COURT OF APPEAL
DATE: 15 MAY 1967
BEFORE: OLLENNU, AZU CRABBE AND APALOO JJ.A.
CASES REFERRED TO
(1) Kwamin v. Kufuor (1914) P.C. ‘74-’28, 28; 2 Ren. 808.
(2) Khoury v. Richter, High Court, 8 December 1958, unreported.
(3) Majolagbe v. Larbi [1959] G.L.R. 190.
(4) Klutse v. Nelson [1965] G.L.R. 537, S.C.
(5) Angu v. Attah (1916) P.C. ‘74-’28, 43.
(6) Sussex Peerage Claim (1844) 11 C. & F. 85; [1843-1860] All E.R. Rep. 55; 8 Jur. 793; 65 R.R. 11; 8 E.R. 1034.
(7) Bourne v. Gatliffe (1844) 11 C. & F. 45; 8 E.R. 1019, H.L.
(8) Re Witt; Ex parte Shubrook (1876) 2 Ch.D. 489; 45 L.J. Bcy. 118; 34 L.T. 785; 24 W.R. 891, C.A.
(9) Bucke v. Knoop (1867) L.R. 2 Exch. 125; 36 L.J.EX 49; 16 L.T. 231; 15 W.R. 588; 2 Mar.L.C.
491; affirmed (1867) L.R. 2 Exch. 333.
(10) S.S. Norden Co. v. Dempsey (1876) 1 C.P.D. 654; 45 L.J.Q.B. 764; 24 W.R. 984.
NATURE OF PROCEEDINGS
APPEAL by the defendant against the judgment of the High Court, wherein the plaintiff was held entitled to claim thirteen cows from the defendant being the plaintiff ‘s share of the product of two cows[p.321] of [1967] GLR 319 left by the defendant with the plaintiff for agistment. The facts are fully set out in the judgment of Ollennu J.A.
COUNSEL
J. Arthur for the appellant.
Tagoe for the respondent.
JUDGMENT OF OLLENNU J.A.
The respondent, hereinafter referred to as the plaintiff, sued the appellant, hereinafter referred to as the defendant and claimed: “Thirteen cows out of 46 cows produced by the original two calves deposited by the defendant with the plaintiff for agistment or alternatively five hundred and twenty pounds (£G520) being the value of the thirteen cows at £G40 per cow. Ten shillings (10s.) being money which the defendant promised to pay in respect of the first two cows produced, and Seventeen pounds ten shillings (£G17 10s.) being balance of medical expenses incurred in respect of the defendant’s cows deposited with the plaintiff.”
In his statement of claim supporting the writ he pleaded inter alia:
“(1) The plaintiff is a cattle owner possessing a kraal.
(2) By an oral agreement between the plaintiff and the defendant in 1936 the plaintiff undertook to agist, feed, breed and take care of two cows deposited by the defendant with the plaintiff.
(3) In the above-mentioned agreement it was agreed that the defendant should pay the plaintiff five shillings (5s.) on each of the first two cows produced and that the plaintiff should be entitled to the third cow and every subsequent third cow produced as compensation for agistment, feeding, breeding and taking care of the cattle. This is the custom of cattle breeders and the parties specifically incorporated this custom in the oral agreement entered into in 1936.”
The defendant denied these averments of the plaintiff pleading specifically in paragraph (2) of her statement of defence, among other things, that “paragraphs (2) and (3) of the claim are denied.” She pleaded in paragraph (12) of her statement of defence as follows: “Some time in January 1939 the plaintiff without any lawful justification removed all the defendant’s cattle from her kraal and drove them away. The matter was reported to the police whereupon the plaintiff returned the same, but in the process five cows were not returned, one bull died as well as three calves”
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and counterclaimed the sum of £G240 as the value of the cattle mentioned in paragraph (12) of the statement of defence. The plaintiff filed a defence to the counterclaim denying liability, and the parties joined issue.
