R. T. BRISCOE (GHANA) LTD. v. BOATENG [1968] GLR 9

DIVISION: COURT OF APPEAL

DATE: 8 JANUARY 1968

BEFORE: AZU CRABBE, APALOO AND LASSEY JJ.A.

NATURE OF PROCEEDINGS

APPEAL against the decision of the High Court awarding damages against the appellants for wrongful seizure of the respondent’s vehicles. The facts are sufficiently set out in the judgment of Lassey J.A.

COUNSEL

B. Gaisie for the appellants.

Kofi Sackey for the respondent.

JUDGMENT OF LASSEY J.A.

[His lordship stated the facts as summarised in the headnote and continued:] For my part, I do not think there can be any sound reason which should entitle this court to interfere with the trial judge’s view that the respondent acted reasonably in hiring the caterpillar as a replacement vehicle to mitigate the damage or loss he suffered by being deprived of the use of his own equipment in his timber business. The question as to the reasonableness or unreasonableness of the steps taken in hiring a caterpillar to do the job of timber felling which, but for the appellants’ wrongful act, would have been done by the respondent’s own equipment is one of fact which had been answered in the respondent’s favour by the trial judge, and the appellate court is bound to accept that answer as final. The learned trial judge found that it was a reasonable act in the particular circumstances for the respondent to have hired the caterpillar to the effect that the respondent tried unsuccessfully to procure similar trucks or other vehicles of the same prestige and class as the Fordson tractor and G.M.C. lorry. The judge had evidence before him that the respondent had [p.11] of [1968] GLR 9 made inquiries at the appropriate garages from which the Fordson tractor and G.M.C. lorry were obtainable, but could not get suitable alternative vehicles at less expense there or elsewhere. The respondent was therefore under an obligation to act reasonably and to take immediately such steps as might be reasonable in order to mitigate the loss which he otherwise would have suffered; and when he decided to use the caterpillar for his business so long as it was available for use and no other vehicles of comparable size were available it could hardly be said that he acted unreasonably in the particular circumstances. I do not think that the appellants’ counsel’s contention against the judge’s finding in this regard could be right. No other vehicle of the same class as the respondent’s equipment was offered to the respondent by the appellants. It is in my opinion quite immaterial whether the caterpillar was too costly as a substitute for the Fordson tractor and the G.M.C. lorry. What matters is that those vehicles were unobtainable whilst the respondent’s timber felling business must go on. As almost all the criticisms levelled against parts of the learned judge’s findings were on matters of fact, I am able to say that the trial judge who saw the witnesses who testified before him obviously took a great deal of care to consider those matters of fact, and certainly paid attention to the points raised in the argument of counsel before deciding in favour of the respondent. Upon these matters notwithstanding the slight discrepancies or inaccuracies in the evidence of F. D. Nsiah, the evidence led on the whole was of a very clear character and no one could have been in a better position to watch his demeanour and to form an opinion as to his credibility as a witness of truth. It is true that there are a few slips here and there in the evidence of the respondent’s witness, F. D. Nsiah, which provided the opportunity for counsel for the appellants to seriously impeach his credibility and complain that his evidence as well as that of the respondent himself was unworthy of belief, especially on the question whether or not the caterpillar was in fact hired. I do not think that a judge is entitled to disbelieve a witness merely because in narrating his account of events which happened some time before he gave evidence in court,. he slips here and there or because there are a few discrepancies between his story and that of another witness called to support him on the particular issue. The accepted principle of law on, this matter is rather that where the discrepancies are really material and make the version of the witness on the point or points at issue highly improbable when viewed against the general background of the dispute, the Court of Appeal in hearing the appeal may say that the judge of the trial court erred in accepting and believing what such a witness has [p.12] of [1968] GLR 9 testified about. For my part at least, I think the so called inconsistencies or discrepancies between the account given about the hiring by Nsiah and the respondent himself were of no importance at all. On the contrary, an examination of the receipts, exhibits J1-J8, which we have ourselves found to be genuine, issued after payments had been made for the hiring of the caterpillar, rather lent the hallmark of truth to the fact that the caterpillar was hired from Nsiah as a replacement vehicle and used in the respondent’s business. In my opinion as the trial judge in resolving all these issues of fact joined between the respondent and the appellants based his decision upon the opinion he formed of the credibility and trustworthiness of the witness, and evenly balanced the probabilities and possibilities of the whole case, I see no sound ground which should entitle me to differ from him. By far the appellants’ main contest in this appeal turned on the judge’s basis for assessing the damages he awarded the respondent in respect of the hiring of the caterpillar. The gist of the appellants’ complaint here was that the learned judge of the High Court applied a wrong principle of law in his estimation of the damages which ought to be awarded and in so doing he consequently allowed an amount which the evidence led showed is unreasonable and excessive.

