The Judicial Committee of the Privy Council Decisions

Privy Council Appeal No. 55 of 1996

 

(1) Housainou M.M. Njie

(2) Ebrima Salma Njie an

(3) Samba Batch Njie (as personal representatives of the

late Alhaji M.M. Njie) Appellants

v.

Amadou Cora Respondent

 

FROM

 

THE COURT OF APPEAL OF THE GAMBIA

 

---------------

JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 28th July 1997

------------------

 

Present at the hearing:-

Lord Goff of Chieveley

Lord Griffiths

Lord Jauncey of Tullichettle

Lord Steyn

Lord Clyde

  ·[Delivered by Lord Clyde]

 

-------------------------

 

The appellants in this appeal are the representatives of the late Alhaji M.M. Njie.  They were the defendants in proceedings brought against them by the respondent, Amadou Cora, in the Supreme Court of the Gambia.  The respondent claimed in those proceedings the delivery of three lorries or their value, delivery of 119 tyres wrongly detained  and damages for wrongful detention of a vehicle, registration number G1A 4690, between 1988 and 20th December 1990.  So far as the lorries were concerned his claim proceeded on a statement that on 27th September 1989, by an agreement in writing between himself and Njie, he had deposited the three lorries and 130 reconditioned tyres as security for the payment of certain money which Njie had paid on his behalf, that on 3rd July 1989 Njie had obtained judgment against him for the amount of the debt then outstanding, and that after that judgment he was entitled to have the trucks and tyres returned to him.  So far as the vehicle G1A 4690 was concerned it was stated that it had been seized by the Sheriff's bailiff on an order of the court in proceedings brought against Cora by African Trading Company Limited, and that after that order was discharged it had been handed to Njie who had retained it between 1988 and 20th December 1990.  So far as the tyres were concerned it emerged at the trial that all except 11 had been sold towards reduction of the debt and the rest had been returned to Cora.  Apart from noting that this head of the claim appears to have been without foundation nothing further need be said about the tyres.

 

1. The case went to trial.  As regards the lorries the trial judge awarded Cora a sum of D900,000 on the three lorries if they were not returned and so far as concerned the vehicle G1A 4690 he awarded Cora a sum of D340,000 in respect of the period from July 1989 to December 1990.  Both parties appealed to the Court of Appeal.  Before that court it was agreed that one of the lorries had in fact been sold and the claim was then limited to two lorries.  The Court of Appeal varied the relevant parts of the order so as to award to Cora D600,000, being D300,000 for each of the two lorries not returned, a further D600,000 as damages for unlawful detention of those two lorries, and D300,000 as damages for the unlawful detention of the vehicle G1A 4690.  The present appeal is taken against that decision.

 

2. One document of some importance in the case is a receipt dated 27th October 1988 signed by Cora, exhibit P1.  This document evidences the agreement between Cora and Njie regarding the extent of the debt then due by Cora to Njie and the security given by Cora for the indebtedness.  Having narrated the outstanding balance it states:-

"This is also to certify that I have Mortgaged to him Alhaji M.M. Njie 3(Three) Big lorries 1(one) car and 50 (Fifty) tyres lorry.  All these I have to sell and bring the cash to Alhaji M.M. Njie before 30/11/88 without fail.  All the lorries tyres and car will be in Alhaji M.M. Njie's hands."

 

3. This was the written agreement founded on by Cora in his Statement of Claim, erroneously there dated 27th September 1989.

 

 

4. At the outset of his consideration of the arguments presented in the appeal the President, The Hon. Mr. Justice F.M. Chomba, S.C., who gave the leading judgment in the case, referred to certain provisions of the Stamp Act, cap. 82.  He noted that a number of the documents in the case including P1 were dutiable.  He quoted section 17 of that Act which provides:-

"No instrument made liable by this Act shall be pleaded or given in evidence in any court in the Gambia, unless the same be duty stamped."

