Hammond v. Ainooson [1974] 1 Glr 176-184

2/3/2014

pages.gif

GHANA LAW FINDER Self help guide to the Law

Easy to use

HOME

Case and Subject matter index

and more

[email protected]

[ 1974] GHANA LAW REPORT HAMMOND v. AINOOSON [1974] 1 GLR 176-184 HIGH COURT, ACCRA 18 DECEMBER 1973

ABBAN J. Contract—Oral—Intention to create legal relations—Parties ad idem—Services rendered by plaintiff for agreed fees at request of defendant—Acceptance of services by defendant—Contract terminated by defendant— Action by plaintiff for fees and other expenses—Whether parties intended to create enforceable contract. Contract—Quantum meruit—Implied obligation to pay reasonable remuneration—Rule of law or inference of fact. HEADNOTES The defendant was the owner of a fishing boat which had become unserviceable in 1965 due to damage it had suffered at sea. By a verbal agreement between the plaintiff and the defendant, the boat was sent to the Boatyard Corporation, Tema, for repairs and the defendant requested the plaintiff to supervise the repairs for a fee of ¢3.00 a day. An attempt was made to draw up a written contract but the defendant promised to abide by the terms whether they were reduced into writing or not. The plaintiff was to be at the Boatyard Corporation workshop during the period of repairs and she was to purchase for the workers material needed for the repairs. The plaintiff did as was requested by the defendant until the repairs were completed in 1967. For the launching ceremony of the boat, the plaintiff said she bought cakes and drinks and prepared salad and these were used in entertaining the invited guests. After the launching, the plaintiff negotiated and obtained a fishing net and crates of wooden boxes in which the fish to be caught would be packed and sold. The plaintiff paid for the crates while the cost of the net was borne by the defendant. It was a term of the agreement that the plaintiff was to sell all the fish that would be caught by the boat. However, in the course of time, following a misunderstanding between the [p.177] plaintiff and the defendant and contrary to the terms of the agreement, the defendant employed another woman to sell the fish from the boat. All attempts made by the plaintiff to have the matter amicably settled proved abortive; consequently the plaintiff issued a writ claiming the sum of ¢2,373.26 from the defendant for the services rendered and for work done for the benefit of the defendant. The defendant's case was a complete denial of any agreement between him and the plaintiff. He denied that he agreed to pay the plaintiff ¢3.00 a day or any other amount towards her daily expenses. He, however, admitted that drinks, cakes and other things were bought by the plaintiff for the launching ceremony, but stated that he did not ask the plaintiff to buy them. The trial judge found as a fact that the plaintiff agreed to supervise the repair works for a fee of ¢3.00 a day, until the completion of the said repairs; that the parties agreed that the plaintiff was to sell all the fish that would be brought in by the boat and that it was the defendant who terminated the said agreement. Held: there was a contract between the parties resulting in legal obligations which could be enforced. Even in the absence of such a contract the plaintiff would have been able to recover in quantum meruit. In the circumstances, the defendant was liable to pay the agreed fee of ¢3. 00 a day for the plaintiff 's out of pocket expenses for the whole period when the boat was under repair. The defendant was also liable to refund the cost of the wooden boxes as well as the cost of the drinks and the food items bought by the plaintiff for the launching ceremony of the boat. Obiter. Where a person had rendered services in pursuance of a transaction, supposed by him to be a contract, but which in truth was without legal validity, he could recover for the value of his services in quantum meruit. The implied obligation to pay reasonable remuneration was an obligation imposed by law and not an inference of fact arising from the performance and acceptance of the services. Dicta of Greer L.J. in CravenEllis v. Canons, Ltd. [1936] 2 K.B. 403 at p. 410, C.A. and of Lord Wright in Way v. Latilla [1937] 3 All E.R. 759 at p. 765, H.L applied. Scarisbrick v. Parkinson (1869) 20 L.T. 175 and Lawford v. Billericay Rural District Council [1903] 1 K.B. 772, C.A. cited. CASES REFERRED TO (1) Scarisbrick v. Parkinson (1869) 20 L.T. 175; 17 W. R. 467. file:///C:/Users/evron_000/Documents/GHANA%20LAW%20FINDER%20(IPAD)/GLR%201959-2000/ghana%20law%20rep/1974/HAMMOND%20v.%20AINO…

1/5

2/3/2014

(1) Scarisbrick v. Parkinson (1869) 20 L.T. 175; 17 W. R. 467.

