Thomas Hutton-mills V. Omanhene Kwaku Nkansah II & Ors (1940)
LawGlobal Hub Judgment Report – West African Court of Appeal
Contract governed by English law—Words with a fixed meaning in a written contract cannot be explained by oral evidence to ‘mean something different from what they express–Power of Attorney to give Respondent power to re-enter and determine Concessions and dispose of them for such consideration as he could obtain does not carry power to collect outstanding arrears of rent—A promise to pay made under a mistake of law not enforceable—Appeal allowed.
Held : On a strict construction of the Power of Attorney the Respondent was only empowered to determine the Concessions and dispose of them when so determined and only to do such other acts as were incidental to those particular powers.
In re Dowson & .Jenks Contract (1904 2 Ch. 219 et seq.) followed. Bank of New Zealand v. Simpson (1900 A.G. 182) distinguished.
(2) The Appellants having agreed to pay under a mistake of law can be relieved of their obligation by such mistake.
Gough v. Findon (155 E.R. 850) followed.
The facts are sufficiently set out in the judgment.
Hon. Attorney-General and Ridehalgh for Appellants.
E. C . Quist (F. Awoonor-Williams and E. 0. Asatu-Adjaye with him) for Respondent.
The following joint judgment was delivered :—Hutton-Mills
KINGDON, C. J., NIGERIA, PETRIDES, C.J., GOLD COAST, Nkansah II,
AND TURBETT, J.etc. & ora.
This is an appeal from a judgment of Mr. Justice Goodman,
Acting Judge, sitting in the Divisional Court at Kumasi –Which7113. atidd e s. was delivered on 7th July, 1939, in which he gave judgment for the Turbett, J. Respondent for the amount of £1,644 10s. and costs to be taxed.
In this action the Plaintiff-Respondent sued the Defendants-Appellants for the sum of £1,790 10s. which he alleged was due to him by them as representing the Adansi State for services rendered under a Power of Attorney and a Commission. Note both dated the 5th September, 1938. The Respondent also claimed the said amount as upon an account stated and also as money had and received by the Appellants to Respondent’s use. Formal pleadings were ordered before the case came to trial. In paragraph 4 of the Statement of Claim are set out the most material matters as far as this appeal is concerned in relation to the judgment which he recovered in the lower Court and therein the Respondent alleges that the Appellants gave him a Power of Attorney and a Commission Note and under the terms of these documents agreed to pay him ” 50 per cent of all monies, that is to say all arrears of rents and other considerations “, which the Respondent should obtain for the Appellants’ stool.
In regard to this allegation of the Respondent and the claim in the writ it will be sufficient for the purposes of this judgment to state that the Appellants denied that they agreed or offered to ‘pay the Respondent 50 per cent of all arrears of rents that he should recover on their behalf, and that any agreement to pay money in return for any services to be rendered or expenses to be incurred by the Respondent were contained in the Commission Note whereby they agreed to pay him (the Respondent) 50 per cent only out of any consideration which he secured-for them in respect of their gold concessions and in terms of the Power of Attorney. They denied also that the sum of £1,790 10s. was due to the Respondent on an account stated.
Only a few of the facts of this case appear to have been briefly referred to by the learned Acting Judge in the Court below and it would be as well to set out a summary of all the facts prior to a consideration of the legal questions involved.
It would appear that in the month of June, 1938, Messrs. J. J. Peele & Company, Solicitors in Kumasi, had examined the accounts relating to some four concessions in Ashanti of the Offm River Gold Estates Limited and had advised the Company that they appeared not to have paid their minimum dredging rent of £200 per annum during the past 14 years. Peele & Company advised the Company to pay these rents, but they did not receive instructions from the Company to pay the rents until, late in the month of September of that year.