CHAHIN & SONS v. EPOPE PRINTING PRESS [1963] 1 GLR 163

DIVISION: IN THE SUPREME COURT

DATE: 20TH FEBRUARY, 1963

BEFORE: SARKODEE-ADOO, CRABBE AND BLAY JJ.S.C.

CASES REFERRED TO

(1) Bonham-Carter v. Hyde Park Hotel Ltd. (1948) 64 T.L.R. 177; 92 S.J. 154

(2) Fortune v. Johnson (1651) Sty. 318; 82 E.R. 742

(3) Kingsdale v. Mann (1703) 6 Mod. Rep. 27; 87 E.R. 791

(4) Quartey-Papafio v. Laryea (1936) 3 W.A.C.A. 118

(5) Pemberton v. Hughes [1899] 1 Ch. 781; 68 L.J.Ch. 281; 80 L.T. 369; 15 T.L.R. 211, C.A.

(6) Nouvion v. Freeman (1889) 15 App.Cas. 1; 59 L.J.Ch. 337; 62 L.T. 189, H.L.

(7) Hill v. Odber (1809) 11 East 118

(8) Holmes v. Walsh (1798) 7 T.R. 458; 101 E.R. 1075

[p.165] of [1963] 1 GLR 163

(9) R. v. Haughton (1853) 1 El. & B1 501; 118 E.R. 523; 20 L.T.(o.s.) 247; 17 J.P. 585

(10) Hood Barrs v. Heriot [1896] A.C. 174; 65 L.J.Q.B. 352; 74 L.T. 353; 60 J.P. 612, H.L.

(11) Hood Barrs v. Crossman [1897] A.C. 172; 66 L.J.Q.B. 357; 76 L.T. 297; 13 T.L.R. 291, H.L.

(12) Dimes v. Grand Junction Canal Co. (1852) 3 H.L.C. 759; 10 E.R. 301; 19.L.T.(o.s.) 317, H.L.

(13) Phillips v. Eyre (1870) L.R. 6 Q.B. 1; 40 L.J.QB. 28; 27 L.T. 869

(14) Williams v. Smith (1863) 14 C.B.(N.S.) 596; 143 E.R. 579

(15) Menville’s Case (1584) 13 Co.Rep. 19; 77 E.R. 1430

(16) Drury’s Case (1610) 8 Co.Rep. 141b; 77 E.R. 688

(17) Feret v. Hill (1854) 15 C.B. 207; 139 E.R. 400

NATURE OF PROCEEDINGS

APPEAL from a judgment of Jiagge J. delivered in the High Court, Accra, on the 9th March, 1962, (unreported) wherein she allowed the claim of the plaintiffs-respondents for £G4,507 10s. general and special damages suffered as a result of wrongful ejectment from premises leased to them by the Heal Press, Ltd. The facts which are set out in the headnote are taken from the judgment of Jiagge J.

COUNSEL

H.V.A. Franklin for the appellants.

Dr. de Graft-Johnson (with him Tsegah) for the respondents.

JUDGMENT OF BLAY J.S.C.

The appellants in this appeal were sued by the respondents herein in the High Court, Accra, for the sum of £G4,507 10s. being damages suffered as a result of wrongful ejectment from one of the rooms of house No. D.631/2, Horse Road, Accra.

The case for the respondents in the court below may be thus briefly stated. On the 30th May, 1959, they, the respondents, leased one room of house No. D.631/2, Horse Road, Accra, from the Heal Press, Ltd., who it appears were tenants of the whole house, and the rent agreed upon for the one room was £G13 per month. They subsequently installed and fixed in that room heavy and delicate printing machines and carried on the business of printers therein, until the 13th May, 1961, when the appellants went into the room together with a bailiff of the High Court and a number of labourers and started to remove and did remove all the machines and other accessories of the respondents from the said room, which they eventually placed on the pavement in front of the house. They, the respondents, claimed that as sub-tenants of the Heal Press, Ltd. of the one room of the house which they occupied, they were lawfully in possession and therefore protected by the provisions of the Rent Control Ordinance, 1952,1 from ejectment without an order of court. They contended that their ejectment by the appellants from the room was unlawful

[p.166] of [1963] 1 GLR 163 hence the claim for damages as already stated. Particulars of the damages claimed were given as follows: £G s. d.

(a) General damage .. .. .. .. ..

2,000 0 0

(b) Damage to cutting machines .. .. ..

250 0 0

(c) Damage to 150 type cases .. .. .. ..

1,570 0 0

(d) Damage to 25 automatic numbering machines ..

