HIGH COURT, SEKONDI
Date: 9 JULY 1975
EDUSEI J
CASES REFERRED TO
(1) Majolagbe v. Larbi [1959] G.L.R. 190.
(2) Wilson v. Tumman (1843) 6 Man. & G. 236; 12 L.J.C.P. 306; 1 L.T. (o.s.) 314; 134 E.R. 879.
(3) Johnson v. Diprose [1893] 1 Q.B. 512; 62 L.J.Q.B. 291; 68 L.T. 485; 57 J.P. 517; 41 W.R. 371; 9 T.L.R. 266; 37 S.J. 267; 4 R. 291, C.A.
(4) Owen and Smith v. Reo Motors (Britain), Ltd. (1934) 151 L.T. 274, C.A.
(5) Brewer v. Dew (1843) 11 M. & W. 625; 12 L.J.Ex. 448; 1 L.T. (o.s.) 290; 7 Jur. 953; 152 E.R. 955.
(6) Dumbell v. Roberts [1944] 1 All E.R. 326; 113 L.J.K.B. 185; 170 L.T. 227; 108 J.P. 139; 60 T.L.R. 231; 42 L.G.R. 111, C.A.
(7) Braun v. Mallet [1975] 1 G.L.R. 81.
NATURE OF PROCEEDINGS
ACTION for, inter alia, damages for unlawful seizure of a car sold under a contract of sale. The facts are sufficiently stated in the judgment.
COUNSEL
W. A. H. Amarteifio for the plaintiff.
Aboagye da Costa for the first defendant.
T. Ahlijah, Senior State Attorney, for the second defendant.
JUDGMENT OF EDUSEI J
The plaintiff claims against the defendants jointly and severally: “(a) the return of Mercedes Benz saloon car No. GJ 4722 or the value thereof and (b) damages for unlawful seizure.”
The first defendant agreed to sell to the plaintiff a Mercedes Benz car which had not then arrived in the country, and this was in early 1973. In
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April 1973, the car arrived and was registered as No. GJ 4722 in the name of one Kwakye who was the consignee of the car. The evidence shows that before the registration of the car, the plaintiff had paid sums of money to the first defendant to enable her to take delivery of the car from the Takoradi harbour and the total sum paid by the plaintiff was to be set against the purchase price to be agreed upon. The first defendant for all practical purposes was the real owner of the car. The plaintiff testified that the first defendant offered to sell the car to him for 07,000.00, but it is not clear from the pleadings and the evidence whether this 07,000.00 was the concluded purchase price. The first defendant later returned with one Bedu Addo and asked that the amount of 07,000.00 should be increased. The plaintiff offered to add 02,400.00 to the price of 07,000.00 to make a total purchase price of 09,400.00. Whether the first defendant accepted this additional sum of 02,400.00 is not clear from the evidence and she left with the said Bedu Addo. The first defendant’s testimony was that the plaintiff agreed to pay 07,000.00 in addition to any expenses that ought in incurred in connection with the delivery of the car. The said car, nonetheless, came into the possession of the plaintiff.
It is not clear from the evidence what the agreed purchase price was when the car came into the possession of the plaintiff, though he had, before their meeting at the offices of the Regional Administration, paid the sum of 07,909.00 to the first defendant as part payment, in my view, of the purchase price that might subsequently be agreed upon. The first defendant reported to the Regional Commissioner, Sekondi, that the plaintiff had not made full payment for the car he had purchased from her though no one could say at this stage what the agreed purchase price was. What represented the full payment was not known. The Regional Commissioner, however, referred the matter to the second defendant, his special military assistant, to try to effect amicable settlement between the parties. The plaintiff s evidence is that during the discussions before the second defendant both parties agreed that the plaintiff should pay 04,400.00 in addition to the 07,000.00 to make a total purchase price of 011,400.00 for the Mercedes Benz car No. GJ 4722. The first defendant testified that the agreed purchase price at the offices of the Regional Administration was 012,000.00 and that the agreement as to this amount was made in the presence of the Regional Commissioner, Sekondi.
