Division: IN THE HIGH COURT, CAPE COAST
Date: 25 JUNE 1959
Before: ADUMUA-BOSSMAN J
JUDGMENT OF ADUMUA-BOSSMAN J
The appeal is against a judgment of the District Magistrate, Cape Coast (E. T. Aryee, Esq.), hereinafter referred to shortly as the magistrate, whereby, after rejecting the appellant’s plea that the claim was barred by the Limitation Act, 1623,1 he upheld the respondent’s claim for, “The sum of £G68 9s. 2d. being goods [sold] and net cash [advanced] as per notes of hand.” The suit and the ensuing appeal raise the vexed and difficult question as to when a transaction between aborigines of the country may properly be held to be governed by native customary law and when it may properly be held not to be governed by customary law but rather exclusively by English law.
The general law is of course set out in section 87 (1) of the Courts Ordinance2; but it is in the application of the provisions of that section that the difficulty often arises, as it has done in this case. The respondent claimed to have the suit placed on the “Undefended List,” and in his supporting affidavit, without setting out the circumstances of the alleged sale of the goods or the making of the cash advances or both, which have given rise to this claim, he merely alleged, as set out in his writ, that the amount claimed was “for goods and net cash as per notes of hand” and be then annexed copies of the two notes.
The appellant in his affidavit of defence denied liability for the amount claimed, and alleged that the notes should have been given up long ago as the amounts therein stated had been paid. He then further pleaded that in any event the claim was barred by the Limitation Act, 1623.3 When the suit was thereupon placed on the “General List” and came up for trial, the material evidence of the respondent was as follows:
“I am a retired storekeeper of the U.A.C . . . I have known the defendant for about 36 years. I travelled with the defendant to the United Kingdom in 1924 to attend Wembley Exhibition. From the United Kingdom we went to Germany to Hamburg. In February 1925 defendant asked me to help him with an amount of £G55 1s. 2d. I gave him that amount. Defendant gave me a note to evidence the transaction. This is the note (exhibit A). Before giving this amount to defendant, I had previously given him goods: cement and cash, to the amount of £G13 8s. and the defendant gave me an I.O.U. on 27 February 1925 to cover the amount (exhibit B). A week after giving the amount to defendant I sailed for this country. A month later defendant also sailed for this country and when I demanded the amount defendant said he was going to sell silk headkerchiefs to pay. Defendant did not pay and about the same time I had an immediate transfer to Obuasi.”
The appellant’s version of the matter was as follows:
“I am a trader and I live in Sekondi and I know plaintiff. In 1925 we met at Hamburg in Germany. There was a business transaction between us and I gave him the two I.O.Us. I returned to Sekondi one month after plaintiff had left. Plaintiff came to meet me at old Sekondi harbour. We went to my house and there I told defendant that I would pay him the money. A week later I paid the money and Ackon gave me a receipt for it. My house got burnt in 1942 so I cannot produce the receipt. Plaintiff stayed with me at Sekondi for ten years before he was transferred to Obuasi. During those ten years he never demanded the money. He never
wrote to me about it.”
From the evidence of the parties set out supra, it will be observed that no more detailed evidence was forthcoming from either party as to the circumstances of or surrounding the making of the transactions evidenced by the notes exhibits A and B than that which appear on the face of the notes; and that in so far as it was the respondent’s duty to prove his claim, he undoubtedly submitted and relied on nothing more than those two documents exhibits A and B which, incidentally, were not disputed but on the contrary admitted by the appellant.
The note exhibit A was in the following form:
“I owe Mr. J. B. Cobbina Ackon the sum of fifty-five pounds one and two pence (£55 1s. 2d.) being amount received from him.
(Sgd.) J. S. Solomon.
Hamburg⎯27-2-25.”
The note exhibit B was in the following form:
“I owe Mr. J. B. Cobbina Ackon the sum of thirteen pounds eight shillings being goods and cash received from him.
Cement .. .. .. .. £5 18s. Secondee
Cash .. .. .. .. £7 10s. Account.
(Sgd.) J. S. Solomon.
Hamburg⎯27-2-25.”
The magistrate in his considered judgment took the view that the case of Ferguson v. Duncan4: “places the onus on the defendant to satisfy the court in a dispute between two natives that native law and custom should not be applied.” He further held that:
“The defendant failed to satisfy the court why native law should not be applied, or that at the time of the transaction it was the intention of both parties that the transaction was to be governed exclusively by English law. Under the circumstances I hold that the transaction is one that should be governed by native law and custom.”
On the issue of payment raised by the appellant in his affidavit and evidence in court he decided adversely against him, and therefore gave judgment for the respondent for the amount claimed.
The appellant appeals against the decision substantially on the ground that his plea that the claim was statute-barred should have been upheld. Before dealing with that main ground, however, it seems to me that the appeal appears capable of being disposed of on a much less controversial ground, which is, that the judgment was founded on material inadmissible evidence, to wit, the two documents exhibits A and B. As the magistrate himself pointed out in his judgment, “In support of his claim the plaintiff tendered in evidence two I.O.Us. given to him by the defendant in Germany 34 years ago.”
The question therefore is whether he was right in his view that the documents were nothing more than I.O.Us. and therefore, admissible without being stamped. The view is of course correct that a document which does not go beyond the strict limits of an I.O.U. is not liable to be stamped. Authority is available in the case of Childers v. Boulnois,5 the headnote of which reads as follows, “Two unstamped slips of paper, with ‘I.O.U. £400’ and ‘I.O.U. £250’ written thereon, are neither promissory notes nor receipts, and therefore may be received in evidence on an assumption for money lent.”
