Appeal
Court. 14Dec.,1937.
Appeal from Judgment of
Divisional Court.
Claim for
damages for trespass-Cutting of
growing timber-Application or
otherwise of section 4 oj
Statute of Frauds and
Concessions Ordinance discussed.
Held: Appeal
allowed and case remitted for
re-trial
The facts are
sufficiently set out in the
judgment.
R. S.
Blay (J. Anthony
Mensah with him) for
Appellant.
G. J.
Christian for Respondent.
The following
joint judgment was delivered :-
KINGDON, C.J.,
NIGERIA, PETRIDES, c.J., GOLD
COAST, AND YATES, J.
In this case
the plaintiff-appellant, who was
non-suited, claimed £1,850
damages from the
defendant-respondent, the Ohene
of Ayinebrim, " for the
wrongful cutting by the
defendant and manufacturing into
mahogany logs of 103 standing
mahogany trees, the property of
the plaintiff."
Plaintiff's
case was that there was a
completed oral sale of these
trees to the plaintiff by the
defendant's predecessor on the
stool. In the course of his
evidence, the plaintiff produced
a receipt subsequently admitted
and marked" C," which was in the
following terms :-
•• Received
from Mr. W. Bosque Hamilton of
Akim the sum of Two hundred
pounds sterling being on account
of one hundred and three
standing Mahogany Trees sold to
him Fifty three of which are
situate in Eyinabrim and hauled
into River Subiri which flows
into the Ancobra River, the
other Fifty standing trees are
located near the town of
Eyinebrim which when
manufactured are hauled into the
Bura River which also flows into
the Ancobra River. The balance
of the amount of fifty pounds
will be paid by him on his
arrival here in November, 1921.
his
,
Kojo Adjaye X 3d.
mark
Chief of Ayineborim Upper Wassaw
.
20th November, 1920."
The trial
Judge found that the plaintiff
was a native of Sierra Leone and
was therefore not a " native"
within the meaning of the
definition of " native" in the
Courts Ordinance, 1935.
In the course
of his judgment the trial Judge
said: "I can see no reason for
invoking equity to assist the
plaintiff. There is no real
evidence that it was intended
that this transaction should be
governed by native custom, and I
hold that English law applies to
it
If English law
applies then it is quite clear
that the transaction relied on
being an agreement for the sale
and purchase of growing
timber is a contract for the
sale of an interest in land, and
section 4 , & of the
Statute of Frauds applies. By
that section " no action shall
Yates, J. be brought whereby to
charge any person upon any
contract or sale of lands
tenements or hereditaments or
any interest in or concerning
them, unless either the
agreement or some note or
memorandum thereof shall be in
writing and signed by the party
to be charged therewith or some
other person by him lawfully
authorised."
The
trial Judge held that the
receipt (Exhibit" C") did not
constitute such a memorandum. In
the case of Evans v. Prothero
(1852) 21 L.J.c. 378, it was
held that a receipt containing
the terms of the agreement
though not admissible as
evidence of payment for want of
a stamp was a sufficient note or
memorandum to satisfy the
statute.
In our
opinion receipt Exhibit" C," if
genuine, containing as it does,
(1) the consideration for the
alleged agreement, (2) the date
thereof, (3) the parties
thereto, (4) an ample
description of the property
sold, (5) the promise charged,
and (6) the signature of the
party charged, constituted a
sufficient note or memorandum to
satisfy the Statute of Frauds.
Appellant's Counsel has
contended that the sale
constituted a concession, and
that the provisions of the
Concessions Ordinance had not
been complied with.
" Concession " is defined in
section 2 of the Concessions
Ordinance. The parts of that
definition material to this
issue are :-
...
Concession' means any ~ting
whereby any right or property in
or over land ... or other
products of the soil in or
growing on any land, or the
option of acquiring any such
right interest or property
purports to be either directly
?r indirectly granted or demised
or agreed to be granted or
demised by a native ....
It is clear that the plaintiff's
case is not that the receipt
purports to grant the timber in
question, but that there was a
verbal agreement as to the sale
of the timber and that the
receipt is merely evidence
thereof. If this contention is
correct then it is quite clear
that the right to the timber has
been transferred to the
plaintiff by a verbal agreement
and that the receipt is merely
evidence thereof and not the
writing whereby the rights in
the growing trees were
transferred, and therefore is
not a concession.
As in our opinion Exhibit" C "
if genuine constitutes a
sufficient note or memorandum to
satisfy the Statute of Frauds,
it is clear that the judgment of
non-suit must be set aside and a
new trial ordered.
We desire to make it clear that
we do not hold that English law
as opposed to native law and
custom applies in this case.
That will be a matter for the
trial Judge to decide when he
has heard the evidence on both
sides.
The trial Judge appears to have
come to the conclusion that the
plaintiff was not entitled to
the benefit of English law on
three grounds, i.e.
(1) He has
inflated the damages.
(2) He has made
no attempt to cut the trees and
only brought his action after
sixteen years had elapsed.
(3) He has paid
only £200 of the purchase price of
£250.
We must confess
we do not share this view. It is a
common failing for plaintiffs to
exaggerate the damages they have
suffered. We can find nothing in
the contract relied upon by the
plaintiff to prevent him
postponing the cutting of the
trees till a propitious moment
arrived. Nor do we consider that
the fact that plaintiff has paid
only £200 out of the £250
contracted to be paid constitutes
sufficient grounds for depriving
the plaintiff of the benefit of
native law and custom.
The appeal is
allowed and the judgment of the
Court below including the order as
to costs is set aside, and it is
ordered that the case be remitted
to the Court below to be heard
de novo by a different Judge.
The appellant is awarded costs in
this Court assessed at £25 17s.
3d.
The costs in
the Court below both of the
previous trial and of the new
trial are to be in the discretion
of the lower Court at the new
trial. |