TAWIAH-YESEREH v. C.F.A.O. AND ANOTHER [1966] GLR 357

Division: SUPREME COURT

Date: 23 MAY 1966

Before: OLLENNU, AKAINYAH AND BRUCE-LYLE JJ.S.C.

CASES REFERRED TO

(1) National Provincial Bank of England v. Backenbury (1906) 22 T.L.R. 797.

(2) Esso Petroleum Co., Ltd. v. Southport Corporation [1956] A.C. 218; [1956] 2 W.L.R. 81; 120 J.P. 54; 100 S.J. 32; [1955] 3 All E.R. 864; 54 L.G.R. 91, H.L.

(3) Dam v. J. K. Addo and Brothers [1962] 2 G.L.R. 200, S.C.

(4) Simpson v. Foxon [1907] P.54; 76 L.J.P. 7; 96 L.T. 473.

(5) Kidder v. West (1684) 3 Lev. 167; 83 E.R. 632.

(6) Lloyd v. Lloyd (1837) 2 My. & Cr. 192; Donn. 187; 6 L.J.Ch. 135; 1 Jur. 69; 40 E.R. 613.

(7) Davidson v. Cooper (1844) 13 M. & W. 343; 13 L.J.Ex. 276; 153 E.R. 142.

[p.359] of [1966] GLR 357

(8) Hamilton v. Watson (1845) 12 C1. & Fin. 109; 8 E.R.1339, H.L.

(9) North British Insurance Co. v. Lloyd (1854) 10 Exch. 523; 24 L.J.Ex. 14; 24 L.T. (o.s.) 157; 1 Jur. (N.S.) 45; 3 C.L.R. 264.

(10) Railton v. Mathews (1844) 10 C1. & Fin. 934; 8 E.R. 993, H.L.

(11) London General Omnibus Co. v. Holloway [1912] 2 K.B. 72; 81 L.J.K.B. 603; 106 L.T. 502, C.A.

(12) Suffell v. Bank of England (1882) 9 Q.B.D. 555; 51 L.J.Q.B. 401; 47 L.T. 146; 30 W.R. 932; 46 J.P. 500, C.A.

(13) Brooke v. Haymes (1868) L.R. 6 Eq. 25.

(14) United Africa Co., Ltd. v. Apaw (1936) 3 W.A.C.A.114.

(15) Omanhene Kwamin Bassayin v. Omanhene Bendentu II (1937) 5 W.A.C.A. 1, P.C.

(16) Lee (John) & Son (Grantham) Ltd. v. Railway Executive [1949] W.N. 373; [1949] 2 All E.R. 581; 65 T.L.R. 604; 93 S. J. 587, C.A.

(17) Stroughill v. Buck (1850) 14 Q.B. 781; 15 L.T. (o.s.) 22.

(18) Young v. Raincock (1849) 7 C.B. 310; 18 L.J.C.P. 193; 13 L.T. (O.S.) 401; 13 Jur. 539; 137 E.R. 124.

(19) Davies v. London and Provincial Marine Insurance Co. (1878) 8 Ch.D. 469; 38 L.T. 478; 26 W.R. 794.

NATURE OF PROCEEDINGS

APPEAL against a decision of the High Court dismissing the plaintiff’s claim for damages for wrongful attachment of a house. The facts are sufficiently set out in the judgment of Bruce-Lyle J.S.C.

COUNSEL

Lutterodt for the appellant.

B. J. da Rocha for the first respondents.

JUDGMENT OF BRUCE-LYLE J.S.C.

This is an appeal against the judgment of Murphy J. dated 25 June 1959, of the Land Court, Kumasi, whereby the court dismissed the claim of the plaintiff-appellant (hereinafter referred to as the plaintiff) against the defendants-respondents (hereinafter referred to as the defendants) for (a) £G400 damages for wrongful and unlawful attachment of house No. N.T.E.R. 180 situate at Kumasi and (b) an order of the court releasing the said house from attachment.

The undisputed facts are that on 29 December 1953, Kwaku Forkuo, the plaintiff’s predecessor, mortgaged his house No. N.T.E.R. 180 in Kumasi to the first defendants as security for [p.360] of [1966] GLR 357 employment by them of his nephew by name D. K. Atta “ as a produce buyer, credit customer, storekeeper and or salesman and or in any other capacity.” On the strength of this security, Atta was employed by the first defendants as an ordinary storekeeper under an agreement dated 18 January 1954. Atta, wishing to change the nature of his employment to that of a commission storekeeper, wrote a letter to that effect to the first defendants, endorsed by the mortgagor Kwaku Forkuo, and in consequence of that letter, fresh agreements dated 12 April 1955 and 17 September 1955, were entered into betweeen Atta and the first defendants under which Atta was employed as a commission storekeeper. In August, September and October 1956, as a result of correspondence between Forkuo and the first defendants and between their respective solicitors, stock was taken at Atta’s store and a deficiency was discovered and after the first defendants had given the necessary notice under the mortgage deed of December 1953, they caused the property house No. N.T.E.R. 180 to be attached for sale on 17 April 1958.

The plaintiff brought this action against the defendants in his capacity as successor of Kwaku Forkuo who died in December 1957, and also as the devisee of the house No. N.T.E.R. 180. It was the case for the plaintiff that the subsequent agreements dated 12 April 1955 and 17 September 1955, under which the first defendants employed Atta as a commission storekeeper were entered into without the knowledge and consent of Forkuo and that the deficiency incurred by Atta under those agreements could not be made good by the sale of the property which was offered by Forkuo as security in the mortgage deed of December 1953, since under that mortgage Atta was to be employed by the first defendants as an ordinary storekeeper and produce buyer and that the subsequent agreements having changed the status of the guarantee without the knowledge and consent of Forkuo, the guarantor, discharged Forkuo from liability. The defendants’ case was that it was with the knowledge and consent of Forkuo that the position of Atta was raised to that of a commission storekeeper and that Atta continued to be employed in this new capacity for some time to the knowledge of Forkuo; that whilst Atta was in the employment of the first defendants in the new capacity, Forkuo wrote to the first defendants requesting a discharge of the mortgaged property and as a result, Atta’s stock of goods was checked and a deficit of £G2,881 2s. 4d. was discovered and Atta and his uncle Forkuo were called upon by the first defendants to make good this deficit. Upon failure to make good the deficit the first defendants, in exercise of their right of sale under [p.361] of [1966] GLR 357 the mortgage of December 1953, instructed the second defendant to sell the mortgaged property and the second defendant, on the strength of this instruction, attached the house for sale.

The following issues were set down by the plaintiff for trial:

“(a) Whether or not the plaintiff being a surety under an agreement dated 29 December 1953, is also liable under a different agreement dated 12 April 1955, to which he was not a party.

(b) Whether or not the defendants had a right to attach the property No. N.T.E.R. 180, Kumasi, under the agreement dated 12 April 1955, which governed D. K. Atta’s status as commission storekeeper.

