HUMADO vs. COMMISSIONER, CUSTOMS, EXCISE AND PREVENTIVE SERVICE, ACCRA [1997-98] 1 GLR 815

CASES REFERRED TO

(1) Comptroller of Customs and Excise v Nartey [1971] 1 GLR 353.

(2) Profarms Ltd v Comptroller of Customs and Excise [1973] 1 GLR 278.

(3) Sam v Comptroller of Customs and Excise [1971] 1 GLR 289.

(4) Koppoe v The Republic, High Court, Ho, 24 February 1995, unreported.

(5) De Keyser v British Railway Traffic and Electric Co Ltd [1936] 1 KB 224; 105 LJKB 74,; 154 LT 158.

NATURE OF PROCEEDINGS

ACTION by the plaintiff, the owner of a vehicle seized and detained by the defendant under section 287(1) of the Customs, Excise and Preventive Service (Management) Law, 1993 (PNDCL 330) for, inter alia, that the decision of the defendant to improve[sic](1) a penalty on the vehicle was in breach of the rules of natural justice and the threat of confiscation was contrary to the provision of section 288 of PNDCL 330. The facts are sufficiently stated in the judgment.

COUNSEL

Jones Dotse for the plaintiff.

F L Yankson for the defendant.

JUDGMENT OF ASARE-KORANG J.

By his writ of summons filed on 16 June 1995 the plaintiff seeks the following reliefs against the defendant:

“(1) A declaration setting aside the findings and decision of the Customs, Excise and Preventive Service in respect of Mitsubishi Fuso Cargo Truck with registration No VR 4726 as null and void as being contrary to law and also in breach of the rules of natural justice, which decision and findings are contained in the defendant’s letter Ref Nos AF/PREV/3 dated 12 March 1995 and H/PREV/3 of 7 April 1995, respectively.

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(2) A further declaration that the purported threat of confiscation of vehicle No VR 4726 under section 287 of PNDCL 330 is contrary to the provisions contained in section 288 of the said PNDCL 330.

(3) An order releasing the said Mitsubishi Fuso Cargo Truck No VR 4726 to the plaintiff forthwith as the owner unconditionally.

(4) General and special damages for wrongful and unlawful continued detention of the said vehicle having become aware of the plaintiff’s case as contained in letters sent to the defendant on the matter.

(5) Perpetual injunction to restrain the defendant, his agents, servants, privies and assigns from taking any steps, actions or decisions or to have any dealings whatsoever in respect of Mitsubishi Fuso Cargo Truck No VR 4726 which are inconsistent with the rights claim, interest of the plaintiff as the undisputed owner of the said vehicle.”

Upon an ex parte application made by the plaintiff, his writ of summons together with his statement of claim were served on the defendant alongside a motion on notice to impound vehicle No VR 4726. The defendant entered a conditional appearance to the writ and subsequently moved the court to set aside or strike out the plaintiff’s writ. Arguments were heard on the defendant’s motion which was dismissed. The defendant then filed a statement of defence, incorporating therein a counterclaim for the following relief: “A declaration that having been actively used to convey uncustomed goods contrary to law and as admitted by the plaintiff to his agent, vehicle No VR 4726 be forfeited to the State as stipulated by law.”

In the plaintiff’s statement of claim are the following allegations of fact in paragraph (3), (5), (6), (8) and (11):

“(3) On 17 November 1994 CEPS officials arrested vehicle No VR 4726 for carrying uncustomed goods …

[p.819] of [1997-98] 1 GLR 815

(5) Immediately the plaintiff had information about the arrest of the said vehicle he caused to be issued a notice of claim on 9 December 1994 and posted this by EMS to the defendant at Aflao.

(6) The plaintiff then subsequently caused the following documents or particulars or both to be sent to the defendant at Aflao or Accra or both all in an attempt to afford the defendant an opportunity of hearing his side of the case and why the said vehicle should be released to him, the plaintiff, as owner who had no notice or knowledge of the use to which the said vehicle was put:

(i) Statutory declaration sworn to by the plaintiff and dated 23 December 1994.

(ii) Extracts of particulars of vehicle No VR 4726 from the records of the Vehicle Examination and Licensing Department.

(iii) Letter of reminder from the plaintiff’s solicitor dated 24 February 1995 to which was attached a ruling of the High Court, Ho in suit No Misc 18/94 intituled:

Agnes Koppoe – Applicant v

The Republic – Respondent.

