquan­doh Peyin

Deane, C.].

 

 

A1;tuakwa V. Gurah and Amuakwa v. Amuqtlandoh Peyin.

He· knew perfectly well that it was the duty of the plaintiff to prove that the defendants understood the document which they signed, and so knowing held that they did. And indeed it seems to me that he could not very well, on the evidence, have held otherwise. Here was a case not of an agreement signed in a hole and corner way or hurriedly, but one entered into after long deliberation and before a public officer the District Commissioner whose special duty it is to protect the natives. The dispute about these lands had been hanging on for some time: the District Commissioner took great trouble to try and settle the matter: he consulted with the Agricultural Department and satisfied himself that the rent proposed by the landlord was fair and reasonable.

He held no less than six meetings at which he talked over the proposed settlement with the farmers prior to the agreement being signed: it was at first proposed that the rent should be at the rate of £2 for 573 trees, which the Agricultural Department advised was equivalent to an acre, and it was only because the defedant objected to the plaintiff going upon the land to count the trees that the rent was fixed on an acreage basis. The defendants therefore must have known that the word" acre" was used as representing 573 trees when they entered into their respective agreements with the plaintiff, so that there is no mistake or misrepresentation of any kind in the case.

Counsel for the defendants argues that as the District C.}mmissioner was not able to speak Fanti, we cannot put his evidence higher than his interpreter Ogoe's, but that is hardly 50 unless it is contended that Ogoe was deliberately misinterpreting which is not set up. It must therefore be taken that he acted as a mere conduit pipe between the District Commissioner and the defendants, and the District Commissioner says he interpreted the agreement to the defendants clause by clause when it was signed at his office. Even if it is true that there is no Fanti equivalent for" acre," that does not prevent the word acre itself being used, and apart from the fact that the word acre is commonly in use among the farmers in the district and understood by them, there is also the evidence of the District Commissioner that the question had been long discussed with the farmers, and it was on the basis that 573 trees represented an acre that the agreement \',as arrived at. In addition to this there is the further fact that Fua Amuquandoh who signed the agreement, the nephew of Kwa Amuquandoh, was what is known in this country as a " scholar" i.e. a well educated man: he could read and write and speak English, so that as to him at least there is no ground for saying that he did not understand what he was doing: he was then advising and protecting one group of farmers while George Emmanuel Aikins, another "scholar," was then advising and protecting the other group.

A muakwa v. Gurah and A muakwa v:--A muquandoh Peyin.

In view of this evidence therefore it seems to me that it would alm')st have been a miracle if the farmers had not understood this agreement, and I see lIO reason at all for interfering with the findings of the learned trial Judge that they did. It is true that their subsequent repudiation of the agreement is consistent with their not having understood it, but it is equally consistent with their wishing to get this rent reduced as they had got the previous rent reduced, and in view of the evidence, this last inference is far more probable.

In one respect the judgment must be modified. The plaintiff !iued for three years rent on the agreement.

Acording to the agreement rent is payable from the 8th of October, 1929, at the rate of £2 per acre. The writs in these matters were issued on 16th December, 1931. It is clear, therefore that at that date only two and not three years rent was due. There is nothing in the agreement to show that rent is payable in advance, and everything to suggest to the contrary since the plaintiff has waited so long before trying to enforce payment.

The amount of the judgments must in each case therefore be reduced by one-third.

The judgment therefore of the lower Court wiJI be ,varied there being judgment in the case of Amuakwa against K wa Gurah for £1,235 Os. 8d. and in the case of Amuakwa against Kwa Amuquandoh for £413 6s. 8d.

As the defect in the judgment was not pointed out by cou·,sel for the defendants but was discovered by the Court itself, and as the defendants have failed in this contention that they did not understa nd the meaning of the agreement, I think the plaintiff should have the costs of the appeal as against the defendants jointly and severally.

HOWES, J.

These two cases which were on the undefended list were bv consent as the facts were the same in both, dealt with together. Affidavits for leave to defend were filed and the matter came before Yates, J. at Cape Coast for hearing on 4th March, 1932. The parties were represented by Counsel and by consent all documents and plans were put in.

The affidavits of defence disclosed no defence, but counsel for the defendants at the hearing argued that the parties at the agreement were not ad idem as to the meaning of the word" acre" in the agreement.

This was the only issue left to the trial Judge. Neither side then desired to call evidence beyond that appearing in the affidavits of the respective parties, and the trial Judge gave judgment in the first suit No. 66/1932 in which he stated :-

" I am satisfied that the defendant and plaintiff thoroughly understood the terms of the agreement and defendant acted upon the part which suited him. If defendant think~ he has

 

 

265

Amuakwa v.

Gurah and Amuakwa

v.

Amuquan­doh Peyin

Deane, C.].

 

 

t "

266

Amuakwa v.

Gurah and Amuakwa

v.

