Savage v Brewo Motors Ltd, 1972-73 ALR S.L. 427

SECTION 46

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 application 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 lawobjection 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

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 appellant 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.

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(5) Kiriri Cotton Co. Ltd. v. Dewani, [1960] A.C. 192; [1960] 1 All E.R.

(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

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

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,

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.

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 November 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

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

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 respondents 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."