Basma v Weekes Others (45 of 1948) [1950] SLSC 15 (3 May 1950)

THE AFRICAN LAW REPORTS counsel took the first two grounds together and they were the only ones that were seriously argued. As a result of the arguments put forward, and in view of the wording of art. XIX of the Letters Patent of the Governor and 5 Commander-in-Chief the court, in exercise of its powers under the Appeals from Magistrates Ordinance (cap. 14), s.17, decided to call further evidence and the instrument dated February 3rd, 1949 appointing Mr. Stoddart as the Governor's Deputy was produced. That document, as far as it is material to this case, reads: "[A]nd 10 in that capacity to exercise, perform and execute . . . all powers and authorities ... vested in the Governor." This evidence forced learned counsel to adopt the somewhat attractive, but to my mind quite fallacious, argument that the powers conferred by the instrument were so wide and general that they did 15 not comply with art. XIX of the Letters Patent, which requires that the powers and authorities to be exercised by the Governor's Deputy shall be such "as shall in and by such instrument be specified and limited, but no others." In my opinion all the grounds of appeal fail and the appeal must stand dismissed. 20 Appeal dismissed. 25 30 35 40 BASMA v. WEEKES and THREE OTHERS JUDICIAL CoMMITTEE OF THE PruvY CouNCIL (Lord Simonds, Lord MacDermott, Lord Reid, Sir John Beaumont and Sir Lionel Leach): May 3rd, 1950 (P.C. App. No. 45/1948) [I] Agency-duties and liabilities of agent-liability in contract-agent contracting in own name liable even if existence of principal dis closed: An agent who contracts in his own name does not cease to be contractually bound because it is proved that the other party knew when the contract was made that he was acting as agent for another; but in such a case the other party is entitled to sue either the agent or the principal at his election (page 42, lines 7-11; page 44, lines 8-19).

[2] Agency-duties and liabilities of agent-liability in contract-evidence admissible to show party signing memorandum contracted as agent if memorandum not contradicted: Evidence is admissible to show that a party named in an agreement or memorandum of sale was acting as agent for an unnamed party, and this is so whether or Iilot the agreement is one required to be evidenced in writing by the 34 L BASMA v. WEEKES, 1950-56 ALR S.L. 34 P.C. Statute of Frauds, 1677; but if that party appears on the face of the instrument to be contracting in a personal capacity only, such evi dence is not admissible to contradict the agreement (page 41, line 6-page 42, line 11).

[3] Agency-duties and liabilities of principal-liability in contract- 5 other contracting party may elect to sue either agent or disclosed principal: See [1] above.

[4] Agency-rights of principal-rights against third party-when disclosed principal may sue third party-principal may sue on contract though not named in memorandum in writing if agency relationship known by third party: To statisfy the Statute of Frauds, 1677, a memorandum of sale must name or identify two parties who are contractually bound to ea<;h other, and the Statute does not cease to be satisfied if it is proved that one of them was known by the other when the contract was made to be acting as agent for a party unnamed in the memorandum (page 43, line 32-page 44, line 8).

[5] Contract-form-note or memorandum in writing-identification of parties-Statute of Frauds, 1677 satisfied if one party named known by other to be contracting as agent: See [ 4] above.

[6] Contract-form-note or memorandum in writing-signature-evi dence admissible to show party signing memorandum contracted as agent if memorandum not contradicted: See [2] above.

[7] Contract-specific performance-availability of decree-contract for sale of land by several vendors-specific performance available against vendors with enforceable interests-proportionate abatement in pur chase price in respect of vendor without interest: Where property is sold by more than one vendor, one of whom has no enforceable interest in the property, in the absence of any special circumstances to prevent it a court may order specific performance of the convey ance of the interests of the vendors with enforceable interests in the property and a proportionate abatement in the purchase price in respect of the vendor without one (page 44, line 32-page 45, line 30).

[8] Documents-interpretation-admission of extrinsic evidence-admis sible if not inconsistent with written terms-may show party signing memorandum contracted as agent if memorandum not contradicted: See [2] above.