Amuquan­doh Peyin

Howes, J.

 

 

Amuakwa v. Gurah and Amuakwa v. Amuquandoh Peyin.

been misled, he can bring an action to set it aside on the ground of misrepresentation-but upon the documents I must find for the plaintiff and there \\ill be judgment accordingly for £1,852 lIs. with costs assessed at £29 2s. 6d."

In the second suit No. 67/1932 the Judge's note states:

" Action for £620 under same agreement as the previous case. Same counsel. Judgment by admission for £620 with costs assessed at £ 19 17 s. 6d."

Subsequently, motions were filed by the defendants in each suit for ~pedalleave to review the two judgments. In the affidavits in support each defendant referred (inter alia) to his previous affidd.vit for leave to defend, in which it was aUeged that the dispute between him and the plaintiff had been referred to certain Amanhin as arbitrators, who had entered upon the reference, but the matter was still pending. Each defendant further alleged that, in the interests of justice, the judgment (sought to be reviewed) should be set aside and the case be heard and determined upon the merits.

The learned trial Judge granted the application for special leave to review and ordered proceedings to be stayed until after such review.

At the hearing of the motion for review of judgment, Mr. Williams, Counsel for the movers, raised the question of the agreement to refer to arbitration, but the trial Judge pointed out that this question, although mentioned in the affidavit for leave to rlefenil, was never raised at the trial.

Mr. William then said his "only point on the agreement (between the parties on which the plaintiff's claim was founded) is whether the defendants understood the meaning of the word acre."

At the conclusion of the evidence the Judge gave :-

"Judgment for plaintiff (sic) in both cases with costs, in the case of Amuakwa v. Kwa Gurah assessed at ten guineas and in the case of Amuakwa v. Peyin assessed at ten guineas. Execution to proceed."

In effect by this judgment of the 12th April, 1932, the learned Judge confirmed and incorporated his previous judgment of the 4th March and added the extra costs entailed by reason of the review. From this, it is obvious that the judge was satisfied on the only point on which he had granted the application for review (viz. whether the defendant in each suit understood the meaning of the word " acre "), that each defendant had understood it .

. At the opening of the appeal, Mr. Milne, for the plaintiff, rai,sed a preliminary objection that the appeal being from the j~gment of the 4th of March instead of from that of the 12th of A:pril, was an appeal from a nullity since, by reason of the ordet" of rfview, there was no final judgment between the parties on the 4th of March.

Aftering hearing arguments this Court upheld the objection; but allowed the appellant to amend the appeal by appealing from the judgment of the 12th of April, 1932.

 

__ ------~L

Amuakwa v. Gurah and Amuakwa v. Amuquandoh Peyin.

Six grounds of appeal were filed. The first three were argued together and the sixth by itself.

The first ground was that the judgment was against the weight of evidence; the second that the plaintiff had not discharged the burden of proof incumbent upon him that the agreement (on which the suit was based) was properly read and interpreted to the defendant in each suit: the third ground was that the defendant in such suit did not understand the terms, nature and legal effect of the agreement and that it was never interpreted and explained in the Fanti language to the defendant.

The sixth ground was that on the review the Court below did not give the defendant reasonable opportunity of calling all his witnesses, although attending the Court.

The fourth and fifth grounds were not argued.

To deal firstly with ground six, which was not seriously argued, it was pointed out by this Court to counsel for the appellants that by the order granting the review, the learned Judge distinctly limited the ambit of the review to what took place in the District Commissioner's Office at Winneba when the agreement was signed, and that Counsel at the hearing of the motion said that his only point on the agreement was whether the defendants understood the meaning of the word " acre." There is nothing on the record to show that the defendants desired to call any other evidence at the hearing of the review; and since the defendants accepted the Judge's terms on which he granted the application for review and did not elect to appeal on the whole judgment instead, ground six cannot be raised at this stage or supported.

The other grounds depend entirely upon a question of fact, and on whether the trial Judge believed the evidence of the District Commissioner and of his Registrar as to what took place when the agreement was executed.

From the evidence of these two witnesses called by the plaintiff, which was also to a great extent corroborated by the witnesses for the defendants, I see no reason for this Court to come to any other conclusion than that arrived at by the trial Judge.

As to the word" acre," this a word in common use on the Gold Coast in fact it was used by one defendant in his letter to the District Commissioner of the 16th of June, 1931 (exhibit" C "), and by the President of the State Council on the 5th of September, 1931 (exhibit" D" also put in evidence by the defendants). In the latter case objection was raised, not to the question of the area of, land comprised in an acre, but to the price per acre, and it was stated that the farmers were ready to pay 5s. per acre instead of the £2 to which they had agreed.

From the evidence of the District Commissioner, which was accepted by the trial Judge, I am satisfied that the defendants fully realised the extent of an acre. Even if they could not vizualise the area and imagine a strip of land two yards broad and 2,420

 

 

267

Amuakwa v.