(iv) Letter of 17 March 1995 from the plaintiff’s solicitor to the defendant herein.

(v) Letter by the plaintiff to the defendant dated 21 March 1995.

(vi) Statutory declaration by Moses Brown Doe the alleged owner of the goods which were found on the vehicle dated 21 March 1995.

(vii) Statutory declaration by Anthony Amuzu Humado the plaintiff’s driver at the material time dated 21 March 1995.

(8) Thus the defendants in two letters dated 12 March 1995 and 7 April 1995 Ref Nos AF/PREV/3 and H/PREV/3 respectively turned down the plaintiff’s pleas and insisted on the plaintiff paying a penalty in lieu of confiscation of the said vehicle to the State.

[p.820] of [1997-98] 1 GLR 815

(11) The plaintiff further contends that under the relevant statutory provisions of PNDCL 330, the defendants have no basis whatsoever to have purported to have written the letters they wrote conveying their decisions in paragraph (8) supra.”

Paragraph (6) of the defendant’s statement of defence and counterclaim which is a traverse of paragraph (6) of the plaintiff’s statement of claim reads:

“(6) The defendant’s answer to paragraph (6) of the statement of claim is that by all those pieces of correspondence and documents numbered (i) to (vii) the plaintiff had more than ample opportunity to state his side of the case whether some or all of the documents and correspondence were relevant or material or both. In further answer to paragraph (6) of the statement of claim, the defendant states that it is not the position in the law applicable that the plaintiff, as the owner of a vehicle being used to smuggle, should have notice or knowledge of same before such vehicle could be caught by the relevant statutory provisions or the law.”

And in paragraph (8) of his statement of defence and counterclaim the defendant pleads:

“(8) The defendant in answer to paragraph (8) of the statement of claim states that the plaintiff was most reasonably treated in the circumstances by the levying of a highly mitigated pecuniary penalty on the vehicle to mark the offence, the alternative of which should have been forfeiture as sanctioned by law.”

At the summons for directions stage the following were set down as the issues to be tried:

“(1) Whether or not the plaintiff is an agricultural consultant and the registered owner of Mitsubishi Fuso Cargo Truck No VR 4726.

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(2) Whether or not the documents mentioned in paragraph (6) of the statement of claim were sent to the defendant’s headquarters in Accra and Aflao and are relevant.

(3) Whether or not the decision of the defendant as contained in letters dated 12 March 1995 and 7 April 1995 on the plaintiff’s petition is wrongful, unlawful and contrary to law and in breach of the rules of natural justice.

(4) Whether or not the plaintiff continues to suffer loss and damage by the continued detention of the vehicle by the defendant and is entitled to damages for loss of use.

(5) Whether or not the plaintiff is entitled to the reliefs he claims as per the writ of summons and statement of claim.

(6) Whether or not the defendant is entitled to the counterclaim.

(7) Any other issues not hereinbefore mentioned but raised and arising from the pleadings.”

The defendant also filed an additional issue in this form: “(a) Whether a vehicle made use of in the conveyance of uncustomed goods as admitted in the instant case involving vehicle No VR 4726, ought to be forfeited to the State as mandated by law.”

The plaintiff, in his evidence, stated that he is a consultant with the International Fund for Agricultural Development (IFAD) and he resides in Kumasi. He said he is the owner of Mitsubishi Fuso cargo Truck No VR 4726 and as proof, he tendered in evidence as exhibit A an extract from the Vehicle Examination and Licensing Division (VELD) of the Ministry of Transport and Communications. The plaintiff further stated that some time in November 1994, he received a telephone call that the driver of his vehicle No VR 4726, Anthony Amuzu Humado, had travelled and for a week had not returned and his whereabouts were unknown. The plaintiff travelled to Ho to find out what was happening. A week later, the driver arrived at Ho without the vehicle. When the plaintiff asked the driver where the vehicle was, he said it had been arrested by officials of the Customs, Excise and Prevention Service (CEPS) and sent to Aflao. When the plaintiff was informed that his vehicle

[p.822] of [1997-98] 1 GLR 815 had been arrested, he immediately consulted his solicitor and dispatched a filed notice of claim to the defendant by EMS through the sector commander of CEPS. The plaintiff tendered a photocopy of the notice of claim in evidence as exhibit B. In the said notice, the plaintiff claimed ownership of vehicle No VR 4726 and stressed that the vehicle was not liable to forfeiture.

