–
KOFI AMOKWANDOH
AND
THE UNITED AFRICA COMPANY 1932 LIMITED AND ANOTHER
WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST (GHANA)
17TH DAY OF MAY, 1932
2PLR/1932/10 (WACA)
OTHER CITATION(S)
2PLR/1932/10 (WACA)
(1932) I WACA PP. 179-187
LEX (1932) — I WACA 179-187
–
BEFORE THEIR LORDSHIP(S):
MACQUARRIE, J.
KINGDON, C.J. NIGERIA.
DEANE, C.J. THE GOLD COAST COLONY
–
BETWEEN:
KOFI AMOKWANDOH — Plaintiff-Appellant
AND
THE UNITED AFRICA COMPANY 1932 LIMITED AND ADJUAH ATTAH — Defendants-Respondents
–
REPRESENTATION
D. M. Abadoo — for the Plaintiff-Appellant
W.E.G. Sekyiv — for the Defendants-Respondents
–
ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW — LAND:- Lease by a native A. not purporting to contract in any representative capacity to a European Firm — Judgment of a Native Tribunal prohibiting A. from collecting any rents under the lease and declaring B. as head of the family entitled to do so — Refusal of lessees at B.’s request to pay any more rent to A. — Action by A. against the lessees for possession and mere profits — Joinder of B. as co-defendant — Parol evidence inadmissible to vary or explain lease — Lessees not allowed to dispute their lessor’s title though demised premises clearly proved to be family property.
–
CASE SUMMARY
An action was brought by the plaintiff as lessor against the first defendants as lessees to recover possession of the demised premises in respect of which the first defendants had, at the request of the second defendant, refused to continue paying rent to the plaintiff. The second defendant, who claimed to be entitled to such rent as head of the family to whom the demised premises really belonged and by virtue of a judgment of a Native Tribunal, applied to be joined as a co-defendant and her application was granted. The case was heard by the Police Magistrate at Winneba in the first instance, and he held that as the demised premises were family property the plaintiff, though he had not purported to contract on behalf of the family, must be taken to have done so. He accordingly gave judgment for the defendants, and his judgment was upheld on appeal to the Divisional Court at Cape Coast.
–
DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
1. On appeal to the West African Court of Appeal it was held (Deane, C.J. dissenting) that although the second defendant had been rightly joined, yet in view of the fact that the lease itself did not expressly state that the plaintiff was contracting for and on behalf of and with the authority of the family, the plaintiff must be regarded as having contracted on his own behalf and the first defendant could not be allowed to dispute his title.
2. It was further held that the mere fact that in the lease itself the plaintiff was referred to as the lessor “which expression where the context so admits shall include his heirs, executors, family, administrators and assigns” could not, in the absence of anything more explicit, operate to bind his family.
The appeal was therefore allowed with costs in the Court of Appeal and the Courts below.
–
–
MAIN JUDGMENT
The following judgments were delivered:
DEANE, C.J. THE GOLD COAST COLONY.
This is an appeal from a decision of Yates, J. confirming a judgment of the Police Magistrate Winneba in favour of the defendants on a claim for possession and mesne profits.
The facts may be shortly stated. By Indenture dated 15th March, 1923, the plaintiff demised to the African and Eastern Trade Corporation Limited, now represented by the United Africa Company Limited (hereinafter called the first defendants), certain premises with a store thereon situated at Winneba at a rental of £54 per annum on an annual lease in which were contained provision for extending the term from time to time at the option of the lessees and also giving to the plaintiff (the lessor) the right of re-entry six months after demand on the failure of the lessees to observe their covenants to pay rent or otherwise.
The first defendants were duly let into possession of the premises by the plaintiff and paid rent to him in accordance with the terms of the lease for some time, but on the 29th April, 1930, as they had refused to pay rent to him any longer, the plaintiff gave them notice to quit and deliver up possession of the premises six months after the date of the notice. On the 18th of December, 1930, as they had refused either to comply with the terms of the notice to quit or to pay the rent, the plaintiff took out a writ in the Police Magistrate’s Court at Winneba claiming possession of the demised premises and mesne profits of the same from the date of the receipt by the first defendants of the notice to quit.
