Ellis & Another v King (CIV APP 15/96) [2000] SLCA 6 (10 January 2000);
CIV APP 15/96
IN THE COURT OF APPEAL FOR SIERRA LEONE
BETWEEN: JOSEPHINE R. ELLIS } APPELLENTS
DESMOND C. O. ELLIS }
AND
CECIL Q.E. KING - RESPONDENT
JUDGMENT DATED .................2000
TOLLA THOMPSON J.A.
This appeal is against the judgment of L.B.O. Nylander J dated the 22nd March 1996 in which, he gave judgment for the respondent and made the following orders.
1. That the plaintiff shall have the liberty to dispose of the flat he built by sale, but first option to sell this flat shall be given to the defendant jointly and severally.
2. That the option is open to the defendants for six (6) months from the date of this judgment.
3. That the value of the property shall be for Le26,452,542.00
4. That should the defendants fail to take up the option within six (6) months from the date of this judgment then each side has the liberty to apply and the property can be sold by private treaty or public auction.
5. That the defendants shall pay interest of 30% per annum as from the 17th April 1992 when plaintiff moved out of the flat up to the date when the option to purchase the flat is exercised. The rate of interest shall be calculated on Le26, 452,542.00.
6. That the defendants shall pay the cost of this action, such cost to be taxed by the Master and Registrar.
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The appellants being dissatisfied with the orders contained in the judgment has appealed to the Court of Appeal on the following grounds:
1. That the learned trial judge erred in law when he granted the plaintiff reliefs which he had not prayed for in his statement of claim and which were of a substantially different nature, when there was nothing in the record to show that the plaintiff had either abandoned or withdrawn the reliefs prayed for or had amended his statement of claim to claim new reliefs, or that the court had refused the said reliefs prayed for.
2. That the plaintiff having claimed the sum of Le2, 544,88 as being the value of the flat and he not having amended his statement of claim to change the value to Le26, 452,542.00 (as in EX E), the learned judge was wrong in law to have relied on EX. E for the value of the flat as the plaintiff was bound by his pleadings and especially so in the light of the learned judge's observation in his judgment "that what counsel for the plaintiff should have done before the close of the proceedings was to have asked for leave to amend the statement of claim which would have reflected the fact adduced in evidence, but this was not done ".
3. That the learned trial judge was wrong in law to have ordered that the plaintiff shall have liberty to dispose of the flat, he built by sale..... (dispose of the freehold)
4. That the judgment is against the weight of evidence.
I have had the privilege and opportunity of reading the judgment of my learned brother Alhadi JA. I shall adopt and rely on the facts of the case and the arguments of learned counsel for the appellants and the respondent as concisely stated by him.
In my view ground one of the appeal appears to be the reason the appellant relied, upon to support ground two. It seems to me therefore that the pith of the appellant's complaint is these two grounds of appeal. I shall therefore deal with them together and if upheld will dispose of the appeal before us.
The kernel of Mr. Jenkins Johnston's argument for the appellant in grounds one and two is that the learned trial judge erred in law in granting reliefs which the plaintiff had not prayed for in his statement of claim, and relied on EX.E to grant the reliefs.
On this point, I shall hereunder set out, first the relief in the statement of claim and then to the reliefs granted by the learned trial judge:
1 "Wherefore the plaintiff claims repayment to the plaintiff by the first and
second defendants and each of them jointly or severely the sum of Le2, 544,898 being amount expended on the erection of a building superstructured on the existing building at No. 20 Boiling Street Kingtom,
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2 The learned judge said:
"I shall now introduce an equitable remedy in this matter. I order as follows:
(a) That the plaintiff shall have the liberty to dispose of the flat he built by sale. But first option to sell the flat shall be given by the defendants jointly find severally.
(b) The option is open to the defendant for 6 months from the date of judgment. The value of the property shall be Le26, 452.5422.00.
(c) Should the defendants fail to take up the option within 6 months from the date of this judgment, then each side has the liberty to apply and the property can be sold by private treaty or public auction.
(d) That the defendants shall pay interest of 30% per annum as from the 17th April 1992. When the plaintiff moved out of the flat up to the date when the option to purchase the flat is exercised. The rate of interest shall be calculated on the Le26, 452,542.00.
It can be clearly seen from the above (1 & 2) that the relief prayed for is at variance with the reliefs in the order granted by the learned judge. Mr. Shears Moses (who was not the respondent's counsel in the court below) must have realized this variation in the judgment of the learned judge and unsuccessfully moved this court for leave to amend the statement of claim to reflect the amount of Le26, 452,542.00 in EX. E which the learned trial judge in my view used as a yardstick to arrive at his judgment.
Referring to EX. E the learned trial judge said;
"what counsel for the plaintiff should have done before the close of the proceedings was to have asked for leave to amend so that the statement of claim would have reflected the facts adduced in evidence. But this was never done"
And in admitting EX.E in evidence went on to say:
"I have advised myself that pleadings are not and have never been the basis of evidence on which a court can reach its decision as such I do rely on the report of the quantity surveyor"
On this point of matters not pleaded. I consider the proposition of law by Bankole Jones "R in the case of Davies v Bickersteth [1964-66] ALR (SL) 403 at 407 most instructive. He had this to say:
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"If the respondent thought he could have relied on long possession he should have specifically pleaded to statute of limitation. He did not do so and therefore it was wrong for the court to have founded its decision on matters not pleaded even though there may have been evidence at the hearing to support it, such evidence in my view was irrelevant and only succeeded in throwing off the scent from the trail"
I shall adopt and apply them and say whilst the learned trial judge was right in saying that the plaintiff/respondent should have asked for leave to amend the statement of claim to reflect the fact adduced in evidence, yet with respect he was wrong in saying that "pleadings are not and it has never been the basis of evidence on which the court can reach its decision" In my judgment pleadings have always been the basis of evidence particularly when the action is instituted by a writ of summons as in this case.
