HIGH COURT, SUNYANI
Date: 30 NOVEMBER 1973
OSEI-HWERE J
CASES REFERRED TO
(1) Gallie v .Lee [1969] 2 Ch. 17; [1969] 2 W.L.R. 901; [1969] 1 All E.R. 1062, C.A.
(2) Carlisle and Cumberland Banking Co. v. Bragg [1911] 1 K.B. 489; 80 L.J.K.B. 472; 104 L.T. 121, C.A.
(3) Idun v. Agyeman III, Court of Appeal, 29 July 1970, unreported.
NATURE OF PROCEEDINGS
APPEAL against a judgment of a district court, wherein the plaintiff was held entitled to recover from the defendant, the value of goods supplied to one A. on the strength of a document signed by the defendant.
COUNSEL
Ewusie-Wilson for the appellant.
Oppong for the respondent.
JUDGMENT OF OSEI-HWERE J
This appeal arose as the result of the judgment delivered in the plaintiff-respondent’s favour by the District Magistrate Grade I, Sunyani. In the court below the plaintiff made a very simple claim against the defendant-appellant (hereinafter called the defendant) for the sum of 0231.00 being the value of store goods credited by the defendant from the plaintiff. At the trial the plaintiff supported his claim with an invoice on the goods which the defendant had signed. Although the defendant admitted that he signed the invoice on the goods yet he contended that he did so merely as a guarantor on behalf of one F. L. Andoh who really credited the goods. The trial magistrate found that exhibit A spoke for itself in that the defendant signed it as a purchaser and not as a guarantor. He arrived at a conclusion as to how the defendant came to sign exhibit A and he ultimately gave judgment for the plaintiff on the strength of the “oral testimony coupled with exhibit A.” It is against this judgment that the defendant has appealed.
The defendant’s counsel filed three original grounds of appeal whereof the first challenged that the judgment is against the weight of evidence. The other two grounds were clearly designed as grounds of appeal against the interlocutory order made by the trial magistrate in refusing the defendant’s application for joinder of the said F. L. Andoh as co-defendant. The defendant’s counsel was precluded from arguing these last two grounds which he sought to “expound” as he had not first sought leave, and within the proper time, to appeal against the interlocutory order: see section 19 (4) of the Courts Act, 1971 (Act 372), and Order 53, r. 4 of the Courts Ordinance, Cap. 4 (1951 Rev.), Sched. II. The defendant’s counsel, therefore, argued his supplementary ground of appeal which was as follows:
“The learned trial magistrate misdirected himself in law when he failed to make an inference from the available evidence on record that the contract was one of guarantee and therefore the defendant being the guarantor could not be held primarily liable.”
[p.252] of [1974] 1 GLR 250-253
I do not find any substance in counsel’s attack of the judgment that it was against the weight of evidence. What counsel sought to impress upon the court was that there was this F. L. Andoh in the picture whose presence the plaintiff and his witnesses were denying. The trial magistrate, indeed, found in the defendant’s favour that this man featured prominently in the whole transaction. This is the relevant part of the judgment:
“According to the defendant and his witnesses it was Andoh who offered to buy the iron sheets on credit. I am inclined to believe this piece of evidence. What happened in the present case was that when Andoh offered to buy the iron sheets on credit, the plaintiff refused because of the experience he had when Andoh credited goods from his shop. The plaintiff had to sue Andoh and his guarantor before Andoh paid. In the present case the plaintiff did not want to take the risk in granting credit sale to Andoh personally. So when Andoh made the approach the plaintiff turned down Andoh’s application. Andoh finding himself in a difficulty he fell on the defendant to purchase the iron sheets for him. And this was what the defendant did.”
This conclusion, to my mind, is amply supported by the evidence of the defendant’s only material witness, the defendant’s second witness, who said that the plaintiff refused to sell to Andoh unless the defendant signed for him. According to him the defendant and Andoh then went outside the shop and held some discussion during which the defendant had some assurance from Andoh that he would be in a position to pay whereupon the defendant came and signed the document.
It has not been challenged that nowhere in exhibit A does the name of F.L. Andoh appear and that the defendant has signed it as the purchaser. The only point of substance to be considered in this appeal is how far can the defendant be allowed to lead parol evidence to resile from what he has purported to do in exhibit A. The general rule, as stated by Chitty on Contracts (23rd ed.), Vol. 1, para. 220 is that a man is estopped by his deed, and although there is not such estoppel in the case of an ordinary signed document, a party of full age and understanding is normally bound by his signature to a document, whether he reads or understands it or not. If, however, a party has been misled into executing a deed or signing a document of a class and character different from that which he intended to execute or sign, he can plead non est factum in an action against him. The defendant’s real defence to exhibit A is that although he was not tricked into signing exhibit A and that he, a literate man of no mean standing, did so voluntarily, he did not read what was contained in exhibit A so as to know that he was signing as the purchaser. In Gallie v. Lee [1969] 2 Ch. 17 at p. 36, C.A. Lord Denning M.R. stated the principle that mere negligence in not reading a document before signing cannot amount to a defence of non est factim thus:
[p.253] of [1974] 1 GLR 250-253
“Whenever a man of full age and understanding, who can read and write, signs a legal document which is put before him for signature — by which I mean a document which, it is apparent on the face of it, is intended to have legal consequences — then, if he does not take the trouble to read it but signs it as it is, relying on the word of another as to its character or contents or effect, he cannot be heard to say that it is not his document.”
Again, in Carlisle and Cumberland Banking Co. v. Bragg [1911] 1 K.B. 489, C.A. it was held that negligence on the part of the party signing does not affect his liability in any way unless the document is a negotiable instrument. See also the instructive decision in Idun v. Agyeman III, Court of Appeal, 29 July 1970, unreported, where the law on non est factum is fully discussed. The general rule is also that where parties have embodied the terms of their contract in a written document extrinsic evidence or oral evidence will be inadmissible to add to, vary, subtract from or contradict the terms of the written instrument: see Chitty on Contracts (23rd ed.), Vol. 2. para. 645. This rule will apply to exhibit A which acknowledges the defendant’s indebtedness to the plaintiff. It is for these reasons that I hold that the trial magistrate properly held that the defendant is bound by exhibit A.
Counsel for the defendant argued that it was wrong for the plaintiff to have sued the defendant alone whilst he only stood as surety and the principal debtor was left unscathed. According to him the principal debtor should be held primarily liable and the guarantor is only secondarily liable. At p. 798, in para. 1700 of Chitty on Contracts (supra) the surety’s right to indemnity against the principal debtor has been stated thus:
“A surety who has actually met the liability which he has undertaken to answer for is entitled to be indemnified by the principal debtor; and if he alone is sued by the creditor he can bring in the debtor by the third-party procedure.”
(The emphasis is mine.) It is clear then that if, indeed, there was this contract of guarantee, there was nothing wrong for the creditor to proceed against the guarantor alone. The guarantor could, in that case, proceed against the principal debtor by the third-party procedure and not by joining him as a co-defendant as he set out to do. In spite of the good intentions of the defendant to help his friend, the law, however, does not run in his favour in this case and his appeal must be, and it is hereby, disallowed with 0 40.00 costs to the plaintiff-respondent.
DECISION
Appeal dismissed with costs.
S. E. K.
