Hamilton V. Kofi Mensah (1937)
LawGlobal Hub Judgment Report – West African Court of Appeal
Claim for, damages for trespass—Cutting of growing timber-Application or otherwise of section 4 of 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. Biay (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 11,850 damages from the defendant-respondent, the Ohene of Ayinebrim, ” for the wrongful cutting by the defendant and manufacturing into mahogany logs of 108 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 Ricer, 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 Ayiwborim
” 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, 1985.
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 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 writing 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 or 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 dear 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 dear 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.
- He has inflated the damages.
- He has made no attempt to cut the trees and only brought his action after sixteen years had elapsed.
- 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.
