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2 WEST AFRICA COURT OF APPEAL |
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PRELIMINARY JUDGMENT OF THE PRIVY COUNClL, DELIVERED THE
16TH OCTOBER 1936.
Present at the Hearing:
LORD
MAUGHAM
LORD
SALVESEN.
SIR
LANCELOT SANDERSON.
[Delivered
by
LORD
MAUGHAM .
]
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Privy Council. 16th Oct., 1936.
This appeal has taken a somewhat
unfortunate course. It is an
appeal from a judgment of the
West African Court of Appeal
setting aside a judgment of the
Divisional Court sitting at Cape
Coast Castle. The action was one
by the United African Company,
limited, the respondents in the
appeal, against a person who had
been employed as agent for them
for some years, based upon his
negligence in carrying out his
duties under a written contract,
dated 30th July, 1933, that is,
his breach of his contractual
liabilities under that contract,
and it also was based to some
extent upon the fact that under
clause 3 of the written contract
he was responsible for any
deficiency as regards goods and
moneys received at the factory
of which he was in charge, due
directly or indirectly to his
act, neglect, or default. There
is absolutely nothing in the
statement of claim, which was
amended in due course on an
application by the defendant,
which suggested any sort of
fraud on the part of the agent,
the defendant;
a fortiori
there was no suggestion that the
moneys which the plaintiffs
alleged had been lost, amounting
to the sum of £7,816, had been
lost owing to the circumstance
that the defendant had
feloniously taken it or any part
of it, or that he had embezzled
the money in any way, When the
case came on for trial before
the learned judge of first
instance, two persons were
called who had been servants of
the branch of which the
defendant was in charge, one of
them being Henry Reginald Horner
Acquah and the other Thomas
Akyiremansa Carr; the first was
the cashier, and the second was
the book-keeper employed at the
branch in question, Both these
men were brought up in custody.
They were serving terms of
imprisonment, having been
convicted ultimately on their
own confession of falsifying the
books of the branch and of other
wrongful acts in connection with
their duties. When they were
. in the box, they having been
called on behalf of the
plaintiffs in order to establish
the case of negligence against
the defendant, it appeared that
each of them was desirous of
testifying that the moneys, or
the greater part of the moneys
in question, had been taken by
the defendant himself or had
been given to him by the witness
Acquah. Part of their evidence
Was proper and relevant,
evidence led to justify the
charge of negligence, but that
part. of their evidence which
suggested that the defendant had
himself taken the money was in
support of a charge which it was
not. open to the plaintiffs to
establish on the pleadings, and
indeed it amounted to a complete
change of the nature of the
cause of action which was open
to the plaintiffs. In the
opinion of their Lordships there
is no rule which is less subject
to exception than t he rule that
charges of fraud, and
a fortiori
charges of criminal
malversation or felony, against
a defendant ought not to be made
at the hearing of an action
unless, in a case where there
are pleadings, those charges
have been definitely and clearly
alleged, so that the defendant
comes into Court prepared to
meet them. Their Lordships must
express the opinion that the
learned judge was wrong in
allowing Acq);lah and Carr to
state in evidence that Taylor
had received these moneys or was
responsible for the
disappearance of the moneys by
way of fraud. So far as their
Lordships can gather from the
materials before them, the
counsel for the plaintiffs was
not responsible for the case
diverging in the way it did from
the case set out in the
pleadings, and it is very
noticeable that when the
defendant himself was called
into the box, although he
naturally was asked whether the
statements made by the two
persons who had given evidence
against him, Acquah and Carr,
were true, and although he
flatly denied their eharges,
there was no endeavour on behalf
of the plaintiffs in any way ,to
cross-examine him with a view to
showing that he was guilty of
either fraud or felony or any
other criminal conduct
whatsoever. As far as their
Lordships can understand, the
Court was addressed on both
sides on the footing that a case
of negligence in the wide sense
was being made and that there
was no other case before the
Court. It is true that the
manager for the plaintiffs, Mr.
Bray, was recalled at the end of
the evidence by the judge
himself, and was asked by the
judge whether he believed the
evidence that Acquah and Carr
had given, and he said he did
and went on to say that the
plaintiffs asked the Court to
believe that evidence. In the
opinion of their Lordships it
was an error of judgment to have
asked Mr. Bray these questions
and to have attached any weight
to the answers to them. The
belief of Mr. Bray was
irrelevant from any point of
view; but apart from that no
case of fraud or felony was,
properly speaking, before the
Court. All that had happened was
that two witnesses, both serving
terms of imprisonment for crime,
had for some reason which it is
not necessary to go into thought
fit to say that their crimes had
been instigated by the defendant
in the action. The learned
judge, having come to the
conclusion that the two
witnesses, Acquah and Carr, were
telling the truth, thought it
was rig-ht. to take the view
that the action was an abuse of
the process of t.he Court and
that the alleged negligence was
nothing more than camouflage, to
use his phrase, and,
accordingly, he held that the
defendant was guilty of a
felony. He went on to say that
the charge had been concealed
under a cloak of negligence and
that, according to a well known
11
Privy Council. 16th Oct., 1936.
