SUPREME COURT, ACCRA
DATE:13TH JULY, 1962
BEFORE: KORSAH, C.J., VAN LARE AND ADUMUA-BOSSMAN, JJ.S.C.
CASES REFERRED TO
(1) Pon v. Fua (1929) F.C. ‘26-’29, 522
(2) In re Padstow (1882) 20 Ch.D.l37, C.A.
(3) Flower v. Lloyd (1877) 6 Ch.D. 297, C.A.
(4) Marcroft Wagons Ltd. v. Smith [1951] 2 K.B. 496; 95 S.J. 501; [1951] 2 AllE.R. 271, C.A.
NATURE OF PROCEEDINGS
APPEAL from a judgment of Simpson, J., delivered in the High Court, Kumasi, on the 2nd November, 1960, unreported, wherein he dismissed the plaintiffs’ claim against the defendants for inter alia, recovery of possession of a store.
COUNSEL
J. Reindorf for the plaintiffs-appellants.
N.Y. B. Adade for the defendants-respondents.
JUDGMENT OF ADUMUA-BOSSMAN J.S.C.
This appeal is against a judgment dated the 2nd November, 1960, of the High Court, Kumasi (Simpson, J.) whereby the court dismissed claims for four separate reliefs under four different grounds or causes of action made by the plaintiffs-appellants before this court (who henceforth will be referred to by their firm name “Punjabi Brothers”) against the defendants-respondents (who will similarly be referred to by their name “Namih Brothers”). For reasons which will hereafter become apparent, it seems desirable to set out the claim fully as follows:
“(a) A declaration by the court that the judgment recovered by defendants herein against plaintiffs herein on or about the 5th day of November, 1957, in suit No. D.C. 68/57 entitled Elias and John Namih versus Punjabi Brothers is null and void and cannot stand as res judicata against plaintiffs so as to defeat plaintiffs’ claim in the present suit, on the grounds of fraud, misrepresentation and mistake.
(b) A declaration that as from the 1st day of April, 1957, plaintiffs became statutory tenants of the premises comprised of one four door-store in house No. O.T.B. 143/145 Bogyawi Street, Kumasi.
(c) Possession of the said premises.
(d) Damages, assessed at £G33,500, whereof
(i) £G3,500 is special damages for deceit; or, in the alternative, money that plaintiffs are entitled to recover from defendants under the Rent Control Ordinance, 1952; or, in the alternative, damages for total failure of consideration on the agreement between plaintiffs and defendants dated 14th November, 1957.
(ii) £G15,000 is general damages for deceit, and
(iii) £G15,000 is damages for trespass to the said premises.”
[p.48] of [1962] 2 GLR 46
The events or occurrences which led to the institution of the action are in the main undisputed and they are these: The father of the defendants-respondents, called Moses Namih, was the party who sub-let and gave possession of one store having four doors in what was then his leasehold premises No. 143/145 O.T.B., Kumasi, to Punjabi Brothers. The sub-lease was for a period of ten years as from the date of the instrument, the 27th March, 1947. After making this sub-lease, however, the father or by deed of gift dated the 13th August, 1956, assigned all his right, title and interest in the premises to his two sons, the defendants-respondents. They accordingly notified Punjabi Brothers of the transfer of their father’s interest in the premises to them and requested payment of future rents to them, and Punjabi Brothers thereupon commenced and continued paying rent to them till the end of the period of the sub-lease, the 27th March, 1957. A few days after the expiration of the sub-lease, namely on the 4th April, 1957, a writ of summons was issued by counsel on behalf of the Namih Brothers whereby claim was made against Punjabi Brothers for: (a) ejectment order and recovery of possession of the store the subject-matter of the expired sub-lease, and (b) mesne profits from the 27th March, 1957, till possession be delivered up to them (Namih Brothers). By judgment delivered on the 5th November, 1957, the court gave judgment in favour of the plaintiffs in the action (Namih Brothers) and ordered delivery up of possession of the store to them. Two days after, on the 17th November, 1957, notice of appeal against the judgment was filed on behalf of Punjabi Brothers, together with a motion praying for stay of execution pending hearing of the appeal. The motion came to be heard on the 11th November, 1957, and was refused. The record of the proceedings resulting in the ejectment order against Punjabi Brothers is exhibit A in this action. After the dismissal of the motion the parties appear to have approached each other and ultimately came to an agreement which was reduced into writing and signed on the 14th November, 1957, the terms of which will be considered later in this judgment. For the time being it will be sufficient to state that the substance of it was that Punjabi Brothers agreed to withdraw the appeal which they had caused to be filed for them, and Namih Brothers