CHAHIN AND ANOTHER v. BOATENG [1963] 2 GLR 174

DIVISION: IN THE SUPREME COURT

DATE: 28TH JUNE, 1963

BEFORE: KORSAH C.J., ADUMUA-BOSSMAN AND CRABBE JJ.S.C.

CASES REFERRED TO

(1) Attorney-General v. Simpson [1901] 2 Ch. 671, C.A.

(2) Rutherford v. Richardson [1922] P. 144 affirmed [1923] A.C. 1; 39 T.L.R. 42, H.L.

(3) Anane v. Efriyea (1940) 6 W.A.C.A. 169

(4) Kasumu v. Baba-Egbe [1956] A.C. 539; [1956] 3 W.L.R. 575; [1956] 3 All E.R. 266, P.C.

(5) Cohen v. Lester (J.) [1939] 1 K.B. 504; [1938] 4 All E.R. 188

NATURE OF PROCEEDINGS

APPEAL from a decision of Ollennu J. (as he then was) varying suo motu a judgment he delivered in the High Court, Accra, on the 12th February, 1962.

COUNSEL

Dr. de Graft-Johnson for the appellant.

A. W. Acquaah for the respondent.

JUDGMENT OF KORSAH C.J.

Korsah C.J. delivered the judgment of the court. The plaintiff’s claim is for an account of what, if anything, is due under and by virtue of the mortgage No. 62/1954 dated the 15th December, 1953, between the plaintiff and the defendant, and to redeem the property comprised therein. In the course of the proceedings it was revealed that the plaintiff had made certain payments to the defendant, for which the defendant had refused to issue receipts. The plaintiff contended that he had made six payments of £G250 each for which, the defendant refused to give him receipts; the defendant on the other hand admitted receiving five payments of £G125 each, for which he had not given receipts to the plaintiff. The five payments of £G125 each, the defendant alleged, were payments of interest on the loan secured by the said mortgage.

The defendant is a licensed moneylender carrying on his business by virtue of the Moneylenders Ordinance1 of which section 19 is material to

[p.176] of [1963] 2 GLR 174 the issues raised in this case. The section reads as follows:

“19. (1) Every moneylender shall give a receipt for every payment made to him on account of a loan or of interest thereon. Every such receipt shall be given immediately the payment is made.

(2) Every moneylender shall keep a book (which shall be securely bound and paged so that leaves cannot be removed or inserted without apparent damage) in which he shall enter in connection with every loan made by him –

(a) the date on which the loan was made;

(b) the amount of the principal;

(c) the rate of interest;

(d) all sums received in respect of the loan or the interest thereon, with the dates of payment there of and shall produce such book when required to do so by any Court.

(3) The entries in the said book shall be made forthwith on the making of the loan or the receipt of sums paid in respect thereof as the case may be.

(4) Any moneylender who fails to comply with any of the requirements of this section shall not be entitled to enforce any claim in respect of any transaction in relation to which the default shall have been made. He shall also be guilty of an offence under this Ordinance and shall be liable to a fine not exceeding ten pounds or in the case of a continuing offence to a fine not exceeding five pounds for each day or part of a day during which such offence continues.” Counsel for the plaintiff in his final address at the trial made the following submission thus: “Submits the conduct of the defendant as moneylender not giving receipts should be guided by the Moneylenders Ordinance, (Cap. 176), section 19 (1). Refers to Armory v. Delamirie ((1722) 93 E.R. 664). Submits the contract is unenforceable, Baba-Egbe v. Kasumu ((1940) 14 W.A.C.A. 444); Cohen v. Lester ([1938] 4 All E.R. 188).”

The trial judge delivered a written judgment which he concluded thus: “There will be judgment for the plaintiff against the defendants for account to be taken of moneys paid by the plaintiff in respect of the mortgage and further order that the plaintiff should pay to the defendant whatever would be found due, to redeem the mortgage.”

It is obvious from the above judgment that the learned judge had not given consideration to the provisions of the Moneylenders Ordinance particularly section 19 thereof and the consequences of failure by the moneylender, who in this case is the defendant, to comply therewith.

