HAJAR v. STAVELEY & CO. (MOTORS) [1968] GLR 114

DIVISION: HIGH COURT, ACCRA

DATE: 1 FEBRUARY 1968

BEFORE: AMISSAH J.A.

NATURE OF PROCEEDINGS

ACTION by the plaintiff for damages for wrongful execution. The facts are fully set out in the judgment of Amissah J.A. sitting as an additional judge of the High Court.

COUNSEL

E. N. Moore for the plaintiff.

James Quashie-Idun for the defendants.

JUDGMENT OF AMISSAH J.A.

Only one point arises for serious consideration in this case. But the case is not made any the less easy for that reason. There is no question that the plaintiff was at the material time the owner of the Volkswagen car No. CP 8444. The defendants have not seriously disputed that on the evidence. On or about 23 June

[p.116] of [1968] GLR 114

1962 this car was attached by the deputy sheriff in execution of the judgment debt of one Nakouzi owed to the defendants. The car was then lying in the yard in Accra of this Nakouzi who was a friend of the plaintiff and with whom it had been left when the plaintiff stayed for a few days in Koforidua. The evidence does not show the total amount of the judgment debt or whether any other goods were seized on Nakouzi’s premises apart from this car. On his return to Accra and upon discovering that his car had been wrongly seized as the property of his friend, the plaintiff put in a claim in the registry of the court that the car was his. The deputy sheriff did not interplead. Nor did the claim prevent the car being eventually sold a few days later in satisfaction of the judgment debt. After more than a year the plaintiff managed to get the car back from the purchaser. He has now brought this action for damages for the wrongful seizure and sale of the car; the damages consisting of the taxi fares that he said he had to pay at the rate of £G2 (N¢4.00) per day from 7 July 1962, that is, the day of the sale of the car to 18 August 1963, the day before he recovered it from the purchaser, all to the total value of £G720 (N¢1,440.00) and the cost of repairs. Altogether the plaintiff by his writ claim £G1,000 (N¢2,000.00). That there was a wrongful seizure of the plaintiff ‘s car cannot be a subject of dispute. He was not a debtor in any way of the defendants but his car was seized in execution of a judgment in favour of the defendants. Mr. Quashie-Idun, counsel for the defendants has said that there was no wrongful seizure as the execution was done under a court order. But surely that is not the test. The writ of fi. fa. authorised the deputy sheriff to seize the goods of the judgment debtor in the other action. It did not authorise him to seize anybody else’s goods. If he seizes another’s goods then the seizure is prima facie unlawful. That is why rules are provided to afford him protection if he adopts certain procedures upon discovering the wrong perpetrated. What this court has to consider is whether the defendants as well were responsible for the illegal act so that the consequences may be visited upon them if possible. The seizure was by the deputy sheriff and his officers so that barring any protection that the law might give them, they are primarily responsible for the wrong done. If they act under a valid writ of a court they are public officers obeying the mandate of the court of justice and not the agents of the judgment creditor in whose favour the writ is issued. The deputy sheriff though acting under a valid writ may nevertheless be the agent of the judgment creditor as well if the goods are seized at the direction of the latter. Thus in Jarmain v. Hooper (1843) 6 M. & G. 827 a case which contains much abstruse learning on the meaning of a name used without qualification when both [p.117] of [1968] GLR 114 father and son go by the same name, Tindal C.J. at p. 849 said “That the plaintiff in the original action is liable in trespass, if, by his own order, the sheriff takes the goods of a stranger in execution, is clear law.”

