KABBARA BROTHERS TRANSPORT v. ANIN AND OTHERS [1966] GLR 751

Division: HIGH COURT, ACCRA

Date: 17 NOVEMBER 1966

Before: EDUSEI J.

CASES REFERRED TO

(1) Consolidated Co. v. Curtis & Son [1892] 1 Q.B. 495; 61 L.J.Q.B. 325; 56 J.P. 565; 40 W.R. 426; 8 T.L.R. 403; 36 S.J. 328.

(2) Bowden’s (E.M.) Patents Syndicate, Ltd. v. Herbert Smith & Co. [1904] 2 Ch. 86; 73 L.J. Ch. 522; 52 W.R. 630; 21 R.P.C. 438.

NATURE OF PROCEEDINGS PRELIMINARY OBJECTION that an action in conversion could not lie against an auctioneer and purchaser of goods sold at the instance of a judgment creditor.

COUNSEL

J. B. A. Chinery for the plaintiffs.

N. K. Kudjawu for the second defendant.

F. A. Attoh for the third defendant.

JUDGMENT OF EDUSEI J.

The plaintiffs have instituted an action for damages in conversion against the defendants herein and a preliminary point arose for argument as to whether the claim was maintainable. Counsel for the second and third defendants brought up the point that there was no cause of action against their clients and this was set down for argument.

The amended endorsement of the plaintiffs’ writ reads as follows:

“The plaintiffs claim against the defendants jointly and severally the sum of £G1,920 whereof £G500 represents general damages for conversion in respect of wrongful sale of one seven ton Thames diesel cargo vehicle No. AN 5603 valued £G1,200 the property of the partnership of Kabbara Brothers Transport, £G1,200 represents value of the said seven ton vehicle on failure of return of the same, £G220 represents special damages being loss of earnings suffered as a direct result of aforesaid conversion of the said seven ton vehicle at £G10 per day of 22 days. (b) Any additional sum of money cost [sic.] by way of special damages at date of judgment.”

Mr. Kudjawu, counsel for the second defendant, the auctioneer, has argued that his client was the agent of the deputy sheriff who is an officer of the court. Since the action is not one to set aside a sale for irregularity there is no cause of action against the second defendant. He further argued that the goods were seized at the instance of the first defendant, the judgment creditor and he alone was responsible. Finally he submitted that the whole action should be dismissed so far as the second defendant was concerned. Mr. Attoh associated himself with Mr. Kudjawu and submitted that the action against his [p.753] of [1966] GLR 751 client, the third defendant, was improper because he was an innocent purchaser for value. Mr. Chinery, counsel for the plaintiffs, has also argued in the main that his claim was in conversion against the defendants jointly and severally and that the action was maintainable. His argument is that the tort of conversion lies against anyone who interferes with the title or property of another. In Salmond on Torts (14th ed.), pp. 143-144, conversion is defined as, “an act of wilful interference, without lawful justification, with any chattel in a manner inconsistent with the right of another, whereby that other is deprived of the use and possession of it.” Again in Halsbury’s Laws of England (3rd ed.), Vol. 2, p. 89, para. 186 it is stated thus:

“An action for conversion lies against an auctioneer who with or without knowledge of the true ownership has, in cases not covered by the Factors Act, 1889, dealt with the property in and possession of goods without the consent or authority of the true owner.”

The plaintiffs in this action are claiming damages against the defendants on the ground that on the authority of the first defendants, the second defendant, the auctioneer, sold the vehicle No. AN 5603 to the third defendant without the consent of the plaintiffs. The fact that the defendants or some of them may have defences to the plaintiffs’ action does not alter the position. There had been an adverse dealing with the plaintiffs’ property in the vehicle with the result that the plaintiffs have been deprived of the immediate use and enjoyment of the said vehicle. Any person dealing adversely with the property of the plaintiffs may have to answer his claim and the action of trover or conversion lies against any such person.

In Consolidated Co. v. Curtis & Son.1 the owner of certain household furniture assigned it by bill of sale to the plaintiffs. Subsequent to the assignment, the assignor employed the defendants, a firm of auctioneers, to sell it by auction on the bill of sale; they accordingly sold the furniture at the assignor’s residence, and in the ordinary course delivered it there to the purchasers. The plaintiffs brought an action in trover, or in modern usage, in conversion, and it was held that the defendants, the auctioneers, were liable.

As regards the second leg of the claim, counsel for the plaintiffs has intimated that the word “cost” in that claim should read “lost” and that it was a typographical error. He has also stated that at the hearing he would seek leave of the court to amend the said claim [p.754] of [1966] GLR 751 which flows directly from the tort of the conversion in claim (a) of the endorsement on the writ. I should be doing the plaintiffs great injustice if I shut them out now by dismissing the second leg of the claim at this stage of the proceedings. It is the accepted practice to allow a plaintiff to amend at the hearing when such amendment is a substantial one and it is such that the plaintiff could not succeed without it provided of course that he is acting in good faith. However, the amendment is usually allowed on payment of costs incurred up to date and any costs thrown away by reason of the amendment: see Bowden’s Patents Syndicate, Ltd. v. Herbert Smith & Co.

In the result I am unable to uphold the contention of both learned counsel for the second and third defendants and I rule that the case should proceed accordingly.

Costs of ¢60.00 to the plaintiffs against the second and third defendants.

DECISION

Preliminary objection overruled with costs.

E. D. K.