DIVISION: IN THE SUPREME COURT
DATE: 4TH MARCH, 1963
BEFORE: VAN LARE, MILLS-ODOI AND BLAY JJ.S.C.

CASES REFERRED TO
(1) Philipps v. Philipps (1878) 4 Q.B.D. 127; 48 L.J.Q.B. 135; 39 L.T. 556, C.A.
(2) Abowaba v. Adeshina (1946) 12 W.A.C.A. 18
(3) Yartey v. Construction and Furniture (West Africa) Ltd. [1962] 1 G.L.R. 86, S.C.
(4) Amuquandoh v. Aggrey (1957) 3 W.A.L.R. 47
(5) City Auto Parts Supply v. Dapaah, C.A., Cyclostyled Judgments, July-December 1957.
NATURE OF PROCEEDINGS
APPEAL from a judgment of D. E. Gwira, Esq., Commissioner of Assize and Civil Pleas, delivered in the
Local Court, Kumasi, on the 29th June, 1960. The plaintiff had successfully claimed an order setting
aside the sale of his farm and an order for accounts. The facts are fully set out in the judgment of the
Supreme Court.
COUNSEL
N. Y. B. Adade for the appellants.
Respondent in person.
JUDGMENT OF MILLS-ODOI J.S.C.
Mills-Odoi J.S.C. delivered the judgment of the court. This appeal is from a judgment of D. E. Gwria,
Esquire, Commissioner of Assize and Civil Pleas (as he then was) delivered on the 29th June, 1960, in the
Land Court, Kumasi, whereby he gave judgment for the plaintiff.
By a deed of mortgage dated the 26th May, 1957, and marked exhibit B in this case, the plaintiff
mortgaged his two cocoa farms at Atambo and Mmotonor respectively to the first defendant for a loan of
£G430 with interest of £G30 repayable on the 15th January, 1958. A term in the mortgage deed provided:
“that if the mortgagor and the surety shall fail to pay the mortgage debt and every part as aforesaid the
mortgagee shall be entitled to sell the said properties hereby by public auction or private contract upon his
giving one (1) month’s notice in writing to the mortgagor and the surety to pay off the mortgage debt hereby
or any part thereof as aforesaid then remaining due and owing upon these securities one (1) month next after the time of giving of such notice PROVIDED ALWAYS that the title of a purchaser shall not be impeachable on the ground that no case has arisen to authorise the sale or that the due notice was not given or that the power of sale was otherwise improperly exercised . . .”
[p.227] of [1963] 1 GLR 225
The plaintiff defaulted in repaying the mortgage debt on the due date and, on the instructions of the first
defendant, the third defendant a licensed auctioneer, served a month’s notice in writing on the plaintiff in
accordance with the terms of the mortgage deed. On the expiry of the notice the mortgage debt was still
not paid. Wherefore the third defendant, at the request of the first defendant, posted an auction notice
dated the 20th February, 1958, advertising the sale of the plaintiff’s two cocoa farms on the 6th March,
1958. However, it was not until the 6th June, 1958, that the cocoa farm at Mmotonor was sold by public
auction to the second defendant for £G50. Being dissatisfied with the circumstances leading to the sale of his cocoa farm the plaintiff sued the defendants in the Land Court, Kumasi, claiming (a) an order to set aside the sale of the farm; (b)
accounts; and (c) damages for the wrongful sale of the said cocoa farm.
The plaintiff’s writ was supplemented by or with a statement of claim in paragraphs 4, 5 and 8 of which
the following important averments were made:
“4. On the 20th February, 1958, the first defendant caused the above-mentioned cocoa farm to be
attached for sale, but he later released it from attachment when the plaintiff pointed it out to him that
the said attachment was in breach of the deed of mortgage.

5. The said deed of mortgage provided inter alia that before the mortgage [mortgagee] can exercise his
power of sale he must first give one month’s notice of his intention to do so to the mortgagor.”
“8. The first defendant did not give the plaintiff the required one month’s notice before the alleged sale;

neither was there any auction notice before the sale.”