(c) Whether or not the defendants were in collusion with D. K. Atta.

(d) Whether or not the plaintiff is entitled to the claim.

(e) Whether or not the first defendants are entitled to exercise their right of sale under the deed of mortgage dated 29 December 1953.”

At the trial, the learned judge resolved these issues in favour of the defendants and against his judgment the plaintiff has appealed to this court and the appeal has been argued on the following grounds: “(1) The whole agreement with Kwaku Forkuo was null and void and not binding on Kwaku Forkuo since he was illiterate and all the documents alleged to constitute the transaction were not executed or interpreted to him.

(2) The learned judge erred in finding that the defendants-respondents could act upon a deed of mortgage dated 29 December 1953 when the evidence before him showed:

(a) that the prior agreement on which the said deed was based was non-existent and never executed by the surety as required by the said deed;

(b) that the said deed being unenforceable, had been replaced by three other agreements which were inconsistent with the said deed and to which the plaintiff’s predecessor was not a party;

(c) that the defendants-respondents, by their three subsequent agreements, ought to have instituted an action against the storekeeper (to quote) ‘for the recovery of all or balance of deficiency in stock or in cash owed by the said storekeeper’ since no liability affected Kwaku Forkuo or the house No. N.T.E.R. 180;

[p.362] of [1966] GLR 357

(d) that the defendants-respondents, knowing that Kwaku Forkuo was not a surety or party to the agreements under which D. K. Atta was keeping the store refused to allow him to enter the store so as to take stock of the goods thereof; and

(e) that the three subsequent agreements under which the storekeeper was working were substituted for the deed of mortgage and its memorandum which was never executed: The said agreements provided for money deposit as a security instead of the house No. N.T.E.R. 180.

(3) The plaintiff-appellant contends that in any event by varying the agreement without the consent of Kwaku Forkuo and by interfering with the rights of Kwaku Forkuo against the defendants’ fourth witness, the defendants-respondents caused the release of Kwaku Forkuo from any liability.

(4) The judge erred in law in declaring that the plaintiff was not the proper person to maintain this motion.”

The arguments in support of these grounds can conveniently be considered under the following heads:

(1) that the mortgage deed of 29 December 1953 is null and void;

(2) that the memorandum of agreement made under the deed of mortgage under which Atta was employed by the first defendants as an ordinary storekeeper and produce buyer is not binding on Forkuo;

(3) that the subsequent agreements under which Atta was employed by the first defendants as a commission storekeeper are not binding on Forkuo as they were entered into by Atta without the knowledge and consent of Forkuo, and

(4) that the plaintiff was the proper person to sue.

In support of (1) and (2) learned counsel for the plaintiff argued that the memorandum of agreement under which Atta was employed by the first defendants as an ordinary storekeeper was not in existence at the time when the mortgage deed, exhibit A, was executed and also that the contents of the memorandum of agreement were unknown to Forkuo who was not a party to that agreement. Counsel referred this court to that part of the mortgage deed in which reference was made to the memorandum of agreement which reads as follows:

“And whereas the mortgagor and the said Daniel Kofi Atta have requested the company and the company has agreed to

[p.363] of [1966] GLR 357 employ the said Daniel Kofi Atta as a produce buyer credit customer storekeeper and or salesman and or in any other capacity in the establishment of the company in Ashanti aforesaid or elsewhere in the Gold Coast and has also agreed to supply the said Daniel Kofi Atta with goods on credit from time to time and further to advance to the said Daniel Kofi Atta from time to time sums of moneys not exceeding the aggregate amount of five thousand (£5,000) pounds for the purpose of purchasing produce solely for the company and or to entrust goods to him for sale or return according to the terms of the memorandum of agreement executed between the parties hereto dated the 18th day of January 1954, upon the mortgagor executing these presents by way of security to answer for the fidelity of the said Daniel Kofi Atta in the service of the company as well as for the value of goods produce cash merchandise and or other property of the company which will be entrusted to the charge of the said Daniel Kofi Atta from time to time and for payment to the company of the sum or sums of moneys which may be found to be due and owing by the said Daniel Kofi Atta to the company at the period of employment stipulated in the said memorandum of agreement or at its determination by either party in accordance with the terms and conditions therein contained and or of moneys which may be found to be due and owing by the said Daniel Kofi Atta to the company on account current or otherwise and for any deficiency arising from any cause whatsoever except an act of God in the goods produce cash merchandise and or other property of the company in the charge of the said Daniel Kofi Atta whether such deficiency arose from burglary or theft.”

He submitted that from the foregoing, it was the intention of the parties to the mortgage deed that the same parties should execute the memorandum of agreement and relied on the words, “according to the terms of the memorandum of agreement executed between the parties hereto . . .” Counsel further submitted that from the passage quoted above it was the clear intention of the parties to the mortgage deed that the memorandum of agreement should be executed before the mortgage, i.e. the execution of the agreement should be a condition precedent to the execution of the mortgage deed and that it was clear from the date of the agreement, which is 18 January 1954, and which is after the execution of the mortgage on 29 December 1953, that the condition precedent had not been fulfilled and therefore the mortgage was not binding on Kwaku

[p.364] of [1966] GLR 357

Forkuo and for this submission counsel relied upon the case of National Provincial Bank of England v. Brackenbury.1

The arguments seem attractive, yet a close scrutiny of the pleadings, the issues set down for trial and the evidence adduced by the plaintiff reveals that that is not the case the plaintiff presented to the trial court; the case the plaintiff sought to prove was that the subsequent agreements by which Atta’s status was changed from that of an ordinary storekeeper to that of commission storekeeper and under which agreements Atta incurred the deficiency were entered into without the knowledge and consent of Kwaku Forkuo and not that the mortgage and the first memorandum of agreement were invalid. In the statement of claim, the plaintiff averred the following:

“(1) The plaintiff is the successor of the late Kwaku Forkuo who died at Kumasi in December 1957 and the devisee of the house No. N.T.E.R. 180 situate at Kumasi.

(2) In a deed of mortgage dated 29 December 1953 the plaintiff ‘s predecessor secured with the house No. N.T.E. R. 180 the employment of D. K. Atta by the first defendants as an ordinary storekeeper and produce buyer.

(3) Under the said agreement the late Kwaku Forkuo stood as surety or guarantor with the house No. N.T.E.R. 180, for the efficient work by D. K. Atta. It was agreed that the goods in the store would belong to the first defendants: that the first defendants would take stock regularly and that D. K. Atta would only be entitled to wages.

(4) The first defendants have not reported any deficiency or other unlawful misappropriation by D. K. Atta under the terms of the said deed.

(5) The second defendant, acting under the instructions of the first defendants, has wrongfully and unlawfully attached the plaintiff’s property No. N.T.E.R. 180 which he intends to sell on 17 April 1958.

