ABI-JAOUDEH v. MENSAH [1963] 1 GLR 129

DIVISION: IN THE HIGH COURT, KUMASI

DATE: 15TH FEBRUARY, 1963

BEFORE: APALOO J.

CASES REFERRED TO

(1) City Auto Parts Supply v. Dapaah, C.A. Cyclostyled Judgments July-December, 1957, unreported

(2) Bramston v. Robins (1826) 4 Bing. 11; 130 E.R. 671

NATURE OF PROCEEDINGS

APPEAL against a judgment of the Kumasi Circuit Court dismissing the plaintiff’s claim for the recovery of the balance of purchase price of musical instruments and sustaining the defendant’s counter-claim for the recovery of certain sums paid over and above the agreed purchase price.

COUNSEL

N. Y. B. Adade for the plaintiff-appellant.

Respondent in person.

JUDGMENT OF APALOO J.

This is an appeal from the judgment of the circuit court delivered on the 27th February, 1962. That judgment dismissed a claim by the plaintiff to recover the balance of the purchase price of musical instruments sold to the defendant by the plaintiff and sustained a counter-claim by the defendant to recover from the plaintiff a sum of money paid over and above the agreed purchase price. The plaintiff claimed that the aggregate cost of the instruments was £G294 17s. and that of that sum, the defendant made a part payment of £6G75 by three instalments. Accordingly the sum which he sought to recover from him was £G219 17s. which the plaintiff claimed was due and owing to him from the defendant. The sale itself was not evidenced by a properly documented contract and was conducted in a somewhat unbusinesslike manner. The repayment was to be made not in cash but in kind. The defendant was the proprietor of a dance band known as “Tempos.” The plaintiff was at that time the manager of the Richardo Hotel in Kumasi. The agreement for repayment was that the defendant’s band was to play at the plaintiff’s hotel and that a third of the hiring fee was to be retained by the plaintiff in repayment of the cost of the instruments. Accordingly, each time the defendant’s band played at the plaintiff’s hotel, the latter issued the former a receipt covering the one third of the hiring fee retained by him. [p.131] of [1963] 1 GLR 129

The evidence shows quite plainly that the plaintiff himself kept no record of these various receipts. Had he done so, this action would never have reached the courts. The defendant produced receipts (exhibits 3-13) which made a total of £G290. When the plaintiff was shown these, he recoiled from his position and quickly passed from attack to defence.

