DIVISION: IN THE HIGH COURT, ACCRA
DATE: 15TH MARCH, 1963
BEFORE: PREMPEH J.
CASES REFERRED TO
(1) Strôms Bolag v. Hutchison [1905] A.C. 515; 21 T.L.R. 718; 63 L.T. 562, H.L.
(2) Crossfield v. Such (1852) 8 Ex. 159; 155 E.R. 1301; 22 L.J. Ex. 65
(3) Hiort v. London and N. W. Rly. Co. (1879) 48 L.J. (N.S.) 545; 4 Ex. D. 188; 40 L.T. 674, C.A.
(4) Moon v. Raphael (1835) 2 Bing. (N.C.) 310; 132 E.R. 122; 5 L.J.C.P. 46
(5) The Mediana v. The Comet [1900] A.C. 113; 82 L.T. 95; 16 T.L.R. 194, H.L.
(6) The Greta Holme [1897] A.C. 596; 77 L.T. 231; 13 T.L.R. 552, H.L.
(7) Strand Electric and Engineering Co., Ltd. v. Brisford Entertainments Ltd. [1952] 2 Q.B.246; [1952]
1 All E.R. 796; [1952] 1 T.L.R. 939, C.A.
[p.304] of [1963] 1 GLR 303
NATURE OF PROCEEDINGS
ACTION against first defendant and his solicitors for damages for unlawful detention of title deeds.
COUNSEL
Nii Odoi-Annan for the plaintiffs.
Sir A. Asafu-Adjaye for the defendants.
JUDGMENT OF PREMPEH J.
In this action the plaintiffs’ claim against the defendants is for the return to them of five documents of
title to land situate along the East Ring Road, Accra, or their value of £G45,000 and for £G25,000
damages for their wrongful detention by the defendants. The particulars of the said title deeds are as set
out in the writ of summons.
By their statement of claim the plaintiffs aver that they are the owners of five documents of title to land
particularly specified in the writ of summons, that they are entitled to possession of the said documents of
title, and that they have erected on the said land seven buildings to the total value of £G45,000. They
plead that on or about the 10th or 11th May, 1962, the second plaintiffs deposited the said title deeds with
the defendants who are partners in a firm of solicitors-for investigation of the second plaintiffs’ title to a
portion of the said land.
They maintain that after the said investigation had long been completed, they made several requests to the
defendants for the return of the said documents, but the defendants refused to deliver them up. They claim
in those circumstances for the return of those documents wrongfully detained by the defendants and for
damages for such wrongful detention.
By their statement of defence, the defendants admit that the plaintiffs had made several demands from
them for the return of the said five title deeds and that they had refused to deliver them up to the
plaintiffs, but they deny that the plaintiffs had erected those seven buildings on the land at the cost as
pleaded by them.
They admit that the second plaintiffs are the owners of the five documents of title claimed, but deny that
the first plaintiffs are entitled to possession of the said documents of title and therefore submit that they
have no right of action.
They aver that on the 11th May, 1963, one of the plaintiffs was present at the offices of Lynes and
Cridland (a firm of solicitors) together with two of their (defendants’) representatives and a representative
of a company known as Kindor Export Company, who were their clients, when the said representative of
Kindor Export Company deposited with them (the defendants) the said five documents of title with
instructions that they should prepare a deed of mortgage in their favour. They claim that they had been
forbidden by their clients, the said Kindor Export Company, to part with possession of the said documents
and that therefore the suit was properly between the plaintiffs and Kindor Export Company.
The issues to be tried were settled and hearing of the case was fixed for the 18th December, 1962. When
the case came up for hearing on that date, the defendants submitted to judgment on the first part of the
plaintiffs’
[p.305] of [1963] 1 GLR 303
claim, viz., the claim in respect of the return to them of those five documents of title. Accordingly I
entered judgment for the plaintiffs and against the defendants on that part of the plaintiffs’ claim and
ordered that the defendants should return those documents to the plaintiffs. The defendants then informed
the court that they had returned those documents to the plaintiffs. The only issue that was left to be
decided then was the question of quantum of damage. The question of costs also was left to be decided
after dealing with the issue.
I must here observe that although the defendants by their pleadings had denied that those documents were
deposited with them by the plaintiffs, they are clearly precluded by the judgment to which they have
submitted and/or by their return of the documents from any more denying that fact.
The plaintiffs admittedly did not by their writ of summons include a claim for special damage, but bearing
in mind the obvious difficulty with which judges are faced in awarding damages, I consider that in order
to be enabled to form a basis upon which a correct assessment of general damages could be reached, I
should hear evidence adduced, and quite apart from the observation which I have already made, I must
say that I find it established that those five documents of title were in fact deposited with the defendants
by the plaintiffs, and from first to last, the defendants’ sole reason for persistently detaining them and for
wrongfully refusing to return them to the plaintiffs was that they wanted to keep those documents for the
use and benefit of their own clients, the Kindor Export Company.