In the course of his judgment in the old King’s Bench, Abbot C.J. referred to two earlier case, Fisher v. Leslie,6 and Israel v. Israel,7 as direct earlier authorities that papers similar to that produced were receivable in evidence without any stamp, as an acknowledgement of a debt. As is pointed out however by Bertram Jacobs in his Short Treatise on the Law of Bills of Exchange, Cheques, Promissory Notes, and Negotiable Instruments Generally (2nd ed.), p. 47, “an I.O.U. may contain something more than a bare acknowledgement, and in such case the additional words may suffice to bring the document within the category of an agreement, or even of a negotiable instrument.”
It is to be observed that the notes in Childers v. Boulnois, supra, did not contain more than the words “I.O.U. £400” and “I.O.U. £250,” each bearing the defendant’s signature but without date or time or place or address. It is conceded that the name of the creditor and date and place may be included without the nature of the document as a mere acknowledgement of indebtedness being changed. But where additional words were added to the words “I.O.U. £20” to make a document read “I.O.U. £20 to be paid on 22nd instant,” it was held to be a promissory note; see Brooks v. Elkins.8 In Evans v. Phillipotts9 where an
I.O.U. contained special terms that the sum to be paid should be reduced in a certain event and that part of the sum should be disposed of in a particular manner, the documents was held to require an agreement stamp. Looking therefore at the documents with which we are here concerned from that angle or point of view, there does not appear to be much difficulty in finding them to be receipts in respect of sums exceeding the sum of £G2, and therefore coming under section 52 of the Stamps Ordinance,10 which provide that, ‘“Receipts’ means and includes any . . . writing whatsoever, whereby any money amounting to two pound or upwards, . . . is acknowledged or expressed to have been received . . . or paid . . .”
Exhibit A containing after the words, “I owe Mr. J. B. Cobbina Ackon the sum of £55 1s. 2d.” the further words “being amount received from him,” and exhibit B, after the words “I owe Mr. J.B. Cobbina Ackon the sum of £13 being goods and cash” the further words “received from him . . . cash £7 10s.,” both clearly enough fall within the definition of receipt above set out.
By section 15 of the Stamps Ordinance, it is provided that, “No instrument made liable by this Ordinance to any stamp duty shall be pleaded or given in evidence in any Court, unless the same be duly stamped.” It follows that the respondent was mandatorily prohibited from pleading or giving in evidence the two notes without their being stamped, and the magistrate equally mandatorily prohibited from receiving the same in evidence—wherefore the judgment founded on those documents can obviously not be supported. Were it possible to stamp the documents at this late stage—I would be disposed to send the case back to afford the respondent the opportunity of getting them stamped in order to be able to use them for the prosecution of his claim. Unfortunately for him the period prescribed within which he can possibly get the documents stamped by paying a penalty has completely lapsed, for section 54 of the Ordinance provides as follows: “A receipt given without being stamped may be stamped with an impressed stamp upon the terms following, that is to say—
(1) Within twenty-eight days after it has been given, on payment of the duty and a penalty of one pound;
(2) After twenty-eight days, but within three months, after it has been given, on payment of the duty and a penalty of five pounds, and shall not in any other case be stamped with any impressed stamp.”
It becomes obvious therefore that no useful purpose can be served in sending the case back with the object of affording the respondent the chance of getting the document stamped. But I would not decide the appeal on that minor point and shirk determination of the much more important point of law—from a public point of view—raised in the grounds of appeal and argued by counsel for the parties, and I accordingly now pass on to a consideration of the question whether the magistrate was right in his view that there was no ground for holding that native customary law did not apply to the two transactions the subject-matter of the suit, and that the appellant had not shown that the parties intended their obligations under the transactions to be regulated exclusively by English law.
On that important legal question, counsel for the appellant has contended that the magistrate did not give adequate consideration to the circumstances about the transaction which go to show that the parties did not intend native customary law to apply but rather intended that their obligations should be regulated exclusively by English law. Counsel submitted that (a) the condition or status of the parties as educated merchants, (b) the fact that they were entering into the transactions in a foreign country, (c) the fact that they adopted or used a well-known form of English commercial document, and I.O.U., and (d) the absence of any allegation or indication that native customary procedure was at all employed in respect of any of the transactions the subject-matter of the claim, all sufficiently point to the only reasonable conclusion, namely, that the parties intended to exclude customary law and adopt English law exclusively.
Learned counsel for the respondent on the other hand has contended that there are several cases establishing the proposition that the mere employment of a document in respect of a transaction between natives does not imply that customary law is intended to be ousted, and the circumstances relied on by counsel for the appellant have nothing about any of them which could reasonably lead to the only and irresistible conclusion that the parties clearly intended to oust customary law and adopt English law exclusively.
In considering this important question, let us start by considering the oft-repeated general proposition that as between natives, native customary law is presumed to apply. It undoubtedly originated from that part of the wording of the old Supreme Court Ordinance,11 section 19 of which read as follows:
“Nothing in this Ordinance shall deprive the Supreme Court of the right to observe and enforce the observance, or shall deprive any person of the benefit, of any law or custom existing in the Colony, such law or custom not being repugnant to natural justice, equity, and good conscience, nor incompatible . . . with any enactment of the Colonial Legislature existing at the commencement of this Ordinance, . . . Such laws and customs shall be deemed applicable in causes and matters where the parties thereto are natives of the Colony, and particularly, but without derogating from their application in other cases, in causes and matters relating
to marriage and to the tenure and transfer of real and personal property, and to inheritance and testamentary dispositions, . . .”
