MABSOUT v. JOS HANSEN & SOEHNE (GHANA) LTD. [1968] GLR 30

DIVISION: HIGH COURT, ACCRA

DATE: 12 JANUARY 1968

BEFORE: AMMISSAH J.A.

NATURE OF PROCEEDINGS

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

COUNSEL

K. Narayan for the plaintiff.

H. P. Swaniker for the defendants.

JUDGMENT OF AMISSAH J.A

The facts of this case are simple and mainly undisputed. The plaintiff was owner of two cars, an Oldsmobile registered No. AF 182, and an Opel Kapitan, registered No. AN 9751, in 1962. These cars were bought from a company which went by the name of Wabtraco. The managing director of the company was one Mr. Kanawatey who, at the beginning of the dispute between the parties, that is some time in May 1962, was apparently being held at the police station at Nima in Accra pending his deportation from this country. The cars were also being kept at the time by the police. The [p.32] of [1968] GLR 30 defendants had in January of 1962 obtained a judgment for a substantial sum against Wabtraco for goods sold to it for which that company had not paid. The defendants caused the deputy sheriff to seize the two cars as part of the property of Wabtraco in execution of the judgment debt. A few days later the plaintiff interpleaded and the sale of the cars was stopped. The plaintiff subsequently filed his claim in June 1962. In court on 21 December 1962, the plaintiff showed his documents of title to the defendants who immediately agreed to release the cars from attachment. One of the cars was collected by the plaintiff or his agent on or about 24 December 1962 but the other was left with the defendants until about the middle of January of the following year when the plaintiff sent word that he wanted it sent by rail to him in Kumasi. That was done.

The plaintiff has now brought this action for loss damages for the wrongful seizure of the vehicles and the resultant loss arising out of his being deprived of them for the period starting from the time they were seized in May, till their release in or after December 1962. The substance of the defence is that the defendants made reasonable inquiries as to the ownership of the vehicles all of which led to the conclusion that Wabtraco and not the plaintiff was the owner of the cars before they seized them. Specifically, the defendants inquired from the Police Licensing Office about the ownership of the cars and were told that they belonged to Wabtraco. There is a statutory duty, under regulation 7 of the Road Traffic Regulations, 1957 (L.N. 135), placed upon a person who becomes the new owner of a vehicle to notify the licensing authorities of this fact within fourteen days. The object of the provision, no doubt, is to enable the licensing authorities to rectify their registers and thereby to keep an accurate and up to date record of information relating to a particular vehicle for the benefit of all who may require the information. Despite this provision, the plaintiff did not, according to the evidence, give such notice until long after the cars had been seized and released to him, that is in March 1963. For the small fee of two shillings and sixpence (or twenty five pesewas) any person, not a public official, may obtain a copy of the entries relating to a specified vehicle in the register. Public officials are exempted from paying for the same information requested in the course of their duties. According to the defendants’ contention, had the plaintiff done what was required of him by the law this unfortunate incident would not have taken place. Apart from inquiring at the Licensing Office, the defendants said that they inquired from the Nima Police, who were holding the cars, about their ownership. They also made inquiries from Mr. Kanawatey who was the managing director of Wabtraco and who had, prior to the seizure by the police, been using the cars. None of these inquiries

[p.33] of [1968] GLR 30 disclosed the plaintiff’s interest in the vehicles. In the circumstances, they contended that the plaintiff by his own conduct had represented that the vehicles at the material time continued in the ownership of Wabtraco and it was not now for him to complain of any loss of use caused by an attachment of goods apparently belonging to that company in execution of their debts. In other words the rules of estoppel by conduct have been advanced in support of the defendants’ case.

Against this, it was contended on behalf of the plaintiff that once the defendants had admitted the ownership of the vehicles, as they indeed did in December 1962, before the court trying the interpleader, and that the seizure was wrongful, it was no more open to them to raise issues which would question the ownership of the vehicles or deny that their seizure was wrongful. The plaintiff therefore relied on estoppel by record.

In considering these two rules of estoppel advanced against each other, I think, that in relation to estoppel by record has to be disposed of first. Estoppel by conduct will become an issue in this case only if at the outset of the case the defendants are in the position to question the illegality of the seizure. If they are not, and an estoppel by previous record will certainly preclude them from doing so, then the conduct of the plaintiff as a means of determining the rightfulness of the seizure cannot become a question for consideration by this court. If, on the other hand, there is no estoppel by record, then the plaintiff’s conduct which led the defendants to act in a particular manner now claimed to be wrongful will be a live issue in determining the liability of the defendants.