Perhaps it is pertinent at this stage of this judgment for me to make an observation. The respondent in the particulars of the statement of claim pleaded fraudulent misrepresentation. The learned trial judge found that the respondent was induced by the fraudulent misrepresentation of the appellant.
The general rule of pleading is that every statement of claim must state specifically the relief, which the plaintiff claims either simply or in the alternative. On perusal of the record I note that the plaintiff/respondent did not pray for any relief either at common law or in equity for fraudulent misrepresentation. The reason I have highlighted this observation will become apparent later on in the judgment.
Having recorded this observation I shall now continue with the judgement.
I agree the learned trial judge awarded more than the plaintiff prayed for. In awarding more he introduced equitable remedy in the matter. Unfortunately he did not state on which equitable remedy relied on granting the reliefs in his judgment.
Let me say right away, that I am aware that the high court is vested with equitable jurisdiction in civil matters, but in my view in exercising the said jurisdiction, it should be-clear on what equitable doctrine the court relies in making the order. In this regard let me pause here to ask the question: On which equitable remedy the learned trial judge relied in arriving at the reliefs granted? To help me answer the question I.think is necessary to define equitable remedies.
In a Dictionary of Law equitable remedies are defined as:
Those remedies principally evolved by equity, e.g., specific performance, rescission, delivery up or cancellation of document injunction, accounts, receiver.
It can be clearly seen from the examples above that the equitable remedy invoiced by the learned trial judge is not among them. However, on perusal of the relief granted it seems to me that the relief granted by the learned trial judge is akin to the equitable doctrine of
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Proprietary Estoppel which I shall try to illustrate in this way -- A may be estopped from denying B's right in A's property where B has incurred expenditure in the property.
If peradventure I am said to be wrong in the illustration I have given above, I intend to be guided by authoritative decision in determining whether the learned trial judge was right to invoke the said doctrine in the light of the respondent prayer in his statement of claim-Generally an estoppel is a defence to an action which debars a party from raising a particular contention, as it will be inequitable to do so or contrary to public policy. See Odgers pleading and Practice 19th Edition page 198.
In the case of Dillym v Llewelyn 1862 45 JBR. 1285 a father placed one of his sons in possession of his land, and at the same time signed a memorandum that he has presented the land to the son for the purpose of furnishing him with a dwelling house. The son with the assent and approbation of his father, built, at his own expense, a house upon the land and resided there. It was held that this was not a mere incomplete gift but that the son was entitled to call for a legal conveyance and not merely of a life estate but of the whole fee simple. Delivering the judgment the Lord Chancellor had this to say:
"A voluntary agreement will not be completed or assisted by a court of equity in cases of a mere gift. If anything be wanting to complete the title of the donee a court of equity will not assist him in obtaining it; for a mere donee can have no right to claim more than he had rewarded. But subsequent acts of the donor may give the donee that right or ground of claim which he did not acquire from the original gift"
On the same point of propietory estoppel lord Kingdom in the case of Ramsden v Dyson
1866 L.R.1.HL. 129 said:
"If a man enters a verbal agreement with the landlord for a certain interest in land or what amounts to the same thing, under an expectation created or encouraged by the landlord that he shall have a certain interest takes possession of such a land with the consent of the landlord and without objection by him lay out money upon the land a court of equity will compel the landlord to give effect to such promise or expectation "
Again in the case of Inwards v Baker 1965 .2
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The evidence in the eases eltea above was accepted by the court and exercised its equitable jurisdiction to complete what was left undone. However the case under my pen, in my judgment does not fall under the same category as the cases I have referred to, for the following reasons:
1. The learned trial judge found that the respondent was induced by fraudulent misrepresentation of the appellants. The respondent in his statement of claim did not pray for any relief either at common law or in equity for the fraudulent misrepresentation.
2. The plaintiff/respondent claimed the repayment of the sum of Le2, 544.898 expended on the erection of the superstructure on the existing building at 20A Bolling Street Kingtom,
3. The reliefs granted is outside the ambit of proprietory estoppel and I do not know of any equitable remedy to which it is related. In my view the relief is akin to the disuniting of joint possession under the law of property where one co-owner applies to the court to become a separate owner or that his share should be ascertained by the sale of the property. See: Section 4 of the partition Act 1868. In this case the respondent made no such application.
For these reasons I do not think that the respondent is entitled to the protection of equity. Consequently the judgment of the learned trial judge cannot stand. But I am equally of the view that the respondent is entitled to the relief claimed in his statement of claim. In this regard I shall invoke rule 32 of the Court of Appeal Rules 1985 which states:
"Court shall have power to give any judgment and make 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 cost. 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 may also be exercised in favour of all or any of the respondent or parties although such respondent or parties may not have appealed from or complained of the decision."
In the result I would allow the appeal and set aside the judgment of the learned trial judge and in its stead enter judgment for the respondent in the sum of Le2, 544,898 the amount prayed for in the statement of claim.
Interest on the said sum at the rate of 20% per annum from the 1st January 1987 until judgment in the lower court.
The respondent shall have the cost in the lower court, such cost to b,e taxed. The appellant shall have the cost in this court, such cost to be taxed.
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