Savage v Brewo Motors Limited (CIV APP 33 of 1972) [1971] SLCA 1 (12 December 1971)

5 10 15 20 25 30 SECTION 46 THE AFRICAN LAW REPORTS SAVAGE v. BREWO MOTORS LIMITED Court of Appeal (Tejan, Agnes Macaulay and Beccles Davies, JJ. A): December 12th, 1971 (Civil App. No. 33/72) [ 1] Civil Procedure-appeals-appeals against award of damages-damages already paid recoverable if appeal allowed even if repayment not speci­ fically ordered: If damages have been paid before an appeal against the award has been determined and the appeal is subsequently allowed, as soon as this decision is made known to the payee the money in his possession is no longer legally received and is recoverable by the payer even though the judgment on appeal does not specifically order its return; if necessary the decision may be enforced by bankruptcy, wind­ ing-uporotherproceedings (page 431, lines 21-29; page 432, lines 5-10; page 440, lines 14-21). [2] Civil Procedure-appeals-application by motion-does not constitute appeal within Sierra Leone Court of Appeal Rules, 1973, rr.31 and 32: An application by motion for an order of the court does not constitute an appeal for the purpose of making orders under rr.31 and 32 of the Sierra Leone Court of Appeal Rules, 1973, and so on such an applica- tion no order may be made under these rules (page 432, lines 18-20; page 432, line 40- page 433, line 14; page 433, lines 24-30). [ 3] Civil Procedure-judgments and orders-enforcement-judgment on appeal -damages already paid recoverable if appeal allowed even if repayment not specifically ordered: See [1] above. [ 4] Civil Procedure-pleading-defective pleading-objection in point of law- objection that pleading does not set forth sufficient ground of action defence or reply only to be raised if fault substantive rather than formal: Either party to an action may raise an objection in point of law on the ground that the pleading does not set forth a sufficient ground of action, defence or reply, but such objection may be raised only if the fault is something more than a mere imperfection, omission or defect in form (page 435, lines 10-16). [ 5] Courts~ourt of Appeal-appeals-application by motion-does not constitute appeal within Sierra Leone Court of Appeal Rules, 1973, rr.31 and 32: See [2] above. 35 The respondents brought an action in the High Court to recover money paid by them to the appellant on a judgment of the High Court in previous proceedings which was subsequently reversed on appeal; they also claimed damages for wrongful detention of the money. 40 In previous proceedings the appellant claimed damages from the respondents for the loss of his car and for loss of use of it. The 426 SAVAGE v. BREWO MOTORS LTD .• 1972-73 ALR S.L. 427 C.A. High Court awarded damages which were paid by the respondents who then appealed. On appeal the award of damages for loss of use of the car was set aside, but the court was not told that the sum had already been paid and no order was made in respect of it. The appellant offered to refund the money in instalments but 5 failed to do so. Nine months later the respondents moved the Court of Appeal for an order that the money should be refunded immediately but the motion was dismissed on the ground that the respondents had delayed their action too long and equity would not therefore aid them, but the court pointed out that the responw 10 dents had a remedy at law to recover payment of the amount. The respondents instituted the present proceedings against the appellant claiming the repayment of the sum awarded for loss of use of the car and damages for wrongful detention of the sum. The High Court (Lawrence-Hume, Ag. J.) ordered that the appellant 15 should refund the money to the respondents. On appeal the appel- lant contended inter alia that - (1) since the original judgment of the Court of Appeal gave no direction concerning the sum paid to the appellant, the respondents could not legally levy execution for that amount nor sue for the refund of the money; (2) when 20 the respondents applied by motion for an order that the money should be refunded immediately, the Court of Appeal had power under the Sierra Leone Court of Appeal Rules, r.31 or r.32 to make the order and since the court had refused the order the res­ pondents could not bring proceedings on the original judgment of 25 the Court of Appeal; (3) the statement of claim did not disclose a cause of action and ( 4) since money paid voluntarily under a mistake of law cannot be recovered, so money paid as a result of a judicial decision which is subsequently reversed on appeal is also irrecoverable. 30 The appeal was dismissed. Cases referred to: (1) Bullingdon R.D.C. v. Oxford Corp., [1936] 3 All E.R. 875; (1936), 80 Sol. Jo. 1037. (2) Derrick v. Williams, [1939] 2 All E.R. 559; (1939), 160 L.T. 589, dis­ tinguished. (3) Dobbs v. Grand Junction Waterworks Co. (1883), 9 App. Cas. 49; 49 L.T. 541. (4) Henderson v. Folkestone Waterworks Co. (1885), 1 T.L.R. 329, dis­ tinguished. 427 35 40 I I ) • l i . : I ; i ! f ; I . I I :; I t :, j ' ! f i ~ 1 ; j I ~ ' \ I ~ .