The learned judge realising his error, caused notices to be given to the parties to appear before him, and about a fortnight after the judgment, that is on the 27th February, 1962, he informed counsel for the parties in court, thus:

“I have had this case placed on the list as I feel that having found that the default of the defendant to give receipts is illegal, I should have gone further to consider the effect of that illegality in terms of section 19 (4) of the Moneylenders Ordinance (Cap. 176). I would therefore ask the parties to make any submission they may wish to make.”

[p.177] of [1963] 2 GLR 174

Thereafter, he delivered judgment which began thus: “Judgment was delivered in this case on the 12th February, 1962; these further proceedings have been taken on review upon the courts own motion.” After discussing the relevant sections of the Moneylenders Ordinance applicable to the transaction between the plaintiff and the defendant, he finally concluded thus:

“In the original judgment I held that four payments each of £G250, and one of £G125 were made to the first defendant, and that half of each of the sums of £G250 was in respect of interest. Since the first defendant by reason of the default to give receipts for interest paid to him, he cannot be entitled to claim the said amounts as interest, and those moneys are already in his hands, he could only keep them as part of the capital. Therefore in the redemption of the property, all the amounts received by the defendant should be credited to the capital, the former judgment is accordingly varied to the extent set out in this judgment.” In the first place, the learned judge has again erred inasmuch as he has no power to review the judgment on his own motion. Order 39 of the Supreme [High] Court (Civil Procedure) Rules, 1954,2 which makes provision for review of judgments, gives a judge power to review only upon the application of a person who considers himself aggrieved by the judgment.

Order 39, r. 1 reads:

“(1) Any person considering himself aggrieved –

(a) by a judgment or order from which an appeal is allowed, but from which no appeal has been preferred; or

(b) by a judgment or order from which no appeal is allowed; and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the judgment was given or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the judgment given or order made against him, may apply for a review of the judgment or order to the Judge who gave judgment or made the order.

(2) A party who is not appealing from a judgment or order may apply for a review of the judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appeal Court the case on which he applies for the review.”

It follows that although the learned judge could have reviewed the judgment if an application for review had been made by either party, he could not suo motu order a review and proceed to vary the judgment which he had previously delivered. This is the contention of the appellant upon which this appeal has been lodged and on this ground the appellant is entitled to succeed in vacating the judgment from which he has appealed. The learned judge may have been misled by the provisions of Order 42 in the Second Schedule of the former rules of Supreme Court contained in [p.178] of [1963] 2 GLR 174 the Courts Ordinance3 which have been repealed, but under which a judge in certain circumstances could review his judgment suo motu. By the revision of the rules of court, that power has been withdrawn consequently the order of review made in this case is ultra vires.

But when the judgment on review is vacated, does it mean, as counsel for the appellant has argued, that the original judgment given per incuriam contrary to the provisions of the Moneylenders Ordinance is to be restored and allowed to stand, without this appellate court being competent to discharge it and give such judgment as should be given by law? We think not; and we are persuaded that rules 31 and 32 of the Supreme Court Rules, 1962,4 have conferred upon this court the necessary power and authority to deal with such a situation as has arisen in this appeal and give such judgment as ought to be given according to law. The relevant terms of rules 31 and 32 are these:

“31. The Court may . . . make any order necessary for determining the real question in controversy in the appeal . . . and generally shall have as full jurisdiction over the whole proceedings as if the proceedings had been instituted… in the Court as a Court of first instance . . .

32. The Court shall have power to give any judgment and make any order that ought to have been made . . . These powers may be exercised by the Court, notwithstanding that the appellant may have asked that part only of a decision may be reversed or varied, and may also be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have appealed from or complained of the decision.”