[9] Land Law-conveyancing-contract for sale of land by several ven dors-specific performance available against vendors with enforceable interests-proportionate abatement in purchase price in respect of vendor without interest: See [7] above. The appellant brought an action against the respondents in the Supreme Court for specific performance of an agreement of sale. The first three respondents, one of whom was a woman married 35 10 15 20 25 30 35 40 10 15 20 25 30 35 40 THE AFRICAN LAW REPORTS in Sierra Leone prior to the passing of the Imperial Statutes (Law of Property) Adoption Ordinance, 1932, agreed to sell two houses to an agent known by the respondents to be acting on the appellant's behalf. The agreed purchase price was duly paid by the appellant's agent. An agreement of sale was drawn up and signed by the first three respondents which referred only to the appellant's agent and not to the appellant himself. The first three respondents subsequently sold the houses to the fourth respondent, who took with notice of the agreement with the appellant, and the appellant was refunded the agreed purchase price by the first three respondents. The appellant instituted the present proceedings for specific performance of the agreement of sale. The Supreme Court (Wright, Ag.J.), having found that the respondents had knowledge of the fact that the purchaser was acting as agent of the appellant, and that therefore the agreement of sale was a sufficient memorandum under the Statute of Frauds, 1677, gave judgment for the appellant to the extent of the interests of the second and third respondents with an abatement of one-third of the purchase price in respect of the first respondent, who as a married woman had no power to enter into the agreement of sale. The appeal by the second, third and fourth respondents was allowed by the West Mrican Court of Appeal on the ground that the agreement of sale was not a sufficient memorandum within s.4 of the Statute of Frauds. On further appeal, the Judicial Committee of the Privy Council also considered whether the agreement of sale was a sufficient memorandum, and whether the appellant was entitled to have specific performance of only a part of his contract. Cases referred to:

(1) Att.-Gen. v. Day (1849), Ves. Sen. 219; 27 E.R. 992, followed.

(2) Calder v. Dobell (1871), L.R. 6 C.P. 486; 25 L.T. 129, dictum of Kelly, C.B. applied.

(3) Filby v. Hounsell, [1896] 2 Ch. 737; (1896), 75 L.T. 270, explained.

(4) Hexter v. Pearce, [.1900] 1 Ch. 341; (1899), 82 L.T. 109, dictum of Farwell, J. applied.

(5) Higgins v. Senior (1841), 8 M. & W. 834; 151 E.R. 1278, dicta of Parke, B. applied.

(6) Horrocks v. Rigby (1878), 9 Ch.D. 180; 38 L.T. 782, followed. 36 ' L L BASMA v. WEEKES, 1950-56 ALR S.L. 34 P.C.

(7) Lovesy v. Palmer, [1916] 2 Ch. 233; (1916), .114 L.T. 1033, approved.

(8) Lumley v. Ravenscroft, [1895] 1 Q.B. 683; (1895), 72 L.T. 382, not followed.

(9) Price v. Griffith (1851), 1 De G.M. & G. 81; 42 E.R. 482, dis- 5 tinguished.

(10) Smith-Bird v. Blower, [1939] 2 All E.R. 406, doubted.

