BRITISH WEST AFRICAN INSURANCE SERVICES LTD. v. ABDILMASIH [1960] GLR 107

DIVISION: IN THE COURT OF APPEAL

DATE: 25TH APRIL, 1960

BEFORE: KORSAH C.J., VAN LARE, J.A. AND GRANVILLE SHARP J.A.

NATURE OF PROCEEDINGS

APPEAL from a judgment of Smith, J. in the High Court in favour of the defendant in an action claiming damages in trespass. The judgment is reported in [1959] G.L.R. 188.

COUNSEL

Heward Mills for appellants.

Akufo-Addo for respondent.

JUDGMENT OF VAN LARE, J.A.

Van Lare, J.A. delivered the judgment of the court: The British West African Insurance Services Ltd., the appellants, sued one Joseph Jacob Abdilmasih personally for damages for trespass. The alleged trespass arose out of an execution under a writ of fi. fa. for the recovery of a judgment debt in an action in which Joseph Jacob Abdilmasih, trading as J.J. Abdilmasih & Sons, succeeded in a claim under an insurance policy for an amount which together with costs was £8,154 12s. 5d. against the Gresham Fire & Accident Insurance Society Ltd., by its agents British West African Insurance Services Ltd. The latter company are the sole agents in Ghana for the Gresham Fire & Accident Insurance Society Ltd., a company registered in the United Kingdom and by virtue of a power of attorney in fact, stand in the shoes of the last mentioned company for all purposes in West Africa. The relevant provision of this power of attorney is as follows:

“To appear and represent the Society in any Court or Courts of Law or Equity in the said Territories aforesaid and there to sue or be sued and to answer defend and reply to all matters and causes touching and concerning the premises or any action or actions, suit or suits, matter or thing that may be sued or prosecuted by or against the Society touching or concerning the premises AND, for that purpose or any other purpose, to accept on behalf of the society service of process and any notices required to be served on the Society AND to submit on behalf of the Society to the laws and customs of the said Territories aforesaid AND ALSO to do, say, pursue implead, seize, sequester, arrest, attach and imprison and out of prison again to deliver.” It may be not immaterial at this point to state that the execution to which we have referred was called off when the judgment debt and costs were paid by the personal cheque of one F.W. Barton, who is the Managing Director of the British West African Insurance Services Ltd. The execution by the deputy sheriff or his officers was in pursuance of a letter of request dated the 11th July 1958, the contents of which we quote:

“Kwakwaduam Chambers,”

P.O. Box 207,

Accra, Ghana.

11th July, 1958.

The Deputy Sheriff,

Supreme Court,

Accra.

RE WRIT OF FI: FA.

J. J. ABDILMASIH, etc., Plaintiff-J-Creditor versus

THE GRESHAM FIRE & ACCIDENT INSURANCE, ETC., Defendant-J-Debtor

May I please request you to levy execution on the office equipment of the Defendant-Judgment-Debtor herein, namely, files, books, desks, chairs, cabinets, cars, etc.

I direct that the execution be entrusted to –

Mr. C. W. D. Narnor,

Licensed Auctioneer,

Opposite Leventis Motors, Accra.

Yours faithfully,

A. QUASHIE-SAM for E. AKUFO-ADDO

Execution was thus at the instance of J.J. Abdilmasih & Sons. It resulted in a temporary closing of the offices of the plaintiff company, which is the sole agent of the Gresham Fire & Accident Insurance Society Ltd. The statement of claim alleged as follows:

1. The plaintiffs at all material times were and are well known and in a substantial way as Insurance Agents and Brokers carrying on their said business at their offices in a building situate at and known as D.728/4, Boundary Road, Accra.

2. On the 14th July, 1958, the defendant by his servants and agents broke and entered the plaintiff’s said offices and continued therein and wrongfully and illegally seized all the plaintiff’s office furniture and various equipment contained therein and wholly excluded the plaintiffs therefrom for the period from the 14th to the 18th July, 1958.

3. By reason of the premises the plaintiffs were deprived of the entire use of their said offices and their furniture and equipment and were prevented from carrying on in any way their said business for the said period and in consequence thereof they have suffered great and lasting damage in and to their said business, and their reputation and goodwill in respect thereof have been greatly and lastingly injured and they have sustained loss thereby.

“PARTICULARS OF SPECIAL DAMAGE”

Rent for period from 14th to 18th July, 1958 £8 6s 8d.

Overhead Expenses for like period 24 10 10 Wages of Staff for like period 60 8 4

_________

£103 5 10

“The plaintiffs claim £5,000 damages.” _________

The claim was rejected by the learned trial judge on what we deem to be amply sufficient grounds. In the first instance, we agree with his finding that the plaintiff company is (in this country) virtually identified with its principal, Greshams of London. The rights and powers conferred on the plaintiff company by the power of attorney necessarily import equivalent responsibilities, so that the plaintiff company is, in fact and in law, amenable to process by way of execution for the recovery of and judgment obtained under an insurance policy issued in this country by it in the name of Gresham Fire

& Accident Insurance Society Ltd. The inchoate execution by the closing of the plaintiff company’s offices (which is the matter complained of in this action) was, therefore, justified in law. For this reason alone their action was bound to fail. There is however, a further strong reason in bar of success in the claim. The defendant to the action was sued in this personal capacity, but there was no evidence whatsoever that he personally gave any instructions to the deputy sheriff, or to the officers to whom was entrusted the carrying out of the execution, which was upon the request of the judgment-creditor’s solicitor. An attempt was made to implicate the defendant in what was alleged to be an unlawful and/or excessive execution by introducing one Mr. Audi, the defendant’s son-in-law.

When the defendant was absent in Sekondi, Mr. Audi appears to have taken some personal interest in the execution of the fi. fa by directing the bailiffs to the offices of the plaintiffs and by instructing them to close the premises despite Mr. Barton’s protest that the offices in question were not the offices of the judgment-debtors, and that all the furnishing therein was the property of British West African Insurance Services Ltd. But there is nothing in the evidence that would remotely connect the defendant with the self appointed activities of Mr. Audi, and it is impossible to infer that Mr Audi was the agent of the defendant in this case. That being so even if the execution had been unlawful or excessive (which, as we have already indicated, in our opinion it was not) the defendant in the action could not be held liable. It is hardly necessary to cite authority for this view. In the circumstances we see no reason to interfere with the sound and well-considered judgment of Smith, J., and the appeal is therefore dismissed.

DECISION

Appeal dismissed.