pages.gif

(2) Craven-Ellis v. Canons, Ltd. [1936] 2 K.B. 403; [1936] 2 All E.R.1066; 105 L.J.K.B 767; 155 L.T. 376; 52 T.L.R. 657; 80 S.J.652, C.A. (3) Lawford v. Billericay Rural District Council [1903] 1 K.B. 772; 72 L.J.K.B. 554; 88 L.T. 317; 67 J.P. 245; 51 W.R. 630; 19 T.L.R. 322; 47 S.J. 366; 1 L.G.R. 535, 89 C.A. (4) Way v. Latilla [1937] 3 All E.R. 759; 81 S.J. 786, H.L. NATURE OF PROCEEDINGS ACTION by the plaintiff for ¢2,373.26 from the defendant for services rendered and for work done for the benefit of the defendant. The facts are sufficiently stated in the judgment. COUNSEL E. M. A. Ablorh (with him Dussey) for the plaintiff. S. A. Okudzeto for the defendant. [p.178] JUDGMENT OF ABBAN J. The plaintiff is claiming the sum of ¢2,373.26 from the defendant for services rendered and for work done for the benefit of the defendant. Some time in 1965, the plaintiff was introduced to the defendant as the person whose fishing boat had become unserviceable due to damage it had suffered at sea. The parties became friendly after the said introduction, and the defendant requested the plaintiff to find someone to finance the repairs of the said boat. The plaintiff said she recommended one Miss Epton, but that lady was unable to undertake the repairs. The defendant eventually decided to find money himself for the repairs. The boat was sent to the Boatyard Corporation, Tema, and the defendant requested the plaintiff to supervise the repairs. That is, the plaintiff was to be at the Boatyard Corporation workshop during the period of repairs, and she was to purchase for the workers materials needed for the repairs and which could not be obtained from the corporation's own store. The plaintiff deposed that she was at that time selling fish at Narkwa Fisheries, Tema, and she agreed to undertake that kind of supervision on condition that the defendant paid her some allowance to cover her daily expenses. In the presence of witnesses, the first and second witnesses for the plaintiff, the matter was further discussed. The plaintiff asked for, ¢4.00 a day, but the defendant beat it down to ¢3.00 which was accepted by the plaintiff. The plaintiff alleged that it was also agreed that she was to sell all the fish which would be caught by the boat and that after the cost of the repairs and all other incidental expenses had been defrayed from the proceeds of the sale of the fish, the profits which would be realized would be shared equally between them. Following this agreement the plaintiff and the defendant went to see the director of the Boatyard Corporation at Tema, and obtained from him the estimated cost of repairs. The defendant then instructed the said corporation to carry on with the repairs which were completed in March 1967, and the launching ceremony was performed in grand style. The plaintiff said she bought cakes and drinks and prepared salad and these were used in entertaining those invited to the launching ceremony. After the launching, the plaintiff negotiated and obtained a fishing net and crates of wooden boxes in which the fish to be caught would be packed and sold. The plaintiff paid for the crates while the cost of the net was home by the defendant. After the plaintiff had recruited fishermen to man the boat, the boat was put to sea, and soon it started bringing in fish. The plaintiff sold the fish and accounted for the proceeds of the sale to the defendant who, at the material time, was residing at Cow Lane, Accra. After the plaintiff had sold the fish for some time, trouble began to rear its ugly head. All the fishermen the plaintiff employed on the boat came from [p.179] Winneba, except the captain who was a native of Elmina. The fishermen, for an unknown reason, insisted that the plaintiff should dismiss the captain from the boat and employ someone from Winneba in his place. The plaintiff refused to countenance this tribalistic suggestion, and surprisingly, the fishermen took the boat to Winneba. This incident was reported to the defendant but because the defendant, from all indications, was in support of the move made by the fishermen, he did not do anything about it. Contrary to all expectations and to the terms of the agreement, the defendant employed another woman to sell fish from the boat. All attempts made by the plaintiff to have the matter amicably settled proved abortive. The plaintiff, in the circumstances, had to resort to the present action. The evidence of the plaintiff's first and second witnesses, shows that they were present when the terms of the contract were agreed upon by the parties. Mr. Aidoo, the plaintiff's fourth witness and Mr. Bampoe, the plaintiff's fifth witness, were employees of the Boatyard Corporation at the time the repairs were being carried out by the corporation. Mr. Aidoo was the yard superintendent, while Mr. Bampoe was the supervisor of boat building. These two gentlemen confirmed that the plaintiff was present at their workshop throughout the period of repairs and supplied them with spare parts whenever she was called upon to do so. The defendant's case is a complete denial of any agreement between him and the plaintiff. He averred that the fishing boat was formerly at Takoradi and he decided to bring it down to Tema. But when it got to the shores of Apam it was damaged and a certain woman, called Araba Nana, caused it to be towed to the Tema Boatyard Corporation. This Araba Nana suggested to the defendant to allow the plaintiff to take over the repairs of the boat. At first the defendant did not agree to the suggestion. But after the plaintiff had called on him on a number of occasions the defendant said he gave in. He then took the plaintiff to the Boatyard Corporation and file:///C:/Users/evron_000/Documents/GHANA%20LAW%20FINDER%20(IPAD)/GLR%201959-2000/ghana%20law%20rep/1974/HAMMOND%20v.%20AINO…