(6) Without the knowledge of the plaintiff or his predecessor the first defendants entered into a new agreement with D.K. Atta, which agreement, dated 12 April 1955, completely varied the terms under the deed of mortgage dated 29 December 1953.

(7) By the said new agreement dated 12 April 1953 the first defendants inter alia: (a) appointed D. K. Atta as a commission storekeeper upon a different security, namely, money deposit;

[p.365] of [1966] GLR 357

(b) sold the goods to D. K. Atta; and

(c) agreed to institute legal action against D. K. Atta to recover any balance of cost of goods owed by D. K. Atta.

(8) Thus by their negligence and in breach of the terms of the deed dated 29 December 1953, the first defendants failed and when called upon to do so refused to take stock of the goods in the said store.

(9) Again in 1955 and 1956 the plaintiff’s predecessor discovered that D. K. Atta was not working under the terms of the deed of 29 December 1953, he protested to the first defendants and requested stock to be taken and accounts rendered so as to determine the deed. The first defendants refused to take stock and, in breach of the rights of the surety, prevented the late Kwaku Forkuo from going into accounts himself with D. K. Atta.

(10) The plaintiff’s legal rights have been gravely injured by the defendants’ conduct and unlawful attachment.

(11) The plaintiff will contend:

(i) That under the agreement dated the 29 December 1953 there has been no deficiency for which the plaintiff should be liable as surety and therefore the attachment of the security No. N.T.E.R. 180 is unlawful.

(ii) That if there was any deficiency at all by D. K. Atta it was incurred while D. K. Atta was working under an agreement dated 12 April 1955 to which the plaintiff was not a party and under which there was a money security.

(iii) That by the conduct of the first defendants as described in paragraphs (6), (7), (8) and (9) above, the plaintiff or his predecessor as well as the property No. N.T.E. R. 180 has been discharged from liability.”

In the issues set down by the plaintiff for the trial are the following:

“(a) Whether or not the plaintiff being a surety under an agreement dated 29 December 1953, is also liable under a different agreement dated 12 April 1955, to which he was not a party.

(b) Whether or not the defendants had a right to attach the property No. N.T.E.R. 180, Kumasi, under an agreement dated 12 April 1955 which governed D. K. Atta’s status as commission storekeeper.” The plaintiff throughout the trial led evidence to show that the validity of the mortgage deed of 29 December 1953, and the

[p.366] of [1966] GLR 357 first memorandum of agreement were not in issue but rather the first defendants had no right to attach the property of Forkuo under the agreement of 12 April 1955 as Forkuo had no knowledge of this agreement and did not consent to it. Can the plaintiff at this stage be heard to challenge the validity of the mortgage deed of 29 December 1953, and the memorandum of agreement dated 18 January 1954, when throughout he had fought his case on the basis that these documents were genuine and valid? My answer to this is in the negative and I am supported in my view by the principle laid down in Esso Petroleum Co., Ltd. v. Southport Corporation,2 ably discussed and followed by Adumua-Bossman J.S.C. (as he then was) in Dam v. J. K Addo and Brothers,3 to the effect that an appeal court should not accept in favour of a party a case different from and inconsistent with that which he himself has put forward in and by his pleadings and that for an appeal court to act otherwise would be a flagrant disregard of the functions of pleadings which in the words of Lord Normand in the Esso Petroleum case are “to give fair notice of the case which has to be met so that the opposing party may direct his evidence to the issue disclosed by them”4 In view of the foregoing, I find myself unable to accept the submissions of learned counsel that the mortgage deed of 29 December 1953 is null and void and also that the memorandum of agreement made under that deed is not binding on the late Forkuo.

Learned counsel’s next argument was that the subsequent agreements under which Atta was employed by the first defendants as a commission storekeeper were not binding on the late Forkuo as they were entered into by Atta without the knowledge and consent of the late Forkuo. I am unable to accept this line of argument for in 1955 when Atta decided to change the nature of his employment to that of a commission storekeeper he wrote the letter, exhibit B, dated 6 April 1955 to the first defendants in the following terms:

“D. K. Atta,

C.F.A.O.,

Wenchi-Ashanti

6th April, 1955.

The District Agent,

Cie.F.A.O.,

Kumasi.

Dear Sir,

Re Commission Store Wenchi

Concerning the mortgage on house plot No. 180 New Town Ejisu Road, Kumasi, executed by my uncle Kwaku

[p.367] of [1966] GLR 357

Forkuo on my behalf and guaranteeing me for an amount of £5,000 (five thousand pounds) with the company, will you please note that my uncle is agreeable to extend the guarantee to me for the new status of commission storekeeper and if necessary to raise the amount of the guarantee from £5,000 to £7,000. Yours faithfully,

(Sgd.) D. K. Atta.

His L

Kwaku Forkuo X T

Mark p

Witness to mark & thumbprint

(Sgd.)??

Andrews Mensah

Ama Adede Her X Mark.”

There is evidence on record by the plaintiff that he interpreted the contents of this letter to his uncle, the late Forkuo who thereafter endorsed it by affixing his mark and thumbprint. Learned counsel has contended that this letter was an application by Atta to be employed by the first defendants as a commission storekeeper and in the absence of a reply from the first defendants employing Atta in that capacity, knowledge that Atta had been employed as a commission storekeeper could not be imputed to the late Forkuo. I am unable to concede to this as subsequent correspondence between the late Forkuo and the first defendants, and in some instances, a letter written by Forkuo’s solicitor on Forkuo’s behalf, show clearly that Forkuo all the time dealt with the first defendants on the clear understanding that Atta was carrying on business with the first defendants as a commission storekeeper.

In view of the foregoing, I hold that the finding of the learned trial judge that when the late Forkuo endorsed exhibit B, he knew that “it was contemplated that Atta should be employed as a commission storekeeper” and that “he knew subsequently that Atta was in fact being so employed and raised no objection to it” is amply supported by the evidence on record.

On the last submission of learned counsel that the plaintiff was the proper person to sue, I am in complete agreement. On this issue of capacity to sue the learned trial judge found as follows: “Forkuo died on 3 December 1957, leaving a will by which all his property was devised to the plaintiff. Two persons, Nana Kwahin Adusei and Nana Buachie Dankwah, were appointed executors. Probate of the will was granted on 12 May 1958. The executors have since executed a deed of assent to the [p.368] of [1966] GLR 357 plaintiff, but it does not appear that either the probate in respect of the property now in dispute or the deed of assent have yet been registered. It is not disputed that the property is one to which the Kumasi Lands Ordinance, Cap. 145 (1951 Rev.), applies and under section 23 (1) of this Ordinance no devolution or assignment (inter alia) of the property is effective until it has been registered. It follows that the plaintiff has not yet acquired any title to the property and he is not therefore the proper person to maintain this action.” With respect to the learned trial judge this is not the law. The property, the subject-matter of this appeal, having been devised to the plaintiff and not to the executors in trust for the plaintiff, became vested in the plaintiff immediately after the death of the testator and the deed of assent executed by the executors in favour of the plaintiff is not necessary and I further find that section 23 (1) of Cap. 145 relied upon by the learned trial judge is not applicable. The plaintiff, apart from relying on the will of Forkuo sued as a successor and this capacity was never challenged by the defendants.