I fail to see how this arrangement as regards the purchase price of 012,000.00 could have been reached before the Regional Commissioner when he himself had referred the matter to his military assistant, the second defendant, for settlement. The evidence of the second defendant supports the evidence of the plaintiff that it was agreed before him that the plaintiff should pay an additional sum of 04,400.00 to the first defendant to complete the purchase price. This is what the first defendant said in examination-in-chief: “In the course of the discussions the plaintiff and the first defendant agreed on 04,400.00 as the balance outstanding on the purchase price of the car.” The first defendant under cross-examination also said: “It is correct that the amount of 04,400.00 was to be paid through the second defendant.” It is only reasonable to infer from this
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evidence of hers that this figure of 4,400.00 was agreed upon before Captain Davis, the second defendant, as the final payment to be made by the plaintiff. If the contention of the first defendant was that the total purchase price of 12,000.00 was agreed upon before the Regional Commissioner in the person of Commander Kyeremeh, the burden was on her to establish this fact by calling the Regional Commissioner to substantiate this fact but she did not. She therefore failed to prove this assertion: see Majolagbe v. Larbi [1959] G.L.R. 190. In any case I accept and believe the evidence of the plaintiff and the second defendant that both the plaintiff and the first defendant agreed that the payment of 4,400.00 by the plaintiff should complete the purchase price of the car.
The general principle of the law of contract as regards its formation is the concurrence of three distinct elements—agreement, consideration and the intention to create legal relations. This is the common law standpoint. There can be no doubt that, at least, there was a contract formed at the offices of the Regional Administration when both parties agreed that a further payment of 4,400.00 to any other sum already paid by the plaintiff should complete the purchase price. I, myself, am in doubt whether there was a completed contract of sale of the car before the meeting at the offices of the Regional Administration, though there was an agreement to sell the car to the plaintiff long before the meeting at the offices of the Regional Administration but the price had not been agreed upon between the parties.
The sequence of events thereafter shows that the plaintiff paid 2,000.00 in November 1973 to the second defendant for the benefit of the first defendant and again in December 1973 made a further payment of 1,000.00 to the second defendant to be paid to the first defendant who refused to accept it until the whole outstanding balance of 2,400.00 was paid outright. I think I must make it clear that before the Regional Commissioner referred the matter to the second defendant to try to effect amicable settlement between the parties, the first defendant had reported to the Chief Justice in Accra that the plaintiff had not paid her for the car he bought from her. The evidence indicates that the plaintiff explained his side of the story to the Chief Justice and the matter presumably ended there. The first defendant then again made a written complaint to the Attorney-General, Accra and, according to her, as she was finding it difficult to see the Attorney-General personally she went to see one Colonel Tetteh at the Castle, Osu. Colonel Tetteh was at the time the head of the Special Action Unit. It was this Colonel Tetteh who got in touch with the Regional Commissioner and the latter referred the matter to the second defendant. The first defendant went to see Colonel Tetteh a second time when the balance of 2,400.00 had not been paid and the Colonel telephoned the second defendant in his office to seize the car if the plaintiff was not ready to make immediate payment. This was in the presence of the first defendant at the office of the Regional Administration. The second defendant said that: “when the first defendant refused to accept the 1,000.00 and also to wait for the balance of 01,400.00, she
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told me (i.e. the second defendant) to carry out the instructions of Colonel Tetteh.”
It is clear from the evidence of the second defendant that he wanted to have the matter amicably settled, and he was not prepared, according to him to carry out the instructions of Colonel Tetteh but for the insistence of the first defendant. This is what he said: “If the first defendant had not asked me to carry out the instructions if Colonel Tetteh I would have not. I proceeded to seize the car because the first defendant was insisting on seizure.”
I think it was clear to the second defendant that Colonel Tetteh, though head of the Special Action Unit, had no power to order the seizure of the plaintiff s car. Such a command does not fall within the preview of his jurisdiction. The functions of the Special Action Unit are set out in the Special Action Unit Decree, 1972 (N.R.C.D. 80), and the main function of this unit is (by section 2 therefore) “to follow up decisions of the National Redemption Council and the Executive Council and to ascertain to what extent they are being executed.” It is true there is a wing of the Special Action Unit known as the Expediting Committee whose duty is, in the main, to investigate complaints from the members of the public against public officers in the performance of their official duties. It is clear therefore that neither the Special Action Unit nor the Expediting Committee has any power to intervene in any dispute between two private persons in the community. It follows therefore that Colonel Tetteh had no power to order the seizure of the plaintiff s car on the ground of the non-payment of the purchase price which was a private matter between two private individuals, a lawyer in private practice and a trader-cum-farmer. This was not a military command to be carried out in the course of military duties in stricto sensu. It was an instruction, though from a superior officer, the performance of which was to take place in a civil, as opposed to a military jurisdiction, and such an order must be silhouetted against the background of the general civil law of the land to determine its legality or otherwise. It does seem to me that the second defendant knowing of the illegality of Colonel Tetteh’s instructions to him to seize the plaintiff s car was only minded to gloss over them and only to try to get the outstanding balance of 01,400.00 from the plaintiff and add it to the 1,000.00 already in his possession and pay the total of 2,400.00 to the first defendant. Undoubtedly he wanted an amicable settlement of the matter. He did not want to see any rancour or bitterness between the parties. But the first defendant would have none of the noble intentions of Captain Davis, the second defendant, and she, berserk with anger, insisted that the second defendant should proceed to seize the car as previously instructed by the colonel. It was the first defendant who pointed the car out to the second defendant to seize it. I find therefore the seizure of the car No. GJ 4722 on 18 December 1974 by the second defendant was procured by the first defendant whose chief pre-occupation was the seizure of the car if the plaintiff failed to pay the outstanding balance of 2,400.00.