I accept the plaintiffs’ evidence that as a result of having been wrongfully deprived of the use of their title
deeds they were unable to obtain credits for business arrangements which they made effectively with the
Ghana National Trading Corporation. I find it also established that during the period of the wrongful
detention of those documents, two offers were made to the second plaintiffs for the purchase of four of
the buildings on the land which belonged to them-and that on account of the fact that they had been
deprived of the use of their title deeds they could not produce and show them to the prospective
purchasers, and that consequently they lost the profits which they would have made on the bargains.
I have no reason to disbelieve the evidence put forward by the second plaintiffs and on their behalf that
the profit which they lost on the first bargain of sale was within the region of £G15,000, and on that of the
second £G10,000. I am not, of course, overlooking the fact that this might have been an item for special
damage.
The defendants sought to contend that the plaintiffs had a duty to direct those prospective buyers to the
Lands Department to verify their title, but if-as I have held-those documents were deposited with the
defendants by the plaintiffs, I am unable to see what earthly right the defendants could claim to have to
direct the plaintiffs to go elsewhere with those prospective purchasers to check on their title.
It has been submitted on behalf of the defendants that although the plaintiffs gave evidence of special loss
which they alleged they had incurred
[p.306] of [1963] 1 GLR 303
as a result of the detention of the documents such evidence is not worthy of any force, but I am unable to
accede to that contention.
I will point in the first place to a statement made by Lord Macnaghten in his judgment in the case of
Strôms Bolag v. Hutchison,1 a case cited by the defendants, which is as follows:
“I am unable to see what difference it can make whether you claim damages generally and show that an
award of general damages would include and cover a special loss from which you seek relief or whether you seek compensation for a special loss and show that the loss would be more than covered or compensated by an award of general damages.”
In the case of Crossfield v. Such,2 also cited by the defendants, Baron Park in his judgment also stated as
follows:
“[In case of] detinue for goods, if all or any are delivered up after suit, the plaintiff can have no judgment to
recover them or their value . . . but he may have judgment to recover damages for their detention, if the
plaintiff has sustained any.”
The question may therefore be asked: How can the plaintiffs show that they have suffered any damages
otherwise than by leading evidence? I must say that the evidence which has been led has been a really
forceful background in enabling me to reach a proper assessment of general damages in this matter.
Counsel for the defendants further submitted that where general damages are claimed for the wrongful
detention of chattels, the only damages which the court will presume for such detention must be nominal
damages, and in support of that contention, he relied on the case of Hiort v. The London and
North-Western Railway Company.3 On the facts of that case, it is evident that the plaintiffs had nothing
more than a purely technical cause of action, and it cannot be doubted that in those circumstances the
plaintiff could not recover anything more than nominal damages.
Counsel then referred to the case of Moon v. Raphael4 and submitted that the principle for the award of
nominal damages applied with much more force in cases of wrongful detention of documents where the
documents detained had been delivered up before judgment.
I have carefully considered this case which admittedly is of considerable force in support of the
submission-but that case must depend upon its own facts as to the damage suffered. I have also
considered the question of remoteness of damage referred to in other cases cited. It seems to me in any
case that the case above referred to lost its effect in view of the principle on the assessment of damages on
such claims laid down in the case of The Mediana v. The Comet.5
[p.307] of [1963] 1 GLR 303
Lord Morris in his short judgment said, “I think this case comes within the principle in The Greta Holme
which overruled the principles of previous cases as regards the mode of assessing damages.”
Following the decision in The Greta Holme,6 The Mediana v. The Comet above referred to laid down the
following principle:
“Whenever by wrongful act another person is deprived of the use of his property-a claim for damages may
be sustained, and such damages are not merely nominal, though no actual pecuniary loss may be proved.”
In that case in which the plaintiffs were held entitled to recover substantial damages for the loss of use of
their vessel, it was further held (extending the principle) that the principle of assessing damages was the
same in all forms of the unlawful detention of another man’s property.
In his speech in that case Lord Halsbury said, “The wrongdoer has no right to enquire what or whether
any use would have been made of the vessel of which the respondents [plaintiffs] were deprived.”7 He
went on to say that a defendant who has deprived the plaintiffs of the use of a chair cannot diminish
damages by showing that the plaintiffs did not normally sit on it. The damages are at large, they are a
matter for the jury, but are not nominal. See also the case of Strand Electric and Engineering Company,
Ltd. v. Brisford Entertainments Ltd.8 which is also in point, and in which the principle in The Mediana v.
The Comet was applied.
In the case of The Greta Holme already referred to, the learned Lords pointed out-and Lord Herschell gave expression to it in plain terms-that the unlawful keeping back of what belongs to another person is a ground for real and not nominal damages.
In all the circumstances of this case and on the facts, I find that the plaintiffs have suffered substantial
damages by the wrongful detention of their documents of title by the defendants, and on principle
therefore and on the authorities, I hold that they are entitled to substantial damages.
I have considered the point taken against the first plaintiffs’ right to sue, but I am of the opinion that the
documents of title the subject of this case belong to them jointly with the second plaintiffs, and that
therefore they also have a cause of action against the defendants.
In all the circumstances I award the plaintiffs £G2,000 general damages plus 500 guineas costs.
DECISION
Judgment for the plaintiffs.