Although there is substance in this last line of attack against the judgment, I find that the submissions as against the judgment on merit are without substance and I am of the opinion that this appeal should fail. I would therefore dismiss this appeal with costs for the first defendants.

JUDGMENT OF OLLENNU J.S.C.

I agree.

JUDGMENT OF AKAINYAH J.S.C.

At the close of counsel’s argument my brothers Ollennu and Bruce-Lyle indicated their intention to dismiss the appeal but as I held the view that the appeal ought to be allowed, judgment was reserved for the case to be considered more carefully. I was shown later the judgment of my brother Bruce-Lyle which has just been read and with which my brother Ollennu agrees and have considered the points raised therein but I am still not convinced that dismissal of the appeal is the right decision. The facts of the case and the issues joined between the parties are as follows: On 29 December 1953, a deed of mortgage expressed to be made between Kwaku Forkuo of Kumasi (since deceased) as “mortgagor” of the first part, Daniel Kofi Atta also of Kumasi of the second part and Compagnie FranÇais de L’Afrique Occidentale thereinafter called “the company” of the third part, was executed by the said Kwaku Forkuo by making his mark and thumbprint on the said deed after the contents had been read over and explained to him by one Kofi Andoh Essar¾an employee of the said company. [p.369] of [1966] GLR 357 The said deed of mortgage (exhibit A) was drawn up by the company’s solicitors. In the third recital at p. 2 of the said deed the following statement appears:

“And whereas the mortgagor and the said Daniel Kofi Atta have requested the company and the company has agreed to employ the said Daniel Kofi Atta as produce buyer credit customer storekeeper and or salesman and or in any other capacity in the establishment of the company in Ashanti aforesaid or elsewhere in the Gold Coast and has agreed to supply the said Daniel Kofi Atta with goods on credit from time to time and further to advance to the said Daniel Kofi Atta from exceeding the aggregate of time to time sums of moneys not exceeding the aggregate of five thousand (£5,000) pounds for the purpose of purchasing produce solely for the company and or to entrust goods to him for sale or return according to the terms of the memorandum of agreement executed between the parties hereto dated 1953 upon the mortgagor executing these presents by way of security to answer for the fidelity of the said Daniel Kofi Atta in the service of the company as well as for the value of goods produce cash merchandise and or other property of the company which will be entrusted to the charge of the said Daniel Kofi Atta from time to time and sums of money which may be found to be due and owing by the said Daniel Kofi Atta to the company at the period of employment stipulated in the said memorandum of agreement or at its determination by either party in accordance with the terms and conditions therein contained and or of moneys which may be found to be due and owing by the said Daniel Kofi Atta to the company on account current or otherwise and for any deficiency arising from any cause whatsoever except an act of God in the goods produce cash merchandise and or other property of the company in the charge of the said Daniel Kofi Atta whether such deficiency arose from burglary or theft.”

After due execution of the said deed of mortgage, which I shall hereafter refer to simply as exhibit A, the said Daniel Kofi Atta was employed by the company as a storekeeper under the terms of the said memorandum of agreement referred to in exhibit A. It is admitted by the respondents that copies of exhibit A and the memorandum of agreement were not given to the mortgagor at the time when the said documents were executed or at any time thereafter.

It is admitted also that up to the end of March 1955, there had been no deficiency. In April 1955, the said Daniel Kofi Atta produced and showed a letter addressed to the company and formally [p.370] of [1966] GLR 357 requested the mortgagor to signify his consent by endorsing it. He refused to do so and sent for the plaintiff-appellant. The full text of the letter (exhibit B) is as follows: [His lordship here read the letter as set out in the judgment of Bruce-Lyle J.S.C. at pp. 366-367 supra and continued:] After the said letter had been read and explained by the plaintiff — appellant, the mortgagor changed his mind and endorsed it by making his mark and thumbprint. Thereafter, the first defendants-respondents entered into two written agreements (exhibits H and 5) with Daniel Kofi Atta in respect of the latter’s employment. In exhibit H dated 12 April 1955, it was stipulated inter alia that:

“The commission storekeeper will deposit an amount of £168 0s. 0d. as security for the payment of goods supplied to him by the company (one hundred and sixty-eight pounds). It is mutually stipulated and agreed that the company shall have the option to retain every month in addition to the deposit mentioned at paragraph (13) one-third out of the commission storekeeper’s commission as security for the faithful performance of the present agreement. And it is mutually agreed that the said deposit of f 168 0s. 0d. as provided at paragraph (13) together with the monthly deposit calculated as provided for at paragraph (14) will guarantee payment or part payment of any balance remaining unpaid for goods delivered by the company to the commission storekeeper, without prejudice to the right of the legal action that the principals may institute against the commission storekeeper for the recovery of all or balance of cost of goods delivered remaining owed by the commission storekeeper and for the payment of any debt he may owe the company. The company reserves their right to terminate the present agreement without notice and compensation should the monthly turn-over fall under £2,000 (two thousand pounds). And it is further mutually stipulated and agreed that either party shall be at liberty to determine this contract on giving to the other party one month’s notice to that purpose and after reconciliation of accounts to the satisfaction of both parties.” On 3 December 1957, the mortgagor died and the plaintiff-appellant hereinafter called the appellant was appointed his successor in accordance with custom. By his will, the mortgagor devised among other properties, the house in dispute to the appellant. In March 1957, in exercise of the power of sale contained in exhibit A, the said house No. N.T.E.R. 180 the subject-mater of the mortgage was attached by the second respondent (since deceased) at the instance of the company — the first respondents herein, and he advertised it for

[p.371] of [1966] GLR 357 sale on 17 April 1958, in satisfaction of a debt which, the first respondents claimed, arose out of the Atta’s employment and was owed to them by him. The appellant therefore sued the respondents and claimed as follows: [His lordship read the claim as set out in the judgment of Bruce-Lyle J.S.C. at pp. 364-365 supra and continued:]

In their statement of defence the respondents, inter alia, made the following averments: “(1) The defendants are not in a position to admit or deny paragraph (1) of the plaintiff’s statement of claim.

(2) The first defendants say that on 29 December 1953, the plaintiff’s late uncle Kwaku Forkuo secured his house No. N.T.E.R. 180 at Kumasi with the first defendants to assist his own nephew D. K. Atta in his employment as an ordinary storekeeper at Wenchi.

(3) Under the deed of mortgage dated 29 December 1953 and with the knowledge and consent of the plaintiff’s late uncle Kwaku Forkuo the position of the said D. K. Atta was later raised to that of a commission storekeeper.

