OWUSU v. MENSAH [1972] 2 GLR 233
HIGH COURT, KUMASI
Date: 13 JUNE 1972
BEFORE: MENSA BOISON J.
CASES REFERRED TO
(1) Asoh v. Yardom (1932) D.Ct. ‘31-’37, 6.
(2) Williams v. Williams and Nathan [1937] 2 All E.R. 559; 81 S.J. 435, C.A.
NATURE OF PROCEEDINGS
APPEAL from a decision of a district court awarding damages for the wrongful seizure of plaintiff ‘s goods. The facts are sufficiently stated in the judgment.
COUNSEL
Adubofuor Addae for the appellant.
Osei Kwaku for the respondent.
JUDGMENT OF MENSAH BOISON J.
The defendant-appellant as landlord (to be referred to simply as the defendant) had judgment against the plaintiff-respondent as tenant (hereafter referred to as the plaintiff) for the recovery of arrears of rent for the sum of ¢11.00 plus costs of ¢5.00. This judgment dated 18 April 1969 is marked exhibit B. Subsequently on 26 September 1969 defendant applied to the registrar of the court as deputy sheriff for a writ of fi. fa. to levy execution for the amount of ¢16. On 15 October 1969 the registrar issued the fi. fa. for a total sum of ¢18.50; the additional ¢2.50 representing the cost of the writ. On 16 October 1969 the plaintiff made part payment of ¢9.00 to the registrar and the fi. fa. was eventually executed for the balance of ¢9.50. Pursuant to the fi. Fa. bailiff on 21 October 1969 removed some personal effects of the plaintiff from his dwelling-house in execution and lodged them with the auctioneer for sale. No sale, however, took place because before [p.235] of [1972] 2 GLR 233 the lapse of the seven days’ statutory period after seizure, the plaintiff paid the accrued sum which on account of other charges, was ¢14.50, and collected his goods from the auctioneer. The point is agreed that during the trial and before the judgment, exhibit B, the plaintiff paid ¢7.00 as part payment of the claim for the two months’ arrears of rent as evidenced by the receipt, exhibit A. Therefore when on 16 October 1969 he paid the sum of ¢9.00, the judgment debt of ¢16.00 was extinguished. Consequently he maintained that the execution of 21 October 1969 was wrongful as there was no judgment debt outstanding. It was upon this grievance that the plaintiff brought an action for damages for wrongful seizure of his personal effects against the defendant and the auctioneer. The trial magistrate dismissed the action against the auctioneer on the ground of his having acted in good faith, and found against the defendant, awarding against him damages of ¢200.00 of which ¢13.50 represented special damages together with costs of ¢14.00. The action against the two defendants lay in trespass, and if indeed the second defendant was proved to have seized or taken the goods of the plaintiff into his house without lawful justification, good faith is no defence. But that is beside the point of the appeal, which is against the decision that the first defendant was liable in damages for trespass. The three additional grounds argued were: “(1) The trial magistrate made findings in his judgment which were not supported in [by] the evidence on record and therefore naturally gave a wrong judgment in favour of the respondent. (2) The trial magistrate was wrong in holding that the appellant could not go into execution after judgment in his favour for an amount of ¢16.00 and was therefore liable to pay damages to the respondent, (3) At any rate the amount of damages the appellant was asked to pay to the respondent was too excessive in the circumstances.” Mr. Adubofuor Addae for the appellant concedes that the ¢7.00 paid during the proceedings was part of the claim. He has nevertheless, submitted in substance that as the judgment of the court was for ¢16.00, the application for fi. fa. to levy ¢16.00 was in order. At any rate at the time of actual seizure there was outstanding the fees or poundage of the writ which could be levied, notwithstanding that the whole amount of ¢16.00 had then in fact been paid. Indeed he contends that in so far as any balance of the debt remains unpaid, execution under a writ endorsed with a sum greater than what was due will not constitute a wrongful execution. The debtor will only be entitled to sue for account. He contends therefore that the seizure of the goods of the plaintiff was not wrongful. Mr. Osei Kwaku for the respondent rests on the fact that at the time the fi.fa. was executed the respondent had in fact paid the whole ¢16.00, and therefore the execution should not have been effected. Further he [p.236] of [1972] 2 GLR 233 contended that to the knowledge of the appellant, as applicant, the a mount owed by the respondent at the time of application for the fi. fa. being only ¢9.00 the endorsement of ¢16.00 made the execution wrongful. More so when indeed at the time of execution all the ¢16.00 had been paid. Consequently the endorsement of ¢16.00 as the amount to be levied made the execution wrongful. The issues posed in my view are: (1) Whether the endorsement of ¢16.00 upon the application was unlawful and whether the execution pursuant to it was therefore wrongful. (2) Whether at the time of the levying of the execution the ¢16.00 having all been paid, the execution was lawful. The authority of a judgment creditor is the judgment. The judgment exhibit B at the date of the appellant’s application for the writ of fi. fa. stood for ¢16.00 debt. It appears having regard to the payment of ¢7.00 of the claim during the trial that judgment could have been avoided upon a motion and corrected to ¢9.00. As this was not done, I am of the opinion the appellant was entitled to apply for the writ as the words usually go “upon a judgment dated 18 April 1969” which spoke of ¢16.00 debt and not ¢9.00. It was held by Yates J. sitting at the Cape Coast High Court in 1932 in Asoh v. Yardom (1932) D.Ct. ‘31-’37, 6 that the issue of a writ of fi. fa. by the deputy sheriff was purely a ministerial function. That in my opinion means the registrar is not permitted to amend a judicial order, that is the decree for ¢16.00. So that as the writ of fi. fa. was in the tenor of the judgment, exhibit B, the deputy sheriff’s fi. fa. was well founded and in my opinion lawful. In Halsbury’s Laws of England (3rd ed.), Vol. 16, p. 38, para. 54, the law is stated as follows, “When payment of a debt or part of a debt has preceded a judgment for the full debt an execution for the amount of the judgment is not wrongful so long as the judgment stands.” Thus in Williams v. Williams and Nathan [1937] 2 All E.R. 559, C.A. where a sheriff acting under a writ of possession for the entire premises ejected a sub-tenant of the defendant (whose premises were not intended by the judgment to be affected) neither the sheriff, nor the plaintiff-landlord who had taken out the writ for ejectment against the defendant, was held liable in damages for wrongful execution, even though the sub-tenant had a protected tenancy, however wrong the judgment might have been.From the above statement of the law, I hold that notwithstanding knowledge on the part of the appellant that ¢7.00 of the claim was paid prior to judgment the application for the fi. fa. for ¢16.00 on 15 October 1969 was not wrongful; for that was the judgment. The evidence of the deputy sheriff (the defendant’s first witness) is unquestionable that the cost of the fi. fa. was ¢2.50 bringing the amount to be levied to ¢18.50 so that when on 16 October 1969 the respondent paid ¢9.00 there was so far as the judgment stood ¢9.50 balance. Assuming [p.237] of [1972] 2 GLR 233 then that the ¢7.00 paid prior to the judgment could even be taken account of, there was still a balance of ¢2.50. The law is that costs of execution, unless needlessly incurred, and interest on the judgment debt may be levied by writs of execution over and above the sum in the decree (see Courts Ordinance, Cap. 4 (1951 Rev.), Sched. II, Order 44, r. 15). It follows then that on the second issue I also hold that the execution at the time it was done was not wrongful by reason of the cost of the writ at ¢2.50 besides the ¢7.00 still outstanding. The action of the plaintiff was a complaint of wrongful seizure; that is trespass to goods; and not for wrongful return, in the sense of failure to account properly to the debtor, after seizure and sale of his goods. The tort of trespass to chattels consists in committing without lawful justification any act of direct physical interference with a chattel in possession of the plaintiff; that is to say an act done with respect to a chattel such as amounts to a direct and forcible injury: See Salmond on the Law of Torts (15th ed.), p. 118. Mr. Osei Kwaku did not refer me to any enactment or decision to support his contention that the execution could not issue upon the costs of a fi. fa. even on the assumption that the whole judgment of ¢16.00 was paid before the execution. He has not in my opinion shown the execution to be unlawful. As I have held the writ of fi. fa. was lawful, it follows that the seizure of the goods of the plaintiff was with lawful justification, and his action ought to have been dismissed because there was no trespass. The conclusion I have reached, I think, disposes of the issue of damages as well and I find it unnecessary to deal with the third ground of appeal. I shall allow the appeal and set aside the judgment of the court below together with the order for damages and costs awarded. In its stead I shall enter judgment for the appellant which the trial court failed to do. I am constrained not to make any order as to costs for the trial below or for the appeal in favour of the appellant as I have not found much assistance from counsel.
DECISION
Appeal allowed.