On the 15th of January, 1931, before the case against the first defendants could be heard, one Adjuah Attah filed an ex parte motion in the suit asking that she should be joined as a co-defendant in the matter: in her affidavit in support of the motion she alleged that the premises, the subject matter of this lease, were the property not of the plaintiff but of the family to which the plaintiff belonged as a junior member, and of which she herself was head and custodian of the family property ; that the first defendants were the tenants of the family and not of the plaintiff, and that it was at her request as such head of the family that they had refused to pay the rent of the demised premises to the plaintiff. On the same date, i.e. the 15th of January, 1931, the learned Magistrate made under Schedule 2 Order 3 Rule 5 of the Rules of the Supreme Court an order that Adjuah Attah should be joined as a co-defendant in the suit, and that copies of the order should be served on the parties thereto which was duly done. No application was ever made by the plaintiff to discharge or vary this order, not were the facts alleged in the affidavit in support of the motion asking for the order challenged at any time or in any way by him. On the case coming on for hearing on the 21st of January, 1931, certain documents, viz: the indenture of lease certain extracts from proceedings before the Native Tribunal at Winneba and correspondence which had passed between the plaintiff and first defendants having been put in by consent, the plaintiff closed his case.
It is noteworthy that neither in the opening statement of his counsel were the allegations made in her affidavit by Adjuah Attah in any way challenged nor did the plaintiff afterwards think it wise to go into the witness box to contest them, although they were confirmed and elaborated by Adjuah Attah in her evidence at the trial wherein she explained that the plaintiff had been put into possession of the family property by her, as head of the family, in order that he might re-imburse himself out of the rents for certain loans made by him to her, and while thus in possession he had been allowed to lease the land to the predecessors of the first defendants on behalf of the family; that subsequently she had United claimed an account from him and on his failure to account had obtained an order from the Native Tribunal enjoining him from collecting the rents and giving her the right to do so.
In these circumstances it is not surprising that the learned Magistrate found as a fact that there had been no substantial contradiction of the defendants case, that the property was family property, and that at the time plaintiff entered in the lease with the first defendants, he did so on behalf of the family. He therefore gave judgment for the defendants with costs.
From this decision the plaintiff appealed to the Divisional Court, and on his appeal being dismissed by the learned Judge of the Divisional Court he appealed again to this Court.
The grounds on which the appeal has been argued are twofold:-
(a) that the second defendant should not have been joined in the suit, and
(b) that it was not open to the defendants to contradict the indenture of the 15th of March, 1923, by oral evidence.
Let us examine these contentions, and first the contention that the Magistrate was wrong in letting in the second defendant as a party to the suit.
Schedule 11 Order 3 Rule 5 of the Rules of the Supreme Court under which the order was made joining the second defendant as a party to the suit, reads as follows, so far as it is material:
“If it shall appear to the Court at or before the hearing of a suit that all the persons who may be entitled to or who claim some share or interest in the subject matter of the suit or who may be likely to be affected by the result have not been made parties the Court may direct that such persons shall be made either plaintiffs or defendants in the suit as the case may be.”
Now the subject matter of this suit being the claim of the plaintiff to recover possession of certain premises for failure to pay the rent reserved under a lease, and for mesne profits following the determination of the tenancy, it is obvious that not only did Adjuah Attah claim an interest in the subject matter of the suit since she was alleging that she was the person entitled to the rents under the lease, but also that she was bound to be deeply affected by the result of the action brought by the plaintiff against the first defendants. Not only did she stand to lose a tenant of the premises she claimed but she would also, in case the plaintiff obtained judgment against the first defendants, be called upon to repay to the first defendants any rents paid by them to her: again, she might possibly be required to indemnify the first defendants for any costs or expenses incurred by them in defending the action at her request. In these circumstances it appears to me that the Magistrate was amply justified in exercising the powers conferred on him by the rules and joining Adjuah Attah as a defendant. He thus in my opinion avoided a multiplicity of actions, and put himself in a better position to do justice in the actions and put himself in matter than he would have been had he refused to make the order.