In ascertaining the measure of damages suffered resulting from a breach of contract or for tort the true principle of the law as laid down in several decided cases is that the person suffering from the breach of contract or the tortious act must be placed in the same position as if there had been no tortious act or breach of the contract. It may be that he has in fact suffered no material loss, but so far as money can compensate, the law will give the injured party reparation for the wrongful act and for all pecuniary loss flowing from it. What the learned judge actually did in this case was this: He considered what sum the respondent must have paid for a full working day for the hiring of the caterpillar. This he found on the evidence was £G30 per full working day. For the 46 days including Sundays on which he found that the caterpillar could not have been used in the business of the respondent either because it was being serviced or sent to the workshop for routine refill or because of bad weather, he disallowed any claim covering this period. He then multiplied £G30 per day by 46 days during which the caterpillar could not have been in actual use and arrived at the wrong figure of £G1,280, instead of the correct amount of £G1,380. He deducted this wrong sum of £G1,280 from the respondent’s full claim of £G5,748, and the sum of £G4,468 which he found was what he awarded to the respondent [p.13] of [1968] GLR 9 as the full damages for the cost of hiring the caterpillar as replacement vehicle.

In the first place it is apparent that the learned judge’s mathematical calculation of the amount of damages for the 46 days that the caterpillar did not work was entirely wrong, and to this extent counsel for the appellants was right in his objection to the assessment. The correct amount for the 46 days at £G30 per full working day was £G1,380 and not £G1,280. Therefore, assuming that the judge was right in the method of assessment adopted, £G5,748 minus £G1,380, leaves a correct balance of £G4,368, instead of £G4,468.

Another fallacy in the judge’s calculation, counsel for the appellants further submitted, is that the learned judge took into account in the assessment of the damages the fact that £G30 was the fixed or standard rate at which the caterpillar was hired for a full working day, when in fact the proper rate which he ought to have considered as the proper measure of damages was £G10 per full working day in view of the evidence on record that £G10 was the standard hiring charge for the respondent’s truck at the relevant period. Mr. Gaisie argued that where a vehicle which has been wrongly seized has a recognised value the proper measure of damages recoverable by the owner of the vehicle is the hiring value of that vehicle. Counsel therefore contended that if this method of assessment suggested by him is accepted, then the hiring of the caterpillar for 119 days at the rate of £G10 per full working day would come up to £G1,190; he submitted that this sum should again be taxed down by £G10 for 70 days on the ground that both vehicles which had been wrongly seized or detained by the appellants could not have been in good working condition all the time. For that reason he recommended that the sum of £G1,190 be further reduced to £G1,002 which, in his view, is the correct estimate of the damages to which the respondent was entitled under this particular head of the total damages claimed by him. Mr. Kofi Sackey, counsel for the respondent, readily conceded that the learned judge’s mathematics was wrong, and submitted that all days, including Sundays, on which the caterpillar had broken down, Mr. Nsiah was not entitled to any hiring charges, and therefore the respondent was not liable to pay him any amount for that period. Mr. Sackey further stated that although some evidence of the general cost of hiring a caterpillar was given, the judge was not bound to accept the £G10 per day suggested, as in his opinion the respondent was in the particular circumstances entitled to be truly indemnified for the actual charge he was compelled to pay for the relevant period during which the caterpillar was in active service.

This is a case in which the parties have introduced some refinement into the method of fixing the rate payable for a full working day

[p.14] of [1968] GLR 9 for the hire of a machine like a caterpillar. The refinement is that instead of there being a generally accepted standard daily rate, there appears to be rather two different rates according to the recorded evidence. The appellants argued that as the respondent admitted at the trial that he used to hire trucks of the same class as the two which had been wrongly seized for £G10 per day from the respondent’s witness, F. D. Nsiah, the proper rate which the court should accept as a measure of damages should be £G10 and not £G30 per full working day.