187 10 0

(e) Printing papers and other materials .. .. ..

500 0 0

Total .. .. £G4,507 10 0

The appellants’ case was that they as owners of house No. D.631/2, Horse Road, Accra, had leased the whole house to Heal Press, Ltd. and that on the 23rd April, 1958, they commenced an action, suit No. L.57/58 against the Heal Press, Ltd., for recovery of possession of the said house and had obtained judgment for possession and mesne profits for £G100, on the 31st October, 1958. In pursuance of that judgment they had been put in possession of the whole house by the sheriff of the High Court on the 1st December, 1958. Subsequently the Heal Press, Ltd. took action against them, the appellants, to set aside the said judgment of October 958, on the ground of fraud and on the 1st April, 1959, the said judgment was set aside. Consequent upon the said judgment they had handed back possession of the house to the Heal Press, Ltd. Being dissatisfied with judgment of the 1st April, 1959, they started appeal proceedings against the same and on the 17th October, 1960, the appeal was allowed and the said judgment was set aside. They contended that the judgment of the Supreme Court having set aside the judgment of the 1st April, 1959, the order for recovery of possession given in suit No. L.57/58 in their favour revived and they became entitled to possession of the house without the necessity for further proceedings. When they went with the bailiff of the court to take possession they found the respondents in occupation of one room of the house. All attempts to get them to remove having failed the bailiff was instructed to remove them by force relying on the writ of possession which had been previously issued consequent upon the judgment of the 31st October, 1958, in suit No. L.57/58 already referred to. The appellants, in particular reference to paragraph 9 of the respondents’ statement of claim, contended that all possible care was taken in dismantling the machinery of the respondents. They finally denied liability to the respondents in the damages claimed or at all. The learned trial judge having heard evidence in the case gave judgment in favour of the respondents and awarded them a total of £G3,507 10s. as damages and 200 guineas inclusive costs. It is from this judgment that the appellants have appealed to this court upon five grounds, namely, that the learned judge was wrong: (1) in deciding that the plaintiff was not affected by the order for recovery of possession dated the 31st October, 1958, which was revived by the decision of the Supreme Court dated the 17th October, 1960; (2) in attributing weight to the submission of a matter sub judice to

[p.167] of [1963] 1 GLR 163 the rent control officer; (3) in assessing special damages of £G2,507 10s.; (4) in assessing general damages of £G1,000; and (5) in making no allowance for the plaintiff’s failure to mitigate. Counsel in support of ground (1) of the appeal has argued before this court, as he did before the court below, that the Supreme Court having set aside the judgment of the 1st April, 1959, the writ of possession issued in favour of his clients was revived and that his clients were entitled to resume possession of the house despite the intervening rights of the respondents.

In support of his argument he referred to section 11 (5) of the Rent Control Ordinance which reads as follows:

“An order or judgment against a tenant for the recovery of possession of any premises or ejectment therefrom made or given under the provisions of this section or under the provisions of subsection (2) of section 12 of this Ordinance, shall not affect the right of any sub-tenant, to whom the premises or any part thereof were lawfully sub-let before proceedings for recovery of possession or ejectment were commenced, to retain possession under this section; and every such order or judgment shall declare whether it shall be enforced against a sub-tenant or not.”

He contended that as action was brought for the recovery of possession at a time when the respondents were not tenants of the house the respondents were not protected by the provisions of the section quoted above, and that the court having decreed possession in favour of his clients, they were entitled to eject the respondents when the force of the writ of possession already issued and executed was revived. I do not accept this contention. There would have been some force in it if the respondents had been let into possession when there was an action pending between the appellants and the Heal Press, Ltd., the original lessees. In this case it is admitted that at the time the respondents were let into possession there was no action pending before the court. The appellants had voluntarily handed possession to the Heal Press, Ltd. even before they thought of appealing against the judgment which set aside the judgment for possession given in their favour. It was open to them to apply for a stay of execution pending the results of the appeal proceedings but they failed to do so and preferred rather to put the Heal Press, Ltd. into possession again of the house and restore the status quo ante. The respondents by their statement of claim in the court below pleaded that they were tenants of the Heal Press, Ltd., of the one room they occupied and thereby implying that the room was lawfully sub-let.

