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GLADYS MURIEL WEEKES & OTHERS v. ABDUL KARIM BASMA

JELR 82058 (WACA)

West Africa Court of Appeal  •   •  West Africa [For WACA cases]

Coram
LUCIE-SMITH, C.J. (SIERRA LEONE), BEOKU-BETTS AND KINGSLEY, JJ

Judgement

 Kingsley, J. In this case the appellants appeal from a judgment of the Supreme Court of Sierra Leone dated the 24th of May, 1947, in which Mr. Justice Wright, Acting Puisne Judge, decreed Specific Performance with abatement of an agreement which the respondent alleged the appellants had, on the 29th of r November, 1946, made with him for the sale to him of certain premises situate at 2 and 2A Kissy Street, Freetown. The grounds of appeal were six in number but it will suffice for the purposes of this judgment to set out only the first of such grounds. It reads as follows:-

“That the alleged contract for the sale of the land the subject of this action and made between the Vendors of the one part and the Purchaser of the other part did not satisfy the requirements of the Statute of Frauds.”

It is to be noted that at the beginning of the trial, learned Counsel for the first three defendants asked leave to amend their defence by adding the words “if at all there was such an agreement, which is not admitted, the alleged agreement does not comply with the requirements of the Statute of Frauds “-learned Counsel for the plaintiff did not object to the amendment and did not ask for any particulars as to any specific non-compliance with the Statute. The amendment was allowed.

If the first ground of appeal fails, then and then only do the other grounds of appeal call for consideration. If, on the other hand, the first ground of appeal succeeds, then it is clear that the appeal as a whole must succeed.

The agreement on which the respondent relied is contained in Exhibit “C” which reads as follows:-*Page 314“No.2 and 2A Kissy Street, Freetown. We the undersigned the owners of the above premises hereby agree that we have today sold the above premises Nos. 2 and 2A Kissy Street, Freetown, to Mr. C. B. Rogers Wright, of 27 Liverpool Street, Freetown, at a price of £1,900, which he has completely paid in three separate sums of £633 6s. 8d. to each of us. We also hereby agree that we will execute the deed of conveyance of the said premises whenever it is prepared and that in the meantime Mr. Wright shall be in possession of the said premises as from date hereof.

“Dated this 29th day of November, 1946. “(Sgd.) Gladys Weekes Henrietta Spaine John Kabia Williams.”

Mr. Marke for the appellants has argued that this document does not satisfy the Statute of Frauds in that it does not disclose the principal’s name and he referred us to the case of Lovesy v. Palme,. (1). This case is referred to by Luxmoore, L.J., in his judgment in the much later case of Smith-Bird v. Blower (2) where, referring to the question of the sufficiency of the memorandum of contract, the learned Judge said:-

“in this connection it is necessary to determine whether the defendant was aware that Mr. Brown was acting as Agent only, and not as Principal, for, if the defendant knew that Mr. Brown was only an Agent the memorandum, in order to comply with the statutory requirements, must either contain the names of the plaintiffs as principals or otherwise identify them, whereas if the defendant was not aware of the fact that Mr. Brown was acting as Agent for anyone, but considered that Mr. Brown was contracting on his own behalf, the position is different, and the plaintiffs as undisclosed principals can rely on any sufficient memorand1Jm in which Mr. Brown’s name appears as principal, although there is no reference therein to the plaintiffs.”

In his judgment the learned trial Judge in the case with which we are dealing says (vide page 51 of the record):-

“There is the evidence of the plaintiff which I accept, that Mr. Wright was acting on his own behalf.”

He then goes on;-

“Further there was nothing in the contract itself which would prevent its enforcement by an undisclosed principal.”

“The use of the word “would” is, we think, significant. It seems to us that the learned trial Judge was then saying that even if the principal had been undisclosed, the contract would nevertheless have been enforceable by him. He does not, however, seem to have applied his mind to the question whether the principal was in fact disclosed or undisclosed. As this issue has been raised before us as relevant to the determination of the question whether the alleged contract complied with the requirements of the Statute of Frauds, we consider it a matter for decision. Even if the learned trial Judge had decided this question as a matter of fact, this Court would have been competent to review his decision so long as the principle restated by the House of Lords in the case of Watt (or Thomas) v. Thomas (3), (judgment of Lord Thankerton at page 587) is complied with. We are of the opinion that this case is clearly one of a disclosed principal. It is, in our view, abundantly clear whether one looks at the evidence for the appellants or the respondent that never for one moment did the former think, to use the words of Luxtmoore, L.J., that Mr. Rogers Wright was “acting on his own behalf” . It follows therefore that the memorandum to enable the respondent to sue on it must have contained his name either as a principal or in some other*Page 315way to identify him. As it clearly fails to do so, we hold that the document Exhibit “C” was not a sufficient memorandum within the Statute of Frauds. The learned trial Judge referred in his judgment to the case of Dyster v. Randall (4), and learned counsel for the respondent seemed to rely upon it. But the point of the decision in that case is that an undisclosed principal can take advantage of a contract entered into by his agent. The point before this Court is whether where a principal is disclosed, he can take advantage of a contract entered into by a person known to be an agent who did not state on the memorandum the name of the principal or identify him in such document. The appeal is allowed. The judgment in the Court below is set aside and judgment will be entered for the appellants with costs to be taxed.

The Court below to carry out. The appellants will have their costs in this Court same to be taxed.

Appeal allowed.

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