COURT OF APPEAL, ACCRA
Date: 24 NOVEMBER 1975
APALOO ANIN AND HAYFRON-BENJAMIN JJA
CASES REFERRED TO
(1) Waya v. Byrouthy (1958) 3 W.A.L.R. 413.
(2) Jacker v. International Cable Co., Ltd. (1888) 5 T.L.R. 13, C.A.
(3) Oppong v. Dagomba, Court of Appeal, 13 January 1969, unreported; digested in (1969) C.C. 102.
(4) Mackenzie v. Yeboah, Court of Appeal, 2 February 1970, unreported; digested in (1970) C.C. 103.
(5) Dumgya v. Sports Council of Ghana [1974] 1 G.L.R. 429, C.A.
(6) Stephens v. Wilkinson (1831) 2 B. & Ad. 320; 9 L.J.K.B. (o.s.) 231; 109 E.R. 1162.
(7) Gillard v. Brittan (1841) 8 M. & W. 575; 1 Dowl. (N.S.) 424; 11 L.J.Ex. 133; 151 E.R. 1168.
(8) Rosenthal v. Alderton & Sons, Ltd. [1946] 1 K.B. 374; [1946] 1 All E.R. 583; 115 L.J.K.B. 215; 174 L.T. 214; 62 T.L.R. 236; 90 S.J. 163, C.A.
(9) General & Finance Facilities, Ltd. v. Cooks Cars (Romford) Ltd. [1963] 1 W.L.R. 644; [1963]
(10) 2 All E.R. 314, C.A.
NATURE OF PROCEEDINGS
Appeal from the judgment of a circuit court in an action for detinue for wrongful seizure of a car sold under a credit sale contract. The facts are sufficiently stated in the judgment of the court.
COUNSEL
Ahenkora for the appellant.
Atadika for the respondent.
JUDGMENT OF ANIN J. A.
Anin J.A. delivered the judgment of the court. The simple but important issue raised by this appeal is the quantum of damages that may be awarded in a detinue action to a buyer whose goods, bought and delivered to him in a credit sale contract, were subsequently wrongfully seized and resold by the seller at a time when about one-third of the purchase price had been paid by the buyer.
By his writ of summons the plaintiff claimed against the defendant:
“(a) the return of his Bedford 1/ ton lorry No. AE 6079 or its value, i.e. 01,000.00 which the defendant wrongfully seized and detained; and (b) 02,000.00 damages for loss of earnings incurred by the wrongful seizure and detention of the said Bedford lorry.”
The plaintiff s case, which was accepted by the learned trial circuit judge as truthful, was that the defendant sold and delivered to him a second-hand passenger Bedford lorry, registration No. AE 6079 on 22 October, 1963 under an oral credit sale agreement. The agreed purchase price was 01,000.00, payable by monthly instalments. The learned judge found as a fact that the contract was one of outright sale with no right of seizure reserved to the defendant upon any contingency. On 15 December 1963, the lorry was damaged in an accident; and the plaintiff repaired it at his own expense. On 2 April 1964, when the lorry had been fully repaired
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and made roadworthy again, the defendant wrongfully seized and detained it; and refused to deliver up the plaintiff s lorry to him despite a written request for its return sent to him.
The learned judge found as a fact that at the date of defendant’s seizure of the lorry, the plaintiff had made part payments of the purchase price totalling 410.00. He held, correctly in our respectful view, that the seizure of the lorry was wrongful in the circumstances. Since the contract was one for outright sale with no contingent right of seizure reserved to him the defendant could not legally seize the lorry, property in which had duly passed to the plaintiff on delivery. Even if the plaintiff defaulted in paying the balance of the purchase price, the defendant’s remedy was to sue for the balance of the purchase price: see Waya v. Byrouthy (1958) 3 W.A.L.R. 413. Accordingly, the trial judge was right in holding that the plaintiff had established his claim and was entitled to judgment for the return of Bedford lorry No. AE 6079 or its value assessed at 01,000.00 plus 500.00 general damages.
At the hearing of the appeal, learned counsel for the defendant dutifully argued his omnibus ground of “judgment being against the weight of evidence “; but confined his attention mainly to the twin issues of quantum of damages awarded against his client and the finding made by the trial judge that 410.00 had been paid by the plaintiff on account out of the agreed purchase price of 1,000.00 at the date of seizure.