The plaintiff led oral evidence of the alleged agreement and the terms thereof as pleaded by him. The defendant also gave evidence denying and in addition put in five letters, exhibits 1—5, written to her by the plaintiff. This documentary evidence, admitted without objection, proved conclusively that there was no agreement reached between the parties as alleged by the plaintiff.
The learned judge of the High Court, relying upon a passage he quoted from the opinion of Lord Kinnearin the judgment of the Privy Council in Kwamin v. Kufuor (1914) P.C. ‘74—’28, 28 at p. 36, which reads:
“there is no presumption that a native of Ashanti, who does not understand English, and cannot read or write, has appreciated the meaning and effect of an English legal instrument, because he is alleged to have set his mark to it by way of signature..” directed himself that the plaintiff is an illiterate, therefore there was an onus upon the defendant to prove that the letters, exhibits 1—5, were read over and interpreted to the plaintiff by the letter-writer whom he, the plaintiff, employed to write them for him. He therefore held that the defendant failed to discharge that onus. Upon those grounds the trial judge completely ruled out the letters from consideration, and based his decision entirely upon the oral evidence given by the plaintiff; he said:
“I accept the plaintiff’s evidence that it was agreed between them that he was to breed those cows and to be entitled to the sum of five shillings for each of their first two issues, and to the third issue of those cows, and that he was to be entitled to every subsequent third cow produced.
I feel fortified in this view because if the position was otherwise the defendant would not have pleaded in her defence that after giving the plaintiff two cows, she made a further offer to him of eight more cows in settlement of his demands.”
Accordingly he entered judgment for the plaintiff on his claim. He also dismissed the defendant’s counterclaim. Against that judgment the defendant appealed to this court on six grounds: only two of the grounds were argued, they are: “(1) The trial judge erred in holding that there was a valid agreement when there was no proof of the same, and
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(2) The trial judge erred in not giving the proper evidential weight to the letters exhibited in the suit which showed that there was no agreement.” In support of the first ground learned counsel for the defendant submitted that apart from leading the agreement and repeating the same allegation on oath, the plaintiff led no evidence of facts. Counsel submitted that that is no proof in law, and therefore the learned judge erred in holding that “on the whole of the evidence the plaintiff’s claim has been clearly established and that he must succeed .” In support of this submission counsel relied upon a dictum in Khoury v. Richter, High Court. 8 December 1958, unreported cited in Majolagbe v. Larbi [1959] G.L.R. 190 and approved by the Supreme Court in Klutse v. Nelson [1965] G.L.R. 537 at pp. 542—543, S.C. which is as follows: “Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way, e.g. by producing documents, description of things, reference to other facts, instances, or circumstances, and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the Court can be satisfied that what he avers is true.”
Arguing the second ground, counsel submitted that the learned judge misdirected himself in applying the passage he quoted from the judgment of the Privy Council in Kwamin v. Kufuor (1914) P.C. ‘74-’28, 28.
The error of the learned judge, he submitted, lies in his applying the principle in the passage quoted to exhibits 1-5, letters written upon the plaintiff’s own instructions, marked by him and delivered to the defendant upon his direction, and which were admitted in evidence without objection; letters the contents of which he does not dispute.Learned counsel for the respondent after much unsuccessful strenuous effort to answer the submission was obliged to admit reluctantly that there was no proof of the agreement as required by law; he also had no alternative but to concede that since the plaintiff did not deny writing the letters, and did not dispute their contents, the learned judge of the High Court misdirected himself in ignoring them. Counsel for the plaintiff submitted that although the basis for the judgment is wrong, that is not necessarily fatal, because, he said the judgment can be validly sustained on some other grounds which appear on the record. He submitted that in paragraph (3)
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of the statement of claim the plaintiff pleaded trade custom or practice, that the defendant failed specifically to deny that plea as required by Order 19, rr. 14 and 18 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A). This submission of counsel for the plaintiff is without substance. The defendant, in paragraph (2) of her statement of defence, pleaded and said “paragraphs (2) and (3) of the claim are denied.” That plea is a specific denial of each of the averments in paragraphs (2) and (3) of the statement of claim.