This averment was not traversed by the appellants. On the contrary paragraph (1) of the appellants’ statement of defence in the court below expressly admitted the averment in the following words: “The defendants do not deny that on 30th May, 1959, the plaintiffs obtained possession of the ground floor of house No. D.631/2, Horse Road, Accra, from the Heal Press, Ltd., as alleged in paragraph (1) of the statement of claim, and installed machinery therein and worked therein, as alleged in paragraph (2) of the statement of claim”

[p.168] of [1963] 1 GLR 163

I am therefore of the opinion that the respondents were not affected by the order for recovery of possession dated the 31st October, 1958, and were clearly protected by the provisions of section 11 (5) of the Rent Control Ordinance, 1952. I find no merit in this ground of appeal.

Learned counsel next argued grounds (3) and (4) of the grounds of appeal. He contended that in law a plaintiff who brings an action claiming damages must prove what damages he had suffered and especially so when he claims special damages. He criticised the judgment appealed against and referred to the fact that besides the bare allegations of the respondents’ representative that the value of the machines and accessories damaged or lost amounted to so much, no evidence was led to prove their value. He also referred to variations between the values stated in the particulars and those given by the witness in court.

He finally concluded by saying that the learned trial judge was wrong in awarding the special damages as claimed by the respondents when there was no proof on record. Counsel for the respondents in answer argued that the respondents knew how much they paid for their machines and accessories and therefore the bare assertion of their representative was sufficient proof of value. With this contention I am unable to agree.

The law on the point is stated in Halsbury’s Laws of England (3rd. ed.), Vol. 11, p. 305, para. 494 as follows:

“Although minute accuracy is not essential in pleading or in proving the special damages claimed, the special damage which is pleaded should make clear what measure of damage is relied on; the method whereby the figure claimed is calculated should, in appropriate cases be set out so as to enable the defendant to know what is the case against him and to obtain evidence for his defence. It is not sufficient merely to plead a certain figure.”

Also in the case of Bonham-Carter v. Hyde Park Hotel Ltd.2 the law is stated in these words: “Plaintiffs must understand that if they bring actions for damages it is for them to prove their damage; it is not enough to write down the particulars, and, so to speak, throw them at the head of the Court, saying: ‘This is what I have lost; I ask you to give me these damages.’ They have to prove it.” In my opinion that is exactly what the respondents did in the present case. They merely presented a list of articles they alleged they had lost, fixed prices to them, and without attempting in any way to prove their values, expected the court to award them damages to the tune of the amounts claimed. I am therefore in agreement with the submissions of counsel for the appellants that the learned trial judge erred in assessing special damages of £G2,507 10s. which is the amount the respondents claimed in their statement of claim and particulars.

[p.169] of [1963] 1 GLR 163

Learned counsel finally argued ground (5) of the appellants’ grounds of appeal and criticised the judgment of the learned trial judge for not making allowance for the respondents’ failure to mitigate their damages. He referred to the evidence given on behalf of the respondents which showed that they took no steps to protect their machines and accessories when the same were removed and placed on the pavement in front of the house.

While agreeing with counsel on this point which could only affect the question of special damages, I do not think that it matters very much having regard to the opinion I have already expressed concerning the award of special damages by the learned trial judge. Taking the case as a whole and having regard to the evidence on record I do not regard the general damages awarded as excessive or even adequate. In the result I would allow the appeal in respect of the special damages awarded and set the same aside, but would increase the general damages and award the respondents damages in the sum of £G2,000. The judgment appealed against is hereby accordingly varied, by substituting the amount of £G2,000 for the total amount of £G3,507 10s. awarded as damages. I would also reduce the costs awarded from 200 guineas inclusive to 100 guineas inclusive. Parties to bear their own costs in this court.

JUDGMENT OF SARKODEE-ADOO J.S.C.

I agree.

JUDGMENT OF CRABBE J.S.C.

I wish, however, to add some few observations of my own in support of the conclusions reached by my brother Blay. The facts are fully stated in his judgment and there is no need to recapitulate them. It is clear from the evidence that after the judgment of the 31st October, 1958, by which a decree for recovery of possession was made against the Heal Press, Ltd., the appellants were put into possession on the 4th December, 1958, by virtue of a writ of possession executed by a bailiff on the 1st December, 1958. The bailiff made a return of service to the deputy sheriff on the same day on which the appellants were put in possession.

It is admitted by the appellants that after the judgment of the 31st October, 1958, had been set aside on 1st April, 1959, they themselves handed back possession of the premises to Heal Press, Ltd., on the 10th April, 1959. But when on the 17th October, 1960, the judgment of the 1st April, 1959, was reversed the appellants being under the misapprehension that the writ of possession executed as far back as the 1st December, 1958, had thereby been revived entered the premises and with the assistance of a bailiff evicted the plaintiffs-respondents.