(11) Thomas v. Dering (1837), Keen 730; 48 E.R. 488, distinguished. Legislation construed: 10 Statute of Frauds, 1677 (29 Car. Il, c.3), s.4: " ... [N]o action shall be brought whereby to charge any executor or administrator upon any special promise to answer damages out of his own estate or whereby to charge the defendant upon any special promise to answer for the debt default or miscarriages of another 15 person or to charge any person upon any agreement made . . . upon any contract or sale of lands tenements or hereditaments . . . or upon any agreement that is not to be performed within the space of one year from the making thereof unless the agreement upon which such action shall be brought or some memorandum or note thereof shall be in writing and signed by the party to be charged there- 20 with .... " R.O. Wilberforce (of the English bar) for the appellant; O'Connor (of the English bar) for the respondents. LORD REID, delivering the opinion of the Board: This is an appeal from a judgment of the West Mrican Court of appeal dated April 8th, 1948, which set aside a judgment of Wright, Ag.J., in the Supreme Court of Sierra Leone dated May 24th, 1947. 25 The appellant, who was the plaintiff in the action, alleged that by an 30 agreement dated November 29th, 1946, the first, second and third respondents agreed to sell to him two houses in Freetown for £1,900, and that thereupon the sum of £633. 6s. 8d. was paid to each of these respondents in full satisfaction of the purchase price. The appellant further alleged that, by deed of conveyance dated 35 December 2nd, 1946, these respondents purported to convey the two houses to the fourth respondent. The appellant's claim was to have specific performance of his agreement with the first three respondents. The defence was a denial of this agreement. At the opening of the trial the respondents were allowed without objection to amend their 40 defence by adding the words "If at all there was such an agreement, 37 THE AFRICAN LAW REPORTS which is not admitted, the alleged agreement does not comply with the requirements of the Statute of Frauds." Evidence was then led and the appellant's case closed. At that stage the respondents' counsel, after having made an unsuccessful submission that there 5 was no evidence of the alleged agreement, sought to amend the defence further by adding: "The defendant Gladys Muriel Weekes and the defendant Ettie Spaine are married women." Objection was taken but the amendment was allowed and the respondents" evidence was then led. 10 The appellant's case was based on a document in the following terms: "Nos. 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. 15 2 and 2A, Kissy Street, Freetown, to Mr. C. B. Rogers-Wright, of 27 Liverpool Street, Freetown, at the 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 to the said premises whenever it is prepared and 20 that in the meantime Mr. Wright shall be in possession of the said premises from the date hereof. Dated this 29th day of November, 1946. (Sgd.) Gladys Weekes. (Sgd.) Henrietta Spaine. 25 (Sgd.) John Kabia Williams." Their Lordships will refer to this document as the agreement of November 29th. The respondents did not deny that they had signed this document. They relied on three different defences: first, that the property had already been sold by the first three respondents to SO the fourth respondent before November 29th; secondly, that the agreement of November 29th was not a sufficient memorandum to enable the plaintiff to sue on the contract; and thirdly, that the first respondent Mrs. Weekes had no power to enter into the contract and that, as the contract could therefore not be performed in its entirety, 35 there could be no order for specific performance against the other respondents. The first of these defences is not now maintained. On this matter Wright, Ag.J. did not accept the respondents' evidence: he held that the agreement of November 29th had been made and 40 signed before the first three respondents agreed to sell the property to the fourth respondent and that when this agreemnt was made the 38 BASMA v. WEEKES, 1950-56 ALR S.L. 34 P.C. fourth respondent had notice of the earlier agreement to sell to the appellant. These findings have not been challenged. With regard to the second defence, it appears from the judgment of Wright, Ag.J. that it was argued for the respondents that the only agreement proved was an agreement between Mr. Rogers-Wright 5 and the first three respondents. Wright, Ag.J. rejected this argument holding that oral evidence had sufficiently proved that Mr. Rogers Wright was acting as agent for the appellant and that there was sufficient proof of a contract with the appellant. The third defence was founded on the fact that before 1932 the 10 law of Sierra Leone with regard to the capacity of a married woman was the same as the law was in England before the passing of the Married Women's Property Act, 1882, and that the Imperial Statutes (Law of Property) Adoption Ordinance, 1932 preserved any right which a husband had acquired before that date. Wright, Ag.J. 15 found himself unable to deal with this defence because the evidence was insufficient, and he therefore allowed further evidence to be called. In fact no further evidence was called : it is not clear what further submissions were made by the parties at that stage but in his reasons for his final judgment Wright, Ag.J. said: 20 "Counsel for the plaintiff having agreed to accept judgment for specific performance, the court therefore declares that the plaintiff is entitled to specific performance of the agreement dated November 29th, 1946 mentioned in the pleadings to the extent of the interests of Mrs. Spaine and John Williams with an abate- 25 ment of one-third of the purchase price in respect of the interest of Mrs. Weekes." The argument before their Lordships proceeded on the footing that the respondents, Mrs. W eekes, Mrs. Spaine and John Williams, were tenants in common of the property in question, that Mrs. SO W eekes who was married in 1931 had no power to enter into the agreement of November 29th, but that Mrs. Spaine who was not married until 1944 was under no such disability. It was admitted that the sums paid to these three respondents by the appellant had been repaid to him, and that if the appellant is to have specific 35 performance of the agreement to the extent of the interests of Mrs. Spaine and John Williams he must pay the sum of £1,266. 