The defendant for his part, claimed that the total cost of the instruments was £G175 15s. He argued therefore that he had made an overpayment of £G114 5s. and for this sum he counter-claimed against the plaintiff. He produced a list of the instruments which he claimed to have bought and which he said was in the plaintiff’s handwriting. Prices were quoted for the various instruments and its total was £G175 15s. (exhibit 1). It was not signed by anybody and was not admitted by the plaintiff to be the list of the articles sold to the defendant. The record shows that the defendant gave evidence on the 17th January, 1962. The case was then adjourned to the 6th February, 1962. During the adjournment, the plaintiff discovered what he claimed was a written acknowledgment of the instruments and their total price signed by the defendant. Accordingly, when hearing resumed on the 6th February, 1962, at counsel’s request the court recalled the plaintiff. He then tendered that document in evidence. It was not objected to and was admitted and marked exhibit F. Although counsel for the defendant did not object to the admissibility of that document he cross-examined to the effect that it was a forgery. The plaintiff denied that it was a forged document. When it was shown to the defendant, he said the signature on it was similar to his but could not remember handing that document to the plaintiff. That sounds very different from saying that it was a forged document. If it is a genuine document, it would have the effect of reducing the alleged overpayment to a figure that neither party would consider worth litigating about. The amount allegedly admitted on that document (exhibit F) as the total cost of the instruments was G289 pound 17s. As the defendant in fact paid £G290, the overpayment would work out at three shillings. In their final submissions which the learned circuit judge rather tediously recited in his judgment, counsel for the defendant urged the court to hold that exhibit F was a forgery. Counsel for the plaintiff urged the contrary. Although the learned circuit judge expressed no conclusion of his own on the document, his judgment proceeded on the basis that exhibit F was valueless. I do not think he was right in this. Indeed in this court, counsel for the defendant did not take the firm stand he seems to have taken in the circuit court that exhibit F was a forgery. He said the defendant might have made it but mistakenly. He argues that even if genuine, the plaintiff would still be indebted to the defendant. I have carefully compared exhibit F with another admitted handwriting of the defendant (exhibit 12). Although I readily acknowledge that I am [p.132] of [1963] 1 GLR 129 nothing like a handwriting expert, the writing and signature seem to me so much alike that I would require strong evidence to convince me that they were not written by the same person. The defendant’s evidence is hardly a denial of the authorship of that exhibit. Perhaps he did not want to risk denying his signature in case it is subsequently proved by an expert that he made exhibit F. Furthermore, it seems to me rather improbable that the plaintiff would wish to risk going to prison by producing a forged document to substantiate his case in what seems a trivial matter. I think exhibit F is a genuine document. I am satisfied it was made by the defendant and shows the contractual price of the instruments. It follows that in my judgment exhibit 1 does not hold water. At the back of exhibit F appears the words “I sax stand extra £G5.” The plaintiff says he supplied that over and above the agreed price of £G89 17s. which appears at the front page of exhibit F and added this up to increase the defendant’s indebtedness to £G294 17s. The defendant denied this extra and the plaintiff admitted he wrote what appears at the back of exhibit F without the defendant’s knowledge. Accordingly, the plaintiff expressly waived this sum in the circuit court. In this court, counsel for the plaintiff has sought to revive this claim by contending that the probabilities are that it was a genuine claim. The obvious object of this was to show that even with the defendant’s admitted payment of £G290, the plaintiff was still in credit rather than debit. I cannot accept that submission. It would be wholly wrong to allow the plaintiff to approbate and reprobate in this manner. In my opinion, the true position is that the defendant has succeeded in establishing in the circuit court that far from owing the plaintiff any moneys, he made an overpayment to the plaintiff in the sum of three shillings. That was the position pure and simple and I am satisfied that the learned circuit judge was wrong when he held that the defendant was entitled to recover from the plaintiff the sum of £G74 5s as overpayment. In my judgment, the only sum which the defendant proved was an overpayment to the plaintiff was the sum of three shillings. It was contended in this court as a matter of law that whatever was proved to have been paid by the defendant to the plaintiff was a mere voluntary payment in excess of what was due and was legally irrecoverable. In the case of City Auto Parts Supply v. Dapaah1 Adumua-Bossman J. (as he then was) sitting as a judge of the Court of Appeal, and delivering the leading judgment of that court, made a most exhaustive review of the law on this matter and examined no less than six cases ranging in point of time from 1802 to 1926. I was myself at first inclined to distinguish this case from those cases on the ground that in this case, there was no actual payment but a retention by the plaintiff of sums due to the defendant in payment of himself. Mr. Adade has however succeeded in convincing [p.133] of [1963] 1 GLR 129 me that no such distinction is possible. He relies strongly on the old English case of Bramston v. Robins2 in which a deduction from sums due was regarded as the equivalent of payment, since there was a means of knowing the amount so deducted. Indeed, Bramston v. Robin is one of the cases cited in the judgment of the Court of Appeal I have cited supra. I hold therefore that as a matter of strict law, the payment which the defendant was proved to have made to the plaintiff in excess of what was due was not recoverable. Had the overpayment been proved to have been substantial rather than the absolutely trifling sum of three shillings I would have given consideration to the question whether it would now be equitable to rely on this point of law to defeat the claim for overpayment. I say so because not only was the point not taken in the circuit court, but counsel for the plaintiff-appellant with full knowledge of the facts and I assume of the law, expressly offered to repay to the defendant about £G5 which he said was overpaid by him. But it would be a waste of mental effort to brood over a question of three shillings and I decline to look at any equities in this matter. That brings me to the question of costs. I feel no doubt whatsoever that the plaintiff-appellant is entitled to his costs in this court. He has succeeded in relieving himself of the judgment of the circuit court which ordered him to pay the sum of £G74 5s. to the defendant and also on the belated point of law taken on his behalf. With regard to the circuit court, not only the plaintiff’s claim but the defendant’s counter-claim ought to have been dismissed. The plaintiff readily admitted that the defendant in fact paid him £G290 when he had a sight of the receipts. What took place thereafter was, in effect, the prosecution of the defendant’s counter-claim and the plaintiff’s denial of the same. In those circumstances, and in view of what I have said ought to have been the true result in the circuit court, each person should have been ordered or bear his own costs. I will make such an order. Accordingly, I conclude that the learned circuit judge erred on the facts and in law and his judgment cannot stand and is set aside together with the order for costs. For it, I substitute a judgment dismissing the defendant’s counter-claim. The plaintiff-appellant will have his costs in this court assessed at 25 guineas. It is ordered that each party shall bear his own costs in the circuit court. Any costs paid pursuant to the judgment of the circuit court should be refunded to the appellant.

DECISION

Appeal allowed.

[Reported by S. A. BROBBEY, Esq., Barrister-at-Law.]