The first problem that arises in this appeal is whether after the reversal by the Supreme Court of the judgment of the 1st April, 1959, on the strength of which the respondents went into possession, the appellants could cause the respondents to be ousted from the premises on the original writ of possession. The legal position as I understand it, is that

[p.170] of [1963] 1 GLR 163 if after execution is completed and the judgment-holder has been securely put into possession he is left to his remedy by action if he is subsequently dispossessed by a stranger. That is more so where a third party enters the land by virtue of a judgment of a court of competent jurisdiction. Thus in Fortune v. Johnson3 the “court was moved for an attachment against the defendant upon an affidavit, that he had ejected one out of possession, that was put in by a habere facias possessionem, and that in a very riotous manner, and had imprisoned the party, so put out of possession, and others.” It was contended by way of answer that the party came to the land by virtue of a valid judgment. The question was whether the defendant was entitled to do what he did, and Roll C.J. answered: “Here is title against title, therefore take your course in law, for we will make no rule in it.”4

In this appeal Dr. de Graft-Johnson has argued that there was no effective writ of possession at the time under which appellants could eject the respondents from the premises. He referred to Order 42, r. 5 of the Supreme [High] Court (Civil Procedure) Rules, 1954, and submitted that there was no writ of possession by which the judgment of the 17th October, 1960, could be enforced. He also referred to Order 42, r. 19 which reads as follows:

“A writ of execution if unexecuted shall remain in force for one year only from its issue, unless renewed in the manner hereinafter provided; but such writ may, at any time before its expiration, by leave of the Court or a Judge, be renewed by the party issuing it for one year from the date of such renewal, and so on from time to time during the continuance of the renewed writ, either by being marked with a seal of the Court bearing the date of the day, month, and year of such renewal, or by such party giving a written notice of renewal to the sheriff, signed by the party or his solicitor, and bearing the like seal of the Court, and a writ of execution so renewed shall have effect, and be entitled to priority, according to the time of the original delivery thereof.”

Dr. de Graft-Johnson’s submission on rule 19 was that the force of the original writ of possession was spent when it was executed on the 1st December, 1958, and could not be relied upon the 13th May, 1961, as justification for the ejectment of the respondents. He further submitted that even if the writ of execution had not been spent it should have been renewed under Order 42, r. 19.

This is indeed a formidable argument and little wonder that counsel for the appellants had no answer to it.

In my view the force of the original writ of possession was expended on its execution and return of service and the deputy sheriff became functus officio in respect of that writ. The deputy sheriff could only put the appellants back into possession in the event of their being dispossessed by the Heal Press, Ltd. before the completion of execution or before return of service: see Kingsdale v. Mann.5 [p.171] of [1963] 1 GLR 163

The second problem concerns the effect of the reversal of the judgment of the 1st April, 1959, by the judgment of 17th October, 1960. An erroneous judgment is only voidable, and even though an appeal may be pending an execution lies on it as a matter of course unless a stay is granted by the court. See Quartey-Papafio v. Laryea.6 An action lies on an erroneous judgment and it is no defence to it to say that an appeal is pending: see Pemberton v. Hughes7 Nouvion v. Freeman8 and Hill v. Odber.9 It creates an estoppel between the parties to the judgment even though it is ex facie erroneous: see Holmes v. Walsh10 and R. v. Haughton.11

When, therefore, a voidable judgment is reversed it cannot be treated as though it had never existed: see Hood Barrs v. Heriot12 and Hood Barrs v. Crossman.13 Thus a person “acting under the authority of the court” or “in reliance,” or “on the faith” of a judgment which is subsequently reversed is protected. This is illustrated by some pronouncements in a few of the English cases.

In Dimes v. Grand Junction Canal Co.14 Parke B. adverted in his judgment to cases in which judgments were reversed and then said—

“In neither of these cases was the judgment held to be absolutely void. Till prohibition had been granted in one case or judgment reversed in the other, we think the proceedings were valid, and the persons acting under the authority of the Court would not be liable to be treated as trespassers.” In Phillips v. Eyre15 Willes J. also after referring to “judicial proceedings” observed: “In the latter, as a rule, the judgment of an interested judge is voidable, and liable to be set aside by prohibition, error, or appeal, as the case may be; but it is not absolutely void, and persons acting wider the authority of such a judgment before it is set aside by competent authority would not be liable to be treated as trespassers.”