(4) Some time after entering into the mortgage deed the plaintiff’’ late uncle Kwaku Forkuo without assigning any reasons wrote to the first defendants requesting a discharge of the mortgaged property.

(5) The first defendants were thus compelled to take stock of the goods in D. K. Atta’s store and upon discovery of a shortage of two thousand eight hundred and eighty-one pounds two shillings and four pence (£2,881 2s. 4d) requested D. K. Atta and his late uncle Kwaku Forkuo to make good the deficit.

(6) Upon failure to make good the said deficit the first defendants by exercising their right of sale under the aforesaid mortgage instructed the second defendant to sell the mortgaged property…

(11) Save as herein before admitted the defendants deny each and every allegation of fact contained in the statement of claim as if same had been set down and traversed seriatim.”

It is obvious that apart from the omnibus denial contained in paragraph (11) of their statement of defence, the respondents did not specifically deny the allegations contained in paragraphs (6) and (7) of the appellant’s statement of claim.

At the close of pleadings, the following issues were set out by the appellant’s solicitor: [His lordship here read the issues as set out at p. 365 supra and continued:] As I understand it, the case for the appellant, in [p.372] of [1966] GLR 357 short, is that the agreement (exhibit H) was made behind his back and as it varied the terms of the mortgage (exhibit A) he had been discharged from liability under exhibit A. Consequently the attachment of his house is wrongful. This is the case the appellant set out to prove. On the other hand, the respondents, while not specifically denying the appellant’s allegations, maintained that they are entitled to enforce the terms of exhibit A and set out that contention as an issue for trial. I am therefore of the opinion that the onus was on the respondents to show that nothing had been done by them to render exhibit A unenforceable against the appellant. This being a suit by a surety against a creditor involving documents on some of which the creditor relies for the recovery of money alleged to be due and owing by the surety to the creditor this court of equity should, and ought to examine the said documents and consider their terms carefully and, if need be, protect the surety from fraud because a surety is a favoured debtor.

At the trial, the respondents did produce from their custody, exhibit A and a document described as a memorandum of agreement (exhibit 9) alleged to be the memorandum of agreement referred to in exhibit A. Upon examination of exhibit A it was discovered that the original typewritten date “1953” in the third recital hereinbefore reproduced had been struck out and the following inserted in pencil: “18th day of January, 1954.” This new date is the date of the document described as memorandum of agreement (exhibit 9).

The respondents’ assistant district manager, Mr. R. K. Yeboah testified that he was not present when exhibit A was executed, nor did he know how the date in pencil came to be put in the second page of exhibit A although exhibit A had been in the possession of the respondents’ agent at all material times. He maintained however that the memorandum of agreement referred to in exhibit A is exhibit 9 and denied that the latter exhibit was made behind the back of the mortgagor. He said also that as far as he knew, the mortgagor did not ask to be supplied with copies of the documents exhibit A and the memorandum of agreement). Much legal argument was addressed to us by counsel on both sides. But since the respondents did not deny that the new agreement (exhibit H) was entered into with D. K. Atta without the knowledge and consent of the appellant’s predecessor and its terms are inconsistent with the terms of exhibit A, I am of the opinion that the whole case turned on the issue raised by the respondents themselves. Are they entitled to enforce exhibit A consequent upon the alteration ? If the evidence establishes that the memorandum of agreement referred to in exhibit A is the agreement exhibit 9 then, they are entitled to enforce exhibit A because it is a continuing guarantee and notwithstanding [p.373] of [1966] GLR 357 exhibit H the appeal must be dismissed. On the other hand if exhibit 9 is found on the evidence, not to be the memorandum of agreement referred to in exhibit A then the alteration of exhibit A, if material, avoids it and the mortgagor is discharged.

The respondents themselves admitted that the mortgagor was an illiterate Ashanti man and could not read or write the English language, and that copies of the documents were not supplied to him, and that exhibit A and the other documents were in their custody at all material times. Their first duty therefore, was to have established beyond question that the memorandum of agreement referred to in exhibit A as having been executed by the parties thereto was read and explained to the mortgagor and he executed it by making his mark and thumbprint.

According to the very clear provisions of exhibit A, the said memorandum of agreement formed the basis of the contract of guarantee and was executed by all three parties prior to the execution of exhibit A. But contrary to the statement in exhibit A, it is apparent on the face of exhibit 9 that, that document was executed only by the respondents and the said Daniel Kofi Atta at a much later date. In fact, it does not mention the name of the mortgagor at all and it contains, inter alia, the following provisions: “And the said principal, in consideration of such goods and faithful services, hereby agree that they will in due performance thereof pay unto him, the said clerk or storekeeper the monthly sum of £12 0s. 0d. twelve pounds only as and in the nature of salary or as wages for the said services. And it is mutually stipulated and agreed that the said principals shall have option to retain every month, in addition to the present deposit of . . . as guarantee against any shortages or mistake a sum of one pound (£1) out of the clerk or storekeeper’s salary as security for the faithful performance of his service or against any shortages in stock or any mistake prejudicial to the principals, and for the payment of any debt he may owe the company.

And it is mutually agreed that the said deposit . . . together with the monthly deposit of one pound will guarantee payment or part payment of any deficiency which the said clerk or storekeeper may incur during his employment, without prejudice to the right of legal action that the principals may institute against the clerk or storekeeper for the recovery of all or balance of deficiency in stock or in cash owed by the said clerk or store keeper.

[p.374] of [1966] GLR 357

And it is mutually stipulated and agreed that the clerk or storekeeper shall be responsible for any deficiency in cash, goods, produce, plants, furniture, etc. arising from any cause whatsoever except Acts of God. And it is further agreed that according to circumstances and at the sole option of the principals, the above salary can be reduced or increased, and also that a gratuity (bonus) may be granted at the end of the year, this also may be at the sole discretion of the principals.

And it is further mutually stipulated and agreed that either party shall be at liberty to determine this contract on giving to the other party one month’s notice to that purpose.”

On that very important question as to whether or not, exhibit 9 is the memorandum of agreement referred to in exhibit A, the learned trial judge, in his judgment, said:

“Atta was thereupon employed by the first defendants as an ordinary storekeeper under an agreement dated 18 January 1954. This agreement (exhibit 9) is referred to in the mortgage deed (exhibit A) but the date of it has been inserted in pencil. It is clear that the space in which the date has been inserted must have been blank at the time the mortgage deed was executed and it must have been contemplated by the parties that the date would be added afterwards since at that time no written agreement had been drawn up embodying the terms of Atta’s employment.”