agreed to allow them to continue in occupation of the store for three months, “rent-free,” at the end of which period they (Namih Brothers) undertook to grant to Punjabi Brothers a new lease of the store, “provided that terms and conditions are mutually satisfactory to the parties.” Before the signing of this agreement, Namih Brothers insisted that Punjabi Brothers should pay the sum of £G3,500 and it was not till the amount had been paid that they signed the agreement, whereby Punjabi Brothers were left unejected from the store for a period of three months. Thereafter no new lease was granted, with the result that as soon as the period of three months stipulated in the agreement (exhibit G) came to an end, Namih Brothers by letter dated the 25th February, 1958, demanded surrender of possession, and on the 28th March, 1958, Punjabi Brothers were evicted by officers of the court and they (Namih Brothers) put in possession. This led to the institution of the action resulting in this appeal.
The main facts or events being therefore substantially undisputed, the question raised in the appeal, it seems to me, is, which of the parties is correct in his contention as to the legal consequences or effects of those undisputed facts. It falls therefore to examine the contentions, bearing in mind that the burden is on the plaintiffs-appellants, Punjabi Brothers,
[p.49] of [1962] 2 GLR 46
to establish the respective claims made on the four separate heads. The first of the four heads, as hereinbefore set out, was that by reason of fraud, misrepresentation and mistake the judgment of the 5th November 1957, obtained by Namih Brothers for recovery of possession of the store was null and void. It is claimed that the judgment was void because the assignment by their father to the Namih Brothers was not registered at the date of the proceedings and judgment dated the 5th November, 1957, and section 23 (1) of the Kumasi Lands Ordinance1(1) made it necessary that the assignment should have been registered. Section 23 (1) provides that: “No lease, transfer . . . whether legal or equitable, assignment or underlease of land, vested in the Asantehene under the provisions of this Ordinance, shall be of effect until the same is registered by the Commissioner of Lands.”
As therefore Namih Brothers had not complied with the above provisions of the Kumasi Lands Ordinance they had not acquired any title to the premises at the time they represented they had title and claimed recovery of possession of the store, and hence the claim under the head of fraud and misrepresentation. As to this contention on behalf of Punjabi Brothers, I apprehend that although it is open to a party against whom judgment has been given to institute a fresh action to claim the setting aside of that judgment on the ground of fraud and/or misrepresentation (see Kojo Pon v. Atta Fua,2(2) in which the leading English cases on the subject are discussed) it does not appear to be open to him, without first getting the judgment set aside, and while it is still subsisting, of full force and effect, to ask another court of co-ordinate jurisdiction in another case in which other issues are raised, to pronounce a judgment of a superior court, which has not been set aside, to be null and void. The law seems to be clearly enough settled that so long as a judgment of a superior court remains undischarged and of full force and effect, it is not competent to another court of co-ordinate jurisdiction to pronounce against its validity, however palpably erroneous it may appear to be. So in the case of In re Padstow, etc. Assurance Association3(3) Brett, L.J. explained as follows: “In this case an order has been made to wind up an association or company as such. That order was the order of a superior Court, which superior Court has jurisdiction in a certain given state of facts to make a winding-up order, and if there has been a mistake made it is a mistake as to the facts of the particular case, and not the assumption of a jurisdiction which the Court had not. I am inclined, therefore, to say that this order could never so long as it existed be treated either by the Court that made it or by any other Court as a nullity, and that the only way of getting rid of it was by appeal.”
If, therefore, there are features about a judgment as to render it liable to be set aside, clearly the proper step to take is to get it set aside first. In this connection, the observations of James, L.J. in Flower v. Lloyd4(4) are pertinent when he said that although: “in the case of a decree (or judgment as we call it now) being obtained by fraud, there always was power, and still is power, in the Courts of Law … to give adequate relief. But that must be done by proceedings putting in issue that fraud, and that fraud only.”