The defendant in Williams v. Smith16 was sued for issuing a process under an order that was subsequently reversed on appeal. Byles J. said in that case:

“There is a manifest distinction between setting aside process for irregularity and reversing a proceeding for error on appeal . . . Where he [the party] relies upon the judgment of a competent court, however erroneous that judgment may be, the party acting upon the faith of it ought to be protected.” [p.172] of [1963] 1 GLR 163

There can be no doubt that in leasing the premises to the respondents in this case the Heal Press, Ltd. acted on the faith of the judgment of the 1st April, 1959, which was valid at the time, and in my view the Heal Press, Ltd., had good title which they could convey to the respondents.

For the appellants it was argued that the decision of’ the Supreme Court of the 17th October, 1960, nullified the judgment of the 1st April, 1959, which became void ab initio. The judgment of 1st April, 1959, it was contended, was no judgment at all, and all rights based on it disappeared with its reversal. In my view such an argument could be tenable only if the judgment of the 1st April, 1959, was void and not merely voidable. A judgment is said to be void when it was given by an inferior court that acted in excess of, or without jurisdiction, or was irregularly obtained. When it is set aside it will not justify acts done under it before it was reversed.

It is not disputed that at the time when the Heal Press. Ltd. granted the sub-lease to the plaintiff’s-respondents no appeal had been taken against the judgment of the 1st April, 1959, in favour of Heal Press, Ltd. It is a settled principle that a voidable title can become indefeasible when acquired bona fide by a third party and for value. The mere assertion by the appellants that the judgment of the 1st April, 1959, had been set aside would not assist them; they must show clearly that the respondents were aware of the defect in the title which they acquired under the sub-lease.

In my judgment a title to land that has lawfully vested in a third party by virtue of a judgment is not divested on the reversal of that judgment. In the Menville’s Case17 the court discussed the relation-back of a reversing judgment and then observed, “but the law will never make such a construction . . . to defeat collateral acts which are lawful, and principally, if they do concern strangers. “The principle appears to be clearly and firmly stated in Drury’s Case18 where it was said:

“So if a man recovers by erroneous judgment and presents to a benefice, or enters into the perquisite of a villain, and afterwards he judgment is reversed by writ of error, because these collateral things are executed, they shall not be divested. . . .”

It seems to me that even if an appeal is pending a party can act on the faith of an existing judgment unless the court makes an order for stay of execution or injunction. An act that is consistent with the last existing judgment does not become unlawful by the subsequent reversal of the judgment on which reliance was placed. The principle that a judgment when reversed should not be treated as though it were a nullity or had never existed is neatly illustrated by the case of Hood Barrs v. Heriot.19 The facts were that Hood Barrs had a judgment against a Mrs. Heriot, a married woman whose main property was a life interest under a settlement with a restraint on anticipation. She got an order for a receiver to [p.173] of [1963] 1 GLR 163 collect arrears of her income. The Court of Appeal set aside the order on the ground that her income could not be reached. Hood Barrs appealed to the House of Lords, but got no order requiring Mrs. Heriot’s trustees to hold her income pending the hearing of the appeal. It was held by the House of Lords that her income could be reached and the judgment of the Court of Appeal was reversed. In the meantime the trustees had paid all income in their hands to Mrs. Heriot, but it was held that Hood Barrs could not proceed against them.

I have reached the clear conclusion after applying the above principles that the title of the respondents could not be impeached by the appellants.

Even if I were to accept the submission of counsel for appellants that the reversal of a judgment relates back to nullify an existing judgment I would still be far from holding that that would entitle the appellants to re-take the premises in the manner they did. The law is, as I understand it, that on the rescission of a contract on the ground of fraud, for example, any estate or interest in land acquired thereunder does not revest automatically in the former owner; it must be reconveyed.

Thus in Feret v. Hill20 the plaintiff obtained from the defendant by fraud the execution of a lease of land. The defendant later rescinded the contract and re-took possession of the land, and the plaintiff sued in ejectment for the recovery of it. It was held that the defendant had no defence to the action. The reason for this result is that the courts of common law had no procedure for enforcing the reconveyance of estates or interests in land when they had once vested; and that was so even in a person who had acquired the land by fraudulent means. In Feret v. Hill the court indicated that the remedy of the lessor must be sought in equity and not at common law. I think the same principle applied to the case of a third party whose title to land depends upon a judgment subsequently reversed.

In my view even if upon the reversal of the judgment of the 1st April, 1959, the right or interest of the respondents was extinguished the legal estate would not revest automatically in the appellants; it could only revert by requesting reconveyance from the respondents or by taking an appropriate action for that purpose.

DECISION

Judgment of trial court varied.

J. D.