He next submitted that the plaintiff himself gave evidence stating what the custom is as pleaded, and that his third witness, one Kote Quarshie, a kraal owner like himself, corroborated his evidence by stating the custom exactly as was pleaded. This he submitted is sufficient proof of trade custom as required by law, and the onus therefore shifted upon the defendant to disprove it; but he submitted, the defendant failed to disprove the same. Proof of trade practice or usage proceeds on different principles from proof of ancient’ custom or foreign law. Proof of ancient custom or foreign law is by the opinion of an expert witness, i.e. the holder of an official situation which requires and therefore implies legal knowledge, or some other person who from his profession or business has had peculiar means of being acquainted with the law in question, such as, in the case of customary law, a chief, a linguist, or holder of a traditional office: see Angu v. Attah (1916) P.C. ‘74-’28, 43 at p. 44, and in the case of foreign law, professional lawyer: see The Sussex Peerage (1844) 11 C. & F. 85 at p. 124. For treatment of this subject as regards foreign law: see Phipson on Evidence (10th ed.), p. 484, para. 1291. In the case of trade practice or usage, the opinion of an “expert,” i.e. a person who claims to know the practice or usage, is not enough.
In support of his submission as to proof of trade custom or trade practice as required by law, learned counsel for the plaintiff referred the court to certain passages in Halsbury’s Laws of England (3rd ed.), Vol. 11. Unfortunately counsel read to the court only the passages in that book which deal mainly with witnesses who may be called to give evidence of an alleged usage, but omitted to read the passages which deal specifically with the nature and essence of evidence which the law regards as proof of trade usage or custom. The first passage counsel referred to is at p. 183, para. 340 where the learned authors said: “Where persons enter into contractual obligations with one another under circumstances governed by a particular usage, then that usage, when proved, must be considered as part of
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the agreement. The contract expresses what is peculiar to the bargain between the parties, and the usage supplies the rest.” In my opinion this passage relates to a contract to be regulated by a custom of the particular trade, and which does not specify any terms; for if in spite of the existence of a custom or practice the parties entered into a specific agreement, it is the agreement which they entered into and that only which willregulate their relationship. I am confirmed in this view by the cases cited in the passage, which cases I have studied, and particularly by para. 341 at p. 184 of the same volume of Halsbury which says: “It is, however, competent for the parties, notwithstanding that the case is otherwise governed by a usage, to exclude the operation of the usage, or to modify its application either by express stipulation or impliedly by provisions inconsistent with that usage.” Therefore since it is the plaintiff ‘s case, as pleaded in paragraph (3) of his statement of claim, that specific terms as pleaded were agreed upon, and that the agreement is not one just based upon or referable to the custom, the plaintiff can only succeed if he proves the agreement. But if I am wrong, I would point out that according to the passage, the particular usage will only govern the obligations of the parties “when the particular usage is proved.
As to proof of usage the paragraphs in Halsbury’s Laws of England (3rd ed.), Vol. 11 to which learned counsel referred us are p. 199, para. 367 which deals with proof, and p. 200, para. 370 which deals with disproof. Page 199, para. 367 read to the court is as follows:
“Method of proof. A usage is proved by the oral evidence of persons who become cognisant of its existence by reason of their occupation, trade, or position. The evidence must be clear and convincing; it must also be consistent.” This paragraph, as is clear on its face, only deals with method of proof, and nothing more. What amounts to proof, is set out in the succeeding passage which learned counsel for the plaintiff conveniently slipped over.
