ASANTE vs COMPAGNIE FRANCAISE DE L’AFRIQUE OCCIDENTALE [1961]DLSC633

Date	1961-02-28
Suit No.
Citation No.	[1961]DLSC633

LORD REID JSC

LORD TUCKER JSC

LORD MORRIS OF BORTH-Y-GEST JSC

MISS BISSCHOP FOR THE APPELLANT

DINGLE FOOT

Q.C.

R. K. HANDOO

B. KUMARACKULASINGHE FOR THE RESPONDENT.

[1961]DLSC633
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&nbsp;[JUDICIAL COMMITTEE OF THE PRIVY COUNCIL]

[1961] GLR 125

DATE: 28TH FEBRUARY, 1961.

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COUNSEL:&nbsp;&nbsp;

MISS
BISSCHOP FOR THE APPELLANT.

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LORD REID, LORD TUCKER AND
LORD MORRIS OF BORTH-Y-GEST

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&nbsp;

Lord Morris delivered the judgment of their Lordships. [His
Lordship referred to the facts and continued:] The evidence adduced at the
trial by the appellant was to the effect that the Coronation Bar and its
contents had belonged to three people, viz., Abire, Manu, and Awuah: that he
became a partner with them on the terms of an agreement (agreement A) of the
5th April, 1954; that he later bought them out (thereby becoming sole owner) on
the terms of an agreement (agreement B) of the 1st June 1954; and that he had
paid all the purchase price as was acknowledged by a receipt dated the 5th
November, 1954: Evidence was given at the trial by the appellant himself and on
his behalf by Abire, by Ama Adade (the mother of Awuah), by Harrison Tuburu, a
police corporal and by Awuah. On behalf of the respondents evidence was given
by Robert Christian Yeboah, their chief clerk.

The learned judge gave judgment on the 25th October, 1955. He held
that the appellant had bought the business and was an innocent purchaser for value.
In the course of his judgment he said:

“I have carefully considered the evidence of the plaintiff and of
the other witnesses he has called to prove that he had bought the business
before it was attached. I have considered the conduct of Abire in the whole
transaction and I have come to the conclusion that whatever the conduct of
Abire has been towards the defendants, I accept the evidence that the plaintiff
bought the business and was an innocent purchaser for value. I am satisfied
that after buying the business he made an application for the licence to be
transferred into his own name. The transfer was not made before the
attachment.”

He awarded the appellant the sum of £G669 for loss of profits in
respect of the period during which the business was attached.

The respondents appealed to the West African Court of Appeal.
Leave was given to the respondents to adduce as further evidence (a) the notice
of motion of the appellant (of the 26th January, 1955) for the discharge of the
interim attachment order and the affidavit in support of it dated the 28th
January, 1955, (b) the respondents’ affidavit in opposition dated the 3rd
February, 1955, and (c) the minutes of the court dated the 5th February, 1955.
It would seem that the respondents intended to advance and did advance some
contention based upon the fact that the appellant’s claim had, before the trial
of the action, already been brought before the learned judge (by way of motion
and affidavit) upon the same set of facts and had been dismissed. It is sufficient
to say that the respondents did not raise before their Lordships’ Board any
point to the effect that the claim of the appellant in the action was adversely
affected by his failure in the application which he made before he commenced
his action. It is also to be recorded that no issue as to the measure or
quantum of the damages awarded by the learned trial judge has been raised
before their Lordships.

The appeal was heard before Coussey, P., Korsah, C.J. and Verity,
Ag. J.A. The appeal succeeded and the judgment in favour of the appellant was
set aside. The reasons for judgment, which were concurred in by the other
members of the court, were given by Coussey, P. The learned President referred
to the two agreements (A and B) which have been mentioned above and also to the
receipt (C) of the 5th November. He also referred to an action of the 11th
November, 1954, which now calls for mention.

That was an action brought by Awuah and Manu against the appellant
for the sum of £G100. The alleged agreement of the 1st June, 1954, (agreement
B) was one between Abire, Awuah and Manu of the first part and the appellant of
the second part and was for the sale to the appellant of “all the properties in
the first party’s Coronation Spirit and Chop Bar in house No. K.O.21/22,
Kumasi, at £G837 6s. (Eight hundred and thirty-seven pound six shillings).”
That agreement further recorded that the three persons had received £G500 from
the appellant “out of the said amount of £G837 6s. 0d.” and that the balance of
£G337 6s. 0d. was to be paid to the three persons by the appellant as to £G100
at the end of July, 1954, and as to £G237 6s. 0d. at the end of November, 1954.