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LARTIPH ADEL MADJOUB
V.
OMANHENE KWEKU NKANSAH II, ETC.
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST
4TH DAY OF JUNE, 1940
LEX (1940) – VI WACA PP. 157 – 160
OTHER CITATION(S)
2PLR/1940/66 (WACA)
(1940) VI WACA PP. 157 – 160
BEFORE THEIR LORDSHIPS
DONALD KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
GRAHAM PAUL, C.J., SIERRA LEONE
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BETWEEN:
LARTIPH ADEL MADJOUB — Plaintiff-Appellant
AND
OMANHENE KWEKU NKANSAH II, AS REPRESENTJNG THE STOOL OF ADANSJ, KWAKU PRAH, ABEDIE- KYIRBENE OF FOMENA, KOFI YEBOA, SUB-CHIEF OF FOMENA (BROFUYEDRU) AND THE DISTRICT COMMISSIONER OF OBUASI — Defendants-Respondents
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REPRESENTATION
C. F. H. Benjamin — for Appellant
E. C. Quist — for Respondents
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
DEBTOR AND CREDITOR LAW:- Claim on a promissory note — Payment so advanced anticipation of concessions of land or mineral rights — Defence based on capacity in which sum was received (personal or representative) and whether concession actually given — Introduction of fresh matter relating to conditions precedent to making such payment/agreement in representative — When may vitiate decision of trial court
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PRACTICE AND PROCEDURE ISSUE(S):-
ACTION — PLEADINGS:- Desirability of requiring pleadings so that parties may not be taken by surprise at the trial — Rule that when there are no pleadings the openings of Counsel take the place of pleadings — 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 — Breach of — Legal effect
PLEADINGS:- Statute relied upon as a defence — Duty of defendant to plead same — Justification for — Where raised for the first time during address of counsel in a suit with no pleadings — Legal effect
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held that:
1. The question whether the loan was made with the concurrence of the Oman Council and of the Queen-Mother was never put in issue by the defence in its opening nor by the parties when the 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 well 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.
2. 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.
3. 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 a5 Rule 3).
4. 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 grounds 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.
Appeal allowed.
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MAIN JUDGMENT
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 as follows:-
“The plaintiff’s claim from the defendant is for the sum of £171 being a sum paid to the defendants for consideration which has wholly failed.
PARTICULARS OF CLAIM
“By a Promissory Note dated 7th 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 £711 was paid to Chief Kofi Yeboa and Chief Yaw Dwaah on behalf of the Adana Stool. Subsequently Kwabena Fori the then Omanhene of Adanai and his Elders made a paper writing dated 14th day of December, 1934, for the total of £176 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 defendants being the total sum paid to the defendants for consideration which has wholly failed”.
Plaintiff’s Counsel adopted this writ and the particulars of 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 a personal payment to the then Chief of Adami. Even if there has been an agreement with the Adansi Stool for the grant of the Concessions mentioned in the letter of 12th December, 1934, those Concessions have been granted 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 issues before the Court were:-
“1. Was the Promissory Note dated the 17th November, 1934, a personal note from Kwabena Fori and Sub-Chief Kofi Yeboa?
2. Was the Receipt (Exhibit “B”) a receipt from Yeboah and Dwaa personally on behalf of the Omanhene?
3. Assuming that there was an Agreement on the part of the Adansi Stool to grant Concessions whether in fact the Concessions have not been granted”.
After plaintiff had given evidence and been cross-examined plaintiff’s Counsel closed his case. Defendants’ Counsel having stated he called no witnesses, plaintiff’s Counsel addressed the Court. He was followed by defendants’ Counsel who then disclosed 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 (1) of Ashanti Ordinance No. 4 of 1924. By the provisions of that section a written statement made by the Head Chief and Councillors of a Division recording what in their opinion is a native customary law relating to any subject may be proclaimed to be a true and accurate statement of such native customary law.
By that Proclamation the following statement, inter alia was declared to be a true and accurate statement of the native customary law purported to be recorded therein:-
“A Stool debt of the Head Chiefs Stool of the Adami Division is a debt which is contracted on the part of the Stool with the concurrence of the 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 came into force.
The Learned Trial Judge accepted the submissions of the 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 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 1932.
The question whether the loan was made with the concurrence of the Oman Council and of the Queen-Mother was never put in issue by the defence in its opening nor by the parties when the 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 well 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 a5 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 grounds 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.
The wording of the paragraph just quoted is culled from Order 19 Rule 15 of the English Rules of the Supreme Court and is in our opinion an apt description of what are “material facts” of a defendant’s pleading under our rule.
It is by reason of our Order 26 Rule 3 that it is necessary to plead the Statute of Frauds and the Statute of Limitations and other statutory defences. If such well-known statutes have to be specifically pleaded how much more is it necessary to plead a Proclamation of application to one particular State and made under an Ordinance which was repealed some five years ago.
When issues are settled, as they were in this case under Order 24 Rule 1, they must contain “the material questions in controversy between the parties” as a Court cannot consider other material questions outside the settled issue.
The appeal is allowed, the judgment of the Court below including the order as to costs, is set aside and it is order that any sum which may have been paid by the Appellant the Respondents by way of costs shall be refunded. The case is remitted to the Court below 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.
The appellant is awarded costs in this Court assessed at £27. 12s. 3d. He is also awarded all costs in the Court below from and including the date of the hearing, such costs to be taxed. The costs of the Court below prior to such hearing are to abide the ultimate issue and to be in the discretion of the Judge at the re-trial.
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