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The next question is: did the defendants commit any wrong by this action? The answer is that any person who authorises or procures a tort to be committed by another person is responsible for that tort as if he had committed it himself. This principle of the law of delict or tort or civil wrong is adequately described in the Latin rubric: Qui facit per alium facit per se. The principal and the agents in such circumstances are both jointly and severally liable as joint tortfeasors for the wrong authorised or procured by the former and committed by the latter. In Wilson v. Tumman (1843) 6 Man. & G. 236 Tindal C.J. stated clearly the principle thus at p. 244: “all who procure a trespass to be done are trespassers themselves …”
Before the seizure the Mercedes Benz car No. GJ 4722 had become the property of the plaintiff and he was in possession of it. Indeed, he was using it for his professional work as a private practising lawyer as well as for his social activities. The seizure of the plaintiff s car by the second defendant on the authority of the first defendant was clearly a tort of trespass, which simply is an intentional interference with a chattel in the possession of another. The interference must of course be direct as it was in this case. Thus Lord Esher M.R. in Johnson v. Diprose [1893] 1 Q.B. 512 at p. 515, C.A. said: “The plaintiff in an action of trespass must at the time of the trespass have the present possession of the goods, either actual or constructive, or a legal right to the immediate possession.” A modern definition of the tort of trespass is stated in Salmond on the Law of Torts (11th ed.) at p. 358 as follows:
“The wrong of trespass to chattels consists in committing without lawful justification any act of direct physical interference with a chattel in the possession of another—that is to say, it is such an act done with respect to a chattel as amounts to a direct forcible injury within the meaning of the distinction drawn in the old practice between the writ of trespass and that of trespass on the case.”
This distinction brings to mind the famous statement of Maitland in his Forms of Action at Common Law (1948 Reprint) at p. 2 that “The forms of action we have buried, but they still rule us from their graves.” It is still necessary, however, to bear in mind the distinction in order to know what evidence may be required to establish a particular tort as distinct from the form of procedure to be adopted, which is no longer of any practical importance. Be that as it may, the tort of trespass gives protection to a plaintiff in the retention of possession of his chattel; it also affords protection to his interest in the physical condition of his chattel and it also protects the plaintiff against intermeddling with his chattel.
In this case the evidence has established that the second defendant on the authority of the first defendant took away the plaintiff s car which had been parked at the yard of the Ghana National Trading Corporation (G.N.T.C.), Takoradi, and there was no justification for it. If the plaintiff was indebted to the first defendant in the sum of 01,400.00 or 02,400.00 she had no right to seize or order the seizure of the car. The only remedy
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open to her was to sue for the amount and when she recovers judgment against the plaintiff she can then proceed to sell the car under a writ of fi.fa. Anything done short of the institution of an action is unjustifiable unless there was an express provision in the contract to seize the car on failure to pay the amount at the end of a stated time. There was no such express provision. Even if there was a time limit within which payment should be made and there was a failure to pay, the first defendant could not order seizure in the absence of express power to do so. It is clear, in my view, therefore that the second defendant who actually seized the car is liable to the plaintiff; the first defendant who authorised the seizure and in fact pointed out the car to the second defendant, is equally liable.
I now turn my attention to the consideration of damages, which is the main concern of the plaintiff now. Since the car was returned to him on 11 January 1975, on payment of the outstanding amount, his claim for the return of the car does not now arise. It is therefore struck out.
The plaintiff is claiming damages for unlawful seizure of his car No. GJ 4722. The evidence is that the plaintiff is a legal practitioner in the twin city of Sekondi-Takoradi. At the time of seizure a lot of people, apparently customers of the G.N.T.C., were in the G.N.T.C. yard (old R. T. Briscoe yard) where the car had been parked, and they gathered around it. They saw the second defendant in his army uniform take the car away. I could agree with the plaintiff in saying that he was greatly embarrassed when his car was being driven away. He had to resort to the use of taxis for his professional work, not only in the courts in Sekondi and Takoradi, but also he had to travel to do a case at Axim. He also travelled to Accra on two occasions to attend meetings of the Ghana Amateur Football Association and the Young Men’s Christian Association. It was near Christmas period and he visited Cape Coast his hometown on one occasion. All these travels entailed expenditure, and inconvenience to the plaintiff who was used to riding in his own car.