The crucial words are of course the words, “Such laws and customs shall be deemed applicable in causes and matters where the parties thereto are natives. . . .” The Courts Ordinance12 which has superseded the old Supreme Court Ordinance, 1876, and is the Ordinance in force at present, has retained in section 87 thereof, the same wording of the old section 19, as set out supra.
It is noteworthy that in his invaluable Commentaries published in 1909, at p. 14 Hayes Redwar J. after comparing the above provisions of our local Ordinance with the provisions of a similar Indian enactment, observed that:
“. . . there is no provision so strongly worded as sect. 19 of the Supreme Court Ordinance of the Gold Coast, by which the native is only to be deprived of the benefit of any Native Law or custom when it can be shown that he has excluded it by contract, express or implied.”
Nevertheless, in spite of the undoubtedly strong terms of the provisions of the section tending to make customary law applicable, virtually as of course, in all cases between natives, there are limitations, as was pointed out by Brandford Griffith J. when giving the judgment of the Full Court, Lagos in November 1898 in the case of Cole v. Cole.13 In his judgment, after referring to the provisions of section 19 above set out, he continued as Follows14:
“Does this mean that the Court is bound to observe native custom, or to allow native custom to apply in every case of a native where the custom is not repugnant to natural justice, &c., nor incompatible with any local Ordinance? I think not. When the Court has before it a matter which is purely ‘native’, or where all the circumstances to be taken into account are connected with native life, habit or custom, then, undoubtedly, Native Law and custom should apply. Where, on the other hand, the matter before the Court contains elements foreign to native life, habit and custom, the Court is not bound to observe Native Law and custom. That part of the section enacting that ‘No party shall be entitled to claim the benefit of any local law or custom if it shall appear, either from express contract or from the nature of the transactions out of which any suit or question may have arisen, that such party agreed that his obligations in connection with such transactions should be regulated exclusively by English law’ is, I am of opinion, merely a particular case of the above broad principle, and is specifically enacted so as without doubt to prevent what would be a manifest injustice. But that this last quoted sentence is not intended to cover all the exceptions to the general rule of applying Native Law and custom to natives is clear from the concluding words of the section:—’And in cases where no express rule is applicable to any matter in controversy, the Court shall be governed by the principles of justice, equity, and good conscience.’ These words show that the Legislature was well aware that it could not lay down specific rules as to where Native Law and custom was to apply and where it was not to apply. It was aware that cases must arise for which it could not possibly provide; accordingly, it framed the section in very general terms, expressly specifying one particular class of transactions in which natives should not take advantage of Native Law and custom, and finally giving the Court large discretionary powers.”
That part of the observations of the learned judge to the effect that15:
“When the Court has before it a matter which is purely ‘native’, or where all the circumstances to be taken into account are connected with native life, habit, or Custom, then, undoubtedly, Native Law and custom should apply”
needs to be elaborated on a little more. There can be no doubt that the provision that native customary law should, generally speaking, apply in matters where the parties are natives, is based on the assumption or presumption that natives would ordinarily enter into transactions known and recognised by native customary law some of which are expressly referred to in the material section of the Ordinance, and of course adopt, employ or follow the forms, methods or procedures known and prescribed by customary law for entering into or effecting those transactions. It is on that hypothesis alone that the strong terms of the provisions of the section can have any rational meaning or justification. Where therefore the transaction the subject of inquiry before the court is clearly a customary transaction, or one which has followed the forms or methods prescribed by customary law, there is no difficulty, and the courts have readily applied customary law. Take for example the case of Teye Norh v. Gbedemah16 a case which
arose out of a transaction of mortgage or pledge of land by form or method of native customary law. Michelin J. delivering the judgment of the Full Court said as follows17:
“In the present case, it having been proved that the requirements of native customary law as to the execution of a native mortgage or pledge had been complied with, at the time when the plaintiff received the loan from the defendant Tagoe, the onus was upon the plaintiff to prove that the parties, when subsequently executing the two written documents, intended that their obligations should be regarded exclusively by English Law. Not having done so, in my opinion, the Learned Chief Justice was right in nonsuiting the plaintiff.”
That was a case in which a moneylender had been given possession of land as security for a loan with power to sell upon default of payment without any question of a court order being first obtained, as was usual in customary practice and usage, and the transaction was afterwards reduced into writing. He exercised the right to sell without a court order and it was sought to make him liable for an alleged wrongful sale, as indeed the sale would have been if the transaction was one regulated not by customary law but by English law. It should specially be noted that it was in respect of a clearly customary transaction that Michelin J. (and the other members of the Full Court) held there was an onus to show that customary law had been expressly or impliedly ousted and English law introduced.
Take next Nyako v. Atiadevie18 in which Strother-Stewart J. held:
“I am satisfied that the document in question, as it sets out in its own wording, is a pledge of the land mentioned in it according to native customary law . . . The intention of the parties is clearly set out in the said document.”
The learned judge then proceeded to dismiss the plaintiff’s claim for the alleged threatened wrongful sale of the land comprised in the document, and observed as follows,19 “I think the present case is even stronger in favour of the defendants, than the case of Taye Narh [sic] v. W. A. Gbedemah . . .” Per contra consider Bossom v. Attonie20 the headnote of which is as follows:
“In an action for money lent, Plaintiff . . . produced a document from Defendants purporting to pledge certain lands as security for the loan; the document, which was not under Seal, was ambiguously worded, and did not conform to an English precedent. Held, that as it was not a legal mortgage, and could not be construed as an Equitable Mortgage—there being no deposit of title deeds—it could only constitute evidence of a simple contract debt, no evidence having
been adduced to show that a native verbal pawning or pledging of the land in the presence of witnesses and with the customary formalities had taken place, and the Plaintiff by his Writ of Summons not having referred to any such transaction.”