·I ; . I ; :. I ' i ; l ' ' ' i : ! 5 10 15 20 25 30 35 40 THE AFRICAN LAW REPORTS (5) Kiriri Cotton Co. Ltd. v. Dewani, [1960] A.C. 192; [1960] 1 All E.R. 177 . (6) Pritchett v. English & Colonial Syndicate, [1899] 2 Q.B. 428; (1899), 81 L.T. 206. (7) Rose v. Ford, [1936] 1 K.B. 90; (1936), 154 L.T. 77; on appeal, [1937] A.C. 826; [1937] 3 All E.R. 359. (8) Shaw v. Shaw, [1954] 2 Q.B. 429; [1954] 2 All E.R. 638, dicta of Denning, L.J. applied. Legislation construed: Sierra Leone Court of Appeal Rules, 1973 (P.N. No. 28 of 1973), r.31: The relevant terms of this rule are st out at page 432, lines 25-39. r.32: The relevant terms of this rule are set out at page 433, lines 15-23 . Tejan-Cole for the appellant; Millar for the respondents. TEJAN, J.A., delivering the judgment of the court: In this appeal, the appellant presented six grounds of appeal against the judgment of LawrencewHume, Ag. J. dated November 21st, 1972. The circumstances of the case before Lawrence·Hume, Ag. J. arose out of the judgment of the Sierra Leone Court of Appeal dated November 6th, 1970. It appears from the facts and pleadings in the case that some time in 1969, the appellant instituted an action in the High Court against the respondents claiming a certain amount of money for the loss of his car and damages for loss of use of the said car. On January 30th,· 1970, the appellant obtained judgment delivered by BrownewMarke, J. (as he then was) against the respondents. The respondents, in terms of the said judgment, were ordered to pay the sum of Lel,OOO for the loss of the appellant's car and the sum of Lel,200 as damages for loss of use of the said car. The respon­ dents paid the total amount of Le2,200 to the appellant who acknowledged the payment by issuing a receipt. After the appellant had received the amount, the respondents appealed against the judgment of Browne-Marke, J. (as he then was) to the Sierra Leone Court of Appeal. On November 6th, 1970, Sir Samuel Bankole Jones, P., deliver­ ing the judgment of the court, said inter alia- "there is no evidence on the record that the loss of use was for 60 days nor was there that kind of proof required in such 428 SAVAGE v. BREWO MOTORS LTD.,l972-73 ALR S.L. 427 C.A. a case that the amount of loss was Le20 per day. Sitting as a court of appeal we will not indulge in speculation. If the respondent failed to prove his special damage to the hilt in the court below, this court cannot lend its assistance. The appeal is allowed and the amount awarded for loss of use is 5 accordingly set aside." After the judgment of the Court of Appeal had been delivered, the appellant was called upon to refund the amount of Le1 ,200 which he had already received. The appellant agreed to refund the amount, and as a result, he wrote a letter dated January 6th, 1971 10 to the respondents. This letter is written in the following terms: "Brewo Motors - appellants V. B.D. Savage -respondents Thank you indeed if you will be good enough to accept 15 the offer of Le400 (four hundred leones) as part payment and the balance will be paid by monthly instalments of Le50 (fifty leones). This is in response to Mr. N.D. Tejan-Cole's letter dated December 9th, 1970. 20 Enclosed, please find cheque for the sum of Le400 (four hundred leones) for which, kindly acknowledge receipt." This letter was copied to Mr. N.D. Tejan-Cole and also to Mr. L.D. Millar. It seems that when the respondents could not get the appellant 25 to refund the amount, they moved the Court of Appeal (notice of motion dated September 18th, 1971) for an order that the sum of Le1,200 be refunded immediately to the applicants, plus costs, following the judgment of this court dated November 6th, 1970. The judgment on the motion was delivered on October 14th, 1971. 30 In the course of his judgment Cornelius Harding, the Presiding Judge said: "Counsel was asked for the basis of his application and he stated that he was merely asking the court to exercise its inherent jurisdiction. In other words he was simply asking 35 this court to do that which is right as between parties. The applicants were represented throughout this cause by counsel - the same counsel for that matter. It is elementary jurisprudence that an appeal does not operate as a stay of execution. The situation in which the applicants now find 40 themselves was not inevitable. Counsel must have had in 429 THE AFRICAN LAW REPORTS contemplation an appeal against the decision of the High Court since January 20th, 1970 when the decision was given, and he could have avoided being put in the situation in which he now finds himself in more ways than one, e.g. he could 5 have applied for an order for a stay of execution or he could have paid the amount awarded on the judgment into court and applied for an order for it to be paid out pending the determination of the appeal, or if paid out, for an order directed to the respondent for him to give an undertaking to 10 pay it back should the appeal be determined against him, or indeed, he could have made mention of the fact of payment having been already made to the respondent at the hearing of the appeal when this court could have made a contem­ poraneous order with regard to a refund on November 6th, 15 1970. The rule is vigilantibus et non dormientibus lex succurrit -equity aids the vigilant, not the indolent. The applicants have been guilty of laches, and where a party has slept upon his rights a court of equity will refuse its aid to stale demands. 