Now whether or not a trade custom, usage or practice exists, is a question of fact: see Halsbury’s Laws of England (3rd ed.), Vol. 11, p. 199, para. 366. Being a question of fact, its existence is to be proved in exactly the same way as any other fact, that is, by evidence of specific instances in which it has been and is being applied. Thus in Halsbury’s Laws of England (3rd ed.), Vol, 11, p. 200, para. 369 we read:
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“The evidence of witnesses, in order to prove the existence of a usage, must amount to something more than mere opinion’; it must establish the fact of the existence of the usage, and provide instances of the usage having been acted upon; otherwise the, testimony will be of little weight. In order to establish a mercantile usage it is necessary, not only to show that a large number of influential people at the place where it is alleged to exist have agreed that it would be a good thing to have such a usage, but also that the agreement has, in fact, been acted upon; because unless it is acted on, no one is likely to challenge it.” The principle is further explained in Phipson on Evidence (10th ed.), p.141, para. 305 under the heading Proof of usage as follows:
“A business usage as distinguished from a common law custom, need not be long established, or strictly uniform; it is sufficient if it be reasonably certain, and so notorious and generally acquiesced in that it may be presumed to have formed an ingredient of the contract. So, an agricultural custom need not have existed from time immemorial, though it must for a reasonable length of time. Such usages may be proved either (1) by the direct evidence of witnesses which must be positive and not amount to mere opinion, in which case particular instances of its occurrence or non-occurrence will be admissible in corroboration or rebuttal; or (2) by a series of particular instances in which it has been acted upon.” See also Bourne v. Gatliffe (1844) 11 C. & F. 45.
A further important point about proof of usage is that in the interest of justice the court will not act only upon evidence given by interested persons, i.e. those whom the alleged custom will benefit, without evidence of those persons upon whom it imposes obligation: see In re Witt; Ex parte Shubrook (1876) 2 Ch.D. 489 at p. 492, C.A.; see also Halsbury’s Laws of England (3rd ed.), Vol. 11, p. 200, “A usage is notproved by merely bringing the person interested in, establishing its existence to give oral evidence of its existence unsupported by any other evidence.” And these, in my opinion, are the principles to be applied in deciding this case. I shall now proceed to examine the evidence on those principles.
Now to the facts. The plaintiff pleaded and testified that in 1936 he undertook to look after for the defendant, two cows which the defendant purchased from him, upon an express agreement that the defendant would pay him five shillings on each of every two calves produced, and would give him every third calf as his remuneration. [p.327] of [1967] GLR 319
This averment of the plaintiff is contradicted by letters, exhibits 1-5, which he wrote to the defendant. In the first of those letters, exhibit 1 dated 26 September 1959, the plaintiff said inter alia: “I have to invite your immediate attention that in view of your movements and negligence to our responsibility in looking of your cows in our custody, over twenty-two years, without even a consideration for our remuneration, we have thought it wise, and would request that, you bring us our share, especially my part share before you come and remove your cows. If you don’t know the customary procedure, I urge you to ascertain this from cow-dealers in Nungua, Tema and Labadi for usual procedure on behalf of cow supervisors and caretakers.” Far from supporting it, the contents of this letter disprove the plaintiff’s allegation of an agreement that the defendant was to remunerate the plaintiff for the agistment. The letter proves that the question of remuneration is a unilateral decision taken by the plaintiff, 22 years after the date of the agreement. It also proves that the first time that any custom was mentioned to the defendant was in 1959, not in 1936, as alleged.
The letter, exhibit 5, dated 20 July 1961, also tells quite a different story; paragraphs (1) and (2) of it read:
“I have the honour most respectfully to remind you on the following:
1. You are aware that when you give a cattle to someone to rear for you, when you sell some of the cattle when big size you give cash the sum of £10 (Ten Pounds) to the caretaker—this you never do so to me.
2. I remember you gave me cash the sum of £20 (Twenty Pounds) and two cows for a period of 25 years. Do you think this treatment meted on me is good or not?”
The custom alleged by the plaintiff in that letter is quite different from the one he pleaded, and testified to. It also proves that there was no agreement as to remuneration in 1936. Those two letters confirm the defendant’s allegation that the agistment was in consideration of friendship and not for remuneration. Again, under cross-examination, the plaintiff’s third witness called to prove the alleged practice or usage said that when a stranger came to a kraal-owner to agist his cattle with him, the kraal-owner should tell the stranger of the custom. This is natural, because the stranger must know in order to decide whether or not he would agist on those terms and conditions. On this point too it is significant that all the letters written by the plaintiff to the defendant show that
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it was not until 22 years after the agistment that he first said anything to the defendant about the alleged practice or usage.