It may not be without interest to take note of Redwar J.’s description of the document sued on it that case as one which the writer, “Read and interpreted . . . in the Fanti language to the parties who signed it . . . They made their marks and he signed for them, and then he signed as witness.” Bossom v. Attonie was subsequently approved and adopted in Sei v. Ofori21 in which an informal document acknowledging an amount or loan received and promising repayment thereof on the security of a parcel of land described in the document, and by which authority was also given to the creditor to sell the land by public auction upon default to pay the loan at the stipulated time—was held to constitute an equitable mortgage under English law. In that case Gardiner Smith J. delivering the judgment of the Full Court said22:
“Learned Counsel for appellants submitted that, in the case of a native mortgage, certain ceremonies are necessary, and the mortgagee must have possession; and he cited Sarbah’s Fanti Customary Law, pp. 71 and 261. Learned Counsel for the respondent submitted that Exhibit ‘A’ could be construed both as a native mortgage and as an equitable mortgage under the law of England, and cited Redwar’s Comments, p. 76, and Kofi v. Akyea, Divisional Court, Accra, 6th November, 1922. It is quite clear that it is not a legal mortgage according to English Law as there is no conveyance of the property, and I cannot agree with the learned trial Judge that it was a native pawning or pledging of the land, and therefore a native mortgage . . . Was it an equitable mortgage? An equitable mortgage is thus defined in Coote’s Treatise on the Law of Mortgages 8th Edition, p. 62—’Any agreement in writing and properly signed, however informal, by which any property real or personal, is to be a security for a sum of money owing or advanced, is a charge, and amounts to an equitable mortgage.’ . . . In my opinion Exhibit ‘A’, in the present case was a good equitable mortgage.”
Sei v. Ofori was followed by Asafu Adjei v. Dabanka23 where Michelin J. stated as follows:
“I shall in the first place consider the nature of the document which was admitted in evidence as Exhibit ‘A’. It is clear from a perusal of this document that the essential requirements of a legal mortgage are wanting. It cannot also be held to be a native mortgage in view of the fact that it is stated in the body of the deed ‘that the said building shall remain in the possession use and control of the mortgagor who shall also draw and receive all rents accruing therefrom until the end of one year from the date of these presents.’ It is an essential element of a native mortgage that possession of the mortgaged premises should be given to the mortgagee at the time when the transaction takes place between the parties . . . It is clear therefore that in the
present case an Equitable Mortgage was created, not only by the informal document (Exhibit ‘A) . . . but also by deposit with the Creditor of the appellant’s title deed to the property mortgaged.”
But before the cases referred to supra, there had been decided in the Full Court in 1922 the case which has come to be considered as the leading case, at any rate in so far as loan transactions between natives evidenced by written documents are concerned, namely, the case of Aradzie v. Yandor.24 The headnote lays down the proposition that:
“In a case where money is lent on a promissory note by one native to another, and there is no evidence to show that the parties entered into the arrangement with the usual interest and ceremonies according to native custom, from the nature of the transaction the presumption is that the parties intended the transaction to be regulated exclusively by English law.”
The dicta of the learned judges who dealt with the case will be found to be particularly instructive. Firstly, Treacy Ag.J. who dealt with the case as of first instance, said as follows25:
“The chapter on suretyship in Sarbah on Fanti Customary Law, second edition, pages 74 to 77 gives a description which I believe to be accurate of the ceremonial connected with a loan where there is a surety of sureties26[sic], as conducted according to native custom. It will be seen by a reference to that description that the ratification of such a loan according to native custom is a matter of high ceremony involving the attendance of many witnesses, and with the taking of oaths or the making of solemn promises . . . in the present case the substantial sum of £250 0s. 0d. was lent by one African chief to another, so we may take it that both parties knew the native custom with regard to loans, and I think one may not unfairly surmise that they also knew the English law especially as the loan was made in a timber district long after the timber trade had been well established, yet they deliberately selected the English method. There is nothing before me to show why they did so! but both parties must have found it convenient. This being so it is impossible for me to decide in favour of one party and to the detriment of the other that having realised the advantages of this method he failed to realise the disadvantages. The whole nature of the transaction shows that both parties intended to be bound by English law at the time when the note was made, and that such intention must be taken to form part of the agreement.”
On appeal to the Full Court the dicta of the learned judges constituting the court were as follows: Per Smyly C.J.27:
“In the present case the plaintiff has elected to sue not on a loan arranged by native custom with the usual interest or usual ceremonies and supported by documentary and corroborative evidence, but on the promissory note itself, there being no evidence to be obtained that anything more passed between the parties in accordance with native law and customs . . . The only evidence before the court of first instance is a promissory note that is barred by the Statute of Limitations, and in the ordinary course the action would be dismissed. We are, however, asked to hold that because the plaintiffs and defendants are natives, that the loan must have been made in accordance with native law and custom. Of the existence of any such loan not even a scintilla of evidence being before the court.”