Taking the latter ground first, learned counsel for the defendant contended that the learned trial judge erred by taking into consideration hearsay evidence in arriving at his finding that 410.00 was paid by the plaintiff on account out of the agreed purchase price of 1,000.00. It is clear from the record that the only admissible pieces of evidence in support of his plea of payment adduced by the plaintiff were partly documentary, being two receipts issued in his favour by the defendant and tendered in evidence as exhibit A for £G80 or 160.00 dated 22 October 1963 and exhibit B for £G50 or 100.00 dated 23 December 1963 respectively; and partly his own oral evidence to the effect that a further sum of £G20 or 040 was paid by him to the defendant through Awuku Ahiable (the plaintiff s first witness) who corroborated his testimony on the point. Even though the plaintiff claims to have paid another instalment of £G55 or 110.00 through his driver, Soji, yet he omitted to call Soji to testify in his support. Neither was the receipt, allegedly in Soji’s possession, evidencing this alleged payment tendered.
This piece of evidence about the alleged further payment of 0110.00 and the supporting receipt was hearsay, and therefore inadmissible in law. However it was let in without objection. The correct position of the law is as stated in Phipson on Evidence (10th ed.), at p. 855, para. 2053:
“If inadmissible evidence has been received (whether with or without objection), it is the duty of the judge to reject it when giving judgment; and if he has not done so, it will be rejected on appeal, as it is the duty of courts to arrive at their decisions upon legal evidence only . .
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Reference may also be made to Jacker v. International Cable Co., Ltd. (1888) 5 T.L.R.13, where the English Court of Appeal also held (as stated in the headnote at p. 13) that, ‘Where matter has been improperly received in evidence in Court below, even when no objection has been there raised, it is the duty of the Court of Appeal to reject it and decide the case on legal evidence.” See also this court’s decision to the same effect in such cases as Oppong v. Dagomba, Court of Appeal, 13 January 1969, unreported; digested in (1969) C.C. 102; Mackenzie v. Yeboah, Court of Appeal, 2 February 1970, unreported; digested in (1970) C.C. 103 and Dumgya v. Sports Council of Ghana [1974] 1 G.L.R. 429 at p. 436, C.A.
Incidentally, it must be pointed out that the defendant neither relied on nor used this inadmissible piece of evidence, which was obviously detrimental to his case. In the circumstances, the learned trial judge ought not to have relied upon this piece of hearsay evidence and to have given the plaintiff the benefit of the alleged final part payment of 0110.00 in his judgment. Our duty as an appellate court is clear from the above authorities: we have to reject this offending piece of hearsay evidence and arrive at our decision on legal evidence only. We therefore reject this hearsay evidence about the alleged final payment of 0110.00; and deduct this figure from the total of 0410.00 adjudged by the learned trial judge to have been paid by the plaintiff on account in settlement of the purchase price. In the premises, we hold that only a total of 300.00 had, on the legal evidence before us, been paid by the plaintiff in part payment of the agreed purchase price of 01,000.00 for the said Bedford lorry AE 6079.
On the issue of the quantum of damages, learned counsel for the defendant argued that, “even if the plaintiff should succeed on the issue of wrongful seizure, the learned trial judge was wrong in awarding 01,000.00 as special damages in favour of the plaintiff having regard to the evidence that the full value of the vehicle of 01,000.00 had not been paid to the defendant.” This ground of appeal raises in a neat form the following question of law: In an action in detinue for the return of goods or their value and damages for their wrongful detention, is the seller liable to pay damages assessed at the full value of the goods or should damages be reduced pro tanto by the unpaid balance of the purchase price?
In Stephens v. Wilkinson (1831) 2 B. & Ad. 320, to an action on a bill of exchange, the defence was that the bill had been given for goods sold which the plaintiff had tortiously retaken from the defendant two months after delivery. This defence was held bad, because the tortious retaking did not authorise the buyer to consider the contract as rescinded; he must pay the price, and seek his remedy by action in trespass, inasmuch as the consideration for the bill of exchange had not wholly failed, the buyer having enjoyed the consideration for some time after the sale. Parke J. held at p. 327:
“In point of law, the situation of the parties is this: the vendee has had all he was entitled to by the contract of sale; and he must therefore pay the price of the goods. He may bring trespass against the
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vendors for taking possession of them again, and may recover the actual value of the goods at the time they were taken”.
In Gillard v. Brittan (1841) 8 M. & W. 575, on the other hand, the plaintiff, having purchased goods of the defendant, secretly absconded with the goods before he paid for them. The defendant followed him and forcibly retook the goods. In an action for trespass for taking the goods, it was held that the measure of damage was the value of the goods and the jury could not consider the debt due from the plaintiff to the defendant or treat it as reduced by the retaking.
