MENSAH AND OTHERS v. ADU AND OTHERS [1972] 2 GLR 218
COURT OF APPEAL
Date: 12 JUNE 1972
BEFORE: AZU CRABBE J.S.C., LASSEY AND ARCHER JJ.A.
CASES REFERRED TO
(1) Kelly v. Solari (1841) 9 M. & W. 54; 11 L.J. Ex. 10; 6 Jur. 107; 152 E.R. 24.
(2) Marriot v. Hampton (1797) 7 Term.Rep. 269; [1775-1802] All E.R. Rep. 631.
[p.220] of [1972] 2 GLR 218
(3) Moses v. Macferlan (1760) 2 Burr. 1005; 1 Wm.Bl. 219; 97 E.R. 676.
(4) Moore v. Vestry of Fulham [1895] 1 Q.B. 399.(5) Ward & Co. v. Wallis [1900] 1 Q.B. 675; 69
L.J.Q.B. 423; 82 L.T. 261; 16 T.L.R. 193.
(6) Huffer v. Allen (1866) L.R. 2 Exch. 15; 4 H. & C. 634; 36 L.J. Ex. 17; 12 Jur. (N.S.) 930; 15 L.T.
225; 15 W.R. 281.
(7) In re Swire; Mellor v. Swire (1885) 30 Ch.D. 239; 53 L.T. 205; 33 W.R. 785; 1 T.L.R. 623, C.A.
(8) In re H. (Infants) (No. 2) [1970] 1 W.L R. 69; [1970] 1 All E.R. 287, C.A.
(9) Adam & Harvey Ltd. v. International Maritime Supplies Co., Ltd. [1967] 1 W.L.R. 445; 111 S.J.
55; [1966] 1 Lloyd’s Rep. 571; 116 New L.J. 1034; [1967] 1 All E.R. 533, C.A. (10) Hatton v. Harris [1892] A.C. 547; 62 L.J.C. P. 24; 67 L.T. 722, H.L.
(11) Shipwright v. Clements (1890) W.N. 134; 63 L.T. 160; 38 W.R. 746.
(12) Khoury v. Khoury [1971] 1 G L.R. 348, C.A.
NATURE OF PROCEEDINGS
APPEAL against the variation of an order of the erstwhile Supreme Court by a circuit court. The facts are set out in the judgment of Azu Crabbe J.S.C.
COUNSEL
Owusu-Yaw for the appellants.
Kwaku Boateng for the respondents.
JUDGMENT OF AZU CRABBE J.S.C.
This appeal raises a short point, but important questions of general interest. The plaintiffs in this case were the respondents and co-respondents and the defendants were the appellants m the case entitled:
“1. GEORGE MENSAH,
2. S. K. DABIE,
3. KOJO ADIYIA, all of Duayaw-Nkwanta, Plaintiffs-appellants v. 1. J. H. ADU alias
NANA ADU KWABENA of the Presbyterian Primary School, Bekwai,
2. A. S. AKOM of Drumo Road, Duayaw-Nkwanta, Defendant-respondent NANA SAKYI AMANADO II, Omanhene of Duayaw-Nkwanta State Co-defendant-respondent.” On 22 March 1965, the Supreme Court at the time reversed the decision of the High Court, Cape Coast, in
that case. The unanimous judgment of the court, read by Ollennu J.S.C. (as he then was) was concluded as follows (only the relevant portions are produced): [p.221] of [1972] 2 GLR 218
“For the reasons given above, the appeal is allowed, the judgment of the court below is set aside including the order as to costs, any costs paid to be refunded . . . The appellants will have their costs in this court against the first two respondents, J. H. Adu and A. S. Akom, fixed at £G98 6s. and against the second respondent, Nana Sakyi Amanado II, fixed at £G49 3s.; they will
also have their costs in the court below assessed as follows: against the first two respondents 150 guineas and against the second respondent 100 guineas. Court below to carry out.” An order made by the presiding judge, Mills-Odoi J.S.C., was formally drawn up and certified by the registrar of the Supreme Court. The relevant portions of this order, as drawn up, were in these terms:
“The appeal is allowed. The judgment of the court below is set aside including the order to costs, any costs paid to be refunded. For the judgment of the High Court the following is substituted: …
The appellants will have their costs in this court against the first two respondents, J. H. Adu and A. S. Akom, fixed at £G98 6s. and against the second respondent, Nana Sakyi Amanado II, fixed at £G49 3s.; they will also have their costs in the court below assessed as follows: against the first two respondents 150 (one hundred and fifty) guineas and against the second respondent 100 (one hundred) guineas. Other costs in the court below to be taxed.