20 The applicants have their remedy at law to recover payment of the amount. The motion is accordingly dismissed." After the dismissal of the motion, the respondents on February 5th, 1972, issued a writ of summons against the appellant claim­ ing the sum of Le 1,200 and damages for wrongful detention of 25 the said sum of Le1,200. The case was heard by Lawrence-Hume, Ag. J., who in the course of his judgment dated November 21st, 1972 said: "It should be noted that no application for any order what­ soever was prayed for in this appeal in regard to the said sum 30 of Le1,200, already settled. However, counsel for the plaintiffs applied by motion to the Court of Appeal for the sum to be refunded by the defendant. In a judgment delivered on October 14th, 1971, the Court of Appeal observed that the plaintiffs' solicitor made no application for the defen- 35 dant 'to give an undertaking to pay back the amount affected by the appeal, in case the appeal was allowed.' That court felt that since the plaintiffs had slept upon their rights, their counsel could not summarily move the court to make such an order, and directed that since the plaintiffs have their remedy 40 at law, they should pursue such course to recover payment of the said amount of Le1,200. 430 SAVAGE v. BREWO MOTORS LTD., 1972-73 ALR S.L. 427 C.A. And this is what they have now done. There has been no denial by the defendant that the plaintiffs paid him the sum of Le 1,200. He admitted under cross-examination by counsel for the plaintiffs that he had agreed to repay the said sum to the plaintiffs. I therefore find for the plaintiffs. I hereby 5 order that the defendant refund to the plaintiffs the sum of Le 1,200. I also order costs to be taxed in favour of the plaintiffs and against the defendant." In his first ground of appeal, the appellant complained that the "trial judge was wrong in law to find on behalf of the plaintiffs/ 10 respondents on the decisions of the Court of Appeal dated Novem- ber 6th, 1970 and October 14th, 1971. Mr. Tejan-Cole, counsel for the appellant, argued forcefully that since the judgment of the Court of Appeal gave no direction concerning the amount which was paid to the appellant, the res- 15 pondents could not legally levy execution for the amount nor sue for the refund of the amount. The judgment itself simply states: "The appeal is allowed and the amout awarded for loss of use is accordingly set aside.'' It is also argued that the judgment did not require the appellant to refund the amount. 20 "The majority of judgments and orders requires one or more of the parties to do or abstain from doing some act, and, if such a judgment is not obeyed, some further legal process is required to ensure compliance .... Besides the various modes of execution and analogous proceedings ... , 25 bankruptcy ... and winding-up ... proceedings may be utilised to enforce judgments for sums of money, and in certain cases it may be necessary or desirable to bring further proceedings founded on a previous judgment." (See 22 Halsbury 'sLaws of England, 3rd ed., para. 1676). 30 An action will also lie on a judgment which finally establishes a debt, whether the judgment is English or foreign but, if an English judgment can be enforced in some other way, it is an abuse of the process of the court to bring an action upon it. See Pritchett v. English & Colonial Syndicate (6). 35 The .judgment of the Court of Appeal on November 6th, 1970, merely allowed the appeal and set aside the award for loss of use, and no more. No order was made that the appellant was to refund the money awarded. The Court of Appeal was not aware that the money awarded for loss of use had been paid to the appellant, 40 and counsel for the respondents, perhaps through forgetfulness or 431 THE AFRICAN LAW REPORTS carelessness, did not mention the payment of the award to the Court of Appeal. Because of the absence of an order in respect of the award, it was argued on behalf of the appellant that the respondents could not sue on the judgment. But the law on this 5 point is clear. Where a judgment is silent as to the requirement of one or more of the parties to an action to do or abstain from doing some -act, bankruptcy and winding-up proceedings may be utilised to enforce the judgment for sums of money, and in certain cases further proceedings could be brought upon the 10 previous judgment. In this appeal, the respondents brought proceedings against the appellant founded upon the judgment of the appeal court dated November 6th, 1970. This judgment set aside the award of money, that is, the sum of Lel,200. The judgment could not be enforced 15 in any other way. After the judgment of the Court of