I think the defendants’ position would have been stronger if they had not been faced with the judgment in the interpleader proceedings. Admittedly the authorities as decided by the English courts do not allow a mistake of fact, as the defendants did in fact labour under, as a defence to an action for conversion: see, e.g. Jerome v. Bentley & Co. [1952] 2 All E.R. 114. But the question is not completely free from doubt. In the case of Lancashire and Yorkshire Railway Co., London and North Western Railway Co. and Graeser Ltd. v. MacNicoll (1918) 88 L.J.K.B. 601, D.C. the court seems to have held the view that there were certain circumstances in which an estoppel by conduct would operate in an action for conversion against a plaintiff who negligently causes another to believe in a certain state of facts and in consequence thereof acts under the strength of that belief. The defendant was not given the benefit of any estoppel in that case because he had himself been negligent. In the instant case where the defendants’ act appears to have been conduced to by the conduct of the plaintiff I would have been prepared to consider whether they were not entitled to protection from any attack by the plaintiff for [p.34] of [1968] GLR 30 that act. The defence of estoppel by conduct might well have operated in their favour. But that issue has, no doubt from the point of view of the defendants quite unfortunately, been taken away from me.

I do not therefore consider myself free to determine the legality of the seizure. The plaintiff’s claim in the interpleader suit against the defendants was for a declaration that the cars in question were his property; that their seizure was wrongful; that an order be made releasing them from attachment and finally damages for the said wrongful attachment. The defendants after inspecting the documents of title of the plaintiff submitted to judgment being given against them except in respect of the claim for damages. Judgment was accordingly entered for the plaintiff on his claim save as to damages. The trial judge saying that in respect of the damages, the plaintiff could bring a fresh action if he could prove them. Thus when the present action was brought, the only question open to the court to try between the parties arising out of the seizure of the vehicles was that of damages. The defendants having admitted that the seizure was wrongful and judgment having been given against them on that basis, and that judgment still subsisting, it is not open to them to re-litigate the wrongfulness of the seizure before me. Learned counsel for the defendants in his address proclaimed his inability to determine whether the action was in trespass, detinue or conversion. But I do not think that ought to detain us for any length of time. The plaintiff is claiming damages for the admittedly wrongful seizure of his vehicles. That cannot be in detinue because that action is for the wrongful detention of goods. Possession may well have been obtained lawfully at the beginning in detinue. The plaintiff’s case has been all along that there was an interference with the property which was wrongful from the start. There was no question of a demand for the goods and a refusal to surrender them. It is not of a wrongful detention that he complains but of the wrongful seizure. The action could have been in trespass but there is no suggestion of physical damage to the vehicles and further the taking was not from the possession of the plaintiff. The act of the defendants complained of, however, constituted a dealing with the goods of the plaintiff in a manner which was inconsistent with his right and there was an intention on the part of the defendants to deny the plaintiff’s right. This was held in the Lancashire and Yorkshire Railway Co., London and North Western Railway Co. and Graeser Ltd. case (supra) to amount to conversion. Learned counsel for the defendants may have had his analytical difficulties but the forms of action having been buried, it is for us to try and manage without them. I am left with the question of damages for the act which the defendants have admitted was wrongful. The measure of damages in [p.35] of [1968] GLR 30 an action of this nature is the value of the goods converted together with any consequential damage arising out of the wrongful seizure: see In re Simms; Ex parte Trustees [1934] Ch. 1, C.A. and General and Finance Facilities, Ltd. v. Cooks Cars (Romford) Ltd. [1963] 1 W.L.R. 644, C.A. As was said in the latter case by Diplock L.J. (as he then was) at p. 649:

“The action in conversion is a purely personal action and results in a judgment for pecuniary damages only. The judgment is for a single sum of which the measure is generally the value of the chattel at the date of the conversion together with any con-sequential damage flowing from the conversion and not too remote to be recoverable in law.”

