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ALFRED ERNEST JONES AND ANOTHER
V.
AMANUAH ANKRAH, ETC.,
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST
19TH DAY OF DECEMBER, 1942
2PLR/1942/9 (WACA)
OTHER CITATION(S)
2PLR/1942/9 (WACA)
(1942) VIII WACA PP. 210 – 215
LEX (1942) – WACA PP. 210 – 215
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BEFORE THEIR LORDSHIPS
KINGDON, C.J., NIGERIA
GRAHAM PAUL, C.J., SIERRA LEONE
BANNERMAN, J.
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BETWEEN:
ALFRED ERNEST JONES AND SIR WILLIAM MCLINTOCK, JOINT LIQUIDATORS OF L.C. LIMITED (FORMERLY G.B. OLLIVANT & COMPANY LIMITED) – Plaintiffs-Appellants
AND
AMANUAH ANKRAH AS REPRESENTATIVE AND HEAD OF THE FAMILY OF THE LATE CHIEF JOHN QUARTEY OF ACCRA – Defendant-Respondent
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REPRESENTATION
C. C. Carter — for Appellants
A. W. Kojo Thompson with K. A. Bossman — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Indenture of Lease — Claim for monies due upon account stated — Admissions founded on mistake — How treated
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CASE SUMMARY
The defendant and Anna France executed an Indenture of Lease with G.B. Ollivant & Co. Ltd., on the 8th February, 1932, by which of the rent payable to the lessors it was agreed that a sum of £250 should be retained each year by the lessee against a debt of £5,578 5s 5d owing by the lessors to the Company. On the 3rd December, 1941, the defendant certified as correct a statement of statement of account up to the 30th November, 1941, showing a debit balance of £3,457 5s 9d owing on that date from the lessors to the lessee.
Upon this account stated the plaintiffs claimed the sum date.
The defendant pleaded that when she executed the lease in 1932 she was unaware that the lease was different in terms to a former lease made by her with A.J. Tangalakis & Co.
The Chief Justice finding that the admissions on which the plaintiffs relied were founded on mistake dismissed the plaintiffs’ claim with costs.
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held: [Appeal allowed. Judgment of Court below set aside and judgment entered for plaintiffs.]
“Admissions” on which plaintiffs relied were definite acknowledges contained in this Indenture. It was not pleaded that these admissions were founded on mistake in respect of legal liability or of facts. Evidence insufficient to overcome the express and unequivocal terms of the Indenture.
Case referred to:
Barton v. Bank of New South Wales (1890, 15 A.C. 379).
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MAIN JUDGMENT
The following joint judgment was delivered:-
KINGDON, C.J., NIGERIA, GRAHAM PAUL, C.J., SIERRA LEONE AMD BANNERMAN, J. GOLD COAST
The plaintiffs in this suit claimed the sum of three thousand four hundred and fifty-seven pounds five shillings and six pence (£3,457 5s 6d) due from the defendant on an account stated for the balance of monies expended in demolishing buildings and erecting other buildings on the defendant family land at Accra at the request of and for and on account of the defendant family. The defendant was sued as representative and head of the family of the late Chief John Quartey. Pleadings were ordered and a Statement of Claim and an Amended Statement of Defendant represent the respective pleadings of the parties upon which the trial proceeded.
The main facts of the case are set out in paragraphs 1 to 4 and 6 and 7 of the plaintiffs’ Statement of Claim which are admitted by the defendant’s Amended Statement of Defence. These paragraphs are as follows:
“1. The plaintiffs are the Liquidators of L. C. Limited (originally called G. B. Ollivant & Co. Limited) a Company incorporated in England under the English Companies Acts.
2. By an Indenture of Lease made the 8th day of February, 1932, between Amanuah Ankrah (above-named defendant) and Anna France (since deceased) joint heads of the family of Chief John Quartey deceased of the one part the premises at High Street Accra therein particularly described were demised to G. B. Ollivant & Co. Limited for a term of ten years from the 24th day of January, 1932, at the yearly rent of £350 payable as follows:
“The lessee Company to retain or deduct out the annual rent of £350 hereinbefore mentioned debt of £5,578 5s 5d which at date hereof is due from the family aforesaid to the Lessee Company and to pay the balance of £100 in equal quarterly instalments of £25 to the Lessors for the family aforesaid on the 24th April, 25th July, 24th October and 24th January in each and every succeeding year during the tenancy.”
