JAMES EGGAY TAYLOR Vs. UNITED AFRICA CO LTD

JUDGEMENT

(1.) This appeal has taken a somewhat unfortunate course. It is an appeal from a judgment of the West African Court of Appeal setting aside a judgment of the Divisional Court sitting at Cape Coast Castle. The action was one by the United African Company, Limited, the respondents in the appeal, against a person who had been employed as agent for them for some years, based upon his negligence in carrying out his duties under a written contract, dated 30 July 1933, that is, his breach of his contractual liabilities under that contract, and it also was based to some extent upon the fact that under Cl. 3 of the written contract he was responsible for any deficiency as regards goods and moneys received at the factory of which he was in charge, due directly or indirectly to his act, neglect, or default. There is absolutely nothing in the statement of claim, which was amended in due course on an application by the defendant, which suggested any sort of fraud on the part of the agent, the defendant; a fortiori there was no suggestion that the moneys which the plaintiffs alleged had been lost, amounting to the sum of ?7,816, had been lost owing to the circumstance that the defendant had feloniously taken it or any part of it, or that he had embezzled the money in any way. When the case came on for trial before the learned Judge of first instance, two persons were called who had been servants of the branch of which the defendant was in charge, one of them being Henry Reginald Horner Acquah and the other Thomas Akyiremansa Carr; the first was the cashier, and the second was the book- keeper employed at the branch in question. Both these men were brought up in custody. They were serving terms of imprisonment, having been convicted ultimately on their own confession of falsifying the books of the branch and of other wrongful acts in connection with their duties. When they were in the box, they having been called on behalf of the plaintiffs in order to establish the case of negligence against the defendant, it appeared that each of them was desirous of testifying that the moneys, or the greater part of the moneys in question, had been taken by the defendant himself or had been given to him by the witness Acquah. Part of their evidence was proper and relevant evidence led to justify the charge of negligence, but that part of their evidence which suggested that the defendant had himself taken the money was in support of a charge which it was not open to the plaintiffs to establish on the pleadings, and indeed it amounted to a complete change of the nature of the cause of action which was open to the plaintiffs.

(2.) In the opinion of their Lordships there is no rule which is less subject to exception than the rule that charges of fraud, and a fortiori charges of criminal malversation or felony, against a defendant ought not to be made at the hearing of an action unless, in a case where there are pleadings, those charges have been definitely and clearly alleged, so that the defendant comes into Court prepared to meet them. Their Lordships must express the opinion that the learned Judge was wrong in allowing Acquah and Carr to state in evidence that Taylor had received these moneys or was responsible for the disappearance of the moneys by way of fraud. So far as their Lordships can gather from the materials before them, the counsel for the plaintiffs was not responsible for the case diverging in the way it did from the case set out in the pleadings, and it is very noticeable that when the defendant himself was called into the box, although he naturally was asked whether the statements made by the two persons who had given evidence against him, Acquah and Carr, were true, and although he flatly denied their charges, there was no endeavour on behalf of the plaintiffs in any way to cross-examine him with a view to showing that he was guilty of either fraud or felony or any other criminal conduct whatsoever. As far as their Lordships can understand, the Court was addressed on both sides on the footing that a case of negligence in the wide sense was being made and that there was no other case before the Court. It is true that the manager for the plaintiffs, Mr. Bray, was recalled at the end of the evidence by the Judge himself, and was asked by the Judge whether he believed the evidence that Acquah and Carr had given, and he said he did and went on to say that the plaintiffs asked the Court to believe that evidence. In the opinion of their Lordships it was an error of judgment to have asked Mr. Bray these questions and to have attached any weight to the answers to them. The belief of Mr. Bray was irrelevant from any point of view ; but apart from that no case of fraud or felony was, properly speaking, before the Court. All that had happened was that two witnesses, both serving terms of imprisonment for crime, had for some reason which it is not necessary to go into, thought fit to say that their crimes had been instigated by the defendant in the action.

(3.) The learned Judge, having come to the conclusion that the two witnesses, Acquah and Carr, were telling the truth, thought it was right to take the view that the action was an abuse of the process of the Court and that the alleged negligence was nothing more than camouflage, to use his phrase, and, accordingly, he held that the defendant was guilty of a felony. He went on to say that the charge had been concealed under a cloak of negligence and that, according to a well-known rule which was laid down in the Court of Appeal in (1914) 3 KB 98,1it was not open to the plaintiffs to make the felony of the defendant the foundation of the civil action until the defendant had been prosecuted or a reasonable excuse shown for his non- prosecution.