2/5

2/3/2014

pages.gif number of occasions the defendant said he gave in. He then took the plaintiff to the Boatyard Corporation and introduced her to the managing director of the corporation, and at the same time authorised the corporation to repair the boat.

The defendant said when the repairs were about to start the managing director of the corporation contacted the plaintiff about payment of a deposit. The plaintiff, in turn, went to the defendant in Accra who gave her ¢ 2,000.00 to be paid to the corporation. The defendant contended that it was at that stage that he asked the plaintiff whether she was prepared to sell the fish which would be brought in by the boat, and the plaintiff replied in the affirmative. The defendant maintained that apart from that question and answer he did not agree to pay the plaintiff ¢3.00 a day or any other amount towards her daily expenses. He did not also agree to share the profits from the fishing business with the plaintiff. He, however, admitted that drinks, cakes and other things [p.180] were brought to the launching ceremony by the plaintiff, but said that he did not ask the plaintiff to buy them. He also denied that the plaintiff paid for the crates. He further contended that the plaintiff sold fish from the boat but failed to make proper account to him and engaged in quarrels with the fishermen employed on the fishing boat. As a result, the fishermen refused to entertain the plaintiff near the boat. In order to prevent trouble, the defendant said he told the plaintiff to settle the quarrel with those fishermen and until that was done, she was to keep away from the boat. To the defendant, it was the fishermen who dismissed the plaintiff from the boat, and so far as the defendant was concerned, the plaintiff was reimbursed for any expenses which she might have incurred in connection with the boat and there was no basis for this action. Only two issues were agreed upon, namely, (a) whether or not the plaintiff supervised the repair of the defendant's boat and rendered other services to the defendant to the knowledge and approval of the defendant, and (b) whether or not the plaintiff is entitled to the reliefs sought. I think issue (a) is the only important issue in this case. But before determining that issue it is necessary that I should decide certain subsidiary matters. One of them is whether the parties ever entered into any agreement concerning the fishing boat. I find, from the evidence, that it was the practice in those days that during repairs of any fishing boat by the Boatyard Corporation, the owner of the said boat or his authorised representative should constantly visit the workshop of the corporation to see the progress of the repair work. He must be close at hand so that he could be called upon to furnish spare parts, if necessary, and especially where those parts were not available in the corporation's own store. That practice was necessary to avoid undue delays. This practice of watching the progress of the repairs and supplying spare parts, where necessary, was what the plaintiff and her witnesses loosely termed supervision of repairs." I am satisfied that the defendant knew of this practice, and that was why he requested the said Araba Nana to find someone who could undertake that kind of supervision work. I find that the plaintiff agreed to do the socalled supervisory work and the defendant agreed to pay her an allowance of ¢3.00 a day, until the completion of the repairs by the Boatyard Corporation. The plaintiff is not a relative of the defendant and until they were introduced to each other by Araba Nana, they had not previously met anywhere. Learned counsel for the defendant, in his address, conceded that the plaintiff is not a charitable institution to go round gratuitously to supervise the repair of other persons' boats at the Boatyard Corporation. I reject the defendant's evidence that there was no agreement to pay the plaintiff ¢3.00 a day. I think it was in pursuance of this [p.181] particular term of the agreement that when the repairs began, the plaintiff discontinued her work at Narkwa Fisheries where she was earning an appreciable income for her living. I also find that the parties agreed that the plaintiff was to sell all the fish that would be brought in by the boat and she was to share equally with the defendant the profits from the fishing business after all the expenses incurred on the repair work had been fully liquidated. The plaintiff was anxious that the terms of the agreement should be embodied in writing. So both the plaintiff and the defendant went to see a lawyer. But the defendant successfully persuaded the plaintiff to discard the idea of having a formal document drawn up since, to the defendant, that was not necessary. The defendant assured the plaintiff that whether a written agreement was executed by them or not, he would strictly abide by every term of the agreement. In further pursuance of the said agreement, the defendant took the plaintiff to the Boatyard Corporation, Tema, and introduced her not only to the workers who were undertaking the repairs, but also to the managing director of the corporation, as his lawful representative. The defendant specifically directed the said manager to refer all matters connected with the repairs to the plaintiff. In fact the defendant asked the manager to pass through the plaintiff all reports or messages intended for the defendant; and that was why the deposit of ¢2,000.00 required to be paid by the defendant, was paid by him through the plaintiff. The plaintiff was called upon on some occasions to provide certain spare parts, such as a winch, which could not be obtained from the corporation's store. The plaintiff was living at Tema and she had to travel to Takoradi, Accra, and other places at her own expense, in search of those spare parts. Furthermore, I am convinced that the plaintiff bought 1,000 wooden fish boxes at 40 pesewas each to be used on the boat; and on the day the boat was launched, she prepared salad, bought cakes and all types of drinks, including whisky, schnapps, champagne, liqueur and akpeteshie, to mention a few. The defendant went to the plaintiff's house and collected the drinks, the cakes and the salad in his car and sent them to the launching site where they were used in refreshing the invited guests. After the ceremony, the defendant collected the leftovers and sent them away. The defendant said, under cross-examination, that he was not keen about the leftovers but the plaintiff forced them on him. I think that is not true. He voluntarily took them away to his house and thoroughly enjoyed them. In my view, the plaintiff did all that was expected of her under the said agreement, and at the time the plaintiff left the fishing boat the expenses she had incurred in connection with the boat, including the cost of the wooden fish boxes, drinks and the food items, had not been refunded to her; neither had the defendant paid the plaintiff the file:///C:/Users/evron_000/Documents/GHANA%20LAW%20FINDER%20(IPAD)/GLR%201959-2000/ghana%20law%20rep/1974/HAMMOND%20v.%20AINO…