With due deference to the learned judge, that conclusion is not borne out by the facts. Exhibit A which was produced from the custody of the respondents states in clear and unambiguous terms that on 29 December 1953 ¾ the date of its execution, a memorandum of agreement dated “1953” had been executed by the parties thereto therefore, by speculating as he did, on the intention of the parties that on that day, no written agreement had been drawn up embodying the terms of Atta’s employment the learned judge trespassed into the realm of fantasy. In construing a deed or document under hand: “The cardinal presumption is that the parties are presumed to have intended what they have in fact said, so that their words must be construed as they stand. That is to say, the meaning of the document or of a particular part of it is to be sought in the document it itself. The questions, therefore, is : ‘What have they said?’ ‘One must consider the meaning of the words used, not what one may guess to be the intention of the parties.’”

[p.375] of [1966] GLR 357

See Chitty on Contracts (22nd ed.), Vol. 1, p. 254, para. 5869.

Sir Gorrel Barnes P. said in a testamentary suit in Simpson v. Foxon5 that:

“But what a man intends and the expression of his intention are two different things. He is bound, and those who take after him are bound, by his expressed intention. If that expressed intention is unfortunately different from what he really desires, so much the worse for those who wish the actual intention to prevail.” So in a very old case Kidder v. West6 it was said, “the Court cannot understand the true intent of the indenture, but only by the words of the indenture . . .” Another point which, I think, the learned judge failed also to appreciate, is that on the face of exhibit 9, the mortgagor was not a party to it; whereas, it is expressly stated in exhibit A that he was a party to, and did execute the memorandum of agreement mentioned therein. Quite apart from the date in exhibit A which was altered from “ 1953” to “18th January, 1954” the terms of exhibit 9 are not consistent with the express provisions of exhibit A, therefore if the learned judge had not taken the erroneous view, he would have come to the conclusion that exhibit 9 is certainly not the document referred to in exhibit A. For over a century, judges have always gathered the intention of the parties from the four corners of the document itself.

In Lloyd v. Lloyd 7 Lord Cottenham L.C., said:

“If the provisions are clearly expressed, and there is nothing to enable the Court to put upon them a construction different from that which the words import, no doubt the words must prevail; but if the provisions and expressions be contradictory, and if there be grounds, appearing on the face of the instrument, affording proof of the real intention of the parties, then that intention will prevail against the obvious and ordinary meaning of the words . . .”

In his judgment, the learned trial judge made the following findings:

“In 1955 Atta wished to change the nature of his employment to that of a commission storekeeper and after discussing the matter with the first defendants’ agent, he wrote a letter on 6 April 1955 (exhibit B) to the first defendants, saying that his

[p.376] of [1966] GLR 357 uncle Kwaku Forkuo was agreeable to extending the guarantee to him for new status of commission storekeeper and if necessary to raising the amount of guarantee from £5,000 to £7,000. This letter was interpreted to Forkuo and was endorsed by him. In consequence of this a fresh agreement dated 12 April 1955 (exhibit H) was entered into between Atta and the first defendants under which Atta was to be employed as a commission storekeeper. This was later substituted by an agreement dated 17 September 1955 (exhibit 5) as a result of a change in the standard form of agreement used by the first defendants in employing commission storekeepers. Such differences as there are between the agreements of April and September 1955, are not material to this case. It is part of the plaintiff’s case that Forkuo was not aware of these agreements. But, whether or not he was aware of their precise terms, it is clear that he knew when he endorsed the letter of 6 April 1955, that it was contemplated that Atta should be employed as a commission storekeeper; and it is also clear from a letter which Forkuo wrote to the first defendants on 15 August 1956 (exhibit 2) that he knew subsequently that Atta was in fact being so employed and he raised no objection to it. On the facts outlined so far, I cannot find any ground for saying that the suretyship created by the mortgage of December 1953 was discharged. The plaintiff relies on the following proposition of law, which I quote from Snell’s Equity (24th ed.), pp. 439-440: ‘Although suretyship is not in its inception a contract uberrimae fidei, yet once the contract has been entered into the creditor must observe the utmost good faith towards the surety. If there are any dealings behind the back either between the creditor and the principal debtor or between the creditor and co-surety, and these have the effect of varying the liability of the surety or of prejudicing the exercise of his rights, this will not only discharge him personally from liability, either wholly or partly, but also free any property which he has mortgaged or pledged as security for the debt.’ It does not appear to me to have been proved that there were any dealings between the first defendants and Atta behind the back of Forkuo, who was at all material times aware of the nature of Atta’s employment and had agreed to his appointment as a commission storekeeper. Further, the agreements of 12 April and 17 September 1955, were inconsistent with the terms of the mortgage deed. There is no suggestion in any of the correspondence emanating from Forkuo or his solicitor that there had been any divergence from the terms of the mortgage [p.377] of [1966] GLR 357 so as to release Forkuo from liability, as is maintained in the statement of claim. For these reasons, therefore, I would decide this case in favour of the defendants.”

With respect to the learned judge the evidence does not support his findings on the facts. As I have already pointed out, exhibit A made on 29 December 1953 contains a recital which expressly referred to a memorandum of agreement executed between the parties thereto prior to and not subsequent to the execution of exhibit A. But when exhibit A was produced from the custody of the respondents, the material date of the said memorandum of agreement had been altered from 1953 to 18 January 1954. A document described as memorandum of agreement bearing the date 18 January 1964 (exhibit 9) was also produced from the custody of the respondents as the memorandum of agreement mentioned in exhibit A. But the terms of this document exhibit 9 are clearly inconsistent with the terms of exhibit A. If the learned judge had properly and judiciously evaluated the evidence he would have come to the conclusion that:

(a) the alteration of exhibit A was material; in that, it was a fraudulent attempt made by the respondents to alter the nature and terms of the contract of guarantee;

(b) the concealment of the true memorandum of agreement is a fraud on the mortgagor on an issue which is material, in that without the said memorandum of agreement the whole terms of the contract cannot be ascertained; and

(c) the mortgagor is therefore discharged from liability and exhibit A is unenforceable. I have examined exhibit A and found as a fact, that on the very next day after its execution, Mr. K. Andoh Essar an employee of the respondents proved its execution by an affidavit sworn to by him before the registrar of the Divisional Court (now High Court) Kumasi, as follows:

“(1) That on the 29th day of December, 1953 I saw Kwaku Forkuo and Daniel Kofi Atta both duly execute the instrument now produced to me and marked A.

(2) That the said Daniel Kofi Atta can read and write.

(3) That the said Kwaku Forkuo cannot read and write but that the said instrument was read over and interpreted and explained to him in the Twi language by me at the time of its execution.

(4) That he seemed perfectly to understand its provisions.”

Mr. Essar’s affidavit is yet another piece of evidence which proves conclusively that when he interpreted the provisions of

[p.378] of [1966] GLR 357 exhibit A to the mortgagor, the memorandum of agreement referred to therein was or must have been in existence, therefore, exhibit 9 made on 18 January 1954 cannot be that document.