On the other hand, the respondent’s counsel contended that one must accept the true hiring charge as the proper basis because as the caterpillar was a much bigger and a more expensive piece of equipment than the trucks the charge for hiring it was bound to be higher than the £G10 per day payable in respect of the hiring of trucks.

There is no doubt that the two rates mentioned produce a big difference. Assuming that the caterpillar worked for 119 days at the appellants’ suggested rate of £G10 per day, the sum payable, as already stated, is £G1,190; for the same number of days at the respondent’s rate of £G30 per day it comes up to £G3,570. In my opinion the alternative figure of £G10 per day suggested by the appellants is not easily justifiable by the evidence which the learned judge accepted. The judge was guided in this difficult assessment by the evidence of the appellants’ own witness, Mr. Gbedemah, the third defence witness, who was the then manager in charge of G.C.M.T. in Kumasi. This witness stated, among other things, as follows: “My company used to hire out caterpillar to contractors up to early 1963. The company was charging £G32 a day for eight working hours per one caterpillar. A caterpillar is worth about £G13,000.” In my judgment the inescapable inference from the evidence of Mr. Gbedemah is that F. D. Nsiah is entitled to be paid the amounts which the receipts, exhibits Jl-J8, tendered showed he charged for the hiring of his caterpillar to the respondent. This was shown on the evidence to be £G32 per day, but the judge allowed only £G30 per day. I think that that sum fixing the rate at which the respondent should be indemnified was reasonable and fair. The problem was one of proof, and the trial judge held that the evidence was sufficient in his opinion to establish that the respondent was entitled to recover the sum of £G30 per day. In my view, it could not, therefore, be regarded that both figures of £G10 and £G30, since they differed so much, were direct calculations based upon the market value of the caterpillar because it was not a common ground in this case that at all times there was an available hiring market price of a caterpillar in Kumasi. [p.15] of [1968] GLR 9

Finally, I deal with another objection raised against the basis of the judge’s assessment on the ground that he applied the wrong principle of law. Mr. Gaisie, counsel for the appellants, argued very strenuously that on the facts of this case the respondent was only entitled to be compensated for the wrongful seizure, and that in estimating that amount of damages to be awarded to the respondent the speculative element of profit ought not to be taken into consideration, and that the proper measure of damages recoverable by the respondent in this case was the recognised hiring value of the caterpillar. This argument of counsel implies that where an owner of a chattel which he uses in his business or trade has been deprived of its use, and he was obliged to hire another chattel of comparable size to carry on his business, the assessment of any damage the owner must have suffered must be calculated on the basis of the market value of the chattel at the time minus the element of any profit he might have earned while using the hired chattel in his business. Counsel cited the two English cases of Davis v. Oswell (1837) 7 C. & P. 804 and Strand Electric and Engineering Co., Ltd. v. Brisford Entertainments Ltd. [1952] 2 Q.B.246, C.A. in support and concluded his argument by stating that the special award made in favour of the respondent for the hiring of the caterpillar necessarily contained an element of profit to which the respondent was not entitled because the profit-earning capacity ought not to be taken into account in assessing the special damage. Mr. Kofi Sackey’s reply to this was that the question of any profit or loss is entirely immaterial when the court is faced with the task of estimating damages in action for detention. The respondent’s case, counsel submitted, here is that as the court found as a fact that it was a prudent act to have hired the caterpillar as a substitute, he is entitled as part of his damages to recover the whole cost of the hiring charges he had paid irrespective of any special advantage or profit he might have derived as a result of the bigger output by reason of hiring a superior piece of equipment to the one actually seized or detained.

Dealing with counsel’s submissions on what ought to be the proper measure of damages, it is clear in the present case that the respondent is not claiming the value of his equipment which the appellants had temporarily detained. His contention is that he was deprived of the use of his equipment in his timber business and that therefore he was entitled to the actual loss that he had, on account of the appellants’ wrong, suffered. This in fact was the cost he paid for hiring the caterpillar.