The corresponding provisions in the English Rules of the Supreme Court are contained in Order LVIII, rr. 3 and 4, and the decisions in the cases decided under those rules, fully support the view we have expressed. In one of the leading cases Attorney-General v. Simpson,5 the action was instituted by the Attorney-General on behalf of certain local authorities against the defendant, to establish firstly an alleged right on the part of the public to pass and repass with boats, barges and other vessels through six locks on the River Ouse between two towns, subject to payment of certain tolls; and secondly, an alleged obligation on the part of the defendant to maintain the locks in efficient state and condition. The judgment of the trial court declared that the public were entitled to pass through the locks without paying any tolls, and that the defendant was not liable to maintain the locks. The defendant appealed from or against the first part of the judgment (denying any liability for payment of tolls to him) but the plaintiff did not appeal against the part of the judgment adverse to him (i.e., that the defendant was not liable to maintain the locks). The Court of Appeal in allowing the appeal of the defendant to the extent of declaring that the defendant was entitled to reasonable tolls for passage of boats through the locks, held that they had power also under Order LVIII, r. 4 to vary the judgment in favour of the plaintiff (who had not cross-appealed) by declaring that the defendant was bound to maintain the locks and the [p.179] of [1963] 2 GLR 174 judgment was accordingly varied. Vaughan Williams L.J., reading the principal judgment, stated as follows6:

“The result, in my judgment, is that the order of Farwell J. must be amended, first, as to the river above St. Ives, by declaring that the defendant Simpson is entitled to a reasonable toll under the charter of 14 Car. 1… Secondly, as to the St. Ives stanch, I think the defendant Simpson is only entitled to the tolls so long as he keeps the stanch in such repair as to render the river navigable.

I think that under Order LVIII.,r.4, we can make the proper declaration, notwithstanding that there is no appeal by the plaintiffs against so much of the judgment as declares that the defendant is not bound to repair and maintain the works.”

Stirling L.J. also in a concurring judgment stated as follows7:

“I think that this Court ought to exercise the power conferred by Order LVIII., r. 4, namely, `to give any judgment and make any order which ought to have been made, and to make such further or other order as the case may require.’ The order confers power to do this, although the appeal may be from part of the judgment only, and although the respondent may not complain of the decision.”

See also Rutherford v. Richardson,8 where on the appeal for an intervener (in divorce proceedings) the Court of Appeal found that she had not committed adultery with the husband and dismissed her from the suit; and for the same reason set aside the decree nisi for dissolution, though the husband (respondent) had not appealed. Also in point is the local case of Anane v. Efriyea,9 decided under rules 31 and 32 of the now defunct West African (Court of Appeal) Rules10 where the court held as follows: “The Appellant . . . succeeds in his contention that the judgment of Dickinson, Acting Assistant Chief Commissioner, dated the 29th May, 1936, as reviewed on the 5th June, 1936, still stands as the decision of the Court below upon the question of res judicata and the ruling of Bewes, Acting Assistant Chief Commissioner, dated the 3rd April, 1940, purporting to make a decision in the opposite sense, is void. That latter ruling, including the order as to costs, is set aside.

However under the very wide powers this Court possesses under Rules 31 and 32 of the Rules of Court and for the purpose of avoiding multiplicity of appeals, we have thought it desirable to consider the correctness of Dickinson, Acting Assistant Chief Commissioner’s judgment as to res judicata, and to hear full argument upon the point from Counsel… we are clearly of opinion that the judgment of Dickinson, Acting Assistant Chief Commissioner, was wrong, and that the plea of res judicata must succeed.

The judgment of Dickinson . . . is set aside, and the case is remitted to the Court below with the direction that the Plaintiff’s claim be dismissed.”

[p.180] of [1963] 2 GLR 174

It seems sufficiently clear, in the light of the authorities referred to, that the appellant’s counsel’s contention that the obviously erroneous original judgment given for the plaintiff cannot be varied, is untenable and must be rejected.

The question which then is at issue in this appeal is whether this court can grant the plaintiff the relief to which he is entitled, and if so, what is the relief which the court should grant to the plaintiff. As we have already stated, this appeal is from a judgment and order of the High Court arising out of a suit relating to a moneylending transaction between the plaintiff who was the borrower and the defendant a licensed moneylender and by virtue of the Moneylenders Ordinance,11 the relevant section material to the determination of the issues arising from the transaction is section 19 subsections (1) to (4) which have already been quoted in full in this judgment; we will now briefly summarise.