In Rosenthal v. Alderton & Sons, Ltd. [1946] 1 K.B. 374, C.A. the plaintiff, who in 1940 had left certain goods in the defendant’s care, returned from military service in 1943 to find that some of them had been sold by the defendant. In an action of detinue the court assessed the value of the goods not returned to the plaintiff as at the time of judgment, and held that it was immaterial that this market value was higher than at the time of sale when the defendant was originally in default. The ratio decidendi is clearly discernible from the following passage from the judgment of the Court of Appeal delivered by Evershed J. (as he then was) at pp. 377-378:
“[T]he action of detinue was essentially a proprietary action implying property in the plaintiff in the goods claimed: . . . It was, and still is, of the essence of an action of detinue that the plaintiff maintains and asserts his property in the goods claimed up to the date of the verdict . . .
In our judgment an assessment of the value of the goods detained (and not subsequently returned) at the date of the accrual of the cause of action (i.e., of the refusal of the plaintiff’s demand) must presuppose that on that date the plaintiff abandoned his property in the goods: and such a premise is inconsistent with the pursuit by the plaintiff of his action of detinue. The significance of the date of the refusal of the plaintiff’s demand is that the defendant’s failure to return the goods after that date becomes and continues to be, wrongful, . . . and such damages must equally continue to run until the return of the goods or (in default of return) until payment of their value.”
Rosenthal v. Alderton & Sons, Ltd. (supra) was followed in General & Finance Facilities, Ltd. v. Cooks Cars (Romford) Ltd. [1963] 2 All E.R. 314, C.A. where it was held that a successful plaintiff in an action in detinue who obtains judgment for the return of the detained chattel or recovery of its value and damages for its detention is entitled to have assessed separately (i) the value of the chattel at the date of the assessment, and (ii) the damages sustained by him up to that date. From the above leading cases and the relevant High Court rules, we may thus sum up the law applicable to the facts of this case:
A seizure and resale of goods sold under a credit sale contract, where property in the goods passes on delivery to the buyer, is tortious; and the buyer, even if he has defaulted in paying the full
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purchase price, may sue the seller for conversion or in trespass or in detinue: see Gillard v. Brittan (supra) and Stephens v. Wilkinson (supra).
(2) If he elects to sue in detinue for the return of the detained goods or recovery of their value and damages for their detention, he may recover the full value of the goods, assessed at the date of judgment, and not at the date of the refusal of the plaintiff s demand (which is the date of the accrual of the cause of action): see Rosenthal v. Alderton & Sons, Ltd. (supra) and General & Finance Facilities, Ltd. v. Cooks Cars (Romford) Ltd. (supra).
The resale cannot be treated by the buyer as rescission of the original contract of sale. The buyer is contractually bound to pay the balance of the purchase price, as and when due: see Gillard v. Brittan and Stephens v. Wilkinson (supra).
(4) In the buyer’s action for detinue, the seller may sue or counterclaim for the outstanding balance on the agreed purchase price: see Gillard v. Brittan (supra) per Lord Abinger C. B. at p. 578, “The verdict in this case does not at all affect the right of the defendant to recover the whole £67 due to him from the plaintiff.”
(5) Order 19, r. 3 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A), provides that:
“Subject to the Provisions of rule 14 of Order 21, a defendant in an action may set-off or set up by way of counterclaim against the claims of the plaintiff, any right or claim whether such set-off or counterclaim sound in damages or not, and such set-off or counter-claim shall have the same effect as a cross-action, so as to enable the Court to pronounce a final judgment in the same action, both on the original and on the cross-claim.
In the above premises, the defendant’s contention, that the learned trial judge erred in awarding 01,000.00 as damages in favour of the plaintiff having regard to the evidence that the full value of the vehicle had not been paid to the defendant, is untenable and not borne out by the relevant law. On the contrary, we fully endorse and uphold the learned judge’s main conclusions as being unimpeachable in fact and in law: namely, that the defendant wrongfully seized the vehicle; that since the contract entered into by the parties was an outright sale of the vehicle to the plaintiff, and there being no contingent reserved right of seizure vested in the defendant, he could not in law properly seize the vehicle even if the plaintiff had defaulted in the payment of any of the instalments; and that the defendant would have been entitled only to sue for whatever amount was due to him in respect of the said vehicle.
Acting under rule 32 of the Court of Appeal Rules, 1962 (L.I. 218), we hereby rectify the trial judge’s erroneous finding about the total part payment of the purchase price of the vehicle made by the plaintiff at the date of the wrongful seizure; and hold, on the legal evidence before us, that the sum of 300.00 had been paid by the plaintiff in part payment of the agreed purchase price of 01,000.00 for the said Bedford lorry No. AE
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6079 at the date of its wrongful seizure by the defendant. Save for this variation, we would dismiss this appeal and uphold the judgment of the trial court for the plaintiff against the defendant for the return of vehicle No. A.E 6079 or its value assessed at 1,000.00 plus 0500.00 general damages and 150.00 costs in the court below. The plaintiff will have his costs in this court.
DECISION
Appeal dismissed.
Judgment of the circuit court varied.
S. Y. B.-B.