That ground of appeal in my opinion fails.
The next ground of appeal is based on the fact that the oral evidence received by the Magistrate in this case is supposed to have been inadmissible as tending to contradict a written document.
The indenture of lease, so runs the argument so far as I understand it, clearly shows that plaintiff was the lessor, the fact that he received the rents over a period of years without question corroborates that construction, and not only are the first defendants estopped from denying the title of their landlords, but the second defendant also cannot be heard to give evidence which contradicts the written document so as to prove that she was the landlord and not the plaintiff.
Now I agree that a tenant cannot be heard to deny the title of his landlord, and that if he does so that in itself is ground for forfeiture of his lease. The contention of the first defendants, however, is that the plaintiff was never their landlord, but that he always contracted as representing his family and that rents were paid to him as such.
In support of this contention reference is made to the terms of the lease in which the plaintiff is expressed to contract as lessor ” which expression where the context so admits shall include his heirs, executors, family, administrators and assigns,” the argument being that by making the expression the lessor include his family the plaintiff plainly indicated that he was contracting not for himself alone but on behalf also of the other members of the family whom he purported to bind.
The first point to be decided, therefore, is whether the use of the word family in the context can carry the meaning ascribed to it by both defendants, for second defendant supports the first defendant in this contention, or whether it is to be rejected as mere surplusage. A cardinal rule of construction of written documents is that the meaning of a document must be gathered from the document as a whole, due weight being given to all the terms and expressions used in it ut res magis valeat quam pereat. We should not therefore, it seems to me, hastily discard the word “family” from this deed as having no significance but assign to it the full meaning which we think it may reasonably bear. The presumption of law in this country is that land held by natives is not their individual property, but is family property; and when we find in a deed of lease executed by a native dealing with land a statement that the expression “the lessor” used in the deed shall include his family, it does not seem to me an unreasonable contention that by the use of that expression the lessor meant to indicate that the land he was leasing was not his individual property but was the property of his family on whose behalf he was contracting.
While it is true that, as was stated by Blackburn, J. in Burgess v. Wickham, 3 B. & S. page 690, “according to the general law of England the written record of a contract must not be varied or added to by verbal evidence of what was the intention of the parties,” there is an exception to this rule which allows of parol evidence where explanation of the terms used in a contract is needed. In Wake v. Harrop 1 H.C. 202, it was held that such ‘evidence was admissible when an agent contracts in his own name but on behalf of a principal whose name or whose existence he does not disclose; and accordingly I am of opinion that in this case it was open to the defendants, or either of them, to prove by extrinsic oral evidence that the proper construction to be put upon the indenture of lease was that the plaintiff was contracting not for himself alone but on behalf of all the members of his family. If that is the case it is clear that the first defendants were not denying the title of their landlord since all along their contract had been with the plaintiff as agent of the family. The family, therefore, was the landlord; and if the family changed its agent the rent would be payable not to the plaintiff but to the proper representative of the family.
But even if the word family as used in the deed is held to be incapable of carrying the construction put upon it, and it is decided that on the proper construction of the deed the plaintiff contracted on behalf of himself and not on behalf of the family with the first defendants, I am still of opinion that the evidence as it was given was admissible.