Again, upon the plaintiff ‘s own showing, the cattle had multiplied from two to at least 46 over 22 years, and the defendant sold some of them during that period. Yet the plaintiff never once, during the whole of those years demanded five shillings on calves nor claimed any third calf according to the custom as hepleaded, nor did he at any time during that period claim £G10 as his share of the price of any one sold.
The irresistible inference is that no such custom exists, and that in any event the agreement between him and the defendant is not regulated by the alleged custom or practice, and that it was just a friendly arrangement as testified to by the defendant. Therefore upon the facts too, the plaintiff failed miserably to prove his case, and his claim should therefore have been dismissed. But the trial judge failed to direct his attention to the law and to the relevant facts. Consequently he erred in entering judgment for the plaintiff.
The evidence of the plaintiff is not that the agreement was referable to or based upon usage; it is, that the terms of the agreement were specifically set out, and that the terms so agreed upon are same as the existing usage. He failed to prove an agreement, therefore in my view that was the end of his case; he cannot rely upon a usage which was not in the contemplation of the parties.
Again, even if the plaintiff is entitled to rely upon the alleged usage, how did he seek to prove it? All he did was to repeat on oath what he had averred in his pleading as the usage, and in addition call another kraal-owner whose interest is identical with his, to repeat the same averment on oath. That, as I have pointed out, is no prool If it is true that such a usage exists, both the plaintiff and his witness would have been able to give instances of its application, and produce evidence of non-kraal cattle-owners who have agisted cattle with both or either of them.
From the contents of the letters exhibits 1-5 and the plaintiff’s attitude in the whole transaction, and also the attitude of his witness, Quarshie, in the case, it appears to me that kraal-owners want to use this case to establish the alleged usage, and do it in the absence of people who entrust cattle to them, and having done so, hold the pistol over the heads of poor cattle-owners who do not maintain a kraal and are obliged to give their cattle to the plaintiff and people like him for agistment.
I am therefore of opinion that the plaintiff failed hopelessly to establish his claim and that the learned judge of the High Court misdirected himself in entering judgment for him.
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I would, therefore, allow the appeal, set aside the judgment of the court below including the order as to costs, and substitute therefor the following order: The plaintiff’s claim is dismissed, and judgment entered thereon for the defendant with costs fixed at N¢168.00,
The appellant has not pressed her appeal against the counterclaim, I shall therefore not say anything about that aspect of the case. The appellant will have her costs in this court fixed at N¢153.25.
JUDGMENT OF AZU CRABBE J.A.
I agree entirely, and I only wish to make some few observations on some important points raised by this appeal.
The plaintiff in his pleadings alleged an oral agreement between himself and the defendant in 1936 whereby he undertook to agist, feed, breed and take care of two cows deposited wit] him by the defendant. According to the plaintiff the terms of this agreement were that the defendant was to pay him five shillings on each of the first two cows produced, and that he should be entitled to the third cow and every subsequent third cow produced as compensation. It was averred by the plaintiff that these terms were based upon the custom of cattle-breeders and that the parties specifically incorporated this custom in their oral agreement of 1936. The plaintiff alleged that the cows had produced 46 calves and “according to the custom of cattle-breeders and the provisions of the said oral agreement the plaintiff is entitled to fifteen cows but the defendant has so far given him only two cows.”The plaintiff in his evidence told the court of the oral agreement of 1936, but led no other supporting evidence apart from his bare assertions. In four letters which the plaintiff wrote to the defendant and which were tendered in evidence and marked exhibits 1, 2, 3 and 4 he made no reference to an oral agreement, but it would appear from these letters that his claim against the defendant was founded upon some custom of cattle-breeders. In his first letter, exhibit 1, the plaintiff insisted on his share of the cows which the defendant had removed from his kraal, and told the defendant that if she did not know the custom she should ascertain it from cattle-dealers in Nungua, Tema and Labadi.’For the benefit of the defendant the plaintiff stated in this letter what the custom was, and he restated this in exhibits 2 and 3.