3/5

2/3/2014

pages.gif boxes, drinks and the food items, had not been refunded to her; neither had the defendant paid the plaintiff the agreed allowance of ¢3.00 a day or any part thereof.

[p.182] I will now consider whether it was the defendant who unlawfully brought the agreement to an end or it was the fishermen who made it impossible for the agreement to continue. The defendant's evidence that it was the fishermen who dismissed the plaintiff from the boat must be taken with a pinch of salt. After all, it was the plaintiff who originally employed those fishermen and they were under her control. I do not therefore see how those men could have had the audacity to dismiss the plaintiff from the boat if the defendant himself had not collaborated with them. It seems to me that after the plaintiff had sold fish from the boat for about one month, the defendant, for reasons best known to himself, made up his mind to terminate the agreement with the plaintiff. He therefore cunningly used the little misunderstanding that had cropped up between the plaintiff and the fishermen, as the opportunity to get rid of the plaintiff. If that was not the intention of the defendant, why did he not call the fishermen to order or relieve them of their duties when they were making that unreasonable demand? The defendant, instead, sided with the fishermen against the plaintiff who had done so much to get the fishing boat back to sea. The defendant's insistence that the plaintiff should not go near the boat so long as the so-called dispute with the fishermen had not been settled, to say the least, was most unreasonable. The defendant wants this court to believe that those fishermen had greater control over the affairs of the boat than the defendant himself, and that whatever those men said was final and nothing could be done about it. I think it was the defendant who unlawfully prevented the plaintiff from selling fish from the boat, and eventually dismissed her from the boat in direct breach of the terms of the agreement. Indeed, by the time the boat was taken to Winneba the defendant had already employed another woman to sell fish from the boat. In my opinion, the defendant broke the agreement. Without justification he prematurely brought the agreement to an end. As already stated, the agreement was that all the expenses to be incurred by the plaintiff and the allowance of, ¢3.00 a day, payable to the plaintiff to cover her daily expenses while the boat was under repairs, as well as the expenses which the defendant would also incur, including the cost of the repairs, were all to be settled out of the proceeds of the sale of fish which would be brought in by the boat. The plaintiff, as I have found, had not been paid anything at the time she was compelled to leave the boat and the defendant must therefore be called upon to meet the plaintiff's claim. It was seriously submitted by learned counsel for the defendant that, on the evidence, there was no agreement sufficiently certain or definite to be enforced so far as the payment of the allowance of ¢3.00 was concerned. Learned counsel contended that the arrangement, about the payment of the ¢3.00 a day, even if it is true, cannot amount to a contract which can be enforced, because the parties did not intend that it should be attended by legal consequences. [p.183] With respect to learned counsel, I hold the opposite view. If the parties did not intend their agreement to result in legal obligations which could be enforced, why did they, after they had agreed on all the terms and they were ad idem attempt to have the terms incorporated in a formal document by a legal practitioner, Dr. de Graft Johnson? The idea of drawing up that document was finally dropped because the defendant promised to abide and to be bound by the terms of the agreement, whether the said terms were put down in writing or not. In any case, even if I had found that there had been no concluded and enforceable agreement between the parties as to the amount of allowance the plaintiff was to receive for her services during the time the boat was under repairs, or for the other consideration supplied by her, I would still have held that the plaintiff could recover on quantum meruit basis for the value of the benefit she