Appeal dated November 6th, 1970, the respondents moved this court for an order that the sum of Le1,200 be refunded immediately by the appellant. This court refused to make the order prayed for purely on the basis that a notice of motion was not the proper 20 method to enforce a judgment. In his argument, Mr. Tejan-Cole referred this court to its general powers under rr .35 and 36 of the old Rules of the Court of Appeal. These.rules are now embodied in rr.31 and 32 of the Sierra Leone Court of Appeal Rules, 1973. Rule 31 enacts that- 25 "the Court may from time to time make any order necessary for determining the real question in controversy in the appeal and may amend any defect or error in the record of appeal, and may direct the Court below to enquire. into and certify its finding on any question which the Court thinks fit to 30 determine before final judgment in the appeal, and may make any interim order or grant any injunction which the Court below is authorised to make or grant and may direct any necessary enquiries or accounts to be made or taken and generally shall have as full jurisdiction over the whole pro- 35 ceedings as if the proceedings had been instituted and pro­ secuted in the Court as a Court of first instance, and may rehear the whole case, or may remit it to the Court below to be reheard, or to be otherwise dealt with as the Court may direct.'' 40 It was submitted on behalf of the appellant that when the respon­ dents applied by motion for an order that the sum of Lel,200 be 432 SAVAGE v. BREWO MOTORS LTD., 1972-73 ALR S.L. 427 C.A. refunded immediately,_ this court had power under r .31 to make the order, and that since the court had refused the order prayed for, the respondents could not bring proceedings on the judgment of this court dated November 6th, 1970. The provisions of r.31 are clear. The notice of motion that was presented to this court 5 was not an appeal as required by r.31. The court was not called upon to determine any controversy in an appeal nor was the court requested to amend any defect or error in the record of appeal. Mr. Tejan-Cole also submitted that this court could have made 10 the order after having heard the argument for and on behalf of the respondents and appellant on the motion presented by the respondents under r.32 of the Sierra Leone Court of Appeal Rules 1973. Rule 32 provides that- "the Court shall have power to give any judgment and make 15 any order that ought to have been made, and to make such further or other order as the case may require including any order as to costs. These powers may be exercised by the Court notwithstanding that the appellant may have asked that part only of a decision may be reversed or varied, and 20 may also be exercised in favour of all or any of the respon- dents or parties although such respondents or parties may not have appealed from or complained of the decision." Rule 32 in my view, refers to appeals brought before the court, and when such appeals are brought before the court, then the 25 court can exercise the powers conferred upon it by the rule. I have said earlier that the notice of motion presented to the court was in no circumstances an appeal. It was a motion praying for a particular order, and as such the court could not have made the order sought under r.32. In my view, I think the proceedings in 30 the High Court were properly and regularly instituted. It was also argued on behalf of the appellants that the learned trial judge was wrong in law to have based his judgment on obiter dicta of this court. The passages in the judgment of the lower court complained of by the appellant are these: 3 5 (a) "That court felt that since the plaintiffs had slept upon their rights, their counsel could not summarily move the court to make such an order, and directed that since the plaintiffs have their remedy at law, they should pursue such course to recover payment of the said amount of 40 Lel,200." 433 THE AFRICAN LAW REPORTS (b) "And this is what they have now done. There has been no denial by the defendant that the plaintiffs paid him the sum of Le1,200." Speaking for myself, I am at a complete loss to see how the 5 above passages were the basis of the judgment of the lower court. It is true that this court said that the respondents had their remedy at law to recover payment of the amount. I think the learned trial judge was merely summarising what was said in this court and his reference to what was said in this court, in my view, did not 10 influence his final determination of the issues between the parties. This court said that the respondents had their remedy at law, and in this judgment, I have already ruled that the action in the lower court was maintainable. During the course of his argument, Mr. Tejan~Cole submitted 15 that even if the respondents could properly institute an action, the statement of claim did not disclose a cause of action. The state~ ment of claim in this case is as follows: "Statement of Claim The plaintiffs' claim against the defendant is for the recovery 20 of the sum of Le 1,200 recovered from the plaintiff upon a judgment which has been set aside and for damages for wrong~ ful detention of the said sum. Particulars: 1. The plaintiff was the defendant in an action numbered 25 C.C.264j69 B.D. Savage v. Brewo Motors, and commenced in the Supreme Court (now High Court) of Sierra Leone by writ of summons dated July 30th, 1969. 