3. The said Lessee recited (inter alia) as follows:
“AND whereas there is at date hereof a debt of £5,578 5s 5d due from the family aforesaid to the Lessee Company G. B. Ollivant and Company Limited aforementioned (which debt the Lessors as joint heads of and on behalf of the family aforesaid do hereby acknowledge) and the family by its joint heads the Lessors aforementioned has agreed upon the request of the Lessee Company to demise the piece or parcel of land with the buildings thereon hereinbefore referred to unto the Lessee Company for the purpose of liquidating settling or paying off the said debt with portions of the annual rent accruing from the tenancy in manner hereinafter appearing.”
‘4. The sum of £5,578 5s 5d recited in the lease as owing from the Lessors to the Lessee represented the balance of monies expended in demolishing buildings and erecting other buildings on the defendant family land at Accra at the request of and for the account of the defendant family.
“6. Subsequently on the 8th April, 1942, the Lessors’ Solicitor wrote the Lessee’s Solicitors informing them that the premises had been given up to the Imperial Army and requesting that the keys should be handed over which was done.
“7. During the currency of the Lease the Lessee paid the rent reserved thereunder in accordance with the provisions of the Lease.”
The Statement of Claim further alleged;
“8. From time to time statements of account showing the balance outstanding and due from the Lessors to the Lessee were rendered to the defendant and agreed and finally on the 3rd December, 1941, the defendant Amanuah Ankrah certified as correct a statement of account up to the 30th November, 1941, showing a debit balance of £3,457 5s 9d owing on that date from the Lessors to the Lessee.
“9. Since the 30th day of November, 1941, the plaintiffs have credited the defendant’s account with rent accruing under the Lease for December, 1941 — viz: £29 3s 4d— and rent from 1st January, 1942 to the date of termination of the Lease on the 24th January, 1942 with House Rate for 1942 amounting to £21 10s 4d; and plaintiffs have debited the account with House Rate for 1942 amounting to £25 13s 5d— and the sum of £25 being the last quarterly payment of rent due to the Lessors in accordance with the Lease.
“10. The plaintiffs claim is for £3,457 5s 6d. being the said balance of £3,457 5s 9d. found to be due from the defendant to the plaintiffs on an account stated between them in the said account duly marked by the defendant and dated the 3rd December, 1941, and thereafter taking into account the credits and debits particulars of which are set out in paragraph 9 hereof.”
These paragraphs of Statement of Claim were denied in the Amended Statement of Defence but were amply proved at the trial by evidence led for the plaintiffs and uncontradicted.
On the pleadings the basis of the Defence was as stated in paragraphs 3 and 4 of the Amended Statement of Defence which are as follows:-
“3. The defendant who is aged infirm and illiterate at the time of the execution of the said lease dated 8th February, 1932, did not know of the exact terms of the former lease with Messrs A. J. Tangalakis & Co. and relied on the representations of Messrs G. B. Ollivant & Co. Ltd that the new lease was to contain the same terms as the former lease with A. J. Tangalakis & Co.
“4. That it is only since the Writ herein that the said defendant has discovered through her counsel that the said lease dated 8th February, 1932, contain terms substantially different from the lease with Messrs A. J. Tangalakis & Co. which is dated the 24th January, 1923, particularly as to the annual rent payable and the period of the lease and that the said lease is without any consideration in law issuing from the said G. B. Ollivant & Co. Ltd, to the defendant whatever.”
The defendant did not give evidence in support of the allegation that she had been induced to execute the Indenture of Lease by misrepresentation made by the Lessees Messrs G. B. Ollivant & Co., Ltd. Nor did any member of her family or any other witness do so. She called as a witness Mr. Leventis who negotiated the Indenture of Lease Exhibit “A” as Agent for Messrs G. B. Ollivant & Co., Ltd., with the defendant and the other principal members of the family. He stated, inter alia, that the old lease came to an end and “A” was granted “. The old lease is exhibit “J”, and respondent’s counsel has made much of it on this appeal. We agree with Mr. Leventis that it came to an end when the new lease was granted and we regard it as having no importance and no relevance in the case. The contention made on behalf of the respondent that she and her legal adviser knew nothing of Exhibit “J” when “A” was negotiated is refuted by the fact that she and Anna France, who was co-lessor with her in Exhibit “A” were both witnesses to Exhibit “J”. It was never suggested to Mr. Leventis that he or anyone on behalf of Messrs G. B. Ollivant & Co., Ltd., had made any misrepresentation to the defendant or any of the family. At all the discussions which Mr. Leventis had with the family their solicitor was present and the Indenture of Lease was prepared by him after these discussions upon the evidence it is quite clear that the defendant’s case of misrepresentation failed entirely.