Per Logan J.28:
“The intention of the parties is to be gathered from their actions. In the present case when the loan was granted the parties elected to follow the English method of giving a written document in proof of the debt. They might have followed the native method, which is described at some length in Sarbah’s Fanti Customary Laws, in chapter 5 on Suretyship, pages 74 and 75. But no evidence has been brought to show that they did anything of the sort. In proof of his claim the plaintiff simply produced his promissory note; that being so I think the learned judge was right in holding that the parties intended the matter to be regulated by English law.”
Per Hall J.29:
“In this case we have no evidence before us of any formalities or ceremonies having been performed according to native law, but instead we have the document set out above, based on English methods. In other words there is no evidence of any local custom being observed in this case, but there is evidence of English law being followed . . . Having consulted the [authorities] quoted and the particular facts of this case, I can come to no other conclusion than that the Statutes of Limitations in this case apply . . .”
The cases above referred to sufficiently enough indicate, I think, the tests to be applied in determining whether a transaction evidenced by or reduced to writing should be held to be governed or regulated by customary law or not. It should however not be overlooked that the determination of that question appears necessarily to involve consideration of the principles or rules as to the effect of the admission in evidence of the document concerned in each particular case. Where you have a document which, being foreign to customary law, would seem to indicate or suggest, at the first blush, the exclusion of customary law, the following situations might arise:
(a) The document or writing, might be the recorded agreement or transaction itself, i.e. a record of all the terms agreed on between the parties, so that no extrinsic evidence could be admitted to affect it. See Meres v. Ansell30 where the Chief Justice and other judges constituting the Court of Common Pleas held as follows: “We are all clearly of opinion . . . that no parol evidence is admissible to disannul and substantially to vary a written agreement; . . . You cannot depart from the writing . . . “ See also Angell v. Duke.31 In such a case, the question will be whether the document which is capable of being affected by extrinsic evidence, clearly enough explains or expresses itself to be merely a written record of a transaction known and recognised by customary law. See for example, Nyako v. Atiadevie, supra. Alternatively, if the transaction is known both to customary law and English law, e.g. a loan transaction, whether the document expresses the particular transaction the subject-matter of the suit to have been entered into by the forms or methods known to or prescribed by customary law. In either case, assuming the answer to be in the affirmative, there would be a clear-enough indication that the parties did not intend to exclude and have not excluded customary law.
(b) Alternatively, as is more often or more frequently the case, the document or writing might not embody the whole transaction but might be just a memorandum thereof so that extrinsic evidence could be admitted to explain the full circumstances of the transaction. See Allen v. Pink,32 where Lord Abinger C.B. said:
“ . . . the general principle . . . is quite true, that if there has been a parol agreement, which is
afterwards reduced by the parties into writing, that writing alone must be looked to, to ascertain the terms of the contract; but the principle does not apply here; there was no evidence of any agreement by the plaintiff that the whole contract should be reduced into writing by the defendant; the contract is first concluded by parol, and afterwards the paper is drawn up, which appears to have been meant merely as a memorandum of the transaction, or an informal receipt for the money, not as containing the terms of the contract itself.”
If then on the face of such a memorandum or writing capable of being affected by extrinsic evidence, no reference appears or is made to what one might call “a peculiarly or notoriously customary transaction,” or else the document is silent as to the adoption or employment of customary form or method in effecting or making of a transaction known both to customary law and English law, e.g. loan, then in either case, without either party to the suit having by extrinsic evidence introduced any customary features which he may claim to exist about the transaction, on ordinary principles the document should be accepted and acted on for what it is, without any assumption or presumption being made from the mere fact that the contracting parties are natives that they intend their obligations to be regulated by customary law. In that
position of affairs, where a document is capable of being affected by extrinsic evidence adduced by either party and it is silent as to the transaction the subject of inquiry having been entered into by the forms or methods of customary law, it seems to me the words of Brandford Griffith J. in Cole v. Cole33 come into play, i.e. “the matter before the Court contains elements foreign to native life, habit and custom, the Court is not bound to observe Native Law and Custom.” That would appear to have been the view which Redwar J. took when in Bossom v. Attonie34 he held that the document in the suit before him, “could only constitute evidence of a simple contract debt, no evidence having been adduced to show that a native verbal pawning or pledging of the land in the presence of witnesses, and with the customary formalities,
had taken place . . .” It appears to be the same view which the learned judges took, who dealt with the case of Aradzie v. Yandor as appears from their respective dicta reproduced supra. It would appear also to be the view which the West African Court of Appeal took in the
[p.15] of [1964] GLR 1 Nigerian case of Griffin v. Talabi35 where Verity C.J. (Nigeria) said:
“It is necessary therefore, to look at the document which evidences this transaction in order to determine its nature. The document . . . takes the form of a receipt for the sum of fifty pounds in full payment on a piece or parcel of land as therein described. The second paragraph of the document is as follows:—’That we shall be ready to convey unto the said purchaser the land aforesaid at any time that we may be called upon so to do . . .’ We can attach to this document no other meaning than that it is an agreement for sale coupled with a receipt for the purchase money and a covenant to execute a conveyance when called upon. It is not seriously contended on behalf of the respondent that a transaction of this nature is known to native law or custom, but it was submitted that the parties to the transaction being natives and illiterate were unaware of the effect of the document and intended that the sale should be in accordance with native law and custom. [It] would . . . be dangerous to assume, in the absence of any evidence to that effect, that because a party to a transaction is a native and illiterate, he is unable to appreciate the meaning and effect of a document to which he subscribes by making his mark. . .”
