YEBOAH v. KWAKYE [1972] 2 GLR 39
COURT OF APPEAL
Date: 21 MARCH 1972
BEFORE: BENTSI-ENCHILL J.S.C., JIAGGE AND KINGSLEY-NYINAH JJ.A.
CASES REFERRED TO
(1) Sachs v. Miklos [1948] 2 K.B. 23; [1948] L.J.R. 1012; 64 T.L.R. 181; [1948] 1 All E.R. 67, C.A.[p.40] of [1972] 2 GLR 39
(2) Ellis v. Stenning (John) & Son [1932] 2 Ch. 81; [1932] All E.R. Rep. 597; 101 L.J.Ch. 401; 147
L.T. 449; 76 S.J. 232.
(3) Re Simms; Ex parte Trustees [1934] Ch. 7; [1933] All E.R. Rep. 302; 103 L.J.Ch. 67; 149 L.T.
463; [1933] B. & C.R. 176, C.A.
(4) Bortetey v. Achinivu [1960] G.L.R. 73.
(5) Boateng v. Briscoe (Ghana) Ltd., Court of Appeal, 8 January 1968, unreported; digested in (1968)
C.C. 61.
NATURE OF PROCEEDINGS
APPEAL by the defendant against the quantum of damages awarded to the plaintiff, by a circuit court, for loss of use of a vehicle in an action for conversion.
COUNSEL
W. Bossman for the appellant.
Miss A. A. Ayisi for the respondent.
JUDGEMENT OF BENTSI-ENCHILL J.S.C.
The appeal in this case was, at the hearing, confined to the issue of the quantum of damages awarded by Mrs. Owusu Addo, circuit court judge (as she then was), for the loss of use of a vehicle wrongfully seized by the appellant.
The vehicle thus seized had previously been owned by the appellant; but he had sold it to one Yaw Kuma who, after paying only part of the price, had then sold the vehicle to the respondent. On 25 November 1966 the appellant seized the vehicle on the pretext, found by the court below to be unwarranted that, the title had not yet passed from him to the respondent’s vendor.
The Kumasi police had earlier come to more or less the same conclusion when, following a complaint
against the appellant by the respondent, they had investigated the matter. According to the police officer who was detailed to investigate the complaint and who gave evidence as the second witness for the appellant, the appellant had in consequence been told to look to Kuma for payment of the balance due to him and had been ordered to bring the vehicle to the police station for return to the respondent who was found to have purchased it properly from Kuma. The appellant accordingly took the vehicle to the police station in Kumasi on 11 January 1967. As the appellant was not there at the time, it was decided to keep the vehicle at the police station for handing over to the respondent by the police themselves when he turned up. The vehicle had since remained at the police station because the respondent could no longer be traced. Investigation revealed that he had travelled to Abidjan, and the appellant, when approached to come and take the vehicle, refused to do so because the respondent had already sued him.
The learned trial judge held that the respondent was entitled to claim for the full value of the vehicle plus any consequential loss of profit arising from the seizure. And she awarded the respondent by way of damages for conversion, as claimed, the unchallenged full market value of the vehicle and, in addition, the sum of ¢1,560.00 being the consequential loss of profit at the rate of ¢20.00 per day for a period of [p.41] of [1972] 2 GLR 39 three months (excluding Sundays) reckoned from the date of seizure. Why she fixed upon three months is not explained.
In grounds three and four of the grounds of appeal filed by the appellant’s earlier counsel in the court
below, this award for consequential loss of profits was challenged in the following terms:
“Ground three: Having found that the conduct of the defendant constituted a conversion by him of the vehicle . . . the learned circuit judge erred in law when, in assessing damages, she applied principles appropriate to an action in detinue.
Ground four: The learned circuit judge erred in law in failing to consider whether the plaintiff had
discharged the duty on him to mitigate his loss.”
In my view these are meritorious grounds of appeal. The appellant’s counsel, however, confined his
submissions to a question of the factual basis of the computation. These were nevertheless pertinent. With great respect to the learned trial judge and for the trouble and care taken over the judgment, it is difficult to discern, in the light of her ruling, the basis on which she arrived at her conclusion that the period of consequential loss of profit should be three months. The respondent’s claim in this regard had been for “¢20.00 per day (Sundays excluded) from the date of the unlawful seizure, i.e. 25 November 1966 up to the date of judgment.” As judgment was given on 14 February 1969, the period claimed would thus amount to some two years and three months or to one year and nearly seven months, as modified by respondent’s counsel in his address in the court below when he asked that the assessment should be up to the date the evidence was closed because he had been “responsible for delays after the close of the case.”
Now, as indicated above, the period of loss allowed was three months reckoning from the date of
unlawful seizure; it was not the period claimed, i.e. up to the date of judgment, to wit two years and three months, or—as modified by respondent’s counsel—one year and seven months. And the factual problem is to determine the basis for fixing on the period of three months as the period of consequential loss of profits.