The law is well established that a person in whose custody a document which is made for his benefit is kept is bound to preserve it intact, so, in Davidson v. Cooper8 Lord Denman C.J. said: “[W]hile the guarantee was in the plaintiff’s hands it was, without the defendant’s consent or knowledge, materially altered by the addition of two seals opposite the names of the defendant and the other party to it, whereby its apparent nature and effect were wholly altered. Issue being taken on this plea, the jury found it was so altered; and judgment had been given by the Court of Exchequer for the defendant, after having discharged a rule for judgment, non obstante veredicto, upon argument.

After much doubt, we think the judgment right. The strictness of the rule on this subject, as laid down in Pigot’s case, can only be explained on the principle that a party who has the custody of an instrument made for his benefit, is bound to preserve it in its original state. It is highly important for preserving the purity of legal instruments that this principle should be borne in mind, and the rule adhered to. The party who may suffer has no right to complain, since there cannot be any alteration except through fraud, or laches on his part. To say that Pigot’s case has been overruled, is a mistake: on the contrary, it has been extended: the authorities establishing, as common sense requires, that the alteration of an unsealed paper will vitiate it … The truth cannot be known from inspection, but would require to be established by evidence, and this through some default of the person to whose care it was consigned, and who would be possessed of a superior legal remedy if the altered writing could be imposed on the contractor as genuine.” A surety is a favoured debtor (see Halsbury’s Laws of England (3rd ed.), Vol. 18, p. 444, para. 818 and the cases cited therein). To prevent a creditor from concealing or adding to the terms of a surety’s contract:

“The courts have been extremely anxious to protect the surety from fraud. Therefore, although a surety is not entitled to receive, without inquiry, from the party to whom he is about to bind himself, a full disclosure of all the dealings between the

[p.379] of [1966] GLR 357 principal and the party, still, if any material part of the transaction is, with the knowledge of the creditor, misrepresented to the surety, or if the creditor unduly conceals from the surety any circumstance within his knowledge which it is material for the surety to know, although such concealment is not with a view to any advantage to himself, the guarantee will be void.”

Chitty on Contracts (22nd ed.), Vol. 2, p. 442, para. 1006 and see Hamilton v. Watson,9 North British Insurance Co. v. Lloyd,10 Railton v. Mathews,11 and London General Omnibus Co. v. Holloway.12 So far as I am aware the point appears to be wholly new in this country and it is certainly of great importance as it introduces a new element for consideration in cases of creditor and surety. I have been unable to discover any local authority on the point but English judicial decisions illustrating the proper approach by the courts to the problem are available. They are sound and good law and I have made full use of some of them. I am not unmindful of a provision in the 1960 Constitution which says that “the Supreme Court shall not be bound to follow the previous decisions of any Court on questions of law.” That provision emphasizes the supremacy of the Supreme Court but does not prohibit or preclude the court in the development of our law from “borrowing” legal and judicial knowledge from friendly nations whose legal systems are based on the common law and the principles of equity. If there are decisions which are sound and can be applied here without doing violence to our own system I do not see any reason why they should not be adopted and applied. After all, until recently, we had eminent British and American jurists teaching law in our university. Jessel M.R. in Suffell v. Bank of England said that13: “[A] material alteration in a deed causes it no longer to be the same deed. Such is the law respecting deeds; … The policy of the law has been already stated, namely, that a man shall not take the chance of committing a fraud, and when that fraud is detected recover on the instrument as it was originally made. In such a case the law intervenes, and says that the deed thus altered no longer continues the same deed, and that no person can maintain an action upon it . . . And this principle is founded on great good sense, because it tends to prevent the party in whose favour it is made from attempting to make any alteration in it.” [p.380] of [1966] GLR 357

Brett L.J. also said that14:

“[W]henever any instrument is purposely altered by a person in lawful possession of it in a material part of it, the instrument is void for the purpose of enabling any person to sue on it or to defend himself by using it as a direct defence depending on its obligatory force as an instrument . . . Any alteration of any instrument seems to me to be material which would alter the business effect of the instrument if used for any ordinary business purpose for which such an instrument or any part of it is used.”

It has been submitted by counsel for the respondents that, in so far as counsel for the appellant submitted that exhibit A is invalid, he would not reply because, having called for the said document to be produced in evidence, counsel cannot now be heard to say that it is invalid. He however, conceded that exhibit 9 is subsequent to and not contemporaneous with exhibit A.

With respect, I think it is idle for the respondents to argue that as the appellant called for the document he is, as it were, estopped from saying that it is invalid. The appellant is not the original mortgagor. He has become mortgagor by his appointment as devisee of and successor to the late Forkuo; he has the same right as his predecessor. He is not, in my view, estopped in equity from saying that the recital has been falsified by the respondents and so it does not represent the terms upon which the parties mutually agreed; therefore, it is for the respondents, who would lose if the document were held to be invalid, to establish

(a) that it has not been altered and that it is intact because it was made for their benefit and (b) to prove also that the said memorandum of agreement was read and explained to Forkuo and it was duly executed by him.

In Brooke v. Haymes,15 it was stated in the headnote as follows:

“A party to a deed is not estopped in equity from averring against or offering evidence to controvert a recital therein contrary to the fact, which has been introduced into the deed by mistake of fact, and not through fraud or deception on his part.”

In United Africa Co., Ltd. v. Apaw,16 the court said:

“Apaw is a native of Ashanti and as it would appear that at all events when he signed the agreement he could not understand English and was illiterate, it is clear that there is no presumption that he has appreciated the meaning and effect of the agreement.

[p.381] of [1966] GLR 357

This is one of the matters which has to be proved by the appellants.”

Again in Omanhene Kwamin Bassayin v. Omanhene Bendentu II, the Privy Council per Lord Russell of Killowen also said17:

“There is no doubt that, as the document was in the English language and the Omanhene knew no English, the onus lay upon Upper Wassaw to establish that the document had in fact been properly explained and interpreted so as to make the Omanhene of Aowin understand its real import.”

In Lee (John) & Son (Grantham) Ltd. v. Railway Executive, Evershed M.R. also said18:

“We are presented with two alternative readings of this document and the reading which one should adopt is to be determined, among other things, by a consideration of the fact that the defendants put forward the document. They have put forward a clause which is by no means free from obscurity and have contended that, on the view for which they argued, it has a remarkably, if not an extravagantly, wide scope, and I think that the rule contra proferentem should be applied . . .”