Court below to carry out.
GIVEN UNDER MY HAND AND THE SEAL OF THE COURT THIS 22ND DAY OF MARCH, 1965.
(Sgd.) C. A. Amui.
Registrar, Supreme Court.”
It is apparent that, except for the words “Other costs in the court below to be taxed,” the portions of the order on costs were in identical terms to those of the judgment affecting costs. In due course, the
respondents and the co-respondents appeared by summons before the Registrar of the High Court, Cape Coast, who, in the teeth of their strong protests, taxed the costs in accordance with the formal order drawn up by the Registrar of the Supreme Court. The taxed costs allowed amounted to £G341 6s. 6d. (¢682.65), thus bringing the total costs to £G753 7s. 6d. (¢1,506.75).
In this present case the plaintiffs’ claim against the defendants jointly and severally was for the recovery of cash, the sum of £G341 6s. 6d. (¢682.65), being money had and received by the defendants to the use of the plaintiffs, or money paid to the defendants under a mistake of fact. The plaintiffs’ case was that they were overtaxed upon an erroneous order of the Supreme Court, and that they had been compelled to pay to the defendants more costs than the Supreme Court intended by its judgment of 22 March 1965. The following summary of the facts is taken from the judgment of the court below: [p.222] of [1972] 2 GLR 218 “It will be noted that after the judgment of the Supreme Court the parties were summoned by the Registrar of the High Court, Cape Coast, to appear before him for the taxation of costs. They did so and the plaintiffs herein, according to the evidence before me, protested to the registrar against the taxation, contending that it was against the Supreme Court order as to costs. They were prevailed upon and the costs were taxed. Later on, evidence shows that a writ of fi. fa. was taken against the plaintiffs herein and the taxed costs together with the assessed costs in the Supreme Court had to be paid under protest by the plaintiffs herein.
This action has now been brought to claim the refund of the taxed costs and other fees which amounted to £G341 6s. 6d. which they paid through a mistake of fact.
The plaintiffs in support of their case have tendered the record book of the Supreme Court in which the order as to costs has been regularly signed by the president of the court. (See exhibit A.)
The defendants have also in support of their case tendered a certified true copy of the registrar’s drawn-up copy of the order which was served on the lower court, i.e. the High Court in Cape Coast.”
The Supreme Court was at that time the final court of appeal in this country, and it had full discretion over costs on appeal, and in the court below, and could make such order as to the whole or any part of them as it considered just. The relevant provisions of rule 34 of the Supreme Court Rules, 1962 (L.I. 218), which governed the practice on costs in the Supreme Court were in these terms:
“(1) Where the costs of an appeal are allowed they may either be fixed by the Court at the time when the judgment is given or may be ordered to be taxed. (2) The Registrar shall be the Taxing Officer and all such costs shall be taxed by him according to the rules for the time being in force in the High Court: Provided that any costs incurred by way of fees as prescribed in the Second Schedule shall be taxed in accordance therewith …” At the time when its judgment was delivered, the Supreme Court fixed in the judgment itself the appellants’ costs in that court, and it also assessed at the same time their costs in the court below. The Supreme Court further directed that its judgment was to be enforced by the court below. Rule 36 provides as follows:
“When the Court directs any judgment to be enforced by another Court, a certificate under the seal of the Court and the hand of the presiding Judge setting forth the judgment shall be transmitted by the Registrar to such other Court, and the latter shall enforce such judgment in terms of the certificate.”