On the advice of his solicitor, the plaintiff sent a statutory declaration, tendered as exhibit C, and attesting to the facts and circumstances surrounding the seizure of his vehicle and declaring lack of knowledge on his part that the vehicle was carrying uncustomed goods, to the defendant through the sector commander at Aflao. The following documents also tendered in evidence by the plaintiff were sent to the defendant:

(a) Letter of reminder from the plaintiff’s solicitor dated 24 February 1995 with a ruling of the High Court attached, exhibit D.

(b) Letter of 17 March 1995 from the plaintiff’s solicitor as exhibit E.

(c) Letter of 21 March 1995 written by the plaintiff as exhibit F.

(d) A letter from the defendant dated 12 March 1995 concerning the interception and seizure of the plaintiff’s vehicle as exhibit G.

(e) A letter from the defendant dated 7 April 1995 in reply to the plaintiff’s exhibit E as exhibit H. The contents of exhibit H read:

“Customs, Excise & Preventive Service The Commissioner, P.O. Box 68, Accra.

7 April 1995 Mr C K Humado, P. O. Box 428, Ho.

RE: INTERCEPTION AND ARREST OF VEHICLE WITH REGISTRATION NO VR 4726 [p.823] of [1997-98] 1 GLR 815 We refer to your letter dated 21 March 1995 on the above subject and have to inform you that the decision taken on the matter and conveyed to you vide[sic](2) CEPS, Aflao letter reference AF/PREV/3 of 12 March 1995 is irrevocable.

Please be advised that no further correspondence on the matter will be entertained.

(Sgd) CKD Mensah Asst Commissioner/PREV For: Commissioner.”

Upon receipt of exhibit H, the plaintiff consulted his solicitor and was advised that since the defendant had closed all avenues for negotiation he could only seek redress in a court of law. He therefore brought this action seeking the reliefs endorsed on his writ of summons and amplified in his statement of claim. The first plaintiff witness, Anthony Amuzu Humado, who is the uncle of the plaintiff, testified that he is the driver of vehicle No VR 4726 and that he had been driving the said vehicle to the northern portions of Ghana to convey foodstuffs to Accra. He said sometime in November 1994 one Brown came and hired the vehicle to carry some goods from Dzolu in the Republic of Togo to Accra. He agreed to go and cart the goods and he went for the goods in Togo and entered Ghana through Batume Junction. As the goods were packed in containers, the first plaintiff witness claimed he had no way of knowing what kind of goods he was carrying. At Batume Junction the owner of the goods, Brown, asked the first plaintiff witness to stop so that he would collect the necessary papers before they proceed to Accra. Brown entered the Customs Office, spent about an hour there and came out with two customs officers. They were engaged in conversation and one of them came to the first plaintiff witness on the vehicle. Then they left for the Customs Office. Brown then came out of the Customs Office with a piece of paper and said everything was in order. He then entered his car and told the first plaintiff witness to drive to Accra. The first plaintiff witness alleged that when Brown came out of the Customs Office with the customs officers, one of the officers climbed on board the first plaintiff witness’s vehicle and inspected the goods in it for about an hour and a half. As the first

[p.824] of [1997-98] 1 GLR 815 plaintiff witness was leaving Batume Junction, the barrier was opened for him by a customs officer. From Batume Junction, the first plaintiff witness went through the Akatsi road because it appeared to be shorter. Brown was in his car driving and the first plaintiff witness was following him. On the way, the first plaintiff witness was stopped by three customs officers who asked him to drive back to their office at Ave-Havi. There they took the keys of the first plaintiff witness’s vehicle and drove away. They returned about an hour later to say that they had sent the vehicle to Aflao because the goods on the vehicle were uncustomed. The first plaintiff witness told the customs officers that Brown who was the owner of the goods collected every paper on the goods before they set off. The customs officers, however said there were no papers on the goods so the first plaintiff witness should go home.

The vehicle of the first plaintiff witness was taken to Aflao before Brown arrived at Ave-Havi. The first plaintiff witness alleged that Brown was ahead of him on the road and when Brown did not see the first plaintiff witness following him, he turned and came to Ave-Havi to find out what was going on. Later when the first plaintiff witness contacted Brown to go with him to Aflao for the plaintiff’s vehicle, Brown said he had already seen the customs officers, paid for his goods and taken them away so the first plaintiff witness should go himself for the vehicle. Subsequently, the first plaintiff witness made exhibit K which is a statutory declaration to the effect that he is the driver of vehicle No VR 4726 and did not know that the goods in respect of which his vehicle was intercepted and seized were uncustomed.