The case of Darefooh v. Karam (1941) 7 W.A.C.A. 113 has been canvassed in support of the argument that in an action for conversion damages other than the value of the goods are not recoverable. But I think that all that case decides is that damages by way of loss of possible profits are not recoverable. The reason for this is quite simple. The profits would depend upon other contracts which may not materialise and if there were such contracts it would not necessarily follow that they should result in profits. In other words loss of profits is a damage which is too remote in such cases. The statement of the law in Darefooh’s case admits that damages other than the value of the chattel may be claimed. The loss of use of cars which are wrongfully seized is a natural consequence which may fairly and reasonably be considered to flow from their seizure. For that, I think, damages may be claimed.

As the plaintiff’s vehicles have in fact been already returned to him there is no claim by him for their value. He however claims special damages of £G112 5s. (N¢224.50) made up of sundry small items. No evidence was given on this so that relieves me of any duty to consider it. There is also a claim for general damages of £G3,570 (N¢7,140.00) inclusive of the loss of use of the cars for 257 days calculated at the rate of £G5 (N¢10.00) per day for each car which came up to a total of £G2,570 (N¢5,140.00). The plaintiff gave evidence that he used the cars for his business and his being deprived of them meant that he suffered damage at the rate of £GIO (N¢20.00) per car per day. He said he suffered this loss at a time when goods were scarce in Ghana and he had to dash from Kumasi to Accra and Sekondi whenever there was news of any goods in order to get them for his business. As his claim is for the lesser figure of N¢10.00 a day for a car, I am unable to give consideration to the excess given in his evidence. Further, though he claimed for 257 days, it was eventually conceded that he could have collected the cars on 24 December 1962. [p.36] of [1968] GLR 30

I am not therefore prepared to consider any period beyond that. Accepting as the pleadings show that the seizure of the vehicles was on 4 May 1962, this makes the number of days 235 instead of the 257 for which the claim is made.

I now come to consider whether I would allow the plaintiff the N¢10.00 per car per day claimed by him. I cannot help noticing that at the time the cars were seized in May 1962, they were in the possession of the police and had never been in the possession of the plaintiff although he claims to have bought them as far back as 1 March 1962. The police were presumably holding them as the property of Wabtraco whose managing director they had in their custody pending his deportation. Nor can I overlook the fact that there was no evidence of any sort to the effect that the plaintiff had been making any effort to disillusion the police so as to secure the use of these cars which he claims he needed for his business. Before me the plaintiff has said that be bought the cars from Mrs. Kanawatey the proprietor of Wabtraco because she owed him and because he needed them for his business. If that is so, his action in allowing the police to keep them so long seems to belie his need. And in fact his action or rather in-action does support the sole reason that he gave for acquiring the cars in his claim in the interpleader suit which was that Mrs. Kanawatey owed him £G1,500 (N¢3,000.00) and he approached her for the money. Mrs. Kanawatey had no money to repay him so in repayment of the loan she agreed to transfer the cars to him. This in itself is not necessarily inconsistent with the plaintiff buying the cars because he needed them. But taken in conjunction with the fact that he permitted some other person to keep cars belonging to him and which he needed for his business for at least two whole months makes the story of urgent need which the plaintiff put before me were extremely thin indeed. It seems to me that the plaintiff’s need developed only because his cars were seized on the instructions of the defendants. Evidence that the plaintiff kept one of the cars for nine months after the release by the defendants and still keeps the other is no satisfactory evidence of the loss he claims. Before this incident he had two cars which he was using. Afterwards the number increased but this cannot be enough to show that during the course of it he lost N¢20.00 per day for these cars, especially when the evidence is that he had never prior to the seizure had the use of them. The evidence of loss arising out of the seizure came from the plaintiff alone. On this he had no support whether by way of other testimony or documents. The impression which he left with me was that off a vague and forgetful man. On numerous occasions he tried to ward of questions on specific matters by saying that he left all the papers on the case with his lawyer, meaning counsel who conducted

[p.37] of [1968] GLR 30 the interpleader proceedings, not counsel in the present case. It is no wonder that on the issue of loss he claimed double the daily amount that had been claimed in his statement of claim. I am not in the least bit impressed with his figures. I am therefore left with assessing what I think would be a fair loss per day for the deprivation the plaintiff suffered. On the whole, I think N¢3.00 per day for each day would be adequate compensation in the circumstance. That for the 235 days that I have said should be the period for which he should have anything at all makes the total N¢1,410.00. I award the plaintiff judgment for that sum.

DECISION

Judgment for the plaintiff.

S. K. T