The measure of damages advocated by counsel for the appellants is not applicable to the circumstances of this case. The damages claimed and obtained in Davis v. Oswell (supra) covered the recognised

[p.16] of [1968] GLR 9 or market value of a horse, but whether or not that amount of damages can go beyond that so as to cover the expenses the owner had been put to for hire of other horses was not precisely decided. The claim in that action was in trover or conversion of a horse whereof the owner was permanently deprived of the use of his horse. He therefore claimed damages which included the recognised or market value of the horse at the time of the conversion. The position is slightly different on the facts of the present case, and the principle of the measure of damages adopted in Davis v. Oswell cannot apply because in the present case the owner of the caterpillar suffered only a temporary loss of use of the chattel, as opposed to the owner of the horse who was permanently deprived of the horse and was compensated to the full value of the horse he had lost. Here the actual loss consists of the recognised value of the horse. What we are concerned with in this appeal is not the market or recognised value of the truck which was estimated to cost £G13,000 or £G14,000 but only recovery of the full cost of the hiring of a caterpillar which is the actual loss sustained. The unlawful withdrawal of the respondent’s equipment from use in his business caused him some loss for which he must be compensated by the amount he expended to minimise or repair the loss: see Mediana (Owners) v. Comet (Owners, etc); The Mediana [1900] A.C. 113, H.L. The Strand Electric and Engineering Co., Ltd. case, also decided that where in an action for the detention of a chattel which the plaintiff hires out to other users as part of his business, if the defendant during the period of the detention made any beneficial use of the chattel concerned, the plaintiff-owner of the profit-earning chattel is entitled to recover as damages: (1) the full market value of the chattel destroyed, and (2) the full market rate of hire for the whole of the period of the detention. The main point of distinction between this case and the Strand Electric case is that as the owner had been deprived of the use of the chattel he could not hire it out any longer and therefore he was deprived of the profit that he would normally have earned at the prevailing market rate. This position is slightly different from the position of the respondent in the present case because the wrongdoers, the appellants, did not enjoy the beneficial use of the respondent’s tractor. The respondent suffered only a temporary loss of use of the chattel. In the Strand Electric case considering the nature of the chattel and how it was deployed by the wrongdoer in enriching himself the gains he made must be taken into consideration in the estimation of the adequate compensation payable to the sufferer. The full market rate of hire for the period of detention constitutes such profits as were being earned when the chattel was detained or taken away from the owner’s business. No additional damages could [p.17] of [1968] GLR 9 be recovered from loss of future profits besides these: see Bortetey v. Achinivu [1960] G.L.R. 73. Here the actual loss consists of the recognised value of the chattel of which the sufferer has been permanently deprived plus a fair sum of the user calculated on the prevailing market rate at which, but for the wrong, he could have earned by hiring his chattel.

In this case the equipment under consideration was no doubt also used in a profit-earning trade or business, but from the nature of the respondent’s business it seemed he did not hire either the tractor or the Fordson truck out on rent; he only used them in felling and carting timber for sale at a profit or loss. For a short period, he was deprived of the use of the equipment and he was compelled to hire other equipment. It is clear, therefore, that the actual loss which the respondent in fact suffered is the loss of the use, and not the recognised value, of the truck, and this is determinable by the cost of hiring a replacement vehicle. While in the Strand Electric case the owner or sufferer may have lost the prospect of earning profit in his business, it was not so in the present case because the replacement vehicle had in fact been used in place of the equipment and therefore the business of timber felling and transportation went on smoothly as if the equipment had not originally been detained. The respondent in this appeal had suffered no loss of timber market due to any delay in returning the equipment or getting a replacement vehicle. At any rate he did not say so in his evidence. What he had lost was a temporary loss of the use of his equipment in his timber felling business; and so far as money could compensate him, it was replaced by a spare caterpillar, and no more expenses were incurred other than charges for hiring and towing the equipment. In assessing damages for a temporary loss of use of a chattel, as opposed to damages for the value of the chattel due to total loss, the profit element is immaterial.

What Mr. Gaisie seemed to imply by his argument is that as the caterpillar which was hired in replacement for the Fordson tractor had a larger capacity in output and by its use the respondent’s turnover must have yielded more tonnage in logs and therefore more profit, than he ordinarily would have earned in his timber business if he had used his own equipment, the excess sum in profit enured for the benefit of the appellants and should not be included in the hiring charges. In other words, the respondent got more than his real loss and therefore the amount awarded to him as damages under this head must be reduced to the extent of the excess profit earned.