Gurah and Amuakwa

v.

Amuquan­doh Peyin

Howes, J.

~68

Amuakwa

v.

Gurah and Amuakwa

v.

Amuquan­doh Peyin

Howes, J.

 

 

Amuakwa V. Gurah a1td Amuakwa v. Amuquandoh Peyin.

yards long, as the District Commissioner told them, an acre would grow 573 cocoa trees according to figures given him by the Agricultural Department.

When discussing the proposed agreement the District Commissioner put two schemes before the parties-one, to pay so much rent per tree, and the other to pay per acre based on·that number of trees.

The District Commissioner stated "they preferred to pay by the acre and not to have the trees counted."

The rent of £2 an acre was the expressed opinion of a fair rent by the Agricultural Department.

It must be remembered that there had been a dispute for many years between the Ohene of Duakwa and the Gomoa farmers; and the meeting with the District Commissioner, who was an experienced officer, was to prevent further litigation. The District Commissioner drafted the agreement, and stated "It was an expression of the wishes of the parties to the dispute. I read it out to the parties clause by clause and it was interpreted claufe by clause into Fanti by Ogoe (the District Commissioner's Registrar). The defendants' witness Fuah Amuquandoh was present. He is a scholar." In fact this witness signed the agreement.

Upon this issue of fact I am satisfied that the defendants in both suits fully appreciated the nature and legal effect of the agreement (as was found by the learned Judge), and that the defendants have availed themselves of the part of the agreement favourable to them and are now seeking to repudiate that part which does not suit their purposes.

It will be noted that until the application for review of the judgment, it had never been suggested that the defendants did not understand the meaning of the word" acre," or appreciate it as an area of land which would grow 573 cocoa trees.

This was purely a question of fact, and there is nothing before us to suggest that the trial Judge was wrong in his finding.

In my opinion the appellants have failed to show any grounds for interfering with the findings of fact by the trial Judge, and for this reason the appeal must be dismissed.

There is however one point which was noticed by this Court but not raised by the appellants, viz., that the plaintiff's claim in each suit was wrongly calculated. The claim was based on three years' rent; whereas at the date of the writ (12th December, 1931) only two years' rent was due, as in accordance with the agreement, future rents were only to run from the date of the judgment of the Provincial Council (viz., 8th October, 1929) and there was nothing in the agreement to suggest that these rents were to be paid in advance.

Amuakwa v. Gurah and Amuakwa v. Amuquandoh Peyin.

This mistake will involve a reduction of the plaintiff's claim in each suit by one-third, so that the corrected figures will be

                     In Suit No. 66 .................. £1,235 0 0

                     In Suit No. 67 ........................ 413 6 8

The amount of the judgments in the plaintiff's favour must accordingly be reduced to the above figures.

In Suit No. 67, had the plaintiff's claim been correctly calculated, the Court fees thereon would have been £4- less which sum must be deducted from the costs assessed in the Court below; but in suit No. 66, the Court fees would have been the same.

The result is that in suit No. 66 there will be judgment for the plaintiff for £1,235 and cost (£29 2s. 6d. and for the review £10 10s.) £39 12s. 6d.

In suit No. 67 there will be judgment for the plaintiff for £413 6s. 8d. and costs (£19 17s. 6d. less £4 and £10 lOs. for the review) £26 75. 6d.

The plaintiff retains his right to sue for any rent accrued due since the 12th December, 1931, in accordance with the agreement.

The defendants-appellants jointly and severally are to pay the plaintiff-reipondent the costs of this appeal which are assessed at £367s.

The Court below to carry out.

SAWREY-COOKSON, J.

The facts leading up to this appeal have been so fully set out in the judgment of the learned President and that of my brother Howes that I need not refer to them further. I concur in those judgments and would add only the following remarks.

As I understood Mr. Williams for the appellant he relied in his argument on two main points (1), that the finding of the learned trial Judge that the meaning of the term "acre" had been sufficiently explained so as to be well enough understood by the appellants at the time of signing the agreement was not support~d by the evidence, and (2) that even if the meaning of that term were so explained and understood, yet the nature of that agreement was not what is known as entire but was severable.

In regard to the first of these points I entirely agree (to quote from the learned President's judgment) that it would have been nothing short of a miracle if the meaning of " acre" had not been understood in view of the very great pains at which the District Commissioner had been to explain it. There was the most ample evidence to show this, and it wa~ in my view evidence of a kind which the learned trial Judge was not only justified in accepting but which he would clearly have been wrong in rejecting.

In regard to the second point, although I did niy best to understand Mr. Williams when he argued that this agreement was not entire but severable in in; nature. I completely failed to follow him.

 

 

269

Amuakwa

v.

Gurah and Amuakwa

v.

Amuquan­doh Peyin

Howes, J.