 

5. He also referred to section 18 which requires a judge to take notice of any insufficiency in the stamping of any instrument chargeable with duty which is produced in evidence before him.  It goes on to provide that it may be received in evidence on payment of the amount of the unpaid duty and certain penalties.  The President noted that the documents had been admitted in evidence in contravention of the Stamp Act.  He then stated: "I have no discretion but to reject them".  On that ground he rejected the arguments put to the court on the nature of the security intended by the agreement embodied in P1.

 

6. Their Lordships consider that the Court of Appeal erred in so doing.  At the outset it has to be said that it was not appropriate to raise this point and use it as determinative of part of the argument without giving notice of it to the parties and giving them an opportunity to respond to it.  It appears that it was never raised during the course of the hearings either at the trial or during the appeal and was only identified by the judges after the hearing was concluded.  In such circumstances before proceeding to found on it the parties should have been given the opportunity to make such observations as they may have wished to make on the point.

 

7. Furthermore it does not seem to their Lordships that the Court was correct in believing that it had no discretion but to reject the evidence.  No doubt it is of importance that the proper duty should be paid on all instruments which are to be given in evidence but where the matter is open to remedy it is preferable that the duty be paid with any due penalty so as to enable the ends of justice to be served than that the courts should be deprived of evidence which might be material to a proper resolution of the case which is being tried.   The  powers  of  the  Court of Appeal in Gambia appear to be sufficiently wide to enable the omission to be rectified without the necessity of rejecting all the documents which were not duly stamped.  Precisely how as matter of procedure the court should decide to achieve a remedy in such circumstances must be a problem for the Gambian courts to decide as a matter peculiarly within their own jurisdiction.  So far as the present case is concerned the documents had already been admitted in evidence, albeit contrary to the Act, but a late stamping under the eye or at the order of the Court of Appeal could have given a retrospective validation of what had been done and any possible rejection of the evidence obviated.  The documents have now been stamped and their Lordships have had no hesitation in taking them into consideration.

 

8. It is common ground that the two lorries which are now in issue were left in the hands of Njie as security for the debts owed to him by Cora.  So long as they were legitimately held in security and the indebtedness remained Cora would not be entitled to have them returned to him.  The proposition put forward by Cora as the basis for his case in his pleadings is that the security came to an end when Njie sued in the Supreme Court for the debt owed to him by Cora and was awarded judgment for the amount then outstanding.  That judgment was granted on 3rd July 1989.  On 7th November 1989 the Court granted Cora leave to pay the debt by certain fixed monthly instalments.

 

9. During the course of his evidence Cora produced a number of receipts signed by Njie.  One of these, exhibit P18, was a document dated 28th July 1989, signed by Njie.  It reads:-

"Received from Amadou Daba Cora of 11A Cotton Street, Banjul the sum of D120,000 (one hundred and twenty thousand Delassis).  This is in respect of two lorries transferred to me.  M M Njie."

 

10. That the handwritten text is to be read as including the word "transferred", rather than perhaps "offered", is not beyond dispute but the version quoted was recognised before the Board as probably the correct reading. 

 

11. It was argued by counsel for the appellants that this document was evidence of a transfer of the property in the two lorries to Njie, and so provided an immediate answer to Cora's claim for their return.  On the other hand counsel for Cora  argued  that  it  was ambiguous and unreliable, and was not capable of proving anything.  In his evidence Cora stated that he had deposited D120,000 with Njie for the release of his lorries but that Njie had then failed to return them.  When he could not recover the lorries he then sued him.  But in fact over two years were to pass before he sued him, and by that time Njie had died.

 