[p.223] of [1972] 2 GLR 218 The certificate referred to in rule 36 is an authority to the successful party to go into execution, and it will be noted that this certificate is required to set forth the judgment of the court. The judgment is enforced by the registrar of the court to whom it is directed in accordance with the strict terms of the certificate.
There can be no question that a comparison between the judgment delivered by Ollennu J.S.C., in which the other members of the court concurred, and the order signed by the presiding judge, Mills-Odoi J.S.C., shows an apparent inconsistency with regard to the issue of costs. For, whereas in the judgment the costs of the court below were assessed and fixed by the Supreme Court the order not only fixed the costs in the court below, but it also added that other costs were to be taxed.
In his judgment, against which the present appeal has been brought, the learned circuit judge made these observations:
“I do not know how this serious difference came about as between the two orders. I can only attribute it to mistake on the part of the registrar who drew it up.
At the same time I hold the view that the defendants cannot benefit by the mistake of the court registrar when the presiding judge had given the well considered order supported by his two other colleagues. I also take into consideration the fact that the plaintiffs paid the money under protest. I therefore give judgment in favour of the plaintiffs in the sum of £G341 6s. 6d. wrongly paid to the defendants and received by them under mistake of fact that the Supreme Court order did not allow the costs in the lower court to be taxed.” The ultimate question in this appeal is whether the amount of £G341 6s. 6d. (¢682.65) is recoverable from the defendants. In a simple and ordinary case, the general principles upon which such an action is to be decided are authoritatively laid down in the judgment of Parke B. and Rolfe B. in Kelly v. Solari (1841) 9 M. & W. 54 at pp. 58 and 59. Parke B. states:
“I think that where money is paid to another under the influence of a mistake, that is, upon the supposition that a specific fact is true, which would entitle the other to the money, but which fact is untrue, and the money would not have been paid if it had been known to the payer that the fact was untrue, an action will lie to recover it back, and it is against conscience to retain it.”
Rolfe B. also states the proposition thus: “With respect to the argument, that money cannot be recovered back except where it is unconscientious to retain it, it seems to me, that wherever it is paid under a mistake of fact, and the party would not have paid it if the fact had been known to him, it cannot be otherwise than unconscientious to retain it.” It seems to me that the learned circuit judge based his decision on this broad general rule, though he did not expressly say so in his judgment.
[p.224] of [1972] 2 GLR 218 But do the facts proved bring the plaintiffs’ action within the principles laid down in Kelly v. Solari (supra)? I think not. The most essential fact in this case is that the payment was compelled under the authority of a certificate of the order of the court pursuant to rule 36. Though there is nothing in the rules as to the time when an order shall be made after an appeal has been heard and determined, yet as a matter of convenience and common practice, such an order is usually made either in, or immediately after, the judgment. But whatever time the order is made it is still part of the judgment forms part of the record of the court. In the appeal court an order of the court is made by the presiding judge alone, but it is nonetheless an order of the court. In the order the court gives directions as to the manner in which its judgment shall be enforced.
The law draws a distinction between payment made under mistake of law or mistake of fact, and payment under compulsion. There can be no doubt that the plaintiffs paid, albeit under protest, the sum of £G341 6s. 6d. (¢682.65) under the compulsion of a legal process. In Halsbury’s Laws of England (3rd ed.), Vol. 8, para. 437, the true legal position is stated thus:
“Money paid under compulsion of legal process cannot be recovered back as having been received to the payer’s use. Thus, money paid in pursuance of a judgment is not recoverable, even if it was paid under a mistake of fact and the judgment was obtained fraudulently, unless and until the judgment has been set aside.
