DANSOWAH v. TOM
[SUPREME COURT, ACCRA]
DATE: 28TH MAY, 1962
COUNSEL
J. N. Heward-Mills for the appellant.
Hayfron-Benjamin for the respondent.
JUDGMENT OF VAN LARE J.S.C.
Van Lare, J.S.C. delivered the judgment of the court. The respondent in this appeal is a fishmonger
at Kumasi and receives consignments of fish from Elmina and Kafudidi on the coast for sale. She
alleges that one of her such consignments on arriving at the Kumasi market was unlawfully detained
by the appellant who refused to deliver the same to her after demand had been made, and that the said
consignment remained in the possession of the appellant until the fish rotted and became unfit for sale
whereby she suffered damage in the value thereof and the profits therefrom. She therefore instituted
an action in the then Magistrate’s Court, Kumasi, claiming the value of the fish and damages for
unlawful detention from the appellant. Her action was dismissed by that court but on appeal to the
High Court, the claim was sustained and judgment was entered for her against the appellant for the
sum of £G87 10s., £G67 10s. being the value of the fish, and, £G20 loss of estimated profits. It is
from that judgment that this appeal is brought.
Although the appellant denies detaining the respondent’s fish, it is nevertheless apparent on
consideration of the case as a whole that the respondent was entitled to the possession of the fish
which appears to have been detained on the 7th September, 1958, on behalf of the appellant who
purports to assert that the detention was lawful because the respondent refused to pay her certain dues.
The appellant has pleaded that she is the head woman of the Fishmongers Association in Kumasi and
that her election was confirmed by the Regional Commissioner and she is therefore entitled to collect
sixpence on every hundred herrings brought to the market for sale. It is a natural inference that
because the respondent refused to pay the dues demanded the appellant detained her goods. The
evidence is clear that the respondent does not belong to the appellant’s association, and also that the
respondent’s goods were not delivered at the appellant’s shed. It abundantly made clear that the
appellant herself when approached by the respondent and others with a request to return the goods
detained refused to do so, and it was not
[p.405] of [1962] 1 GLR 403
until some weeks later, that is on the 13th October, 1958, when the respondent received a letter from
the appellant inviting her to take delivery, but by that time the fish must have rotted and the
respondent for that reason refused to take delivery intimating that legal proceedings for damages were
under contemplation.
The trial district magistrate in dismissing the appellant’s claim expressed the opinion that had the
appellant paid “the dues everybody would have been happy thereafter”; his reasons for finding against
the claim are that the respondent failed to satisfy the court as to the value of the fish; that the
respondent refused to collect the goods when requested by the appellant, and that the appellant as
head of the fishmongers is entitled to collect dues, the inference being that the detention is justified
upon failure to pay dues.
The learned judge of the High Court in a carefully considered judgment has dealt adequately with the
facts and the conclusion of the district magistrate and we are satisfied for the reasons shown that the
trial district magistrate’s conclusion is based upon inadequate consideration of the evidence. It has
been argued before us that the evidence as to the value of the fish is hearsay. Although the evidence is
that the respondent was told the value of the fish she had to pay there can be no better evidence. One
does not expect way bills or invoices in connection with illiterate fishmonger’s trade in the market in
this country, and one must be satisfied with the message as to price received from the vendor. In any
case this value of the fish was not challenged at the trial and the appellant led no evidence to the
contrary. With respect to the respondent’s refusal to take delivery at the time the appellant invited her
to do so, the trial district magistrate clearly omitted to consider the evidence that by then the goods
had rotted and could not be sold. As to the entitlement of the appellant to collect the alleged dues in respect of fish sent to the Kumasi market for sale we observe that this is not clothed with any legal
authority. Even if it were so, it may be alright where goods of the members of the association are
concerned, but as already pointed out the respondent does not belong to the appellant’s association,
and the fish in question was not delivered at her shed; under the circumstances, there can be no
justification for the appellant’s demand for the payments of any dues in respect of the respondent’s
fish delivered at the market. What the appellant appears to rely on is an alleged right conferred upon
her by the Regional Commissioner to collect dues. It is not, however, shown whether the Regional
Commissioner himself has any legal power or authority to vest the appellant with such a right.
Alternatively it has been argued that the appellant’s right to demand dues is in accordance with trade
custom. No evidence of such custom has been led and we agree with the learned judge when he says
that if in fact such a custom existed, it would in his opinion not necessarily have needed the approval
of the Regional Commissioner before it was binding on the respondent. On a proper evaluation of the
evidence as has been made by the judge on appeal who was in the same position as the trial district
magistrate so far as drawing inferences from the facts are concerned, we are satisfied that there can be
no other finding but that the appellant detained the respondent’s fish until they rotted relying upon an
invalid right in so doing, and that such detention is unlawful and the appellant is liable in damages
resulting therefrom.
[p.406] of [1962] 1 GLR 403
In the result the learned judge of the High Court is justified in setting aside the judgment of the trial
court; the appeal fails and is accordingly dismissed with costs fixed at £G54.
Court below to carry out.
DECISION
Appeal dismissed.