I was at first not quite clear in my mind what the exact nature and terms of the oral agreement were. But on further rejection I am now satisfied that by oral agreement the plaintiff means no more than a simple arrangement between cattle-breeders whereby the owner of
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cattle offers his cattle to a cattle-breeder for agistment. An acceptance by the cattle-breeder of this offer creates a contractual relationship, and this relationship is regulated by the usages among people in the cattle-business. The pleadings of the plaintiff were settled by counsel, and when it is averred that the parties specifically incorporated a particular custom into their oral agreement, I understand that to mean that there was tacit contract manifested by the conduct of the parties, and that the agreement was to be governed by the usage in their trade. In order to prove the tacit agreement between the parties one has to look at the nature of the transaction between the parties. Once the nature of the transaction is determined evidence of custom and usage which prevail in that business is admissible to annex incidents to the agreement. The defendant admitted in her evidence that she gave some cows to the plaintiff to rear for her. This is what she said:
“Some time ago the plaintiff had a conversation with me about cattle rearing. He advised me that it was a good business and to take to it. Upon his advice, I bought two cows from the plaintiff. I asked how much he would charge to rear those cows for me and he said he would not charge me anything. Later on, I bought four more cows from him. I gave all the six cows to the plaintiff to rear for me. Later on, a man from Prampram by name Koday sold to me five more cows, and then four more — making in all nine cows. One Kwashi Wayo from Prampram also sold to me seven cows. After that I bought three more cows from one Djabanor from Afiena in the Shai Hills. Again I bought three more cows from one Ajorkor of Asare-Botwe. I gave all these cows to the plaintiff to rear. One Lagardo Fulani in fact reared them. Lagardo is the person who gave evidence here in favour of the plaintiff.” It seems to me, therefore, that on these facts if the plaintiff is able to prove the custom which he alleges, then the defendant would be bound by it, whether or not she knew of the particular custom, unless she expressly excluded it: see Bucke v. Knoop (1867) L.R. 2 Exch. 125 and S.S. Norden Co. v. Dempsey (1876) 1 C.P.D. 654. For the court will enforce a usage as a custom once it is proved that it is accepted as a binding rule regulating the conduct of parties to a transaction within a particular trade.
How did the plaintiff prove this custom? He gave evidence of it himself, and also called one Kote Quarshie of Nungua who explained the custom alleged. Like the plaintiff, Kote Quarshie is himself a cattle-rearer. This was all the evidence of the custom that the plaintiff
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led. There can be no doubt that Kote Quarshie is a person who would be interested in establishing the existence of the custom alleged, therefore the value of his evidence is negligible: Re Witt; Ex parteShubrook (1876) 2 Ch.D. 489, C.A.
Usage is a question of fact, and it is for the court to determine as a fact the existence of the custom. The custom is proved not from what the witnesses think the custom is, but by facts which establish what is publicly done in the particular trade in the district where the dispute arose. The witness who gives evidence of trade custom must be able to cite instances in which a party has submitted willy-nilly to what is said to be the customary mode of performance or the customary claim, thereby recognising the binding force of the custom. But even where it is proved that a practice or usage has been acted upon in many instances, it is still necessary to prove further that it is a recognised and established rule, which would be followed in cases of dispute. It may be fatal if one witness of repute in the trade says that he has never recognised the custom alleged. The evidence must be clear, convincing and consistent, and any serious discrepancy in the evidence as to the nature of the usage alleged may also be fatal.
I do not pretend to know what the custom is among cattle rearers, but even if I do, I do not, think that I am entitled to take judicial cognisance of it. The custom of a particular market or the usage of a particular trade must be established by the clearest evidence. In this case I am satisfied that the plaintiff failed to establish by evidence the custom which he alleged, and it is for this reason that I think that this appeal should be allowed.
JUDGMENT OF APALOO J.A.