If the record is examined it will be seen that the first defendants nowhere gave any evidence in the case: they could not therefore infringe the rule by which a tenant is estopped from denying his landlord’s title. All the evidence that was given was given by the second defendant: she was untrammelled by any such consideration and was fully entitled to give evidence in support of her case denying the title of the plaintiff to the premises. She was entitled to prove that she and not the plaintiff was the head of the family to whom the premises belonged; that as such she authorised him to lease the premises on behalf of the family while in possession of them for the purpose of collecting a debt contracted by her for repairs of the said premises which right to possession and collection of the rent had been duly terminated by order of the Native Tribunal; that she had requested the first defendants in future to pay the rent to her and not to the plaintiff; and that she did not want the first defendants turned out of the premises. She was not thereby giving evidence to vary or contradict a written document ; nor was she estopped from denying any of the terms of such document, since on the hypothesis that the plaintiff was contracting only for himself she was not a party to it and was not therefore in any way bound by it.
She was in fact merely challenging the right of the ‘inti to receive rents under the lease or to continue to exercise the rigbo which she as head of the family had withdrawn from him. The plaintiff’s position on the other hand may be summed up a follows: he cannot deny that he has no right to the rents payable under the lease, and that in turning out the tenant he is acting contrary to the wishes and discretions of the person from whore he derived the power to make the lease, but he stands upon what he conceives to be his legal rights under the lease. To allow him to do so is, in my opinion, to disregard all the principles of equity.
I think that this appeal should be dismissed with costs.
KINGDON, C.J. NIGERIA.
The facts of this case have been fully set out in the judgment which has just been delivered by the learned President of the Court and I need not recapitulate them. I cannot, however subscribe to the suggestion that the plaintiff had been allowed to lease the land to the predecessors of the first defendants on behalf of the family.
In my view there is no evidence to support this statement, and the point is one vital to the determination of the appeal.
I concur in the opinion that the second defendant was rightly made a party to the action and that the plea of misjoinder as ground of appeal fails.
As I understand this case the whole issue turns on the question “who was the lessor? Was it the plaintiff, or was it the family?”
If the plaintiff was the lessor, his title cannot be challenged by the lessees and he must succeed. If the family was the lessor, the plaintiff is out of Court. The question I have propounded is rather different from the issue upon which the learned Police Magistrate thought the case turned, viz:-
“Is the property the property of the plaintiff or of the family?”
Prima facie, upon the terms of the lease the plaintiff was the lessor. Does the inclusion of the word “family” in the indenture, coupled with the evidence given by the second defendant and not disputed, establish that the family and not the plaintiff was the lessor?
To this question let us apply the real test. Could the family sue and be sued under the terms of the lease?
If the lessees had brought an action against the family for breach of covenant, would they have succeeded, or would the plea of “not liable” under the terms of the lease have been a complete answer?
In my view such an action would have been bound to fail.
In order for the family to have been bound, the inclusion in the lease of far more explicit terms would have been necessary.
It should have been clearly set out that the plaintiff was contracting for and on behalf of and with the authority of the family.” And though it is possible that a defective recital in this respect United might have been helped by oral evidence to amplify it, there is in point of fact no evidence that the plaintiff, in executing the lease, was acting by or on behalf of or with the authority of the family. The evidence of the second defendant on that point is as follows:
“It was because he had lent money and the house came to his possession that the plaintiff leased the property to the African and Eastern Trade Corporation.”
To put it at its highest it amounts to no more than this that the second defendant put the plaintiff into possession and allowed him to lease the premises, if he wished, so that he might recoup himself for the debt she owed him. There is no evidence that the second defendant even knew when or to whom the lease was being granted. There is no evidence that the second defendant or the family ever gave to the plaintiff any authority to enter into any contract which would place upon her or the family any binding obligation.
In these circumstances I have no doubt that, as I have said, an action brought by the lessees against the family would have failed.
It may be that now, after the pleas made and the evidence given by the second defendant, she would be estopped in such an action from denying liability, but this cannot, I think, affect the interpretation which must be put upon the lease upon the point as to who was the real lessor.
For the reasons I have given I have come to the conclusion that the plaintiff and not the family was the lessor,
He is therefore the first defendants’ landlord, and they cannot be heard to deny his title.
I am of opinion that the appeal should be allowed, that the judgment entered in the Police Magistrate’s Court should be reversed, that the plaintiff is entitled to judgment against the first defendants for the relief he claims in the Writ of Summons, and that the defendants should be ordered to pay, in equal shares, the costs of the plaintiff in this Court and in both Courts below.
