Division: IN THE SUPREME COURT
Date: 29 FEBRAURY 1964
Before: ADUMUA-BOSSMAN AND MILLS-ODOI JJSC AND APALOO J
JUDGMENT OF APALOO J
Apaloo J delivered the judgment of the court. This is an appeal from the judgment of the High Court, Sekondi, delivered on 22 December 1961. In that suit, the court entered judgment for the
plaintiff-respondent firm (hereinafter called the firm) against the defendant-appellant (hereinafter called the defendant) for the sum of £G502 10s.
The plaintiff is a firm carrying on business at Takoradi. The evidence shows that its business is that of purchasing timber for export. The defendant is a timber contractor and was, at the time material to this case, resident at Bibiani. It would seem that he was not in business in a large way and clearly had no means of transport. One Kwesi Nifah normally carted and sold his timber for him and it would seem, the sales were usually made to the plaintiff firm. The firm learnt of the defendant from Nifah and according to the defendant, expressed a desire to see him.
The evidence shows that the defendant called on the firm in December 1959 and a rather informal sort of agreement was entered into. It seems to have been oral only and the substance of the agreement appears to be that the firm was to advance the defendant moneys from time to time in return for which the defendant was to supply the firm with timber. It was not until 14 January 1960 that a written and signed record was made of that agreement. It was tendered and admitted in evidence as exhibit B.
However, by that date, the statement of accounts (exhibit A) shows that the firm had already made advances to the defendant in the total sum of five hundred and ninety odd pounds (£G590). The defendant in his turn, supplied logs to the firm to an amount almost equivalent to the advances he had received with the result that by that date, namely, 14 January 1960 he was in debit in the books of the firm, in the sum, if my arithmetic is correct, of sixty odd pounds (£G60). On 14 January 1960, the firm made further advances to the defendant so that his total indebtedness to the firm stood at two hundred and eighty-six pounds ten shillings (£G286 10s.).
The defendant obviously accepted as correct that state of the accounts and subscribed his signature to the agreement (exhibit B) which recites his indebtedness. It would seem that the defendant was at that time engaged in conveying some logs to Takoradi. It was stipulated by the firm and assented to by the defendant in the agreement that those logs were to be hammer-stamped “G.T.” (which I assume are the initials of the plaintiff firm) and delivered to the firm in payment of the said debt. This aspect of the matter is important as it provides the basis for the firm’s claim against the defendant for specific performance and damages for breach of contract and the defendant’s counterclaim for damages for trespass.
The defendant claimed that he entered into yet another parol contract with the firm by which he promised to supply the latter with the species of timber known as hardwood from a timber concession which he called Ampeni Manso Concession. In consideration for that promise, the defendant claimed that the firm for its part, promised to advance him from time to time, such moneys as he would require to develop the concession including such ancillary matters as the construction of access roads and the purchase of means of transport. The defendant claimed in the court below that the firm committed a breach of that contract and had wrongfully trespassed on a number of logs which he had sold to a rival timber company called Fynhout. Accordingly, he counterclaimed for damages against the firm. The firm resisted this claim and
denied the existence of the parol contract alleged by the defendant.
The learned trial judge found for the firm on its claim for the sum of £G502 10s. He made no express order on the claim for specific performance or the damages for breach of contract sought by the firm. As the firm made no complaint against these before us, I can only assume that these claims were abandoned at the trial. The learned judge expressed disbelief in the defendant’s evidence that there was an oral contract by which the firm agreed to advance him further moneys to develop his concession. He held, for reasons which he stated in his judgment, that the claim for trespass was not maintainable. Accordingly, he proceeded to dismiss the defendant’s counterclaim.
It is against this judgment that the defendant appeals to this court. No less than six grounds of appeal were filed. Four of these were abandoned by counsel for the defendant. On the evidence in this case, that was, in my opinion a wise course. The only ground of appeal which counsel for the appellant argued with anything approaching zeal is ground two. This reads as follows: “At the time the plaintiff company seized the defendant’s logs negotiated for sale to Fynhout, the agreement, exhibit B, was executed and dead, and in any case could not give the plaintiffs the right to seize and abandon the logs the way the plaintiffs did.” The argument urged on this ground of appeal is to the effect that as the agreement (exhibit B) obliged the defendant to supply logs to the total value of £G286 10s. and inasmuch as the firm admitted that the defendant supplied logs to the value of £G558 8s. 8d. the defendant duly performed his part of the contract and the firm were therefore not entitled to seize logs intended for another company. This argument, is in my judgment, based on a false premise. The firm at no time admitted the seizure of the logs and the learned trial judge did not find that the logs intended for Fynhout were in fact seized by the firm. The firm admitted no more than that they hammer-stamped 38 logs with the initials of the firm. The firm’s manager said notwithstanding this the defendant sold all these logs to Fynhout who duly shipped them. The defendant disputed this and claimed that as a result of the firm’s action in stamping the logs with their marks, Fynhout rejected the logs and the sale fell through. He did not call any representative of Fynhout to bear this out. The learned judge preferred the firm’s version of the matter. This is essentially a question for the determination of a trial court, and on the evidence in this case, I am not prepared to say that the learned trial judge was wrong. It follows that this ground of appeal must fail.
The only other ground of appeal which counsel for the appellant argued with apparent want of conviction is ground three. This reads as follows: “The court erred in rejecting the counterclaim for trespass to the defendant’s logs negotiated for sale to another company, Fynhout.” On this ground, it was submitted for the appellant that as the trespass to the logs was admitted, damages flowed as a matter of legal consequence, and defendant’s logs negotiated for sale to another company, Fynhout. On this ground, it was submitted for the appellant that as the trespass to the logs was admitted, damages flowed as a matter of legal consequence, and that the learned trial judge was in error inasmuch as he declined to award damages in the defendant’s favour. I think on a true and proper construction of the agreement (exhibit B), the firm did not acquire anything like a right in rem to the logs but a right in personam against the defendant, if he renegued on the agreement and sold the logs to anyone else. While therefore the firm would have a right of action against the defendant for breach of contract and for specific performance in my judgment, they are not entitled to exercise any right to the logs. Inasmuch as they admitted doing that by the removal of the marks of Fynhout and putting their own marks instead, I think they committed trespass to the logs.
At the time the firm committed the trespass to the logs, they appeared to be in the possession of the defendant as they were then in his dumping site at Bibiani. It would appear therefore that he was ex facie entitled to such damages as flowed naturally and reasonably from such trespass. The defendant claimed that he sustained pecuniary damage to the tune of £G787 10s. inasmuch as Fynhout rejected the logs. The learned judge found this to be a travesty of the truth. In my judgment, the defendant failed to prove that he sustained any damage by reason of the admitted trespass and cannot justly complain that no damages were awarded him. In my opinion, there is no merit in either ground of appeal. Accordingly, I would dismiss the appeal. As the respondent firm has not appeared or been represented, I would make no order as to costs.
DECISION
Appeal dismissed.
N. A. Y.