Applying then those tests to the facts of the case with which we are concerned, was the learned magistrate right in saying as he did that “The defendant failed to satisfy the court that native law should not be applied or that at the time of the transaction it was the intention of both parties that the transaction was to be governed exclusively by English law.” Surely what he should have asked him was whether there was any evidence of any transaction by form or method of native customary law before him? The respondent gave no evidence of the transactions beyond tendering the two I.O.Us. given him by the appellant; were they evidence of a transaction in accordance with customary law, as was held, for example, in Nyako v. Attiadevie mentioned supra? Could the transactions possibly have been intended to be customary transactions when there was not even a single witness to either of them, contrary to the basic concept in customary law that, writing being generally unknown by means of which proof could subsequently be given or made, a transaction must be effected in the presence of witnesses who could be called in the event of a controversy subsequently arising concerning it, to give their respective versions of what happened when the parties met in their presence? (See for example the observations of Redwar J. concerning the document involved in Bossom v. Attonie). I think not. In my view everything about the transactions, apart from the fact that they were between natives, points to the fact that it was the intention of the parties to enter into them by the speedier and more expeditious method of English law; that proof of them be provided in the form required by English law, i.e. a signed document capable of being readily
produced rather than eye-witnesses to be called to testify in respect of them as is usual in customary usage, and that their obligations arising thereout should be regulated by English law.
The learned magistrate as already said expressed reliance on the case for Ferguson v. Duncan36 in which the appeal court held that a loan transaction between literate aborigines of the country proved by nothing more than a formal receipt in the following form:
“Received from George Francis Ferguson of Dunkwa the sum of Two Hundred Pounds on loan. Dated at Dunkwa 31st day of August, 1934.
(Sgd.) Sam W. Duncan.”
and supported by no evidence of any customary ceremonies in relation to the granting of the loan, was nonetheless governed by native customary law, and proceeded to set aside the decision of the trial judge of the Divisional Court, Cape Coast, who had held that by the form of the transaction as appearing on the face of the receipt, the parties had intended their obligations to be regulated by English law. But it appears to me that that decision, if I may say so with the utmost respect, has certain unsatisfactory features about it which tend to make it a decision of doubtful authority. In the first place, Windsor-Aubrey J. in delivering the judgment to which the other members of the court gave assent, began by expressing his view as to the meaning and effect of the proviso to section 87 of the Courts Ordinance that37:
“No party shall be entitled to claim the benefit of any local law or custom if it shall appear either from express contract or from the nature of the transactions out of which any suit or question may have arisen, that such party agreed that his obligations in connection with such transactions shall be regulated exclusively by English law.”
With particular reference to the word “exclusively” appearing among the all-important concluding operative words “shall be regulated exclusively by English law,” he said as follows38: “The word ‘exclusive,’ however, applies to all forms of contract. In other words, as I understand the position, native law and custom are not ousted even when the parties had no clear conception in their minds and contemplated a mixture of English law and native law and custom.”
It has to be conceded that there does not appear to have been an earlier case in which consideration has been given to and some pronouncement made expressly or specially concerning the force and effect of that word “exclusively” in that particular context of the proviso above set out. Redwar, however, in his Commentaries, commenting generally on the terms of the old section 19 (now section 87) did make the observation at p. 11 that, “In order that the Court may be induced to hold that English law shall apply under sect. 19, it must be satisfied that the parties agreed that their obligations should be regulated exclusively by English law, and not partly by English law and partly by Native law.” By that, he would seem to have suggested that the meaning of “exclusively,” considered firstly from the point of view of the adoption of English law, amounts to “completely” or “solely” or “wholly,” and secondly from the point of view of the exclusion of customary law, amounts to absolute and entire absence or exclusion thereof; so that from either standpoint there is not the least trace of any circumstance or feature indicative or suggestive of the employment of customary law or procedure at all. Windsor-Aubrey J. possibly had that view of Redwar J. in mind when he expressed the opinion that, “native law and custom are not ousted even when the parties had no clear conception in their minds and contemplated a mixture of English law and native law and custom.”39
The question does arise however whether in respect of one clear and single transaction, e.g. a loan, it is possible for two contracting parties being aborigines to agree expressly or by necessary implication that their obligations arising thereout shall be regulated partly by English law and partly by customary law. As to that, there is undoubtedly the now clearly recognised and sole exception of adopting the English method of perpetuating a customary transaction by reducing it to writing, without in any way affecting or impairing the customary effect or efficacy thereof. That is made clear enough by Teye Norh v. Gbedemah, Nyako v. Atiadevie and similar cases to which reference has already been made earlier in this judgment. Reference might perhaps be made also to the observations of Lord Maugham in Sintim v.
Apeatu when speaking of the customary transfer of land by the customary ceremony called by the Akans “guaha,” he said as follows:
“The ceremony, as the law stands, does not require any permanent record whatever and it is evident that after the lapse of years it may be almost impossible to prove that the ceremony has been performed. In small cases where the purchase money is paid and possession is taken by the purchaser this leads to little trouble; but it seems to their Lordships to deserve consideration whether in cases of magnitude, and especially if all or some of the purchase money remains unpaid, a written contract should not be made essential in the interests
of the natives and with a view of preventing useless litigation.”
Those observations of the learned Lord constitute perhaps the highest judicial acknowledgement and commendation of the now established practice of perpetuating customary transactions by having them recorded. Apart, however, from that instance, which is not really an instance of agreement that contractual rights and obligations should be brought into existence partly by customary law and partly by English law, but a situation in which contractual rights and obligations brought into existence by forms or methods and in accordance with concepts of customary law, are afterwards merely reduced into writing
for their better and safer preservation—it is difficult to conceive of such a case as that of which Redwar spoke and of which Aubrey speaks in the Ferguson v. Duncan appeal, i.e. a case in which two contracting parties being aborigines contemplate in respect of a single transaction a mixture of English law and customary law, so that not having contemplated English law “exclusively,” customary law is not deemed to be ousted.