Section 19 subsections (1) to (3) makes two stipulations which a moneylender should observe: (1) he should give receipts for payments made to him on account of (a) loan and (b) interest; (2) keep a book in which to enter up everything in connection with the loan transaction as a whole. Subsection (4) reads: “(4) Any moneylender who fails to comply with any of the requirements of this section shall not be entitled to enforce any claim in respect of any transaction in relation to which the default shall have been made. He shall also be guilty of an offence under this Ordinance and shall be liable to a fine not exceeding ten pounds or in the case of a continuing offence to a fine not exceeding five pounds for each day or part of a day during which such offence continues.”

It is not disputed that the defendant has not complied with the provisions of section 19 of the Moneylenders Ordinance. It is, however, contended on behalf of the appellant that although he had committed a breach of section 19 of the Moneylenders Ordinance, the appeal having been lodged only in respect of the erroneous exercise of the power of review by the trial judge, this court should merely set aside the judgment and thereby restore the original judgment which had been delivered on the 12th February, 1962.

We are not persuaded by such an argument. No court should enforce an unenforceable contract, or allow itself to be made the instrument for enforcing obligations alleged to arise out of a contract or transaction which is unenforceable if the default making the transaction unenforceable is brought to the notice of the court.

In the case of Kasumu v. Baba-Egbe,12 arising out of a suit relating to moneylending transaction under section 19 of the Nigeria Ordinance which contains provisions similar to our section, Lord Radcliffe said, “It was not in dispute that the effect of it was that a defaulting moneylender not only incurs a monetary penalty for his offence but also loses any right

[p.181] of [1963] 2 GLR 174 to take legal proceedings to recover the money he has lent. So far as legal rights of action go he loses his money. Secondly, their Lordships are satisfied that the words of deprivation `not be entitled to enforce any claim in respect of any transaction’ are very widely drawn, and that they should not be confined to the assertion of rights by means of, or in the course of, legal proceedings. Thus, the performance of such acts in the law as the exercise of a right of sale over property mortgaged or charged, or the retention or taking possession of such property in assertion of the claim to repayment, is also precluded.” Also in Cohen v. Lester (J), Ltd.13:

“The plaintiff deposited jewellery with the defendants, registered moneylenders, as security for money lent to her by them. The contract entered into by the plaintiff in respect of the loan and the security given by her were rendered unenforceable by failure to comply with the requirements of s. 6, sub-s. 2, of the Moneylenders Act, 1927. The plaintiff brought an action against the defendants claiming an order for the delivery up of the jewellery. She then owed the defendants a sum in respect of the loan:

Held, that the plaintiff was entitled to the order which she claimed without being required to pay to the defendants the money which she owed them.”

As the result of the breach of section 19 of the Moneylenders Ordinance, the plaintiff-respondent is entitled to a declaration that the obligations arising out of the transaction cannot be enforced by the defendant and also that he is entitled unconditionally to an order for the delivery of the mortgage deed for cancellation.

In the result, it is hereby ordered that (1) the deed of mortgage dated the 15th December, 1953, executed between the plaintiff-respondent as mortgagor and the defendant-appellant as mortgagee be and is hereby cancelled; that the defendant-appellant shall pay back and/or refund to the plaintiff-respondent the amount of £G1,125 found by the learned trial judge to have been paid by the said plaintiff-respondent to the said defendant-appellant towards the mortgage debt and interest thereon; (2) that the defendant-appellant shall forthwith execute a deed of re-conveyance to reconvey the mortgaged premises to the plaintiff-respondent freed and discharged of the amount due and owing under the deed of mortgage. Subject to the foregoing orders the defendant-appellant’s appeal is hereby dismissed. In all the circumstances each party to pay his own costs.

DECISION

Order accordingly.

K. T.