Evidence was given on behalf of the defendant by three witnesses. The first witness for the defendant was Mr Bernard Kwaku Ballah who is a collector of customs stationed at Ave-Havi. The second was Mr Maurice Akomesa, the investigator who is a collection assistant grade 2, and the third witness was Mr Ekow Abedoo Dadsi who is now an assistant commissioner of customs in charge of preventive. The gist of their evidence was that on 17 November 1994 customs officers stationed at Ave-Havi intercepted cargo truck No VR 4726 carrying assorted uncustomed goods. The vehicle was conveyed to Aflao after the interception and the goods re-examined by officers of CEPS from Aflao and Ave-Havi who discovered that the goods were uncustomed. The

[p.825] of [1997-98] 1 GLR 815 goods were ladies brassieres, children’s underwear, ladies panties, poly suiting materials and poly shirting materials. The total duty liability on these goods was ¢14,332,394. The driver of the vehicle was unable to produce any customs duty documents on the goods. Neither could one Moses Brown Doe who claimed he was the agent of the owners of the goods. The goods were therefore seized by CEPS. Later, some importers came to claim ownership of the goods and they were released to them upon the payment of duty and the penalty imposed. Vehicle No VR 4726 used in the conveyance of the uncustomed goods was seized and a seizure notice issued which was tendered in evidence as exhibit 6. Subsequently, the plaintiff sent a notice of claim in writing to the defendant. On 12 March 1995 the defendant dispatched a letter to the plaintiff on the matter and this was tendered as exhibit 8. The thrust of exhibit 8 was that since the vehicle was used to carry uncustomed goods, the plaintiff should pay a pecuniary penalty of ¢7,166,197 in lieu of forfeiture of his vehicle.

The plaintiff reacted to exhibit 8 by sending a plea in writing to the defendant that the penalty imposed on his vehicle which was 50 per cent of the duty payable on the goods, be reduced to ten per cent. The plaintiff’s plea was tendered as exhibit 9. It was after this exchange of correspondence between the parties that the plaintiff sued the defendant.

It is contended by the defendant that since vehicle No VR 4726 was actively used to convey uncustomed goods from Togo to Ghana, and since the plaintiff failed to pay the pecuniary penalty of 50 per cent imposed on him, the said vehicle is liable to forfeiture under section 287(1) of the Customs, Excise and Preventive Service (Management) Law, 1993, (PNDCL 330). The said section provides:

“287. (1) Subject to section 273 all things (including aircraft, ships and vehicles) made use of in the importation, attempted importation, landing, removal, conveyance, exportation or attempted exportation of any uncustomed, prohibited or restricted goods, or any goods which may be forfeited under this Law, shall be liable to forfeiture.”

[p.826] of [1997-98] 1 GLR 815

It is argued by counsel for the defendant that knowledge or consent on the part of a vehicle owner that his vehicle be used in carrying smuggled goods is immaterial where the commissioner exercises his power of seizure under section 287 of PNDCL 330. The plaintiff on his part contended that he as the owner of the vehicle had no knowledge about the carriage of the uncustomed goods and he promptly filed a notice of claim under section 288(3) of PNDCL 330. He and the first plaintiff witness and Moses Brown Doe also filed statutory declarations to the effect that the first plaintiff witness (the plaintiff’s driver) was also not aware that the goods were uncustomed: see exhibits CK and 9(a).

While I concede that section 287 of PNDCL 330 makes no mention of the knowledge or consent of the owner of a vehicle to the carriage of uncustomed goods on his vehicle, it is also true that there is nothing in PNDCL 330 that debars any vehicle from crossing our borders to convey goods from a neighbouring country; the overriding requirement being that while being so conveyed into this country, the goods must be covered by the necessary and proper customs documents.