18s. 4d. It was not disputed that this sum should in that event be paid to the fourth respondent who has taken a conveyance of the property from the first three respondents with the concurrence of Mrs. W eekes' 40 husband and has paid to them the price of the property. 39 THE AFRICAN LAW REPORTS The second, third and fourth respondents appealed to the West African Court of Appeal. That court allowed the appeal on the ground that the agreement of November 29th was not a sufficient memorandum within the Statute of Frauds, 1677. Against that 5 decision the present appeal is taken. The agreement of November 29th apparently satisfies the require ments of the Statute of Frauds. It names the vendors and the purchaser; it specifies the subjects sold and the price; and it is signed by the vendors, the parties to be charged. Further, it states that Mr. 10 Rogers-Wright, who is named as the purchaser, has paid the price and is entitled to immediate possession. Mr. Rogers-Wright is a solicitor and admittedly it was proved by oral evidence that he was acting in this matter as agent for the appellant. But there is nothing in the document to suggest that Mr. Rogers- Wright was acting other- 15 wise than as principal. The first question in this case is whether it is relevant to enquire whether the vendors when they made the agreement knew that Mr. Rogers-Wright was acting as agent for the appellant, and whether, if such knowledge is proved, the fact that the agreement does not identify the appellant as purchaser 20 makes it insufficient to satisfy the Statute of Frauds. Wright, Ag.J. did not deal with this question-probably the point was not taken before him-but the West African Court of Appeal held that the vendors were aware that Mr. Rogers- Wright was purchasing as agent for the appellant. There is evidence to support this finding and their 25 Lordships will assume that it is correct. After so holding, the judgment of the Court of Appeal proceeds (12 W.A.C.A. at 314-315): "It follows therefore that the memorandum to enable the respondent (now the appellant) to sue on it must have contained his name either as a principal or in some other way to identify 30 him. As it clearly fails to do so, we hold that the document . . . was not a sufficient memorandum within the Statute of Frauds." The authority on which the Court of Appeal rely is the judgment of Luxmoore, L.J. in Smith-Bird v. Blower (10), and there is in that judgment a passage which is directly applicable to the present case. 35 But before proceeding to examine that judgment their Lordships must refer to certain earlier cases the authority of which has never been doubted but which do not appear to have been cited to Lux moore, L.J. In Higgins v. Senior (5), there was an agreement in writing for the sale of goods above the value of £10, which purported 40 on the face of it to be made by the defendant and was subscribed by him; but the defendant sought to avoid liability by proving that he 40 ·, L BASMA v. WEEKES, 1950-56 ALR S.L. 34 P.C. made the agreement as agent for a third person and that this was known at the time to the plaintiff. It was held that this did not enable the defendant to escape liability. Parke, B., in delivering the judgment of the court, stated the principle as follows (8 M. & W. at 844; 151 E.R. at 1282) : 5 "There is no doubt that where such an agreement is made it is competent to show that one or both of the contracting parties were agents for other persons and acted as such agents in making the contract, so as to give the benefit of the contract on the one hand to and charge with liability on the other the 10 unnamed principals and this whether the agreement be or be not required to be in writing by the Statute of Frauds; and this evidence in no way contradicts the written agreement. It does not deny that it is binding on those whom on the face of it it purports to bind; but shows that it also binds another by reason 15 that the act of the agent in signing the agreement in pursuance of his authority is in law the act of the principal. But, on the other hand, to allow evidence to be given that the party who appears on the face of the instrument to be personally a contracting party is not such would be to allow 20 parole evidence to contradict the written agreement : which cannot be done. And this view of the law accords with the decisions, not merely as to bills of exchange signed by a person without stating his agency on the face of the bill but as to other written contracts, namely the cases of ]ones v. Littledale and 25 Magee v. Atkinson. It is true that the case of ]ones v. Little- dale might be supported on the ground that the agent really intended to contract as principal : but Lord Denman, in delivering the judgment of the Court, lays down this as a general proposition 'that if the agent contracts in such a form 30 as to make himself personally responsible, he cannot afterwards, whether his principal were or were not known at the time of the contract, relieve himself from that responsibility and this is also laid down in Story on Agency, s.269.'" In Calder v. Dobell (2), Cherry, a broker, contracted in his own 35 name to buy goods from the plaintiffs, having previously disclosed to them that he was acting as agent for the defendant. It was held unanimously by the Court of Common Pleas and in the Exchequer Chamber that the plaintiffs were entitled to sue the defendants on this contract. It was argued for the defendant that there is a 40 distinction between the case where one party is not aware when 41 3 S.L.-2l>