The rule applies to money paid by mistake under compulsion of a magistrate’s court summons which is subsequently withdrawn, and to money paid under compulsion of an excessive distress for rent, or a wrongful distress damage feasant, and it is immaterial in such cases that the money is paid under protest.” It has, ever since Marriot v. Hampton (1797) 7 Term.Rep. 269, been held that where money has been paid under the compulsion of legal process it cannot afterwards be recovered by original action, and that legal process covers all stages of an action. In that case the plaintiff had in the past bought goods from the defendant, paid for them, but had lost the receipt. The defendant brought an action against the plaintiff for goods sold. Not being able to find the receipt at the time, and having no other proof of the payment, the plaintiff could not defend the action, and was obliged to pay the money again. The plaintiff afterwards discovered the receipt, and brought an action for the money had and received in order to recover back the sum of money which he had wrongfully been forced to pay in the former suit. But Lord Kenyon expressed the opinion at the trial, “that after the money had been paid under legal process, it could not be recovered back again, however unconsciously retained by the defendant, though the case of Moses v. Macferlan, 2 Burr. 1009 was referred to.” The plaintiff was, therefore, non-suited. The question then came before a full court, and Lord Kenyon C.J.,
[p.225] of [1972] 2 GLR 218 Grose J. and Lawrence J. agreed that the claim must fail on the ground stated by Lord Kenyon C.J.: “If this action could be maintained I know not what cause of action could ever be at rest. After a recovery by process of law there must be an end of litigation, otherwise there would be no security for any person.” The rule in Marriot v. Hampton (supra) applies, although the process may never have terminated in a final order or judgment, and although it may have been withdrawn at the date when proceedings are taken for the recovery of the money: see Moore v. Vestry of Fulham [1895] 1 Q.B. 399. But in order to bring a case within the principle of Marriot v. Hampton (supra), there must be bona fides on the part of the party who has got the benefit of his opponent’s payment; and if the person enforcing a payment under legal process has therein tagen an unfair advantage or acted unconscientiously, knowing that he had no right to the money, the principle laid down in Marriot v. Hampton (supra) may not preclude the plaintiff from recovering the money back: see Ward & Co. v. Wallis [1900] 1 Q.B. 675. In my opinion, the facts of this present case fall squarely within the general principle in Marriot v. Hampton (supra). Whilst the order made by Mills-Odoi J.S.C. stands, as drawn up, and forms part of the record of the Supreme Court, the
plaintiffs are estopped from denying the correctness of the order or execution. But, although the order whilst it stands cannot be contradicted, “it is always open to the court on a motion to correct the order so as to relieve any party who may be unduly prejudiced by any act done under its order, and to prevent any injurious consequences which may flow from the error.” See Huffer v. Allen (1866) L.R. 2 Exch. 15. In In re Swire; Mellor v. Swire (1885) 30 Ch.D. 239, C.A. it was held that the Court of Appeal had jurisdiction to alter the record of its order, so as to make it conformable to the order which the court had pronounced. In that case Cotton L.J. said at p. 243:
“It is the duty of the Registrar at once to pass and enter the order when settled, unless some of the parties state that they intend to move to vary it. It would cause great delay in the Registrar’s office if anyone, by simply saying, ‘I object to that form of order,’ without giving any notice to vary it, could prevent the Registrar from going on to pass and enter it. But although that is the regular course, and it is only in special circumstances that the Court will interfere with an order which has been passed and entered, except in cases of a mere slip or verbal inaccuracy, yet in my opinion the Court has jurisdiction over its own records, and if it finds that the order as passed and entered contains an adjudication upon that which the Court in fact has never adjudicated upon, then, in my opinion, it has jurisdiction, which it will in a proper case exercise, to correct its record, that it may be in accordance with the order really pronounced.” Lindley L.J. said at p. 246: [p.226] of [1972] 2 GLR 218 “It appears to me, therefore, that if it is once made out that the order, whether passed and entered or not, does not express the order actually made, the Court has ample jurisdiction to set that right, whether it arises from a clerical slip or not.” Bowen L.J. also said at p. 247: “It seems to me that it would be perfectly shocking if the Court could not rectify an error which is really the error of its own minister. An order, as it seems to me, even when passed and entered, may be amended by the Court so as to carry out the intention and express the meaning of the Court at the time when the order was made, provided the amendment be made without injustice or on terms which preclude injustice.”