[p.50] of [1962] 2 GLR 46
It appears to me therefore that Punjabi Brothers were precluded in this case from impugning that undischarged and subsisting judgment of the High Court dated the 5th November, 1957, in any way, and therefore from bringing forward any matter intended to be used to effect that impugnment. The learned trial judge, however, did not summarily dispose of the claim under the first head on that ground, but dealt with it on the merits and came to the conclusion which he expressed in these words: “The plaintiffs could have raised the question of the defendants’ title. They failed to do so and they are now estopped from denying that defendants were their landlords. Moreover, it cannot simply be assumed that the defendants were aware of the defect (by non-registration of their assignment) and deliberately deceived the court. There must at least be circumstances from which an intention to deceive the court can be inferred. If they had been aware of the defect it would have been a simple matter to substitute their father as plaintiff in the action or to ask for an adjournment to enable them to remedy the defect. It is extremely unlikely that an admission that the deed of gift was not yet registered would have affected the result of the action other than to delay it. I have no hesitation in concluding that there was no intention to deceive the court, and the judgment in question cannot be set aside on the grounds of fraud or misrepresentation.”
It is a conclusion with which I entirely agree, and learned counsel for Punjabi Brothers has made no serious attempt to impeach it. From that conclusion it follows, as the learned trial judge held, and rightly in my view, that the claim under head (a) fails, as also the claim under head (b) i.e. a declaration that as from the 1st April, 1957, the plaintiffs (Punjabi Brothers) became statutory tenants of the store, the subject matter of the action. The latter claim under head (b) was undoubtedly res judicata by reason of the undischarged and subsisting judgment of the 5th November, 1957, as the learned trial judge held.
For the same reasons the claim for possession under head (c) on the basis that Punjabi Brothers were statutory tenants, as claimed under head (b), who had been wrongly ejected cannot be maintained for the reason that they were not statutory tenants as claimed and their ejectment was effected under the writ of possession issued under the validly subsisting judgment dated the 5th November, 1957, execution of which was suspended by the agreement dated the 14th November, 1957, exhibit G.
Furthermore, the damages claimed under head (d) paragraphs (ii) (£G15,000 general damages for deceit) and (iii) (£G15,000 damages for trespass to the premises) as flowing from the claims under heads (a) and (b) fall with those claims.
There then remains the claim under head (d) paragraph (i) in respect of the sum of £G3,500 claimed as special damages for deceit, or in the alternative, money which the plaintiffs are entitled to recover from the defendants under the Rent Control Ordinance or in the second alternative as damages for total failure of consideration. The claim for the amount on the first two sub-heads, i.e. for deceit or as recoverable under the Rent Control Ordinance, must obviously fail having regard to the decision hereinbefore expressed that no actionable deceit was established by the plaintiffs-appellants nor did they prove that they were statutory tenants. As to the alternative claim for the amount as money paid for a consideration which has totally failed I think the learned judge’s decision
[p.51] of [1962] 2 GLR 46
on the question is not free from criticism. He considered the evidence about the payment of the £G3,500, and said as follows: “It is not disputed that at the time exhibit G was entered into the plaintiff paid defendants £G3,500. I do not accept defendants’ evidence that this sum was solely compensation for insufficient rent over the past ten years and for the trouble caused by plaintiffs in obliging defendants to take action for their ejectment.
In fact in evidence John Namih said that the plaintiffs had asked for help and he had refused unless he received this compensation. This compensation as he called it was clearly a consideration for the ‘help’ asked for by plaintiffs. Nor do I think this sum was paid only for permission to remain in the premises for three months. It undoubtedly was partly for that, although according to exhibit G the consideration for that was the withdrawal of the appeal. I have no doubt that it was also partly consideration for the defendants’ undertaking to grant a further sub-lease provided that the terms and conditions thereof are mutually satisfactory.”