The recital in exhibit A that a memorandum of agreement had been executed by the parties thereto was intended to be a statement which both parties mutually agreed to admit as true. The respondents cannot, therefore, be heard to assert the contrary. They are bound by it: see Stroughill v. Buck.19 In Young v. Raincock, 20 Coltman J. said:

“[W]here it can be collected from the deed that the parties to it have agreed upon a certain admitted state of facts as the basis on which they contract, the statement of those, facts, though but in the way of recital, shall estop the parties to aver the contrary.” When Mr. R. K. Yeboah, the respondents’ assistant district manager, was cross-examined by counsel for the appellant on the alteration of exhibit A and the non-production of the memorandum of agreement referred to therein, he said:

“I was not present when the mortgage exhibit A was executed. Forkuo was not ill at that time. I do not know how the date in pencil came to be put in on the second page of exhibit A. It has [p.382] of [1966] GLR 357 been in the possession of the agent … Forkuo was not a party to the agreement exhibit 9. Exhibit A refers to the agreement exhibit 9. I agree that exhibit A refers to exhibit 9 as an agreement between the parties hereto. I do not admit that the agreement exhibit 9 was made behind the back of Forkuo. . . . Between December 1953 and April 1955 the first defendants sent no notice to Forkuo of any deficiency incurred by Atta. There was no deficiency and he was working to the satisfaction of the company.”

On re-examination the witness said, “So far as I know Forkuo did not ask to be supplied with a copy of the agreement of 18 January 1954, or the other agreement.”

In Odgers on Construction of Deeds and Statutes (4th ed.), p. 55, the following appears: “It is commonly said that no evidence is admissible to explain a patent ambiguity. The rule is derived from Bacon, who said that ‘ambiguitas patens is never holpen by averment,’ i.e., evidence. The reason given by Bacon is that if evidence were admitted it would ‘make all deeds hollow’ and would in fact nullify the requirements of the law as to transactions for which deeds are necessary, for the deed would practically be displaced by the extrinsic evidence. As Phipson points out, this has become embedded in our law of evidence . . .”

Coming back to exhibits A and 9 I think, it does not require any extraordinary intelligence to discover that the provisions of the two documents are mutually inconsistent, and that one must necessarily be a forgery. I think whatever construction one puts on exhibit 9 one must come to the irresistible conclusion that it cannot be, and is not the document referred to in exhibit A. But even if by some ingenious construction, exhibit 9 is held to be the document mentioned in exhibit A, the respondents would still have failed to establish on the face of the document itself that (a) Forkuo was a party to it; (b) that he executed it; (c) that it was read and explained to him and (d) he understood its real import. I am justified in the view I have taken, because the evidence shows clearly that Forkuo, an Ashanti man, was willing to stand surety for his nephew Daniel Kofi Atta and to guarantee payment of any deficit that the said Atta might run into up to £5,000 therefore, it seems to me, that if he had been told of the provisions of exhibit 9 that the respondents were at the same time contracting with Atta and making him personally liable for his debts which might arise in the course of his employment, Forkuo might very well have refused to execute exhibit A, because there would

[p.383] of [1966] GLR 357 have been no necessity for any guarantee at all. On the other hand, if it is held as I have done that exhibit 9 is not the document which the parties executed, prior to or side by side with exhibit A then, the concealment of, and non-production of the real document coupled with the falsifying of exhibit A purporting to show that exhibit 9 is the document mentioned therein in an attempt to bring its provisions within the ambit of exhibit A, then the whole of the agreement constituting the contract of guarantee has not been made available to the court through the fraud of the respondents and they ought not to be allowed to enforce that part of the agreement which is favourable to them because the two documents constitute one contract and are inseparable.

In Davies v. London and Provincial Marine Insurance Co.21 Fry J said: “But I do think that the contract of suretyship is, as expressed by Lord Wesbury in Williams v. Bayley Law Rep. 1 H.L. 200, 219 one which ‘should be based upon the free and voluntary agency of the individual who enters into it.’ I think that principal especially applicable here, because there is no consideration in this case, as in many cases of suretyship, for the contract so entered into; and therefore I think, to use the language of Lord Eldon in Turner v. Harvey, 2 J.a.c. 169, 178, it is a contract in respect of which a very little is sufficient. Very little said which ought not to have be said, and very little not said which ought to have been said, would be sufficient to prevent the contract being valid.”

The reason for dismissing the appeal has been stated by my brother Bruce-Lyle in his judgment at pp. 365-366 as follows:

“. . . throughout the trial [the appellant] led evidence to show that the validity of the mortgage deed of 29 December 1953, and the first memorandum of agreement were not in issue but rather the first defendants had no right to attach the property of Forkuo under the agreement of 12 April 1955 as Forkuo had no knowledge of this agreement and did not consent to it. Can the plaintiff at this stage be heard to challenge the validity of the mortgage deed of 29 December 1953, and the memorandum of agreement dated 18 January 1954, when throughout he had fought his case on the basis that these documents were genuine and valid?” With due deference to my learned brother, the evidence as I understand it, is that when the deed of mortgage (exhibit A) and

[p.384] of [1966] GLR 357 the memorandum of agreement (exhibit 9) were produced from the custody of the respondents, the appellant raised the question of the alteration of exhibit A as follows: “I agree that it refers to a memorandum of agreement dated 18 January 1954, which date has been inserted in pencil.” The first witness for the appellant Mr. Osei Kwame who was one of the witnesses to the execution of exhibit A also testified that he did not know of any alteration in the original agreement, i.e. exhibit A. The respondents themselves admitted that exhibit A was altered while it was in their custody and offered no explanation as to why and how it was altered. As I have pointed out earlier in this judgment, the appellant is bound by exhibit A and the relative memorandum of agreement dated 1953 but since exhibit A has been altered without his knowledge and consent and the memorandum of agreement (exhibit 9) produced from the custody of the respondents is obviously not the memorandum of agreement executed by his predecessor in title, I regret to say that it is not right to hold that the appellant cannot be heard to challenge the validity of exhibits A and 9.

In my view, the case for the appellant is much stronger than the cases I have endeavoured to discuss herein. Unlike the case where the document was altered by merely adding seals, alteration of exhibit A in this case purported to bring into the contract of guarantee some extraneous provisions or terms which were never in the contemplation of the parties and which were never agreed upon by them and by shutting out the real document, the respondents have fraudulently concealed a material document which formed part of the contract. I need not say that contractual rights and obligations are mutual and therefore it would be inequitable to allow one of the parties to enforce his rights and to deprive the other of his, by concealing the document from which the rights of the other party can be ascertained. By falsifying or altering exhibit A in a material particular, namely, by excluding the memorandum of agreement mentioned therein, and fraudulently inserting the date of a document which was made by them in January 1954, in the absence of and without the concurrence of the mortgagor and unconnected with exhibit A the respondents rendered exhibit A unenforceable. Consequently, the appellant’s predecessor — the said Forkuo — was discharged from all liability under the said exhibit A.

As, in my view, this point disposes of the appeal, I would not burden this judgment with a discussion of the other documents and the arguments addressed to us upon them. I would therefore allow the appeal and declare that the respondents are not entitled to enforce or exercise any right under the said exhibit A against the appellant on account of the material alteration [p.385] of [1966] GLR 357 which is apparent on the face of the said exhibit A and that the appellant is discharged from all liability under the said deed.

In the result the judgment of the High Court is set aside and there will be judgment for the appellant with costs.

DECISION

Appeal dismissed.

S. K. T.