Counsel for the appellant contended that the correct period for assessment should be the period between the date of seizure, i.e. 25 November 1966 and 11 January 1967 the date when the respondent returned the vehicle to the Central Police Station, Kumasi. (Excluding Sundays, this later period was agreed by counsel for both parties before us as amounting to 40 working days.) He contended that the period of wrongful detention could not be held to exceed this period as the appellant had surrendered the vehicle to the police and the vehicle had been available to the plaintiff for collection in accordance with the decision reached by the police following the respondent’s complaint. The respondent had a duty to mitigate his losses and was not entitled to claim damages for the loss of the use of a vehicle which had been available for collection since the day of its delivery to the police. [p.42] of [1972] 2 GLR 39 Now the learned trial judge in effect accepted the evidence of the second defence witness (the police sergeant who had investigated the respondent’s complaint) that the appellant brought the vehicle to Kumasi Central Police station on 11 January 1967 concluding from it that that “shows that he [the appellant] kept the vehicle for about one month after the seizure.” But she states later in her judgment concerning this that “there is no evidence that the vehicle had been delivered to the plaintiff since the time of seizure and he did not seem to know where it was.” And she continues that “he is therefore entitled to claim for its full value plus any consequential loss of profit arising from the seizure.” Turning next to the assessment of this consequential loss of profit she states, “the vehicle was in the defendant’s possession
for about two months before he brought it to the police station. From the circumstances I have concluded that the plaintiff is entitled to recover loss of profit for three months from the date of seizure excluding Sundays as being consequential loss upon the defendant’s act of conversion.” It is this progressive expansion of the period of unlawful detention starting from the earlier inference of about one month after the date of seizure to the later statement, namely, about two months before he brought it to the police station, and to the final conclusion that the plaintiff should recover loss of profit for three months from the date of seizure, that one is at a loss to understand, having regard to the evidence.
What is clear, however, is that she obviously rejected the much longer period or periods claimed by the plaintiff as the basis of computation, and that though she found from the police evidence that the
defendant kept the vehicle for about one month after the seizure, she nevertheless felt that from the
circumstances, she should adopt a slightly longer period as the basis for her computation.
In so doing the learned trial judge failed to address her mind to the implications of the plaintiff’s
obligation to mitigate his losses. He had known where the vehicle was when he made his specific
complaint against the appellant to the police. And the circumstances of the case, including the police
evidence which the learned trial judge accepted, abundantly indicate that the plaintiff would, but for his own chosen wanderings to Abidjan, have been in a position to recover his vehicle upon its being sent to the police station.
It is not, in my view, an adequate justification for the award on the basis of a three-month period to argue, as counsel for the respondent did, that the vehicle was not available to the respondent for the two years and three-month period between the date of seizure and the date of judgment, and that the appellant should in effect be grateful that only three months were allowed. For the three-month period chosen requires to be justified. And it is evident that the respondent could have had his vehicle back before then if he had taken steps to mitigate his losses instead of electing by his action in conversion to claim the value of the vehicle.
[p.43] of [1972] 2 GLR 39 The point is that, as Professor Street puts it (summarising the principle in Sachs v. Miklos [1948] 1 All E.R. 67, C.A. at p. 55 of his book on The Law of Torts (4th ed.)), “Once a claim for conversion has accrued to the plaintiff it is not open to him to delay the issue of his writ and thereby base his action on a subsequent demand and refusal — the duty to mitigate damages operates.” Still adopting the language of Professor Street (at p. 57 of his book), “The effect as between the parties to a judgment for damages in conversion is to transfer the title in the goods to the defendant (Ellis v. Stenning (John) & Son [1932] 2 Ch. 81). It follows that the court will not award
damages for loss of use as well as the value of the chattel where the effect would be doubly to compensate the plaintiff: the capacity for profitable use is part of the value of the chattel. Thus where the defendant converted certain manufacturing plant of the plaintiff, he was liable for the value of the plant when converted but not for loss of use between that date and trial.” See Re Simms; Ex parte Trustees [1934] Ch. 7.
On legal grounds to be discussed later in this judgment it cannot, in my view, be disputed that the
respondent was entitled to some award for consequential loss of profits between the date of wrongful
seizure and a later date when he may be deemed liable for conversion of the vehicle. But the period used as the basis for this assessment cannot be arbitrary. The proper measurement of this period of
consequential loss depends importantly on the plaintiff’s obligation to take steps to mitigate his losses.