conferred on the defendant and the defendant accepted. The principle is that where a person rendered services in pursuance of a transaction, supposed by him to be a contract, but which in truth, is without legal validity, he can recover for the value of his services in quantum meruit. In Scarisbrick v. Parkinson (1869) 20 L.T. 175, the plaintiff served the defendant as clerk and the court held that the plaintiff was entitled to recover on a quantum meruit although the contract, under which he was supposed to have performed his services, was unenforceable by reason of the Statute of Frauds; and the court looked at the supposed agreement to enable the court to assess the amount payable. The implied obligation to pay reasonable remuneration is an obligation imposed by law and not an inference of fact arising from the performance and acceptance of the services: see Craven-Ellis v. Canons, Ltd. [1936] 2 K.B. 403, C.A. The plaintiff in that case was appointed managing director of a company under the company's seal which also provided for remuneration. By the articles of association of the company each director was required to obtain his qualification shares within two months after appointment. Neither the plaintiff nor the other directors obtained their qualification shares within two months or at all. The plaintiff having done work for the company claimed to recover the remuneration provided for by the agreement, or alternatively, on the basis of a quantum meruit. The Court of Appeal held that the agreement was void, since the persons purporting to act as directors had no authority and could not bind the company, and the claim in contract must therefore fail. But as the services had in fact been rendered whereby the company had benefited, the alternative claim on a quantum meruit ought to succeed, Greer L.J. in delivering his judgment at p. 410, said: "This would certainly be strictly logical if the inference of a promise to pay on a quantum meruit basis were an inference of fact based on the acceptance of the services or of the goods [p.184] delivered under what was supposed to be an existing contract; but in my judgment the inference is not one of fact, but is an inference which a rule of law imposes on the parties where work has been done or goods have been delivered under what purports to be a binding contract, but is not so in fact." See also Lawford v. Billericay Rural District Council [1903] 1 K.B. 772, C.A. and Way v. Latilla [1937] 3 All E.R. 759 at p. 765, H.L. per Lord Atkin. In the latter case, at p. 765 of the report, Lord Wright also had this to say: file:///C:/Users/evron_000/Documents/GHANA%20LAW%20FINDER%20(IPAD)/GLR%201959-2000/ghana%20law%20rep/1974/HAMMOND%20v.%20AINO…

4/5

2/3/2014

pages.gif 759 at p. 765, H.L. per Lord Atkin. In the latter case, at p. 765 of the report, Lord Wright also had this to say:

"It is, however, clear, on the evidence, that the work was done by the appellant and accepted by the respondent on the basis that some remuneration was to be paid to the appellant by the respondent. There was thus an implied promise by the respondent to pay on a quantum meruit, that is, to pay what the services were worth." In the circumstances, I hold that the defendant is liable to pay the said ¢3.00 a day to cover the plaintiff's out of pocket expenses for the whole period when the boat was under repairs at the Boatyard Corporation. The defendant is also liable to refund the cost of the wooden fish boxes amounting to ¢400.00. The cost of the drinks and the food items, on the plaintiff's evidence, which I accept, amounted to ¢76.54. The repairs on the boat commenced on 15 July 1965, and were completed on 13 March 1967. That is, the repairs covered a period of 606 days; and for those days the plaintiff ought to have been paid ¢1,818.00. Consequently, the plaintiff will recover from the defendant the grand total of ¢2,294.54. Judgment will therefore be entered and is hereby entered for the plaintiff for the sum of ¢2,294.54, with costs of ¢500.00 inclusive. DECISION Judgment for the plaintiff. S. E. K.

Legal Library Services

C opyright - 2003 All R ights R e se rve d.

file:///C:/Users/evron_000/Documents/GHANA%20LAW%20FINDER%20(IPAD)/GLR%201959-2000/ghana%20law%20rep/1974/HAMMOND%20v.%20AINO…

5/5