This case like many of the English authorities on the point was concerned with the responsibility of a client for the acts of his solicitor and with whether or not endorsements on the writ of fi. fa. amount to a direction. In respect of this question as to direction which is important in our particular case it has been held that a wrong endorsement on a writ which misleads the sheriff into seizing another person’s goods makes the judgment creditor liable for the wrongful act even though the endorsement was put in by the solicitor of the judgment creditor. Thus in Lee v. Rumilly (1891) 7 T.L.R. 303, C.A. the defendant having recovered judgment in an action against one Mrs. Challis, his solicitors endorsed on a writ of fi.fa. a statement that Mrs. Challis resided at a certain address. The address, however, was really that of the plaintiff, a licensed victualler whose business was managed by Mrs. Challis. The sheriff having seized the plaintiff’s goods at the address given, it was held that the defendant was liable for damages for wrongful seizure of the plaintiff’s goods. Lindley L.J. was reported to have said at p. 303 that: “in some respects the action was an unfortunate one. It was an action brought by Mrs. Lee against Mr. Rumilly, who, personally, had done nothing to her or her goods; but he was in the position of being charged with having unlawfully seized the plaintiff’s goods . . . The sheriff naturally did not find out in the first instance whose the goods were. He did not suspect anything, and he seized the goods on the place. It appeared now that the goods belonged to the present plaintiff. There was an interpleader issue, which was decided in favour of the plaintiff. That gave rise to the question whether the defendant caused the sheriff to seize the plaintiff’s goods. Unfortunately, a blunder had been made, and the defendant was responsible for that blunder.”

The responsibility for the act depends on no more than the wrong direction given to the sheriff. And this is so in spite of the fact that the sheriff must ascertain whether the goods he seizes are the judgment debtor’s goods or not. If there had been the direction and the sheriff had failed to perform his duty of ascertaining the proper ownership of the goods then it means that the judgment creditor joins the sheriff in sharing the liability for the wrongful act. As decided in Smith v. Keal (1882) 9 Q.B.D. 340, C.A. whether a seizure of particular goods under fi. fa. was directed by the execution creditor, [p.118] of [1968] GLR 114 so as to make him liable for the act of the sheriff, is a question of fact: see also Morris v. Salberg (1889) 22 Q.B.D. 614, C.A.

In the present case the defendants admit in their defence that “car NO CP. 8444 was attached by the deputy sheriff at the instance of the defendant.” Further according to the evidence of their witness who was at the material time their officer responsible for matters like executions, he took the sheriff ‘s officers to the place where execution should be levied, the car was lying in the yard but he was not concerned to check its ownership but he left the officer to do his work there. Does his act amount to a direction and if so does it bind the defendants? The impression that he gave me was that all goods in the premises he had taken the officer to were to be attached up to the amount outstanding in the judgment. As would be found in the English authorities a direction is not necessarily a conscious order that the goods of the wrong person be taken, it is an act which makes the execution by the sheriff and his men not an exclusive act of theirs under the mandate of the court’s writ but joins the judgment creditor in the conduct of the execution. On that basis I think there was sufficient direction by the judgment creditors, the defendants in this case, to fix them as well with liability for this wrongdoing. One distinguishing feature of the authorities cited is that whereas the point of sale had not been reached in those cases, here the sale of the innocent person’s property had taken place. And the defendants had presumably taken the benefit of the sale of a chattel which did not belong to their judgment debtor. It has been said for the defendants that the plaintiff had not acted timeously. But he did give notice of his ownership of the goods to the sheriff before the sale. Blame for the failure of the sheriff to interplead after receipt of the notice cannot be attributed to the plaintiff. As between himself and the defendants the one who caused or contributed to the wrongdoing and who has presumably derived benefit from it should, I think, bear the loss. I cannot believe that the wrongful seizure and sale of a chattel under a writ of fi. fa. alters the ownership in the chattel. I do not think that the judgment in the application of the plaintiff to set aside the sale makes any difference. It proceeded on the technical point as to whether the proper persons had been served and never touched the merits of the case. The plaintiff has claimed damages for the expenses he incurred as a result of the wrongful seizure and sale of his car. At the rate of £G2 (N¢4.00) per day, I think the claim is fair. At the time of the fi. fa. he said he had a crusher about eight miles out of Accra which he was supervising. The car took him there and back daily. He had to find alternative means of transport which cost him between £G2 and £G2 10s. a day. But I do not think that the costs of the repairs have

[p.119] of [1968] GLR 114 been proved to be due to the wrongful act. The bill for the repairs is dated 4 February 1964 which is a whole five months after he had recovered the car. Further the plaintiff himself impliedly admitted that he did not take the car to the repairers immediately he got it back. I will therefore disallow that claim.

In the result I award the plaintiff the sum of N¢1,440.00 as damages.

DECISION

Judgment for the plaintiff.

S. K. T.