The learned Chief Justice in the Court below has given judgment dismissing the plaintiffs’ claim with costs and from that judgment the plaintiffs have appealed to this Court. In his judgment the learned Chief Justice has made no finding of fact in regard to the defendant’s case of misrepresentation asset out in paragraphs 3 and 4 of the Amended Statement of Defence but instead apparently bases his judgment on his finding that the admissions on which plaintiffs rely are founded on mistake. The admissions on which the plaintiffs relied were the definite acknowledgment of indebtedness by the family contained in the Indenture. But it was never pleaded by the defendant that these admissions were founded on mistake in respect of legal liability or of facts, nor was any evidence given to support such a case of mistake.
It is quite true that Mr. Teventis said that the amount inserted in the Indenture of Lease as the amount due by the family was the amount shown in the books of G. B. Ollivant & Co., Ltd., as “due by the property of the defendant”. He was not asked to explain that curious phrase, and the learned Chief Justice accepted the proposition that the “sum of £5,578 5s 5d was due by the property of the family”. We cannot agree with this proposition; in law it is a person who owes money, not an inanimate object, though it may be possible to limit the right to recover against a person to a right against a particular property. In the present case there was no such limitation of liability under the Deed Exhibit “A” which decides the relations between the parties. It was not suggested to Mr. Leventis that there was any mistake in putting the amount of £5,578 5s 5d in the Indenture of Lease as the correct amount then due by the family, nor was a single witness called to suggest that that was a mistake.
The Indenture of Lease in question is a solemn formal deed under seal. It was executed on 8th February, 1932, and acted upon by both parties until its expiry on 24th January, 1942. During that time the Lessee Company occupied the premises under it, regularly settling the annual rent of £350 by retaining £250 towards liquidation or settlement of the debt acknowledged in the Indenture and paying the balance to the Lessors. Moreover the Lessee Company, relying on the terms of the Indenture, have given up their tenancy of the premises.
In this connection it is important to quote fully the passage from Taylor on Evidence to which the learned Chief Justice referred in his judgment. It is as follows:-
“The doctrine propounded in the above judgment that a party is always at liberty to prove that his admissions were founded on mistake unless his opponent has been induced by them to alter his condition, is as applicable to mistakes in respect of matters of fact. In all cases, therefore, of this nature, the jury, with a view to estimating the effect due to an admission will be justified in considering the circumstances in which it was made and if it should appear to have been made under an erroneous notion of legal liability they may qualify its effect accordingly.”
The learned Chief Justice does not appear to have given due weight to the very important qualifying words “unless his opponent has been induced by them to alter their condition in several respects, so that even if mistake had been pleaded and proved (which it was not) the invocation of the doctrine would not help the respondent.
The case of Barton v. Bank of New South of Wales (1890, 15 A.C. 379) was quoted to us by respondent’s counsel.
In the present case after careful consideration we have come to the same conclusions as their Lordships of the Privy Council reached in that case, that, in the words of Kord Watson at page 384, the evidence is quite sufficient to overcome the express and unequivocal terms of the indenture.”
Counsel for respondent has argued at great length on what he terms the equities of the case, but his submissions in this regard amounted only to a plea ad misericordiam. They in no way supported the suggestion that the plaintiffs should be made to forfeit over £3,000 but were arguments which might be urged in favour of an application for a stay of execution upon regular payments by Instalments, but that is a matter entirely for the discretion of the Court below.
We allow the appeal, set aside the judgment of the Court below, including the order as to costs, and direct that, if any sum has been paid in pursuance of that order, it shall be refunded; we order that there shall be substituted for the judgment of the Court below a judgment for the plaintiffs for £3,103 18s 10d being the amount of the claim less a sum of £353 6s 8d in respect of improvements which the plaintiffs have agreed to abandon.
The plaintiffs-appellants are awarded costs in this Court assessed at £48 3s 5d and costs of the proceedings in the Court below to be determined according to the Rules of Court.
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