DABU v. ANOBAH [1965] GLR 38

DIVISION: HIGH COURT, ACCRA

DATE: 8 FEBRUARY 1965

BEFORE: APALOO J.S.C.

CASES REFERRED TO

(1) Huguenin v. Baseley (1807) 14 Ves. Jun. 273; 33 E.R. 526. (2) Allcard v. Skinner (1887) 36 Ch.D. 145; 56 L.J.Ch. 1052; 57 L.T. 61; 3 T.L.R. 751, C.A.

NATURE OF PROCEEDINGS

APPEAL from the judgment of a circuit court delivered on 29 November 1963 sustaining a claim by the respondent against the appellant for the sum of £G450. The facts are set out in the judgment of Apaloo J.S.C. sitting as an additional judge of the High Court. COUNSEL

Opare-Addo for the appellant. Olaga for the respondent.

[p.39] of [1965] GLR 38

JUDGMENT OF APALOO J.S.C.

This is an appeal from the judgment of a circuit court (his honour judge Attoh, as he then was) delivered on 29 November 1963. That judgment sustained a claim by the respondent against the appellant for the sum of £G450 alleged to be due on a document, which for lack of a better term, I would call a promissory note. The facts which were canvassed before the trial court were set out in great detail in the rather comprehensive judgment of the learned circuit judge. What is relevant for the purpose of this appeal is less elaborate and is within a very narrow compass. I will relate it briefly. Some time in 1959, the respondent was desirous of purchasing a one-and-a-half ton Bedford lorry on hire-purchase terms. He communicated his desires to the appellant and sought his help. It appears the latter had in the past engaged himself in hire-purchase business with a Lebanese merchant called Kalmoni Kamel of Accra. The appellant took the respondent to Kalmoni and a hire – purchase agreement was entered into. By it, Kalmoni let to the appellant, with an option to purchase a one-and-a-half ton Bedford truck, AF 7445. The agreement was dated 15 April 1959, and contained all the usual hire-purchase clauses. The initial deposit of £G150 was provided by the respondent. To all intents and purposes the respondent was the hirer, but the agreement ex facie was entered into with the appellant, who was therein described as the hirer. This may well be due to the fact that the respondent was a stranger to Kalmoni and the latter wished to do business with a person with whom he was previously acquainted and on whom he could rely. The upshot of this was this litigation. The respondent complained that the appellant did not pay to Kalmoni the actual sums he paid for transmission to him from month to month. Accordingly, the respondent said that by reason of the short payments the appellant made default in paying the instalments and this enabled Kalmoni to seize and repossess the lorry in accordance with clause 8 of the hire-purchase agreement. The respondent also claimed that the appellant consented to or authorised the sale of this lorry by Kalmoni to another person. The respondent thought the appellant had defrauded him and complained to this effect to the police. The latter made some investigations and must have concluded that this was a matter in which the police could not usefully concern themselves. They allowed the matter to be investigated by one Nsiah. It seems that the appellant was at some time minded to litigate with Kalmoni about the sale and instructed a lawyer to commence