2. The defendant on January 30th, 1970 obtained judgment against the plaintiff in the said action for the sum of Le1,200 30 for loss of use of a motor vehicle. 3. In pursuance of the said judgment the defendant put con~ siderable and undue pressure on the plaintiff whom he caused to pay the sum of Le1 ,200 for and on account of the said judgment. 35 4. By a judgment of the Court of Appeal of Sierra Leone dated November 6th, 1970 the said judgment of the High Court was set aside to the effect that the sum of Le 1,200 should not be paid and the said judgment remains in force. 5. The defendant was served with a copy of the said judgment 40 of the Court of Appeal for Sierra Leone and is aware of the terms of the said judgment but wilfully refused and still 434 SAVAGE v. BREWO MOTORS LTD .• 1972-73 ALR S.L. 427 C.A. refuses to repay to the plaintiff the said sum despite several requests from the plaintiff. Wherefore the plaintiff claims from the defendant the said sum of Le1,200. And the plaintiff claims damages." With regard to pleadings, the rule is that "every pleading must 5 contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which those facts are to be proved, and the statement must be as brief as the nature of the case admits." Mr. Tejan~Cole argued that the state~ 10 ment of claim did not disclose a cause of action. This is an objec~ tion in point of law which either party may raise on the ground that the pleading does not set forth sufficient ground of action, defence or reply. But such an objection can only be raised where the fault is something more than a mere imperfection, omission 15 or defect in form. See Odgers on Pleading & Practice, 20th ed., at 147 (1971). The attention of this court has been called to Bullen & Leake's Precedents of Pleadings, 11th ed., at 261 (1959). Under the heading "Judgments and Orders" there is the following form of pleading: 20 "The plaintiffs' claim is for money due from the defendant to the plaintiff on a judgment for£- and costs to be taxed, recovered by the plaintiff against the defendant in an action brought by the plaintiff against the defendant .... " The appellant's counsel submitted that the form in Bullen & Leake 25 ought to have been adopted by the respondents in their pleading. With due respect to the appellants' counsel, I think the submission is untenable. The forms in Bullen & Leake are merely guides to drafting of pleadings. There is no rule of law which states that pleadings must be taken verbatim out of any book of precedents. 30 The function of pleadings is that before a judge is asked to decide any question which is in controversy, it is desirable in all cases that the matter to be submitted for decision should be clearly ascer­ tained. A defendant is entitled to know what a plaintiff alleges against him, and the plaintiff is also entitled to know what defence 35 will be raised in answer to his claim. The statement of claim in this case is clear enough. It is stated in unmistakable terms that the respondents' claim is for the recovery of the sum of Le1,200 recovered from the respondents upon a judgment which has been set aside and for damages for the wrongful detention of that 40 amount. Paragraph 4 of the statement of claim even states the date 435 THE AFRICAN LAW REPORTS of the judgment of this court setting aside the judgment of the High Court. I am unable to find any defect apparent on the face of the statement of claim. The objection can be raised not only where the fault is apparent on the face of the statement of claim, 5 but the fault must be something more than a mere imperfection, omission or defect in form. In the case of Shaw v. Shaw (8), a complaint was made that an implied warranty was not alleged in the pleadings and Denning, L.J. had this to say in his judgment ([1954] 2 Q.B. at 441; [1954] 2 All E.R. at 645): 10 "It is said that an implied warranty is not alleged in the pleadings, but all the material facts are alleged, and in these days, so long as those facts are alleged, that is sufficient for the court to proceed to judgment without putting any parti­ cular legal label upon the cause of action." 