It is submitted that even if the parties have not a clear conception in their minds, their language and utterances and actions will operate to make the contract fall on one side or other of the line, i.e. indicate that from a legal point of view the contract between the parties is a customary one or else an English one. If the acts and language of the parties are there, it will be for the court to decide what the agreement is. In this connection it may not be out of place to refer to the observations of Lord Herschell L.C. in McEntire v. Crossley Bros. That:
“The parties cannot, by the insertion of any mere words, defeat the effect of the transaction as appearing from the whole of the agreement into which they have entered. If the words in one part of it point in one direction and the words in another part in another direction, you must look at the agreement as a whole and see what its substantial effect is.”
It may also not be out of place to draw attention to the view which Tracey Ag.J. took in deciding Aradzie v. Yandor42 as of first instance when, after pointing out that the parties “deliberately selected the English method,” he continued, “This being so it is impossible for me to decide in favour of one party and to the detriment of the other that having realised the advantages of this method he failed to realise the disadvantages.” That is to say where substantially a contract in English form is established, there can be little or no room for holding that because the parties are natives, one has an inherent right to be relieved from the consequences attached to the particular transaction by the operation of English law. It is the same or similar view which Verity C.J. expressed in Griffin v. Talabi4342 and which I have already quoted.
In so far therefore as the decided cases go, it seems to me that the interpretation or meaning and effect which indirectly they give to the word “exclusively” is something akin or equivalent to “substantially.” There may be about the transaction circumstances or features suggestive of a customary transaction; yet if substantially it is in English form, then the parties have agreed that their obligations should be regulated “exclusively” by English law. So in Kwesi-Johnson v. Effie44 where payment of tirama (earnest-money), a customary feature, was introduced in connection with the sale of a house evidenced by a receipt which recited an agreement to prepare a conveyance, Foster-Sutton P. said45: “ . . . I am of the opinion that the payment of the ‘Tirama’ loses its significance . . . These factors, considered in conjunction with exhibit “A”, particularly the concluding words of that document which read:’. . . and in pursuance of the terms of the conveyance to be prepared in this behalf’, in my view, clearly indicate that the
parties intended that the transaction should be regulated exclusively by English law.”
The same situation will be found in many of the cases referred to supra in which it has been held that the parties agreed that their obligations should be regulated exclusively by English law, that is to say, in many of them customary circumstances and features did exist about the transactions, but the overriding and substantial circumstance or feature was undoubtedly the English form of the said transaction. It would seem therefore that the view expressed in Ferguson v. Duncan as to the meaning and effect of the proviso to section 87, with particular reference to the force of the word “exclusively” appearing therein, was palpably contrary to what had been held in the previously decided cases; and it was wrong, it is respectfully submitted, to have commenced consideration of the Ferguson v. Duncan46 appeal with that view that, “native law and custom are not ousted even when the parties had no clear conception in their minds and contemplated a mixture of English law and native law and custom.” In the second place Windsor-Aubrey J. purported to rely on the case of Koney v. U. T.C.47 but would appear to have misapprehended and therefore wrongly applied it. He said concerning that case,48 “That case decides, as I understand it, that where the parties are natives the onus is on the party who opposes the application of ‘such native customary law’ to satisfy the Court that it should not be applied.” In point of fact in Koney v. U.T.C. the court was called upon to determine whether in the particular circumstances of that case English law or native customary law was the law properly applicable to a transaction between a native and a non-native, a European firm. The Appeal Court was only called upon to determine in what circumstances customary law could be said to be properly applicable between a native and a non-native, and the circumstances of the case more appropriately called for the consideration and application of that portion of section 87 which provided that:
“Such laws and customs shall be deemed applicable . . . also in causes and matters between natives and non-natives where it may appear to the Court that substantial injustice would be done to either party by a strict adherence to the rules of English law.”
In those circumstances all the observations contained in the judgments of two of the three judges constituting the court (Kingdon C.J. and Graham Paul J.—Yates Ag.C.J. being the third member) concerning the circumstances in which in their respective views, customary law must be held to apply as between natives, were strictly speaking obiter, although of course entitled to the utmost respect. In any event when they purported to enunciate the principle to which Windsor-Aubrey J. made reference, to the effect that where both parties are natives the onus is on the party who wishes to exclude it, it was not meant to be taken or understood in the sense in which Windsor-Aubrey J. appears to have taken or understood it. When for example, Kingdon C.J. said “Where both are natives native customary law applies (absolutely under the law in force when Redwar wrote, but now ‘save where the circumstances, nature or justice of the case shall otherwise require’)”49 the learned Chief Justice did not intend (and could not have intended) what he said to apply even to transactions unknown to customary law, or to transactions which might be known to customary law and English law yet had been effected by
the forms and methods foreign and unknown to customary law, merely because the transactions had been entered into by or between natives.
