Held: The written agreement
being on appellant's own
pleading misunderstood by him
and therefore void, the parties
were never
ad idem
and respondents were entitled to
oust him. As to claim for
compensation the onus was on
appellant and was not
discharged.
Appeal dismissed.
There is no need to set out the
facts.
R.
Crowther Nicol
for Appellant.
C. C. Carter
for Respondents.
The following joint judgment was
delivered:-
KINGDON, C.J., NIGERIA, PETRIDES,
C.J., GOLD COAST,
AND YATES, J.
In this case the
plaintiff-appellant was let into
possession by the respondents of
a portion of land which they
held under a concession after
signing a written agreement and
on payment of five shillings a
month. He had bought from a
previous occupier for £30 a
house on the land and improved
it. He was in occupation for
about seven years. He then
received notice to quit under
the terms of the agreement. He
then brought this claim asking
for an injunction to prevent
respondents from demolishing the
house or in the alternative
compensation.
At the trial the appellant set
up that he did not understand
the agreement which was
therefore void and the learned
trial Judge found that the
respondents had failed to
discharge the onus which was
upon them to prove that he did
understand it. Counsel for the
respondents has intimated that
he intended to attack this
finding, and if he did so
successfully the appeal must
fail j but we have not heard
argument on this point and do
not decide one way or the other
whether the Court below was
right in this respect, because
we are satisfied that accepting
the contention that the
appellant did not understand the
document, the appellant must
fail, but on grounds different
from those given by the trial
Judge.
Having ruled out the written
agreement, the trial Judge
assumed that there was a verbal
tenancy and considered the case
further on this basis and
eventually dismissed the claim.
But in our view that was a wrong
basis, if the written agreement
was void as. not being
understood by the appellant then
the true position is that there
was no agreement at all between
the parties. They were never
ad idem.
The respondents let the
appellant into possession under
a mistake of fact,
viz.,
that he had signed a binding
agreement with them j and the
appellant obtained possession by
signing a written agreement
which he did not understand and
the terms of which he
subsequently repudiated. The
appellant is thus in possession
under a mutual mistake and the
respondents are entitled to oust
him and to recover possession,
though the appellant is entitled
by native law and custom to
remove his building. This he has
not been prevented from doing
but has not done.
The onus of proof lay on the
appellant to satisfy the Court
below that he was entitled to
compensation. Appellant
contended that he was entitled
to compensation by native law'
and custom. The trial Judge held
that native law and custom did
not apply as appellant knew he
could remove his house and
therefore he had not suffered
any substantial injustice. He
held further that, even if
native law and custom did apply,
the appellant failed to
establish the custom on which he
relied.
It is not necessary to consider
whether native law and custom as
to compensation did apply as we
see no reason to disagree with
the conclusion of the trial
Judge that the appellant failed
to establish the native custom
on which he relied.
'fhe appeal is dismissed with
costs which are assessed at £18
6s. 0d.