[p.40] of [1965] GLR 38 proceedings. For a reason which is not disclosed in the evidence, that action was not proceeded with and the appellant recovered the retainer fees which he paid to the lawyer. The respondent must have felt some dissatisfaction at this and placed the matter in the hands of his own solicitor. On 18 November 1961, both the appellant and the respondent called at the offices of the respondent’s lawyer. The appellant was accompanied by a man called Alex Adoo (since deceased) who was said to be his uncle. At the office of the respondent’s solicitor, the appellant appended his signature to the document which the respondent relies on in this action. On the undisputed evidence, this document was attested to by the said Mr. Adoo. That document, if I may respectfully say so, cannot win a prize in legal draftsmanship. It is an I.O.U. and a promissory note and more besides. I do not propose to read into it, but whatever its failings, its purport and meaning is not open to doubt. In it, the appellant promised to pay to the respondent the sum of £G450 for wrongfully causing his lorry to be sold. It was this sum which the respondent claimed by his specially endorsed writ. It would seem that not long after signing that document the appellant had second thoughts about the matter. He accordingly saw Mr. Cole. Acting on the appellant’s instruction, Mr. Cole wrote on 4 December 1961, to Mr. Olaga, the respondent’s solicitor and inter alia expressed as his opinion, that the document (exhibit A) was of no effect. The respondent’s solicitor, as is only to be expected, did not share his view of the matter and so wrote to Mr. Cole. This was on 6 December 1961. Just over a month afterwards, i.e. 16 January 1962, the writ was issued. Naturally enough the appellant retained Mr. Cole. On 12 February 1962, he filed a statement of defence in which he elaborated in paragraph (2), his grounds for thinking that the document (exhibit A) was of no effect. This was that it was obtained by threats and undue influence and in any event, was procured in circumstances which denied the appellant the benefit of independent legal advice. Issue was joined and some sort of evidence was led on all these matters. The learned circuit judge decided all these issues against the appellant and took a rather adverse view of him. He used against him exceptionally strong language most of which was plainly vituperative. He said as a witness the appellant was shifty, sly, deceptive, untruthful and unconvincing. He also said he was wicked, a rogue and a liar. I think this exceeds the bounds of fair criticism and indeed anything that can be justified by judicial decorum.. But hard as the learned circuit judge’s language was, the fact remains that he decided in plain terms that the appellant’s

[p.41] of [1965] GLR 38 claim of threat and undue influence was not made out. Accordingly, he held that, that document was binding on the appellant and proceeded to enter judgment against him. It is against that judgment that the appellant appealed to this court. There was the usual omnibus ground of appeal, namely, that “the judgment was against the weight of evidence.” It was obviously not counsel’s trump card and was taken last. I will take it first. It was submitted that it was the respondent himself who caused the vehicle to be sold by making short payments when he became possessed of the lorry. It was also argued that there was nothing on the evidence which shows that the appellant signed any document authorising the sale of the lorry and the learned judge’s finding to that effect did not accord with the evidence and was therefore wrong. But the effective cause of the seizure was the payments of instalments which aggregate was less than 75 per cent of the total hire-purchase price. The respondent was believed when he said he gave the appellant sums of money which exceeded £G765 which according to Kalmoni worked out at about 75 per cent of the hire-purchase price. The appellant was in no position to dispute this because he said the receipts he received from Kalmoni were either destroyed or mislaid. Had the appellant paid up to 75 per cent or more of the total hire-purchase price, Kalmoni would have been barred by the protective provisions of the Hire-Purchase Act, 1958,1 from exercising his right of seizure. The appellant’s complaint that the learned judge should not have found that the sale of the lorry was authorised by him, was, in my opinion, shown to be ill founded because, counsel for the respondent was able to pin-point a direct admission which the appellant himself made in cross-examination on that score. The appellant was recorded as having said in cross-examination inter alia, “I told the defendant’s first witness [meaning Kalmoni] that he should sell the lorry.” In my opinion, the learned judge’s finding on this aspect of the case is unimpeachable. It follows that this ground of appeal cannot succeed. That brings me to the grounds of law argued in this case. They are contained in additional grounds of appeal which were filed on 17 November 1964. The first and second grounds complained in effect that the learned judge erred in placing reliance on the promissory note inasmuch as the appellant’s allegation that it was signed by reason of undue influence and duress was not disproved and that the judge further erred in holding that a person who alleges undue influence must prove it. The argument which was actually advanced in support of the first ground seemed to me to be peculiarly