[p.18] of [1968] GLR 9

I do not think this principle advocated by counsel in this appeal is available to the appellants. Whether the damage suffered by the respondent is sufficiently recouped or lessened by some reason with which the appellants were not concerned, the fundamental issue is to compensate him for his actual loss, and if owing to the appellants’ wrongful seizure, the respondent had to hire this substitute at an increased cost that would be his actual loss which he ought to recover, and which in fact he had been awarded. In my opinion, therefore, if the number of timber trees felled by means of the caterpillar was substantially enhanced by virtue of the caterpillar’s large capacity, any additional sum earned due to any larger turnover or output was a matter about which the respondent would not be concerned. On the other hand, if the caterpillar was unable to produce enough timber trees because of its unsuitability for the job, the loss in turnover would be claimed because it is the direct consequence of the appellants’ wrongful seizure. The mere fact that the respondent could not procure a better substitute than one of a smaller capacity than his own equipment would not be his responsibility. Here in the respondent’s timber trade business, the respondent did use the caterpillar, and suffered no pecuniary loss except that he claimed. The evidence led did not show that he had made any unusual profit out of the use of the caterpillar; there was also no evidence that the wrongful seizure caused a stoppage of his timber works or that there was diminished output in logs due to temporary loss of use of his equipment. The loss of the equipment did not unduly interfere with the operations in the field because they had the use of the caterpillar in replacement and are entitled to the cost of hiring it. If his business had been brought to a standstill or been unduly interfered with, then there might have been a claim of the overhead charges as were running. That was not the position here. It had been possible without delay to secure comparable equipment to do the job exactly as the Fordson tractor and G.M.C. lorry, and the respondent could not have suffered any damage beyond the actual hiring charges. If the court awarded him that sum plus the costs of the action, I do not see any room for a further sum of profit which could be taken into account in estimating the actual loss. In my opinion the principle of law which I find is deducible from the decisions in the two English cases of Davis v. Oswell and the Strand Electric and Engineering Co., Ltd. v. Brisford Entertainments Ltd. (supra) as to what is the proper measure of damages for wrongful detention may be stated as follows:

(a) Where the chattel detained is eventually lost or destroyed, the owner should have as damages the recognised market

[p.19] of [1968] GLR 9 value of the chattel at the time of the conversion. He may also recover for loss of profits which does not mean loss of future profits, but profits which as owner of the chattel he would have earned from a contract or business engagement which was subsisting at the time of conversion: see Liesbosch, Dredger v. S.S. Edison [1933] A.C. 449, H.L.; Borketey v. Achinivu [1966] G.L.R. 92, S.C. and the Nigerian case of Ubani-Ukoma v. Nicol [1962] 1 All N.L.R. 105.

(b) Where the chattel is such that it is of a profit-earning capacity which the owner, as part of his business, hires out to users, as if during the period of detention the wrongdoer has made a beneficial use of the chattel, the owner in those circumstances is entitled to recover as damages the full market rate of hire for the whole period of detention, or for such time only of the period during which the owner might probably have been able to hire out the chattel, if returned to him.

(c) If the chattel above is not returned to the owner at all, then the measure of damages is the recognised or market value of the chattel together with the full market rate of hire up to date action is instituted or judgment obtained, this being the consequential loss following on the destruction or loss of the chattel.

(d) Where the detention of the chattel, which may be of a profit-earning nature, is only temporary and the owner has been deprived of its use in his own business, no profit element may be taken into account in assessing the damages recoverable, for in such a case the actual loss sustained consists in the expense the owner may have been put to for hire of other equipment as substitute for the continuation of his business.

The result is that it is clear that the duty to minimise one’s damage so far as claims for damage to property are concerned sometimes involves expenditure of money, and therefore a successful plaintiff will be entitled to recover from the wrongdoer his loss of earnings or the sum he as a reasonable person would have spent to purchase or hire a comparable vehicle on replacement.

In my opinion the appellants have substantially failed in this appeal, because they have failed in their claim that the judge applied wrong principle and that the judgment should wholly be set aside.

For my part, subject to the correction I have made in the wrong calculation made by the judge of the actual sum payable for the hiring of the caterpillar, I find myself unable to differ from the learned judge’s assessment and the principle of law he followed in estimating the damages in this case. For these reasons, I would

[p.20] of [1968] GLR 9 dismiss the appeal. The respondent will be entitled to recover the total amount of £G4,197 11s. 10d. made up as follows: £G50 general damages; £G387 11s. 10d. being cost of spares and repairs; £G10 for towing expenses and £G3,750 being cost of the hiring of the caterpillar. The respondent will also have the costs of this appeal fixed at N¢115.50.

DECISION

Appeal dismissed.

Mathematical calculation of damages amended.

S.K.T