I have had the greatest difficulty over this case and have reached a conclusion with considerable hesitation. I have for long thought that the conclusion of the learned judge could be supported on the ground that irrespective of agreement, the appellant was bound by the trade custom of which evidence was given.
I think it is clear that the respondent based his claim on express agreement and in the alternative, recognised trade custom or usage. The learned trial judge concluded the case in his favour on the first ground and did not therefore think it necessary to consider the alternative. Had it been possible to support his conclusion on the first ground, this case would not have presented to me any problem. But I do not think the judge’s finding on the first issue was right. In my opinion, he put the wrong weight on five letters which the appellant wrote to the respondent on the subject-matter of the claim. It was the respondent’s claim that in 1936, he and the appellant
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expressly entered into the agreement on which he found his present action. This was vehemently denied by the appellant who said although she left her cattle with the respondent for agistment, there was no express agreement as to remuneration, her understanding being that the respondent undertook to feed and agist the cattle gratis and on ground of friendship only.
The express agreement which the respondent said he entered into with the appellant in 1936, was that the appellant should pay to the respondent five shillings for each of the first two cows produced and that the respondent should be entitled to the third cow and every subsequent third cow as compensation for the agistment. The respondent did not apparently take any steps to claim his entitlement under this so-called parol agreement until 1959. In September of that year, the respondent wrote to the appellant for the first time and asserted his right to compensation but did not base it on an agreement but on trade custom and usage. Between that period and July 1961, he wrote four more letters to the appellant claiming his rights to compensation but in none did he aver that the rights which he claimed, flowed from any express agreement.
It seems to me impossible to believe that if the respondent in truth entered into an express agreement withthe appellant entitling him to the rights which he asserted in these proceedings, he would have been content to base his claim not on this agreement but on a somewhat nebulous trade custom. Although not wholly destructive of the respondent’s claim, they seem to detract greatly from the truth of his testimony and had the learned trial judge attached any significance to this fact, he would, in all probability, have found against the respondent on this issue. I feel no difficulty on this part of the case, and I respectfully agree with my brother Ollennu that the alleged agreement testified to by the respondent, was not proved.
My difficulty, however, relates to the second limb of the respondent’s claim. Here the respondent warned the appellant in the five letters to which I referred, that he would found an action against her based on trade custom. In the statement of claim, this custom was pleaded with clarity and the appellant had ample notice that one of the claims she would meet would depend on trade custom. If such custom was established, the respondent would succeed even if he should fail to satisfy the court that this custom was the subject of an express agreement. On this score, I take the same view as my brother Azu Crabbe that if the custom alleged was proved, the appellant would be bound by it whether or not she was cognisant of it.
Usage is said to be a question of fact and on that account, I should, for my part, be loath to lay down whatnin every case would
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suffice to prove it. In this particular case, the respondent gave positive evidence of the custom. He said he had 50 years’ experience in the cattle trade and was eminently suited to be fully instructed in the custom of that trade. He was supported by a man called Kote Quarshie who was the head of the cattle rearers of Nungua. He was cross-examined in great detail on Ms evidence as to custom, but he maintained a clear and consistent story as to the custom. The appellant for her part, put in the witness-box, no fewer than three persons who said they belonged to the cattle trade. As such, one would expect them to be familiar with the custom and would contradict the respondent’s version of the custom if they knew it to be otherwise. They did not even begin to dispute the respondent’s evidence of the custom.
In those circumstances, I should have thought there was sufficient evidence on which a reasonable jury would find for the custom testified to by the respondent. It was for this reason that I was at first strongly inclined to holding that the judgment of the learned judge could be supported on the ground that the appellant was bound by a proved custom of the cattle trade. But after reading the judgment of my brothers, I have become rather diffident of my own conclusion. On this matter, my mind has fluctuated for several days and in the end, I have come to the conclusion that the respondent’s evidence of custom is much too tenuous to sustain that judgment in his favour.
Accordingly, in the end, I also concur that this appeal should be allowed but I do so with far less confidence than my brothers.
DECISION
Appeal allowed.
S.E.K.