[p.42] of [1965] GLR 38 inapt. It was submitted that after the respondent’s solicitor declined in his office to act for the appellant, he thereafter assumed a role which counsel variously described as arbitrator and peace-maker. It was said that what counsel thereafter told the appellant must have operated on his mind and thereby induced him to sign the promissory note. Although counsel conceded that there was no fiduciary relationship between the respondent’s solicitor and the appellant, he submitted that the solicitor was in a position to exercise dominion over the appellant. Accordingly, it was said a special relationship was created between the appellant and the respondent’s solicitor, in which undue influence should be presumed. Although counsel said there was no decided case in which the relationship which counsel contends existed between the respondent’s counsel and appellant was ever held to give rise to a presumption of undue influence, justifying the rescission of a contract, counsel relied on the old case of Huguenin v. Baseley2 and submitted that the special relationships which give rise to undue influence are never closed and that I must presume one in this case. I think this argument is ingenious and is certainly not unattractive but it wholly ignores the facts which the learned judge found. As to what happened at the solicitor’s office, the judge believed the respondent’s version which was amply corroborated. This was that the appellant tried to retain the respondent’s solicitor to fight out the seizure case with the Lebanese. The solicitor declined to do so and advised the appellant to procure a lawyer of his own choosing. The appellant said he did not wish to litigate but promised to pay to the respondent what was justly due to him. This was agreed at £G450 and the appellant then willingly signed a document which was made to evidence this promise. I entirely fail to see how these facts can raise any equity in the appellant’s favour as to justify the rescission of that agreement. In my opinion, no grounds exist for presuming that the agreement which the appellant signed in these circumstances was procured by undue influence. Accordingly, the appellant could only have succeeded in avoiding the contract (exhibit A) if he had proved that his signature to the agreement was procured by undue influence. That he failed to establish that is plain from the concluding passage of the learned judge’s judgment. The judge expressed himself as satisfied that “the defendant [meaning thereby the appellant] freely and voluntarily got exhibit A prepared and signed it at his own volition in settlement of the amount he had agreed to pay to the plaintiff.” Nothing that I have heard in argument persuades me that that finding was wrong. I think the appellant’s complaint that the

[p.43] of [1965] GLR 38 learned judge was in error when he held that a person who alleges undue influence must prove it, is partially justified. There are, what is described in Chitty on Contracts as “protected classes,” that is, special relationships which attract the rebuttable presumption of undue influence and the burden is on the person who affirms the contract to rebut it. The relationship between fiancé and fiancée, solicitor and client, doctor and patient, guardian and ward and clergyman and parishioner and some others have been held to be included in the protected classes. I think therefore that the learned judge stated the law too widely when he said “a person who alleges undue influence must prove it.” But this avails the appellant little. He has, on the facts, failed to show that he belongs to the “protected classes” or that the facts are such that the ambit of the “protected classes” should be stretched to include him. It follows therefore that the appellant fails on both grounds. The last and only other ground of law argued or purported to be argued is that the learned judge erred in holding that “any independent advice from any relative or friend is sufficient independent competent advice.” In so propounding the law, the learned judge cited and relied on a dictum of Kekewich J. in the leading case of Allcard v. Skinner.3 Counsel for the appellant did not even begin to show that the law was otherwise. Indeed his argument proceeded on the footing that that was the correct statement of the law. It was submitted that there is no evidence that the late Mr. Adoo who witnessed the document (exhibit A) gave the appellant any advice and that the fact that he accompanied the appellant to the solicitor’s office was insufficient evidence from which to infer the giving of advice. In my opinion, whether or not the appellant received independent advice before signing the promissory note is of no moment in this case. That would have been necessary only if the parties had been in the special relationship which would have justified the presumption of undue influence. They were in no such position. In any event, the argument about the lack of competent legal advice sounds ill from the mouth of the appellant. The respondent’s solicitor declined to act for him and although he was asked to consult a lawyer of his own choice, he did not see fit to agree. He must have felt that what he authenticated by his signature was the truth of the matter. In these circumstances, it seems to me idle to argue that that document should be held invalid on the ground that the appellant did not receive competent independent advice. This ground of appeal also fails.

[p. 44] of [1965] GLR 38

On the whole, I think the learned circuit judge came to the right conclusion and his judgment ought not to be disturbed. Accordingly, this appeal fails and is dismissed with 30 guineas costs to the respondent.

DECISION

Appeal dismissed.

E. A.-A.