15 The next complaint to be enquired into is whether the learned trial judge - "misdirected himself in law that money paid under an original judgment is actionable and recoverable in the absence of an order of the High Court for an unsuccessful party to a 20 suit to pay money to the successful party and/or without an order for a stay of execution and/or without an order of the appellate court directing that money paid under a judgment reversed or set aside by the appellate court be refunded.'' Mr. Tejan-Cole has argued before this court that money paid 25 on a judgment which is subsequently reversed by a higher tribunal is irrecoverable. Before the learned trial judge and in his address, Mr. Tejan-Cole posed this question: "Can money which has been paid as a result of a decision which has been set aside be re­ covered?" He then went on: "It is my submission that the answer 30 is no, unless an order has been so made by an appellate court. I refer Your Lordship to p.83 of The Law of Restitution by Goff & Jones under the rubric 'money paid in reliance on judicial decision subsequently reversed or overruled.' " I have read p.83 of Goff & Jones and it is stated on that page that "the courts 3 5 have denied recovery of money paid in reliance on a judicial decision which is subsequently reversed or overruled." The case of Henderson v. Folkes tone Waterworks Co. ( 4) was referred to. It is stated in this case that money paid voluntarily, under a mis­ take of law, cannot be recovered back. 40 The facts in Henderson's case can be summarised as follows: The plaintiff, the owner and occupier of a house at Folkestone, 436 SAVAGE v. BREWO MOTORS LTD.,l972-73 ALR S.L. 427 C.A. had been, as he alleged, rated by the water company in excess of what was held to be legal in Dobbs's case (3) in the House of Lords, and he had paid the amount demanded of him under the impression that he was bound to do so, and now he sued the company to recover back the excess. The company, on their 5 side, set up that it was a voluntary payment and not recoverable. The plaintiff set up in answer that it was paid by compulsion. In his judgment it is reported (1 T.L.R. at 329) that Lord Coleridge said "the law was quite clear that the plaintiff could not recover 10 back this money. No doubt when money paid under an error in law had been extorted or obtained by duress or any kind of compulsion it could be recovered back, but that was not the case here. The law once ascertained to have been against the party who had thus by compulsion obtained payment of 15 money, it can be recovered back. But here at the time the money was paid, which was before Dobbs's case, the law was in favour of the company, and there was no authority to show that it could be recovered back on account of a judicial decision reversing the former understanding of the law." 20 The facts in the case presently before this court are different from those in Henderson's case. In Henderson's case, money was paid by Henderson under an existing law at the time. Later, Dobbs was called upon to pay money under the same existing law, but Dobbs appealed to the House of Lords and that House reversed the law 25 under which Henderson had paid. The law was not reversed on appeal by Henderson. It was reversed on appeal in a later case, that is, Dobbs's case (3). This was why Lord Coleridge, during the course of argument, observed: "Can it be that every reversal of a decision may give rise to hundreds of actions to recover back 30 money previously paid?'' The other case referred to is Derrick v. Williams (2). The facts in this case are as follows ([1939] 2 All E.R. at 559): "On July 26, 1935, the infant child of the respondent was killed by a motor lorry belonging to the appellant. The res- 3 5 pondent, as the personal representative of the infant, there- upon brought an action claiming damages under the Law Reform (Miscellaneous Provisions) Act, 19 34, and in Oct., 1935, the appellant, as defendant in that action, paid into court £50 with a denial of liability, and that sum was taken 40 out by the respondent. At that time, in reliance upon the 437 THE AFRICAN LAW REPORTS decision of the Court of Appeal in Rose v. Ford ... it was thought that damages could not be recovered in respect of loss of expectation of life, but that decision was in 1937 reversed in the House of Lords. The respondent on Sept. 27, 5 1938, brought the present action ... and claimed damages for loss of expectation of life. The appellant took the pre~ liminary point that the acceptance of the sum paid into court in the previous action was a bar to the present proceedings. The court decided this point in favour of the appellant .... " 10 Now the facts in Derrick's case are also different from the facts in the case before this court. In Derrick's case an action was originally instituted in 1935 and this action was settled by the payment of the sum of £50 which Williams accepted. Williams did not claim damages for loss of expectation of life in the original 15 action because of a decision of the Court of Appeal in another case, Rose v. Ford (7). The decision of the Court of Appeal in Rose v. Ford was reversed in 1937 by the House of Lords. After the decision of the House of Lords, Williams brought another action now claiming damages for loss of expectation of life, - 20 an action bearing on the same facts as in the action instituted in 1935. In delivering his judgment in the case, Sir Wilfrid Greene, M.R. said ([1939] 2 All E.R. at 565; 160 L.T. at 591): "No shadow of authority was cited to us which would justify the proposition that, where, pursuant to the rules of court, 25 a claim has been satisfied by money paid into court by the