12. During the course of the evidence of a witness for the defence, named Mbenga, objection was taken to a line of evidence sought to be developed by the appellants at the trial regarding a possible sale of the lorries to Njie.  The objection was sustained on the grounds that there was nothing in the defenders' pleadings about it.  But Mbenga explained in cross-examination that the D120,000 was for two lorries transferred by Cora to Njie.  That answer supports the conclusion that P18 is vouching something which could be described as a sale.  It is certainly curious that no notice of this line of defence was given in the pleading.  The Court of Appeal considered the evidence to be weak and to smack of mere afterthought.  Having ruled that the document P18 was inadmissible in evidence they accepted the account given in evidence by Cora.  On the other hand it is to be observed that Cora's evidence of an arrangement for the release of the lorries to himself was not anticipated in his own pleadings.  Moreover the reliability of Cora's evidence is open to some serious question and since the trial judge appears to have regarded the transaction on 28th July as a purported sale to Njie it seems that he did not accept Cora's version of what had happened.  The document P18 is certainly open to construction but it seems to their Lordships that there are strong grounds for concluding that on 28th July 1989 the lorries were transferred to Njie as his property with a sum of D120,000 being applied to the credit of Cora's account and going towards a reduction of his indebtedness to Njie.  But however that may be their Lordships do not in the event require to decide the point as the case can be readily resolved on the proposition which, as has already been mentioned, formed the basis of Cora's case.

 

13. The trial judge held that the security had ceased to exist on the granting of the judgment of 3rd July 1989.  It is not easy to follow how he was then able to hold that the "purported sale" of 28th July 1989 was invalid as being a sale to himself by a mortgagee.  The Court of Appeal regarded the  court  order  of 7th November 1989 as having ended the security.  In forming their decision on this they purported to follow a case from West Africa, Kwabena Oduro and Others v Daniel Francis Davies ((1952) 14 W.A.C.A. 46).  Counsel for the respondent before their Lordships accepted that this case was not in point and that the Court of Appeal erred in regarding it as relevant.  The case was concerned with the execution of a judgment, not with a security.  Counsel nevertheless maintained that the Court of Appeal had reached the correct result.  He would have preferred to base his argument on the judgment of 3rd July 1989 but in the absence of any cross-appeal felt bound to rely on the order of 7th November 1989 as being the order which terminated the security.

 

14. The matter comes to be one of the construction of the agreement embodied in P1 in the context of the evidence.  Counsel for the respondent sought to argue that the security was not of the nature of a mortgage or a pledge but rather a form of lien, or a simple bailment providing a comfort to the creditor but giving him no power of sale.  He preferred to avoid any categorisation but sought to establish that the security was ancillary to the personal obligation on Cora to repay and not independent of it, with the result that it could not co-exist with the judgment.  Their Lordships have no difficulty in holding that he has failed to establish that proposition in the present case.  There is nothing in the terms of the document P1 or the circumstances sufficient to justify that conclusion.  If anything the reference to mortgage points in the opposite direction.  Even if the proper analysis of the security is one of pledge rather than mortgage that is fatal to the respondent's proposition.  Their Lordships find nothing in the evidence which convincingly supports what would in any event be a somewhat special construction of a security over moveable property.  In their Lordships' view the claim for delivery or wrongful detention of the two lorries is unfounded.  In these circumstances it is unnecessary to consider the arguments presented on the proper quantification of damages sought for their wrongful detention.  It was conceded that in any event the Court of Appeal had erred by way of double counting in awarding the sum of D600,000 twice over.

 

15. So far as the claim for damages in respect of the vehicle G1A 4690 is concerned it is now common ground that it was owned by one Susso, although in Cora's Statement of Claim it  was  described  as  the  plaintiff's vehicle.  The appellants submitted that on the evidence the vehicle had been taken under warrant in enforcement of the judgment which Njie had obtained.  The Court of Appeal proceeded on the basis that the vehicle had come into Njie's hands in 1989, and that he had kept it for nearly two years.  They failed to notice that it was in March 1990 that the judgment in the African Trading Company Limited case was set aside, that it was only in March 1990 that the vehicle was released to Cora and then taken to Njie, and that all this occurred several months after Njie had issued his writ of fieri facias.  When the dates were pointed out to counsel for the respondent he recognised that the claim for wrongful detention of the vehicle G1A 4690 could not stand.  It may be that the matter was somewhat obscured by the initial optimistic claim by Cora that the vehicle had been wrongfully detained from 1988.  But nothing more need be said about that.

 

 Their Lordships are accordingly of the opinion that the claim should fail and they allow the appeal.  The respondent must pay the appellants' costs before their Lordships' Board and in the courts below.

 

© CROWN COPYRIGHT as at the date of judgment.