The recent case of In re H. (Infants) (No. 2) [1970] 1 W.L.R. 69, C.A. appears to me to be pertinent and instructive. In that case the Court of Appeal in England ordered that an appeal be dismissed “with costs in any event.” The order when drawn up merely stated that the judgment of the trial judge had been affirmed and made no reference to costs. But subsequently, the successful respondent applied for the order to be corrected so as to reflect the decision of the Court of Appeal. No one doubted the right of the respondent to apply for the order as drawn to be corrected, nor the power of the Court of Appeal to correct ministerial mistakes committed in drawing up its order. See also Adam & Harvey Ltd. v. International Maritime Supplies Co., Ltd. [1967] 1 All E.R. 533, C.A.
I think that the old Supreme Court, like any other Court of Appeal, had inherent power over its own
records so long as those were within its power, and that it could set right any mistake in them. In this case the plaintiffs, when they discovered the alleged error in the order as drawn up and certified by the Registrar of the Supreme Court, made no application to the Supreme Court to have that order corrected or rescinded. They could have done that before instituting the proceedings for the recovery of the money, which they thought they had paid under a mistake of fact. I refrain from expressing any view that had they applied for correction of the order they would have succeeded.
In my judgment, this is a clear case in which the money claimed by the plaintiffs was paid under the
compulsion of legal process. The plaintiffs failed to show at the trial that the defendants had acted
unconscientiously or taken any unfair advantage, and I think the learned circuit judge erred in giving
judgment for the plaintiffs on their claim.
I would, therefore, allow this appeal and would set aside the judgment appealed from, together with any order as to costs. As, however, the appeal has succeeded on a point which was not raised by counsel, either at the trial or during the hearing of their appeal, the order as to costs will be that the plaintiffs must pay the defendants their taxed costs in the court below, and that each party shall abide his own costs of the appeal. [p.227] of [1972] 2 GLR 218
JUDGMENT OF LASSEY J.A.
I am also of the view that this appeal should be allowed on the point of law stated by my brother Crabbe. There can be no doubt that the excess of sum which the respondents had paid over to the appellants was as a result of compulsion of a legal process and therefore the amount is not recoverable. The registrar of the court who drew up the final order specifying the total amount of costs payable by the respondents was deceived into thinking that the correct sum which the respondents ought to have paid to the appellants included the sum erroneously incorporated into the order written by the presiding judge. After a careful study of the terms of the written judgment which had been delivered and the final order entered on the record book by the learned president, it became plain to me that the present confusion in the computation of the correct sum payable by the respondents would not have arisen if the president had not inadvertently incorporated the amount of £341 6s. 6d. (¢682.65) in respect of which the respondents were not liable in his final order.
Such being the position, the question which arose is: was this amount which had been paid by mistake recoverable by an action at law? The answer seems to me to be no for reasons which have been sufficiently recorded in the main decision just read.
Albeit, it does not seem right to me that in the particular circumstances of this case the appellants should unjustly be allowed to enrich themselves by keeping the excess sum which came into their hands as a result of a mistake of law. The registrar was not likely to have been confused or deceived if the figure mentioned in the final order had been in accord with that stated in the written judgment of the same court earlier.
As the matter stands, this court ought, in my opinion, in the proper exercise of its inherent jurisdiction or powers to do justice, to be able to correct its own previous mistake on the record by deleting from it the extra amount erroneously incorporated in it. I can see no valid objection being raised if a proper application for an amendment of the court’s record is ever brought to this effect.
JUDGMENT OF ARCHER J.A.
I am convinced that if the true facts of this case had been brought to the notice of the court below, the
learned circuit judge would have dismissed the plaintiffs’ action. But it appears that he was misled and as a result of a misrepresentation, he made an assumption which was grossly unfair to the registrar of this court.