On the evidence, the plaintiff took three steps in this direction. First he demanded through his solicitors, by letter, the return by the defendant of his vehicle. To that letter the defendant’s solicitors replied on 30 December 1966 asserting that the seizure was lawful and thus in effect rejecting the plaintiff’s demand (exhibit C). Formal demand and refusal of this kind is often used as evidence of the date of conversion: (See Street, p. 51). And it would not have been improper to consider 30 December 1966 as the date of conversion and therefore the date for assessing the value of the vehicle and of consequential loss of profits since the date of wrongful seizure.
But on that very date of the defendant’s refusal, namely, 30 December 1966, the plaintiff took his second step by making a specific complaint to the police to the effect that the defendant had stolen his vehicle.
This is the complaint which, as we have seen, led to the defendant being directed to bring the vehicle to the police station for return to the plaintiff, a direction which was complied with on 11 January 1967.
Meanwhile, however, on 4 January 1967 the plaintiff had filed his writ of summons claiming damages for conversion against the defendant, and thus evidently electing to be paid for his vehicle rather than to [p.44] of [1972] 2 GLR 39 have it returned, a fact which probably explains why the vehicle was not collected from the police station.
In my view it would have been correct for the learned trial judge, on the facts of the case, to fix upon 4 January 1967 (the date when the plaintiff by filing his writ elected his remedy) as marking the end of the period of consequential loss of profits; and it would have been reasonable to fix on 11 January 1967 for the same purpose, that being the date when, by sending the vehicle to the police station. the defendant terminated his wrongful possession of the vehicle. But an award for a period in excess of this cannot be supported. Considering the evidence as a whole, I would fix upon the later date, namely 11 January 1967, when the vehicle was delivered at the police station. On this basis the period of consequential loss is adjudged to be the period from 25 November 1966 (the date of seizure) to 11 January 1967 (the date of delivery at the police station). As agreed by counsel for both parties this period yields 40 working days.
On this basis, and at the rate (undisputed) of ¢20.00 per day, the award for consequential loss of profits amounts to ¢800.00. And the sum of ¢1,560.00 awarded by the court below must be so reduced. This, needless to say, is in addition to the award of ¢1,180.00 in respect of the full market value of the vehicle which has not been challenged in this appeal.
The justification for this smaller award in regard to consequential loss of profits is based on legal
reasoning flowing from the third ground of appeal. The contention in that ground was that the learned circuit judge erred in law when, in assessing damages in a proven claim for conversion, she applied principles appropriate to an action in detinue.
It would, indeed, be incorrect to suggest that the same principles apply in the assessment of damages in conversion as in detinue. Counsel for the respondent in the court below explicity urged the measure of damages in detinue although his claim was for conversion. And, indeed, of the two cases cited in the judgment regarding the measure of damages, namely, Bortetey v. Achinivu [1960] G.L.R. 73 and Boateng v. Briscoe (Ghana) Ltd., Court of Appeal, 8 January 1968, unreported; digested in (1968) C.C. 61, the Bortetey case was an action for negligence, and the Boateng case which the learned circuit judge preferred was an action in detinue.
The plaintiff in an action of detinue, where the chattel detained is eventually not returned, is entitled to “the market value of the chattel together with the full market rate of hire up to the date the action is instituted or judgment obtained, this being the consequential loss following on the destruction or loss of the chattel,” as stated by the trial judge. By contrast, the entitlement in conversion is ordinarily the value of the chattel at the date of the conversion. (See Street on The Law of Torts, pp. 55-59.) A claim for loss of profits during the period between the date of wrongful seizure and the date of the conversion can be allowed in addition, the date of formal demand and refusal being often used as evidence of the date of conversion.M[p.45] of [1972] 2 GLR 39 In fact, as Professor Street points out at p. 57, “The courts have thrown off the old cases and will, if the defendant returns the chattel before trial, reduce the damages in conversion by the amount of its value at that time; in short, the court will not enforce a sale on the defendant, and ‘subject to the payment of costs and special damages (if there are any) an action for damages for conversion can always be stayed if the defendant offers to hand over the property in dispute.’
The value of the goods when returned is set off against the damages calculated as set out and in the
preceding paragraphs.”
In the instant case there is no indication that, in these days of greatly inflated vehicle prices, the plaintiff was advised as to the alternative of recovering his vehicle instead of its assessed full value at the date of seizure, nor has the fact that the defendant is virtually obliged by the judgment to purchase the vehicle been questioned in this court. But this is stated only by way of drawing attention to openings available to the parties, the central concern here being to indicate the reasons why I would allow the appeal in respect of the award for consequential loss of profits by reducing the amount awarded therefor to ¢800.00. The award of ¢1,180 as the full value of the vehicle stands unaffected.
JUDGEMENT OF JIAGGE J.A.
I agree.
JUDGMENT OF KINGSLEY-NYINAH J.A.
I also agree.
DECISION
Appeal allowed.
Award for consequential loss reduced.