defendant, the plaintiff can afterwards come and say: 'I was wrongly advised as to the law when I did this, because the law was not as then laid down by the Court of Appeal, but as subsequently enunciated by the House of Lords.' It would 30 be an intolerable hardship on successful litigants if, in circum~ stances such as these, their opponents were entitled to harass them with further litigation because their view of the law had turned out to be wrong, and, unless I were constrained by binding-authority, I should be quite unable, on principle, to 35 accept any such proposition." In the case of Bullingdon R.D.C. v. Oxford Corp. (1) Singleton, J. said that the paramount consideration in these cases is that settlements made and accepted by both parties should be honoured. Lord Denning summarised the law with regard to money 40 paid under a mistake of law in the case of Kiriri Cotton Co. Ltd. v. Dewani (5) in the following terms ([1960] A.C. at 204; [1960] 1 438 SAVAGE v. BREWO MOTORS LTD., 1972-73 ALR S.L. 427 C.A. All E.R. at 181): "It is not correct to say that everyone is presumed to know the law. The true proposition is that no man can excuse him­ self from doing his duty by saying that he did not know the law on the matter. Ignorantia juris neminem excusat. Nor is 5 it correct to say that money paid under a mistake of law can never be recovered back. The true position is that money paid under a mistake of law, by itself and without more, can- not be recovered back. . . . If there is something more in addition to a mistake of law - if there is something in the 10 defendant's conduct which shows that, of the two of them, he is the one primarily responsible for the mistake - then it may be recovered back. Thus, if as between the two of them the duty of observing the law is placed on the shoulders of the one rather than on the other - it being imposed upon 15 him specially for the protection of the other - then they are not in pari delicto and the money can be recovered back .... Likewise, if the responsibility for the mistake lies more on the one than the other - because he has misled the other when he ought to know better - then again they are 20 not in pari delicto and the money can be recovered back. " From the authorities already cited, it seems to me the crucial question is not whether money was paid under a mistake of law or fact, but whether it was voluntarily paid in settlement of an 25 honest claim. In the case before this court, the respondents did not pay the sum of Le1,200 under a mistake of law or fact. The respondents paid the money on a judgment of the High Court, dated July 30th, 1969. After the respondents had paid the money, an appeal was lodged against the decision of the High Court. The 30 decision of the High Court with regard to the payment of the sum of Le 1,200 was set aside. The appeal to the Court of Appeal was in relation to the same subject-matter in the High Court involving the same parties. It is not a case where the respondents had originally instituted an action, and after the matter had been 35 settled, the respondents instituted another action on the same sub­ ject-matter because of a new decision given by the appeal court on another case reversing the decision given in the original action instituted by the respondents. The appellant sued the respondents in the High Court. The decision of the High Court was that the 40 respondents were to pay to the appellant the sum of Le1,200 for 439 THE AFRICAN LAW REPORTS loss of use of a motor vehicle. This decision was set aside. The respondents sued the appellant for the recovery of the sum of Le1,200 paid on the judgment and not under a mistake of law. It seems to me that the respondents' action could legally be 5 maintained and that the appllant is bound to refund the amount he received from the respondents. This court cannot allow the appellant to unjustly enrich himself simply because the judgment of this court did not contain express words that the appellant was to refund the money. The appeal 10 court was not aware that the money had already been paid. But even without this awareness, the judgment of the court had set aside the payment. The appellant well knew of the judgment and when called upon to repay the money, he at first agreed to pay the money but later refused to do so. From the date the decision 15 of the Court of Appeal was made known to the appellant, the money in his possession was no longer legally received. This court will not allow a wrong to go unredressed where it is capable of being remedied, the maxim being that equity will not suffer a wrong to be without a remedy. The respondents' money has been 20 wrongfully in the possession of the appellant since the date of the judgment of the appeal court. I think the action taken by the respondents in the High Court was well founded, and the learned trial judge was right in finding for the respondent. In the circumstances, I will dismiss this appeal with costs to be 25 taxed. Costs in the court below are also to be taxed and paid by the appellant. Appeal dismissed. 30 35 40 440