MACQUARRIE, J.
This is an appeal against the judgment of a Divisional Court dismissing an appeal against a judgment of the Police Magistrate Winneba in favour of the defendants in a claim by the plaintiff for possession of certain premises and for mesne profits.
The plaintiff had, in the year 1927, granted a lease by a deed in the usual form of an Indenture of Lease in English law to the African and Eastern Trade Corporation Limited now represented by the United Africa Company Limited (hereinafter called the first defendants) of land with buildings thereon at Winneba, and had duly put the original lessees in possession and accepted the United first defendants as their successors. The lease is expressed to be between “Kofi Amuakwandoh…. hereinafter called the lessor which expression where the context so admits shall include Macquarie, his heirs executors family administrators and assigns” and the lessees. It is signed “Kofi Amankwandoh.”
The first question which arises is, what is the effect of the use of the word family? In the absence of any recital of authority from the family or of any definition of the lessor’s capacity, the family could not in any way be bound by the leas to the lessees and even more so in the absence of any proof of such authority for the granting of the lease by them. The lessees could not have claimed against the family on this lease for any breach of the lessor’s covenants, equally the family could not, in my opinion, claim against the lessees in the absence of the consent of the lessor. In other words the inclusion of the word family with nothing more has no effect: whatever effect it may have been intended to have His heirs, executors, administrators and assigns are persons whom he has power to bind in this manner but not the family.
The lessees could not safely claim that their lease was with the family without satisfying themselves and having it expressed in the lease that the family authorised the granting of the lease.
Before the case came to trial, one Adjuah Attah, hereinafter called the second defendant, by motion ex parte obtained an order adding her as a defendant on the grounds stated in her affidavit that she was the head of the family of which the plaintiff is a member, and that the premises were the property of the family. Plaintiff’s counsel argued that there was a misjoinder, but the Court below held against him.
The plaintiff then proved his lease and valid notice to quit under its terms, and rested his case on that.
The first defendants pleaded–page 20 of the record—that the lease was void at law as tlie plaintiff had failed to comply with the necessary formality required by native customary law, and, in the alternative, that the lease was granted by the plaintiff as agent for the family. They also denied that “they were at any material time tenants of the plaintiff.”
In view of what I have stated above these pleas were not, in my opinion, in law open to the first defendants. The plaintiff was their landlord and had put them in possession, and they are debarred from denying his title as against them, and their only course was to give up possession.
This is sufficient to dispose of the case, but it may be desirable to deal shortly with the contention that plaintiff granted the lease as agent for the family, and that the second defendant, as head of the family, is entitled to have a declaration of ownership as such.
The learned Magistrate held that the ownership of the premises was put in issue by the second defendant’s intervention. Even assuming that this were the case she gave evidence, and on it the Magistrate found that she was the head of the family owning the premises, and that she bad authorised the plaintiff to grant the lease, and that he had so granted it “acting on behalf of the family.” For the reasons given above, I do not consider that there was evidence on which the Magistrate could so find. I would also refer to the following statements of second defendant “Amankwandoh has never represented the family.” It was because he had lent money and the house came into his possession that the plaintiff leased the property to the African and Eastern Trade Corporation.
It is to be noted that the Native Tribunal made an order addressed to Kofi Amankwandoh directing him to cease collecting these rents, and that this order was apparently based on the fact that second defendant had, in 1911, applied in her name for a building permit in respect of these premises, presumably under building regulations.
In the order no mention was made of second defendant’s authority as head of the family, and the only reference to the family is a direct on that she should “render accounts to her immediate family in accordance with native custom.”
There is no finding here that she is head of the family owning this property or that the lease was granted by her authority as such.
For these reasons I think the appeal should be allowed and judgment entered for the plaintiff against the defendants, who will pay costs in the Court below and in this Court in equal shares.
–
–