Having taken the view that the sum of £G3,500 was consideration partly for the three months’ occupation and the undertaking to grant a new sub-lease, he came to a final conclusion which he expressed in these words: “I have found that the £G3,500 was a consideration partly for the undertaking and partly for the licence to occupy the premises for three months rent-free. . . Although the defendants failed to carry out the undertaking, since I am satisfied that the payment of the £G3,500 was not for this undertaking alone, there was no total failure of consideration. The £G3,500 was clearly paid to avoid or at least delay ejectment. It is impossible to allocate any particular portion of it to the undertaking by the defendants, and I cannot see how it can be treated as a payment for a consideration some part of which has wholly failed. The plaintiffs are not entitled to recover under this head of claim.”
The question which arises is whether the learned judge was justified in this apportionment of the £G3,500 to certain objects which he, the judge, considered were those for which the amount was paid.
With great respect, I do not think he was. In coming to the conclusion that the £G3,500 was intended partly for the three months’ occupation he seems to have been persuaded by John Namih’s evidence that the plaintiffs asked for help and he, John Namih, refused unless he received this compensation.
He went on to say “this compensation as he called it was clearly, a consideration for the ‘help’ asked for by the plaintiffs.” But the learned judge overlooked, firstly, the fact that Namih’s evidence was completely contradicted by the plaintiffs’ evidence, which was that it was the defendants rather who approached them (the plaintiffs) to have the appeal against them (the defendants) withdrawn; and secondly the fact that the written agreement between them expressly stipulated that there was to be no other consideration apart from the abandonment of the appeal, for the three months occupation of the premises, and that the occupation was to be rent-free. Moreover the kind of occupation which the parties contemplated, a licence as opposed to a tenancy, decisively negatives this idea of the learned judge’s that the parties intended that money compensation should be paid for the occupation for the period of three months. To attribute that intention to the parties was to attribute to them an intention of creating a tenancy, for it is trite learning that an agreement whereby exclusive possession of land or a building is granted to another for a definite period subject to the payment of money consideration for the occupation, constitutes a tenancy. “Rent (redditus) is a retribution or compensation for the lands demised”—
[p.52] of [1962] 2 GLR 46
says Woodfall in his Landlord and Tenant (26th ed.), p. 325, para. 775. And as Lord Evershed, M.R. explained in Marcroft Wagons Limited Smith 5(5): “Until, in the present century, the Rent Restrictions Act came into play, the law broadly speaking necessarily inferred, when exclusive possession was granted to one of the property of another at a rent payable to that other, that a tenancy had been created. The law did not recognize that those conditions were compatible with any other kind of relationship. That, I think, sufficiently appears from a passage in Halsbury’s Laws of England, (2nd ed.), vol. 20 at p. 8.”
It is clear that the parties definitely intended to exclude this possible inference, by such expressions in the agreement (exhibit G) as: “permit the said Punjabi Brothers to occupy the said premises rent-free” (see clause (1)), and “this agreement does not and is not intended to establish … the relationship of landlords and tenants.” (See clause (4)). I am of the opinion therefore that it would not be right to appropriate to the agreement any term such as payment of consideration for the occupation for the fixed period of three months, which would tend to give the agreement the semblance of a tenancy. For that reason therefore, and having regard to the express declaration of the parties that the occupation was to be rent-free, I am unable to agree with the learned judge in his view that the £G3,500 was partly compensation for the occupation for the three months. I would therefore set aside the finding that the amount of £G3,500 was partly consideration for the occupation for three months under exhibit G. That will result in the whole of the amount being appropriated to the undertaking to grant a further sub-lease in respect of which the learned judge held, rightly in my view, that: “the defendants failed to carry out the undertaking.” The plaintiffs-appellants are therefore entitled to a refund of the said amount of £G3,500 as for a consideration which has totally or wholly failed, and I would allow the appeal only in so far as that claim is concerned and set aside the judgment of the learned judge that: “the plaintiffs are not entitled to recover under this head of claim,” and order refund of the amount by the defendants-respondents to the plaintiffs-appellants. Subject to that I would dismiss the appeal, and as the defendants-respondents have substantially succeeded, award them two-thirds of their costs.
JUDGMENT OF KORSAH C.J.
I agree.
JUDGMENT OF VAN LARE J.S.C.
I also agree.
DECISION
Appeal dismissed save as varied.
J. D.