By their statement of defence, the first and third defendants denied that no auction notice was given prior
to the date of sale of the cocoa farm. They averred in paragraph 5 that:
“when plaintiff failed to repay the loan on the 15th January, 1958, first defendant instructed third defendant
to serve a month’s written notice on plaintiff in accordance with the terms of the deed of mortgage. The
notice was duly served; plaintiff nevertheless failed to repay, so on the expiry of the notice, first defendant
instructed third defendant to attach the farm and advertise it for sale. This was done on the 20th February,
1958, and on or about 6th June, 1958, at a public auction, the farm was knocked down to second defendant,
being the highest bidder, for £G50.”
The second defendant made a straightforward averment in his statement of defence that he bought the
cocoa farm at a public auction on the 6th June, 1958, and so he was and still is entitled to it.
There arose for determination therefore the issue or question of fact as to whether the plaintiff was given
one month’s notice which is a condition precedent to the sale of his cocoa farm, and whether an auction
notice was posted by the third defendant as agent of the first defendant prior to the date of sale of the said
cocoa farm.
[p.228] of [1963] 1 GLR 225
The learned commissioner gave judgment for the plaintiff setting aside the sale of the cocoa farm at
Mmotonor on the ground “that the defendant [first defendant] agreed to the extension of time to the 30th
January, 1959, and that the sale of plaintiff’s cocoa farm in May, 1958, was unlawful and that the plaintiff
had no notice as required under the mortgage.” He then ordered “an account of the proceeds of the cocoa
collected from the time of the sale to date of judgment.” But he did not award any damages, because “no damage has been proved.” It is from that judgment that the defendants have appealed to this court. In the notice of appeal no less than four grounds of appeal were filed. At the hearing of the appeal counsel for the defendants, Mr. Adade, was given leave to argue three additional grounds of appeal. However he only argued the appeal on three grounds, the other grounds having been abandoned.
In his first ground of appeal, which was unanswerable by the plaintiff, Mr. Adade submitted that the
purchaser (second defendant) has good title in view of the terms of exhibit B, notwithstanding any
irregularity culminating in the sale of the cocoa farm at Mmotonor. He contended therefore that the
learned commissioner should not have set aside the sale because the title of the second defendant could
not be impeached. It would seem that the Commissioner of Assize and Civil Pleas did not give due consideration to the
mortgage deed exhibit B in arriving at his decision, particularly to the term in the said mortgage deed
which stated that “the title of a purchaser shall not be impeachable on the ground that no case has arisen
to authorise the sale or that due notice was not given or that the power of sale was otherwise improperly
exercised.” The reasons given by the learned commissioner in setting aside the sale of the cocoa farm are wholly
untenable; it is obvious that they offend against the terms of the mortgage deed which the plaintiff and the
first defendant agreed should be binding on them. We are therefore satisfied that the learned
commissioner erred in setting aside the sale of the cocoa farm at Mmotonor.
In the next ground of appeal counsel for the defendants submitted that:
“the allegation by the plaintiff that the first defendant granted him extension of time for one year not having
been pleaded evidence thereof was inadmissible (or if admitted was not to be relied upon) and the learned
commissioner erred in basing his judgment upon that allegation.”
At no stage of the proceedings before the learned commissioner did the plaintiff amend his statement of
claim. The trial therefore commenced on the basis that the plaintiff would rely solely on the facts pleaded
in his
[p.229] of [1963] 1 GLR 225
statement of claim to substantiate his claim. However his evidence in the witness-box included certain
averments which he had not pleaded, viz.:
“When I saw the auction notice I went to see first defendant at Akwasiasi. I told him that according to the
auction notice I was sick and was begging for time. He agreed and gave extension of another year and I gave
him a drink.”
One can hardly say that the allegation made by the plaintiff that after the auction notice had been posted
he begged the first defendant who extended the date of sale of his cocoa for a further period of one year
was pleaded by the plaintiff in paragraph 4 of his statement of claim, which reads:
“4. On the 20th February, 1958, the first defendant caused the above-mentioned cocoa farm to be
attached for sale, but he later released it from attachment when the plaintiff pointed it out to him that
the said attachment was in breach of the deed of mortgage.” It is quite clear from the averments made by the plaintiff in paragraph 4 of his statement of claim referred to above that the reason given by him why his cocoa farm was released from attachment was because “the said attachment was in breach of the deed of mortgage.” Nowhere in the statement of claim did the
plaintiff plead that the first defendant deferred the sale of the cocoa farm for one year as a result of which
he, the plaintiff, gave the first defendant a drink.