Lord .I\tfaugham.
,. '.
,
,\
Privy Council. 16th Oct., 1936.
Lord Maugham.
Preliminary Judgment 0/ the
Privy Council, 16th October,
1936.
rule which was laid down in the
Court of Appeal in the case of
Smith
v.
Selwyn,
[1914] 3 K.B. !:J8, it was not
open to the plailJtiff8 to make
the felony of the defendant the
foundation of the civil action
until the defendant had been
prosecuted or a reasonable
excuse shown for his
non-prosecution. The learned
judge continued that as it was
impossible to stay the civil
action, as had been done in
certain cases of. that
character, and inasmuch as no
reasonable excuse had been shown
for the non-prosecution of the
defendant, he had no alternative
but to non-suit the plaintiffs
aa regards that portion of the
claim which dealt with £7,816
anti he non-suited the
plaintiffs with costs. Another
small sum which was in issue at
the trial need not bJ dealt
with, because that has not been
brought before their J,ordships.
In fact, however, the plaintiffs
in the action had a very good
ground for not prosecuting the
defendant, though the learned
judge was not aware of it for
the reason that he had madp. no
enquiry upon the matter
whatever. The plaintiffs, having
brought an action based on the
civil liability of the defendant
apparently thought, and in their
Lordships' view rightly, that
there wab no question as regards
felony open to either side,
certainly not open to the
plaintiffs. The position with
.regard to it was thIS: the
plaintiffs had placed the matter
in the hands of the police and
pressed for a prosecution to be
instituted, but the police,
after having made investigatioDs
and after consulting the law
officers, had decided that the
evidence was not sufficient to
justify a prosecution. The
plaintiffs' agent made a special
journey to Accra to press for a
prosecution, but was
unsuccessful, as was stated by
the Chief Justice when
delivering the judgment of the
Court of Appeal. He also says:-
"In this country the public very
properly look to the police to .
institute and carry on pr<.s~clltions
when a pubJic wrong nas been
committed. The advice of the law
officers is the last word as to
the propriety 'of a prosecution.
It would, in my view, be wholly
unreasonable to hold that a
member of the public had failed
in his public duty because he
failed to institute a private
prosecution after the police, on
the advice of the law officers,
had refused to prosecute."
Accordingly, if the position
before the trial judge had been
that a claim on the basis of a
criminal taking of the money bv
the defendant was open to the
plaintiffs, there would have
be'en a sufficient ground for
holding that a lion-suit of the
plaintiffs on the ground of the
decision in
Smith
v.
Selwyn (supra)
was not the proper course to
take, since there was sufficient
reason for not prosecuting the
defendant. What seems to have
escaped the attention of the
learned trial judge was that the
point was never one which
properly speaking arose for his
consideration. Had the
plaintiffs endeavoured to
enforce the charge of felony or
endeavoured to support the
charge of negligence, if that
had been possible, by making the
charge of felony a part of,
their case the learned judge's
duty was to have stopped such a
course on their part. It is true
that there are cases in which a
civil claim may
Preliminary Judgment of the
Privy Council, 16th October,
1936.
obviously be based upon a
felonious act, and if the court
sees that, although the
pleadings attempt to disguise
the fact or may not point it out
very clearly, it may be right on
the grounds of public policy for
the judge to say that the
defendant, if he is the man who
is alleged to have committed the
felony, ought to be prosecuted
or a reasonable excuse shown for
his non-prosecution; but there
was nothing of the kind in this
calle. The action was one which
was quite open to the plaintiffs
if the defendant Wlj.S innocent
of fraud under the terms of the
written agreement between the
plaintiffs and the defendant,
and in their Lordships' view the
question as to the principle of
Smith
v.
Selwyn (supra)
or how far it goes, and what
precisely had to be shown in thj~
case, really Ilid not arise for
consideration at all.
Then there was an appeal and on
the appeal the evidence as to
the reasons for non-prosecution
was admitted. In their
Lordships' view, assuming that
the rule of public policy was
one that was open for
consideration, the evidence was
properly admitted, because it
cannot be right for a judge to
come to a conclusion such as
that which the trial judge came
to in this case without making
enquiry of counsel for the
plaintiffs. When the learned
Chief Justice, Sir Donald
Kingdon, delivered judgment he
said that the evidence had
satisfied him that the
plaintiffs had in fact
reasonable excuse for
non-prosecution. He proceeded as
follows:-
" As to whether they (the
plaintiffs) have proved their
case or not I
think it is unnecessary
to look further than the
following passage in the
trial judge's ruling upon the
application to review: 'I agree
that this finding '-[namely that
the loss of £7,816 was sustained
bv the plaintiffs as the direct
result of the 'act' of the
defendantJ-would have been
sufficient to 'entitla the
plaintiffs to judgment, had
public justice been vindicated'.