Damages are always at large, and it is not unknown that exemplary damages have been awarded in deserving cases. Thus in Owen and Smith v. Reo Motors (Britain), Ltd. (1934) 151 L.T. 274, C.A. the defendants seized certain cars in the presence of a creditor of the plaintiffs (who were motor dealers) when they were only entitled to seize the chassis of each car. The court in awarding damages considered not only the manner of taking but also the effect of the wrongful seizure on the plaintiff s credit. This English case seems to be of interesting relevance to the circumstances of this case except that even here the defendant had no right whatsoever to take out any part of the car in question. Exemplary damages were also awarded where there was an unfounded pretence of a legal claim: see Brewer v. Dew (1843) 11 M. & W. 625. The first defendant had no legal claim, at the time of seizure, to the plaintiff s car. The seizure was based on “an unfounded pretence of legal claim” on the part of the first defendant. Again as regards the award of exemplary damages the judgment of Scott L.J. in Dumbell v. Roberts [1944] 1 All E.R. 326, C.A. is pointedly apposite. He said at pp. 329-330:
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“By the common law there is no fixed measure of damages for such an interference when unjustifiable because the damages are at large, and in so far as they represent the disapproval of the law … for improper interference with personal freedom they may be ‘punitive’ or ‘exemplary,’ given by way of punishment of the defendant or as a deterrent example, and then are not limited to compensation for the plaintiff’s loss.”
In the very recent local case of Braun v. Mallet [1975] 1 G.L.R. 81, Azu Crabbe C.J. sitting in the High Court, Accra, also said at p. 95:
“This cruel act of the defendant and his relatives has caused the plaintiff great distress, and I think that the amount of damages I award the plaintiff should reflect my strong disapproval of the conduct of the defendant and his relatives. I also think that the plaintiff ought to be compensated for the mental torture which she has suffered since 19 October 1974. Accordingly, I award the plaintiff 02,000.00 general damages.”
Indeed, in this case the first defendant under false belief that she had a legal claim o the car for non-payment of 02,400.00 by the plaintiff seized it through her agent, the second defendant, in a public place. She herself admitted in evidence that the proper course for her was to have sued the plaintiff for the amount due to her. Surely, being a woman of some intelligence she could have saved herself all this trouble by seeking legal advice if she had honourable intentions about the plaintiff. Considering the totality of the evidence I can say that the first defendant’s purpose or one of her purposes of seeking the assistance of the army, in the country’s present situation, was to disgrace the plaintiff. She, undoubtedly, wanted to show the plaintiff, to use local parlance, “where power lay.” We are all witnesses of the conduct of some army personnel who have unjustifiably and illegally interfered in private disputes between two private persons in recent times, and the humiliation to which such persons have been subjected. An attempt was made by some members of the Armed Forces who wanted to take away to the barracks my court clerk for non-payment of a private debt some time ago but I asked my registrar (Mr. Tamakloe) to make it quite clear to the servicemen concerned that they had no right whatsoever to intermeddle in such private matters of two private citizens. I think it was really humiliating for the plaintiff at the G.N.T.C. yard where whispering rumours might have taken place when the people there saw the second defendant in his army uniform and the first defendant, a woman, seizing the car of the plaintiff. The effect of this on the plaintiff must have been distressing indeed.
I think I must award such amount of damages as will indicate my frank and vehement disapproval of, and utter disgust at, the conduct of the defendants, and which will be a lesson also to the people in this country that the army personnel are not clothed with jurisdiction to be debt collectors for private citizens. I shall in the circumstances award the plaintiff 01,500.00 general damages against the defendants jointly and severally.
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The first defendant has counterclaimed for 03,011.00 being the balance due on the sale of the car to the plaintiff. There is not a tittle of evidence whatsoever in support of this amount. However, the plaintiff himself in evidence said that it was agreed between himself and the first defendant that he should pay a further sum of 04,400,00 in addition to the 07,000.00 to make a total purchase price of 011,400.00. It is admitted on both sides that before the meeting at the offices of the Regional Administration the plaintiff had paid 06,909.00 to the first defendant. The additional 04,400.00 was ultimately also paid through the second defendant. The total payment made by the plaintiff was therefore 011,309.00. The first defendant is therefore entitled to 091.00 (i.e. 011,400.00 less 011,309.00). Setting off this sum of 091.00 against the plaintiff s 01,500.00, I finally enter judgment for the plaintiff against the defendants jointly and severally for the sum of 01,409.00 with costs of 0300.00 inclusive of counsel’s brief fee.
DECISION
Plaintiff awarded general damages.
S. Y. B.-B.
