TAYLOR vs. DAVIS [1961]DLHC5509

Date	1961-06-26
Suit No.
Citation No.	[1961]DLHC5509

LORD DENNING LORD MORRIS OF BORTH-Y-GEST AND LORD HODSON

DINGLE FOOT Q.C. J. DEAN AND P. V. PAREKJI FOR THE APPELLANT.

S. P. KHAMBATTA Q.C. B. A. MARDER AND B. CHARAVARTI FOR THE RESPONDENT.

[1961]DLHC5509
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">TAYLOR <o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">vs. <o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">DAVIS<o:p></o:p><span style="font-size:10.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">&nbsp;[JUDICIAL COMMITTEE OF THE PRIVY COUNCIL]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

DINGLE
FOOT, Q.C., J. DEAN AND P. V. PAREKJI FOR THE APPELLANT.<o:p></o:p>

S.
P. KHAMBATTA, Q.C., B. A. MARDER AND B. CHARAVARTI FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

LORD DENNING, LORD MORRIS OF
BORTH-Y-GEST AND LORD HODSON<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF
LORD MORRIS<o:p></o:p>Lord Morris delivered the judgment of their Lordships. The
appellant brought an action in the Supreme Court of the Gold Coast in which he
claimed to have an account taken of a timber business carried on by the
respondent as his agent, and payment of the amounts found due to him on the
taking of the account. By his judgment dated the 30th December, 1954, Acolatse
J. dismissed the claim and allowed the respondent’s counterclaim in the sum of
£G1,351 6s. 3d. The appellant appealed to the West African Court of Appeal. By
a judgment dated the 28th June, 1956, the appeal was dismissed. From this
judgment the appellant now appeals.<o:p></o:p><o:p>&nbsp;</o:p>After the trial of the action had begun before Acolatse J., an
order was made referring accounts to a referee. The main issue which is raised
in this appeal is whether the referee, who was appointed to go into accounts
and report his findings to the court, exceeded his terms of reference by
deciding certain questions of law and fact and whether the courts below should
have accepted his findings although no evidence was called before the trial
judge.<o:p></o:p><o:p>&nbsp;</o:p>On the 31st August, 1945, (by an agreement of that date) the
respondent was granted a timber concession by the Omanhene of Assin-Apimanim
State. The respondent was to be permitted to fell timber for a period of ten
years in an area of land measuring twenty miles square and to make such timber
into logs to be hauled away. The respondent paid £G200 as an advance in respect
of the payments which at agreed rates were to be made in respect of the trees
that were felled. That amount of £G200 was paid to the respondent by the
appellant, at whose instance and on whose instructions the respondent had
entered into the concession agreement. This was recited in an agreement made
between the appellant (who was called the principal) and the respondent (who
was called the contractor) on the 31st January, 1946. By that agreement it was
further recited that it was the intention of the parties to carry on timber
business in the area covered by the concession and it was agreed that:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“in consideration of the premises and of the advance in money
already made and to be made in the future by the principal towards the
performance of the duties and obligations on the part of the contractor to be
discharged in respect of the contract with the Assin Apimanim Stool the said
contractor doth hereby COVEN-ANT with the principal that he will faithfully
carry out the said duties and obligations during the currency of the agreement
with the Assin Apimanim Stool with the help advice and assistance of the
principal and that in return therefore he will after deduction of all working
expenses and other out-goings either weekly or otherwise as may be agreed upon
pay to the principal one-half of the amount of profits realised on the sale and
disposition of all timber and timberlike trees, boards, etc. obtained from the
said Basofi Land by virtue of the said agreement with the Assin Apimanim Stool
AND the contractor doth hereby assign all his claims rights interests and
benefits arising under and by virtue of the said agreement to the principal as
a disclosed principal under that agreement AND THE PRINCIPAL doth hereby
covenant with the contractor that he will continue as heretofore in giving all
necessary assistance to the contractor towards the due performance of the said
contract.”<o:p></o:p><o:p>&nbsp;</o:p>The agreement also provided that so long as he carried out his
part of the contract the respondent was to be entitled to retain one half of
the net profits.<o:p></o:p>