I also agree and I consider the
evidence so overwhelming that no
Court could possibly come to any
other conclusion. It is
abundantly clear that the
plaintiffs proved their case and
that, but for the point as to
non-prosecution being taken by
the Court, they would have been
given judgment in the Court
below. Now that reasonable
excuse for non-prosecution has
been shown, the plaintiffs are,
in my opinion, entitled to
judgment."
That statement of the Chief
Justice's is consistent with and
tends to support the view that
he also was considering whether
there was not strong evidence to
establish a charg-e of felony
against the defendant. That
point, as above pointed out, was
never open either for the Court
of Appeal or for the court of
first instance. Their Lordships
are unable to find in the
judgment of the Chief Justice
any finding as to the amount, if
any, for which the defendant is
liable on the footing of
negligence or breach of
contract.
Their Lordships desire to make
it quite clear that according to
ordinary principles of justice
the defendant must be taken in
this action to be an innocent
man. His position is in effect
just the same as if it had been
established that he was not
guilty of any fraud whate.ver.
73
Privy Council. 16th Oct, 1936.
Lord Maugham.
t:1'
74
Privy Council. 16th Oct., 1936.
Lord Maugham.
Preliminary Judgment of the
Privy Council, 16th October,
1936.
There remains for consideration
the somewhat difficult question
as to the course which their
Lordships should advise His
:Majesty to take. There was a
plain charge of what may be
called for shortness negligence
against the defendant, an,d, as
far as the materials before
their Lordships go, it is plain
that some damages had been'
caused, by the admission of the
defendant himself, owing to his
negligence. Their Lordships
cannot very well in the
circumstances say that the
matter should be sent back to
West Africa for decision. The
case was heard to the end before
the trial judge and the whole of
the evidence seems to be before
their IJordships. ,Vith some
reluetance the)' have come to
the conclusion that they must
themselves decide \" hether the
existing evidence in the case is
sufficient to justify tlw
finding that a loss of £7,816
has been sustained by the
plaintiffs as the direct or
indirect result of the act,
neglect or default of the
defendant, or whether some less,
and if so what, loss has been
proved to have been so
occasioned. Owing to some
correspondence which took place
between the solicitors for the
two parties before the matter
was heard, their Lordships are
driven to the conclusion that it
would not be fair and just to
attempt to decide this matter
to-day, because there was
language in the correspondence
which passed between them which
led to the conclusion that the
amount due on the footing of
negligence alone was not to be
gone into. Their Lordships,
therefore, think it right in
order that they may be in a
position to decide the issue as
to quantum of damages for
negligence, to grant an
adjournment to enable any
necest'iary documents to be
printed or copied, and to enable
counsel to inform themselves as
to the relevant points which
alone remain for discussion when
the matter comes before this
Board again. Their Lordships
purposely say "printed or
copied", because in the
circumstances they are desirous
that no large amount of cost
should be involved in the
matter. They think, so far a.s
they can form an opinion, that
with regard to a number of
documents all that will be
necessary will be a sample or
example of the document. in
quest.iQll. They are quite
content that copies should be
made and duplicated by one of
the duplicating processes, and
they think that on that footing
the cost involved should not be
large. It is their Lordships'
suggestion, without making it a
part of the order, that the
respondents should deliver
particulars of the item" in
respect of which as they allege
the evidence adduced at. the
trial proves that the loss was
occasioned by the act, neglect
or default of the defendant. If
that can be done, it seems to
their Lordships that it will
very greatly shorten the labours
of both sides, and the time that
will be occupied in discussing
the matter before the Board. 'rheir
Lordships have anxiously
considered tIle question as to
whether they can in any way
interfere with what has been
described as the sequestration
order made on the applicat.ion
of the appellant for leave to
appeal. In strictness, it is
not. a sequestration order, but
it has the effect, no doubt, of
making' it very difficult for
the appellant to deal with his
properties. Th"ir
12
Preliminary Judgment of the
Privy Council, 16th October,
1936.
Lordships are unable to
interfere with that order; it is
not clear that they would have
any right to do so, but at any
rate, in the circumstances of
the case they do not think it
possible to interfere. On the
other hand, their Lordships
think, having regard to the fact
that both sides are to some
extent responsible for the
unfortunate position which has
arisen, it would be fair to
direct that the costs of copying
or printing and duplicating any
documents which have to be
brought to the attention of the
Board ought to be equally shared
in the first instance by the
respondents and the appellant,
subject to any order which may
be mane at a later date.
Their is only one other
observation which their
Lordships desire to make and
that is that expedition is very
desirable on both sides, as they
are desirous of disposing of
this matter before the present
tribunal while the matter is
clear in their minds.
Their Lordships understand that
the respondents can give their
particulars within seven days,
and there will be fourteen days
allowed for the next stage. When
the documents have been agreed
they will be brought in to the
Registrar for the purpose of
duplication, and special efforts
are to be made to expedit.e the
process of copying.
75
Privy Council. 16th Oct., 1936.
Lord Maugham.
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