In the case of Philipps v. Philips1 Cotton L.J. in setting out the general rule governing pleadings stated as
follows:
“We cannot possibly tell what facts are material to be stated, unless we really know what the case for the
plaintiff is—which, as he has carefully kept all the facts and particulars out of the pleading, we cannot even
guess at . . . What particulars are stated must depend on the facts of each case.
But in my opinion it is absolutely necessary that the pleading, not to be embarrassing to the defendants,
should state those facts which will put the defendants on their guard, and tell them what they have to meet
when the case comes on for trial.”
But what is the correct legal position since these facts, not pleaded, have been admitted in evidence at the
trial and relied on by the learned commissioner? Counsel for the defendants has urged that those matters
not having been expressly pleaded and issue not joined in respect of them, evidence thereof was
inadmissible, but if admitted should not have been relied upon.
We do not accept Mr. Adade’s argument on this point in full. The law on the point as we understand it is
that statement in the case of Abowaba v. Adeshina2:
“The penalty for failing to plead a material fact is the exclusion, upon objection being taken, of evidence to
establish it. There are certain types of evidence, such as hearsay, and unstamped or unregistered documents
[p.230] of [1963] 1 GLR 225
which are inadmissible per se, they cannot form the basis for a decision, and objection to them may be
taken at any stage of a trial or an appeal, but in our opinion the case is different where evidence, which could
have been ruled out as inadmissible because it is adduced to prove a material fact which was not pleaded, has
nevertheless been adduced without objection and is before the Judge. In our opinion the evidence as to
waiver of forfeiture in this case falls within the latter class, and the trial Judge was bound to take it into
consideration, and the appellant not having raised his objection at the trial is precluded from doing so on
appeal.”
The principle enunciated in the above-cited case was followed by this court in the case of Yartey v.
Construction and Furniture (West Africa) Ltd.
Applying the principle to the instance case, Mr. Adade who was the counsel for the defendants in the
court below, should have taken every care to exclude evidence of the averments not pleaded, in which
case there could be no evidence of them on record. But as he did not object and thereby admitted the
relevant evidence, the learned commissioner was bound to consider the case put forward by the evidence.
We are also of opinion that learned counsel for the defendants not having raised the objection at the trial
is precluded from doing so in this court.
The authorities make it abundantly clear that the learned commissioner was bound to consider the case
put forward by the evidence either in favour of, or against the plaintiff.
We have previously stated that the main issues for the determination of the court below were whether the
plaintiff was given one month’s notice as required by the mortgage deed and whether an auction notice
was posted before the date of sale of the cocoa farm. The plaintiff, who in paragraph 8 of his statement of
claim had denied having received a month’s notice or having seen any auction notice prior to the sale of
his cocoa farm, gave evidence at the trial and contradicted himself on the issues he had raised for the
determination by the court.
In his examination-in-chief he deposed, inter alia, as follows, “On the 25th February, 1958, an auction
notice was posted. Before the date of sale I had notice from the first defendant that he was going to
exercise his power of sale.” The evidence shows conclusively that the first defendant did in fact serve on the plaintiff a month’s notice as required by the mortgage deed. It is also an admitted fact that an auction
notice advertising the sale of the cocoa farm was posted on the 25th February, 1958, prior to the date of
sale. It is therefore difficult to understand how the learned commissioner arrived at the decision “that the
plaintiff had no notice as required under the mortgage.”
The evidence of the plaintiff is inconsistent with the averments made by him in the statement of claim.
His counsel in the court below in addressing the court departed completely from the averments made in
the pleadings to substantiate the claim and submitted that the action was not brought on the ground that
no notice was served but rather on the ground
[p.231] of [1963] 1 GLR 225
that the cocoa farm in question was released from attachment and no fresh notice was given.
Was the learned commissioner therefore justified in giving consideration in favour of the plaintiff to the
matters which were not pleaded by him and which were admitted in evidence, viz., that the first defendant
granted the plaintiff extension of time for a further period of one year? We think he was not, in view of
the fact that the evidence complained of is an allegation of fact which is inconsistent with, and a departure
from the averment made by the plaintiff in his statement of claim.
Counsel for the defendants finally submitted that the learned commissioner erred in law in ordering
accounts because none of the defendants is an accounting party vis-a-vis the plaintiff. In support of this
contention he has cited Amuquandoh v. Aggrey3 and City Auto Parts Supply v. Kwame Dapaah.4
At all times prior to the date of sale, the plaintiff was in possession of his cocoa farm situate at Mmotonor.
He plucked the cocoa from the said farm in 1957 and made use of the proceeds thereof. There is no
evidence to establish any relationship of principal and agent between him and any of the defendants nor
could it be said that any fiduciary relationship ever existed between them.
In the case of City Auto Parts Supply v. Kwame Dapaah, van Lare Ag. C.J. (as he then was) in agreeing
with the reasons given by Adumua-Bossman J. in allowing the appeal, stated as follows5:
“At common law an action for account is maintainable where there is a right of a principal to have such an
account relying upon a fiduciary relationship between him and his receiver or agent who acts for the other in
the capacity of deputy, steward, factor, substitute, representative or emissary . . . I am of opinion that no such
relationship exists between a vendor and a purchaser; and as one is not bound to render account to the other
the defendants in this case are not `an accounting party.’”
The proposition therefore is that in the absence of any fiduciary relationship existing between parties an
action for account cannot be maintained. Such an action can only succeed if a plaintiff has expressly
stated facts showing not only that he is entitled to the account which he claims but also that a fiduciary
relationship exists between him and the defendant as to make it clear that the latter is an “accounting
party.” The statement must further show that the defendant has failed in his duty in that he has not
rendered a proper or any account within a reasonable time after demand.
In the instant case the question of account cannot arise; even if we had held the sale to be wrongful the
remedy for the plaintiff would be an action in damages. We are of opinion therefore that the learned
commissioner should have dismissed the plaintiff’s action.
[p.232] of [1963] 1 GLR 225
We accordingly allow the appeal. The judgment of the court below is set aside and a judgment dismissing
the action in favour of the defendants with costs is substituted therefor. The defendants will have their
costs in the court below to be taxed. Their costs in this court is fixed at £56 11s. 9d.

DECISION
Appeal allowed.
J.D.

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