To proceed therefore on the assumption, as the learned judge appears to have done, that there is an onus on one of two natives who are parties to a transaction proved by a document, which on the face of it did not purport to follow customary form, method, or procedure, still to bring further evidence to show that he did not intend to adopt customary law, seems to me, with the utmost respect, to be rather fallacious and illogical. In this connection, one might be pardoned for calling attention once again to the fact that in Norh v. Gbedemah already referred to, it was because the transaction in that case was what might be called “a notoriously customary transaction” that the Full Court held that the onus was on the appellant to prove that customary law was to be excluded and English law introduced. That aspect of the matter, in so far as Ferguson v. Duncan is concerned, is made so conspicuous in the judgment of West African Court of Appeal by the fact that when counsel for the respondent argued that, “There is no evidence that any of the customary native ceremonies or customs were performed in relation to this loan,”50 (and counsel’s contention would seem to be well-founded, for it is significant that on the face of the receipt involved in the case, there was not even a witness to the transaction of obtaining the loan) the court was not able to point or refer to any such evidence as was contended to be lacking, but merely made the assumption (wrongly it is respectfully submitted) that such customary ceremonies had in fact been performed, and
gave the inadequate and unsatisfactory ruling that, “the onus being on the defendant, he should have cross-examined the plaintiff or himself given evidence to negative the performance of native customs.”51
Windsor-Aubrey J. then proceeded to reduce the whole situation to an absurdity by adding that, “Further there is some slight evidence of the performance of native custom in that the plaintiff sent his mother to the defendant to demand the debt”52—though how a unilateral act of sending to demand payment some years later after the loan can possibly be evidence of the intention of the parties as to the making of the loan transaction, or what authority there is for saying that the particular act of sending a relative to demand payment is evidence of custom, it is difficult to understand.
Conceding the point that a “receipt” is what Abott C.J. described in Skaife v. Jackson53 as “nothing more than a prima facie acknowledgement that money has been paid,” and therefore extrinsic evidence would undoubtedly be admissible to show the circumstances in which it came to be signed, one would have thought that the prima facie evidence at any rate stood for and against both parties for the time being, until the party relying on the existence of extrinsic circumstances had introduced evidence of those circumstances. In that view of the matter, one would have thought that the onus was rather on the party who might be alleging that a loan transaction evidenced by nothing more than an ordinary receipt which on the face of it does not refer to the adoption or employment of any customary form or method in the making of the transaction of which the receipt is a memorandum, was nonetheless evidence of a customary transaction, to adduce the necessary extrinsic evidence to establish those customary circumstances or features about the transaction. Otherwise the receipt should be evidence
of just a simple loan in accordance with English commercial practice and usage. At any rate as already pointed out, that appears to have been the view Redwar J. took in Bossom v. Attonie, supra, and which the learned judges who dealt with Aradzie v. Yandor, supra, also took.
In the third place, the conclusions of the appeal court on the second contention raised in the appeal that “The subsequent mortgage in English form negatives the presumption that native law and custom is applicable”54 seem somewhat unconvincing. In respect of that contention the court held as follows55: “As regards (2) evidence of subsequent conduct is admissible and relevant as circumstantial evidence tending to prove the intention of a party in relation to an act done formerly. The weight, however, to be attached to such subsequent conduct in my opinion depends on all the surrounding circumstances, and also on the proximity in time of the subsequent conduct to the former act. Here four years elapsed and there is not a particle of evidence to suggest that any form of security was considered or contemplated at the time the loan was made. In my opinion the mortgage was an afterthought and formed no part of the original transaction.”
But with great respect, what stronger evidence could there be that a mortgage was contemplated than the hard fact that the mortgage was in fact executed incorporating or founded on the original loan transaction. Disregarding the mortgage as was done by the appeal court was equivalent to what Collins M.R. in Henderson v. Arthur56 described as:
“. . . to violate one of the first principles of the law of evidence; because, in my opinion, it would be to substitute the terms of an antecedent parol agreement for the terms of a subsequent formal contract under seal dealing with the same subject-matter.”
It seems only necessary to observe finally that it is difficult to understand how the appellant in that appeal, who claimed on the basis that there was a valid subsisting mortgage, expenses in respect of which he made part of his claim, could be heard in the appeal court to argue that the mortgage had nothing whatever to do with his claim and be allowed to succeed on the original parol agreement. In all the circumstances of the case therefore it seems to memthat Ferguson v. Duncan was a decision per incuriam, and as in any event it is in conflict with Aradzie v.
Yandor and other authorities mentioned supra, I am unable to follow it. In the light of those authorities, it seems to me that the learned district magistrate erred in his decision that there was evidence of a transaction according to native customary law before him simply by the mere fact that the parties were natives when according to himself “in support of his claim the plaintiff tendered in evidence two I.O.Us.,” and there was no evidence of any customary form or method having been adopted or employed in effecting the transactions. Indeed in my view the case was covered by Aradzie v. Yandor referred to supra; and the following dictum of Smyly C.J. in that case does not seem to be inapplicable to this case, when he said57:
“The only evidence before the court of first instance is a promissory note that is barred by the Statute of Limitations, and in the ordinary course the action would be dismissed. We are, however, asked to hold that because the plaintiffs and defendants are natives, that the loan must have been made in accordance with native law and custom. Of the existence of any such loan [according to custom] not even a scintilla of evidence being before the court.”
For the words “promissory note” in the above dictum, substitute the words “I.O.Us.” and the words of Smyly C.J. might have been spoken of the case with which we are concerned.
For the foregoing reasons I am obliged to allow the appellant’s appeal, set aside the district magistrate’s judgment against him and in place thereof enter judgment in his favour against the respondent dismissing the latter’s claim as statute-barred, with the costs of the appeal assessed at £G14 including ten guineas for counsel, and the costs in the court below to be taxed.
DECISION
Appeal allowed.
S. A. B.
