Claim on a promissory note--no Pleadings-()n close of Plaintiff's case defendants disclosed for the first time a defence relying on provisions of Ashanti Proclamation NO.4 of 1928-proclamation in question made under provisions of Sec. 76 (1) of Ashanti Ordinance No.4 of 1924-0rdinance itself repealed shortly after the subject matter of this action took Place-:-defendants' Plea unaccepted by Trial Judge and Plaintiff non-suited. Appeal allowed.

Held: The judgment of the Court below is set aside  and the case remitted to be re-tried before another judge with liberty to the Defendants to plead non­ compliance with the terms of the proclamation and to apply to the Trial Judge to vary the settled issues.

There is no need to set out the facts.

C. F. H. Benjamin for Appellant.

 E. C. Quist for Respondents.

The following joint judgment was delivered:-

KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL, C.J., SIERRA LEONE.

The writ and particulars of claim of the plaintiff- Appellant are as follows :-

•• The plaintiff's claim from the defendant is for.' the sum of £175. being a sum paid to the defendants for consideration which has wholly failed.

PARTICULARS OF CLAIM

•• By a Promissory Note dated 27th day of November, 1934, the defendants promised to pay to the plaintiff within thirty days the sum of £100. By a receipt dated 13th day of December, 1934, a sum of £75 was paid to Chief Kofi Yeboa and Chief Yaw Dwaah on behalf of the Adansi Stool. Subsequently Kwabena Fori the then Omanhene of Adansi and his Elders made a paper writing dated 14th day of December, 1934. for the total sum of £175 so advanced in consideration of Concessions that should have been handed over to the plaintiff. The defendants failed to hand over the said Concessions to the plaintiff and up to the date of the action they failed to give any Concession lands or mineral rights to the plaintiff for the consideration of the sum of £175. The plaintiff therefore claims the sum of £ 175 from the defend being the total sum paid to the defendants!: consideration which has wholly failed".

Plaintiff's Counsel adopted this writ and the particulars 01 claim as his opening statement.

Defendants' advocate opened as follows :-

"The Promissory Note was not entered into by the Adansi Stool and the payment entered in the letter of 13th December, 1934. of £75 was personal payment to the then Chief of Adansi. Even if there has been agreement with the Adansi Stool for the grant of the Concessions mention in the letter of 12th December, 1934, those Concessions have been grant, by the defendants to the plaintiff ".

After the openings and after three documents had been put  in both parties, with the consent of the Court, agreed that the issue before the Court were :-

•• 1. Was the Promissory Note dated the 27th November, 1934, a personal note from Kwabena Fori and Sub-Chief Kofi Yeboa ?

•• 2. Was the Receipt (Exhibit" B ") a receipt from Yeboah and Dwas personally on behalf of the Omanhene ?

•• 3. Assuming that there was an Agreement on the part of the Ada Stool to grant Concessions whether in fact the Concessions ha' not been granted ".

After plaintiff had given evidence and been cross-exam in plaintiff's Counsel closed his case. Defendants' Counsel, having stated he called no witnesses, plaintiff's Counsel addressed m Court. He was followed by defendants' Counsel who then disc10s for the first time that he relied as a defence on the provisions of Ashanti Proclamation No. 4 of 1928. He submitted that there was no proof by the plaintiff that the concurrence of the Omaⁿ Council and the Queen-mother was obtained.

That Proclamation was made under the provisions of section 1 (1) of Ashanti Ordinance No.4 of 1924. By the provisions of this section a written statement made by the Head Chief and Councillor of a Division recording what in their opinion is a native customary law relating to any subject may be proclaimed to be a true an accurate statement of such native customary law.

By that Proclamation the following statement, was declared to be a true and accurate statement of customary law purported to be recorded therein :-

•• A Stool debt of the Head Chief's Stool of the Adansi Division is a de which is contracted on the part of the Stool with the concurrence of Oman Council and, if there be a Queen-Mother with her concurrence also ",

Although this Proclamation is no longer in force as Ashanti Ordinance No. 4 of 1924 was repealed by section 42 of Ashanti Ordinance No.2 of 1935, the transaction, the subject matter of the: action, took place a few weeks before the latter Ordinance earn: into force.

The learned Trial Judge accepted the submissions of t advocate of the defendants and non-suited the plaintiff. He found, that the loans in respect of which the action was brought were made by the plaintiff to the then Omanhene of the Adansi Stool without the concurrence of the Oman Council and the Queen-Mother Ma!!jaub of Adansi without whose concurrence the State of Adansi or the Adansi Stool cannot be saddled with liability in accordance with  Proclamation (Ashanti) No.4 of 192B

. The question whether the loan was made with the concurrence-e of the Oman Council and d the Queen-Mother was never put in issue by the defence in its opening nor by the parties when th~ issues were settled with the consent of the Court. The defence waited till the plaintiff had called his evidence and made his final address to the Court and then for the first time raised the issue that the plaintiff had not proved that the loan was made with the concurrence of the Oman Council and of the Queen-Mother in accordance with the provisions of a Proclamation which had been in effect repealed some four years before the plea was raised. It may \\-ell be that had that defence been raised in the defendants' opening or when the issues were settled that the plaintiff might have led evidence to establish that such was the case. Be that as it may it is quite clear that the judgment based as it is on matters that were not in issue before the Court cannot stand.

Moreover, although no evidence was led to prove the concurrence of the Oman Council and of the Queen-Mother, equally there was no evidence of non-concurrence. There is, in fact, no evidence to support the learned Trial Judge's affirmative finding of fact that "the loans were given by the plaintiff to the then Omanhene of the Adansi Stool (Kwabena Fori) without the concur­rence of the Oman Council and the Queen-Mother of Adansi." The fact that their concurrence is not inscribed on any of the documents exhibited is, of itself, no evidence at all one way or the other, for the native custom established by the Proclamation does not require such inscription or even that the consent shall be in writing.

This case illustrates the desirability of requiring pleadings so that parties may not be taken by surprise at the trial. When there are no pleadings the openings of Counsel take the place of pleadings. It is one of our cardinal rules of pleadings that" Every pleading shall contain a statement of all the material facts on which the party pleading relies; but not the evidence by which they are to be proved .... " (Order 25 Rule 3).

By reason of this rule it is the duty of the defendants to raise by their pleading all matters which show the action not to be maintainable, or that the transaction is either void or voidable in point of law and all 'Such other 6rounds of defence as if not raised would be likely to take the plaintiff by surprise or would raise issues of fact not arising out of the preceding pleadings as, for instance, fraud, Statute of Limitations, release, payment, performance, acts showing illegality either by statute or common law, or Statute of Frauds.