When the judgment of the court was read, the concluding paragraph of the judgment dealt with the costs of the appellant in the then Supreme Court and also with costs in the High Court. This meant that instead of ordering the costs to be taxed, the court itself had fixed the costs at the time of judgment as permitted by rule 34 (1) of the Supreme Court Rules, 1962. Nevertheless, when the final order after the judgment [p.228] of [1972] 2 GLR 218 was written, the sentence “other costs in the court below to be taxed” was added by the presiding judge.
Accordingly, in drawing up the order the registrar did not rely on what was read by the judge who
delivered the judgment of the court, but followed what the presiding judge wrote in the record book.
Unfortunately, when the trial commenced before the circuit court at Sunyani, the defence tendered through the circuit court registrar, Sunyani, two court records. One was the judgment book of the
appellate court and the other was the orders book of the appellate court. No attempt was made to tender the record book in which the presiding judge of the appellate court had written the final order including the words “Other costs in the court below to be taxed.” As such the learned circuit judge was confronted with the judgment which did not contain the additional words and the order drawn up by the registrar which contained the additional words.
Learned counsel for the plaintiffs spared no effort in his address in the court below in making it clear that the registrar who drew up the order had assumed an unwarranted jurisdiction by providing the additional words. The learned circuit judge in his judgment also made the following observation:
“I do not know how this serious difference came about as between the two orders. I can only attribute it to mistake on the part of the registrar who drew it up.”
This was an unfortunate assumption on the part of the learned circuit judge and misled him to hold that the plaintiffs paid the additional costs taxed under a mistake of fact. The original record book has been shown to the court and it is obvious that the order certified by the registrar agrees with what the presiding judge wrote. I think this aspect of the matter must be emphasized in order to exonerate the registrar from the unfortunate accusation levelled against him in the court below.
It is impossible to explain how the unnecessary accretion crept into the presiding judge’s order, but it
seems to me that, as it was the actual order of the court, it was binding on the parties until the order had been rectified by the court, and the only course open to the aggrieved plaintiffs when they discovered the discrepancy was to have applied to the court for the order to be amended or rectified so as to be in consonance with the terms of the judgment delivered. But they chose to institute a substantive action by issuing a writ of summons against the defendants — a procedure which was totally intolerable. And as stated earlier, if the circuit judge had not been misled and had not made his assumption by fixing culpability on the registrar, he would have dismissed the action on the ground that the plaintiffs were seeking a relief which was legally untenable in the circumstances. By upholding the plaintiffs’ claim, the circuit court had by implication interfered with or varied the order of the final appellate court at the time and it seems inconceivable that an inferior court should dare do such a thing. [p.229] of [1972] 2 GLR 218 The rules of this court are silent as to whether the court has power to amend or rectify clerical or accidental mistakes in judgments or orders of the court. The High Court has such a power under Order 28 of the Civil Procedure Rules, 1954, and I cannot see why the appellate court should not have such an inherent power although it is not expressly provided for by the rules. See Khoury v. Khoury [1971] 1 GLR 348, C.A
I must confess that I fail to understand why the plaintiffs’ lawyer did not apply to have the order rectified but chose the obviously hopeless course of issuing a substantive writ. The rules of court are also silent on when an application for amendment of an order can be made but it seems from the words of Lord Macnaghten in Hatton v. Harris [1892] A.C. 547 at p. 564, H.L. that “Lapse of time has nothing to do with the matter.” In the Hatton v. Harris case an amendment was allowed after 33 years and in Shipwright v. Clements (1890) 38 W.R. 746, H.L. after 29 years had elapsed. Therefore the plaintiffs could not have been inhibited by any limitation of time. Nevertheless, until it has been rectified, the order is still binding on the parties and the payment to the defendants stands as irrecoverable. I would therefore allow the appeal and set aside the judgment of the court below.
DECISION Appeal allowed.
S.E.K.
