Way v Latilla

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Atkin,Lord Macmillan,Lord Wright,Lord Maugham
Judgment Date28 July 1937
Judgment citation (vLex)[1937] UKHL J0728-2
Date28 July 1937

[1937] UKHL J0728-2

House of Lords

Lord Atkin

Lord Thankerton

Lord Macmillan

Lord Wright

Lord Maugham

Way
and
Latilla
Lord Atkin

My Lords,

1

This is an appeal from an order of the Court of Appeal in an action brought by the appellant Mr. Way against the respondent Mr. Latilla for remuneration for services in connection with the obtaining of gold mining concessions in West Africa. The trial judge Charles J. had given judgment for the plaintiff for £30,060 with costs. The Court of Appeal reduced the judgment to £600, and as £750 had been paid into court ordered the plaintiff to pay the costs after the date of the payment into court. The trial occupied ten days and involved much oral evidence and the consideration of a good many letters and other documents. It appears, however, to be unnecessary at this stage of the proceedings to discuss the oral and written evidence in detail: for the dispute between the parties is easy to state and in my opinion to decide. As far as oral testimony is concerned no difficulty arises, for the learned trial judge, after as he says a close observation of both Mr. Way and Mr. Latilla, came to the conclusion that in any point in which they differed he unhesitatingly rejected Mr. Latilla's evidence and accepted Mr. Way's. The Court of Appeal were not prepared to differ from this appraisement though they seemed to think that the judge was too severe in his comments when he stated that Mr. Latilla's evidence was prevaricating, shuffling, and in some cases patently untrue. They saw no reason to suppose that Mr. Latilla was not honestly intending to state that which he thought he remembered. It is not necessary to pronounce upon these varying estimates: but I feel bound to say that after studying the record of the formal evidence and the correspondence, quite apart from the judge's personal observation of the witnesses which must be of great weight there appears to be ample material to support his considered opinion.

2

The material facts thus admitted and proved are that the plaintiff at all material times was general manager of the Ariston mine at Prestea in Gold Coast Colony owned by the Gold Coast Explorers, Ltd., in which company the defendant Mr. Latilla was interested. In 1927 the company needed further capital, and Mr. Way was recalled home to advise. The company was reconstructed in that year and the mine was acquired by the Ariston Gold Mines, Ltd.: and Mr. Way was appointed consulting engineer and manager at a salary of £5,000 a year with 3 per cent, of the nett profits and some further emoluments: and in September, 1929 returned to West Africa to resume his duties. While in England he had a discussion with Mr. Latilla as to the advantages of taking any further mines concessions in the district of the Ariston Mine. Mr. Way expressed the view that prospects were very favourable. Mr. Latilla was impressed. "Cannot we get hold of some of this country? It attracts me". Nothing was decided. Mr. Way said no arrangement was made except that "I was to share with him if there was anything to be made." "I think the expression that he used was that we could both make a bit if I was successful in obtaining any vacant ground of a suitable nature." When Mr. Way returned to the mine he was at first fully occupied with its affairs. He had written on 30th December, 1927, as to a property Anfargah: but had received no direct instruction about it. On 1st September, 1928, however, he received a cable from Mr. Latilla referring to Anfargah and ending "use best endeavour peg for my account. I will protect your interest." Further telegrams followed: 4th September, "I want obtain concession such ground on strike as you think valuable please act quickly and cautiously." 5th October, "please claim Bogosu for Ariston … Please secure other Concessions on the strike for my personal account: all parties here know my intention and approve." On 8th October, Mr. Way writes "I am not in any way raising the question of any interest you are prepared to let me have in this venture as, in your first cablegram to me you stated you would protect my interests and that promise is sufficient for me, and in consequence you will understand that I am naturally very interested in what you intend doing." No reply queries the construction which Mr. Way obviously puts upon Mr. Latilla's cable. On the contrary on 29th November, Mr. Latilla writes "I feel that as a result of what you have done in securing properties, we may look forward to getting at least a fair share of the plums and rewards."

3

Mr. Way at this time was negotiating with the native chiefs for the grant of concessions: and on 22nd December, 1928, he entered into an option agreement with the Chief of Himan under which he secured the option for three years over 16 concessions. The terms are immaterial: they were far from onerous to the option holder. The agreement is entered into by Mr. Way as attorney for Mr. Latilla and is signed by Mr. Way. On 28th November, a company, The Gold Coast Selection Trust, Ltd., was formed with a nominal capital of £70,000: Mr. Latilla was chairman and a considerable number of shares were held by a small private company F.P.H. Ltd., the shares of which were all held by Mr. Latilla's wife In the course of the trial it was conceded by Mr. Latilla's counsel that no distinction need be made between this company and Mr. Latilla himself. On 26th February, 1929, Mr. Latilla writes that "We have given to a Syndicate, in consideration of their spending £5,000 on a preliminary examination the right to buy the two Bogosu concessions" (two of the 16 concessions above referred to) "for £100,000 in cash." He then proceeds to say that he had given a Mr. Nicholls a letter of introduction to Mr. Way to assist him to make the preliminary examination for his principals. "By the way and for your private information these latter are friends and I want you please to understand that although nothing has yet been done as regards definition of interest (and I do not propose to do anything in this matter until you return home) that we shall be benefitting ourselves by rendering Mr. Nicholls any possible assistance". On 15th March Mr. Way replies "I note also what you say with regard to the matter of my interest, but as you rightly put it this can all stand over until I return." In the summer of 1929, Mr. Way returned to England in connection with the affairs of the Ariston mine. The question of these concessions was discussed and at an interview of 29th July, Mr. Latilla in terms promised Mr. Way a substantial interest in Gold Coast Selection Trust when things improved. This evidence is confirmed by a contemporaneous diary entry: and though said by Mr. Latilla to be a lie was believed by the trial judge. In January, 1930, the F.P.H. Company wrote to the Gold Coast Selection Trust offering them, together with a large block of shares in the Anfargah Gold Mines, Ltd., the option lease over the whole of one concession and 80 per cent. interest in the option lease over all the other concessions obtained by Mr. Way. "The acquisition of the interests in the above Concessions are subject to a profit...

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