The defendant admits that he was appraised of the fact that the plaintiff’s driver, the first plaintiff witness, did not know that the goods he conveyed from Togo to Ghana on vehicle No VR 4726 were uncustomed. Indeed, the first plaintiff witness said that the vehicle stopped at the Batume Junction border post where a customs officer boarded it to examine the goods and he saw the officer conducting the examination from his rear view-mirror as he was all the time sitting in his vehicle. The answer made to this piece of evidence by counsel for the defendant in his address is that it is a specious story and that a vehicle’s driving mirror cannot permit a driver sitting behind the steering wheel inside the vehicle to see what is going on top of the loaded truck.

I do not consider this a good or sufficient reply to the first plaintiff witness’s evidence. The first plaintiff witness told this court that the owner of the goods he carried on vehicle No VR 4726, Moses Brown Doe, spent over one hour at the Batume Junction Customs Office and came out with two customs officers, one of whom boarded the vehicle to examine the goods on board. It was not denied by the defendant that there is a customs post at Batume Junction manned by customs officers and having regard to

[p.827] of [1997-98] 1 GLR 815 the insistences by the first plaintiff witness that the vehicle passed through and was examined at Batume Junction, it seems to me that the defendant having counterclaimed that the plaintiff’s vehicle be condemned as forfeited to the State, ought to have called the customs officers at Batume Junction to testify as to whether the plaintiff’s vehicle did stop at the said customs post to be examined or not. This was particularly important in view of the fact that counsel for the defendant disputes that the first plaintiff witness could see the goods on board the vehicle being examined and also in view of the evidence of the defendant’s third witness that the goods were not concealed on the vehicle. I think therefore that the invitation to this court to hold that the first plaintiff witness could not in his driving mirror see his truck being examined is, with the respect to counsel for the defendant, rather unattractive and misplaced.

There is ample evidence that the plaintiff’s vehicle No VR 4726 was found carrying uncustomed goods and was therefore seized. But must the vehicle be pronounced as forfeited to the State? That is the primary issue in this case. It was submitted by counsel for the defendant that since by the evidence on the record, the said vehicle was actively used or “made use of” to convey goods which were uncustomed from Togo to Ghana it is liable to forfeiture under section 287(1) of PNDCL 330 because according to counsel, upon a plain, simple and commonsensical interpretation of the provision, its subject is to discourage the use of vehicles, aircraft or ships, either by their owners or agents from carrying smuggled goods because of the harmful effects of smuggling on the revenue of the State. Counsel for the defendant also submitted that the mischief the law was intended to cure was to deter vehicle owners from coming to plead lack of knowledge or consent after their vehicles had been made use of in smuggling. Counsel therefore urged me to follow the cases of Comptroller of Customs and Excise v Nartey [1971] 1 GLR 353 holding (3) and Profarms Ltd v Comptroller of Customs and Excise [1953] 1 GLR 278 and to reject the law as expostulated in Sam v Comptroller of Customs and Excise [1971] 1 GLR 289 which counsel described as of dubious validity.

Counsel for the plaintiff on his part, submitted that Sam v Comptroller of Customs and Excise (supra) makes more sense and

[p.828] of [1997-98] 1 GLR 815 is logical and quite in tune with ordinary everyday events and asked me to decline to follow Comptroller of Customs and Excise v Nartey (supra) and Profarms Ltd v Comptroller of Customs and Excise (supra). Counsel also relied on the case of Koppoe v The Republic, High Court, Ho 24 February 1995 unreported where Acquah J (as he then was) unconditionally ordered the release of a vehicle to its owner. This judgment was tendered by the plaintiff as exhibit D.

The Koppoe case (supra) was an application for review of the order of the court wherein the applicant’s vehicle was forfeited to the State under section 287(1) of PNDCL 330 following the conviction of one Alex Asamoah. In granting the application for review, the learned judge posed the following question: “Now, … does this section imply that when a vehicle with smuggled goods is seized on say a Monday and the offender is convicted on the following day, the vehicle involved is to be forfeited to the State whether the vehicle belongs to the driver or not?”

The question was answered thus:

“The section does not make allowance for determining whether the driver is the owner or not. But clearly, if the vehicle was, for example, stolen and used in conveying the smuggled goods it would be unfair to order forfeiture.”

Much the same sentiments were expressed by Taylor J (as he then was) in the Sam case (supra), the learned judge therein contending that a manifest injustice would result if for instance, a thief used a stolen car to convey uncustomed goods and the car was eventually seized and forfeited. The thief would lose nothing but the owner for no default on his part, would lose his car.

The cases of Sam (supra), Nartey (supra) and Profarms Ltd (supra) all turned on the interpretation of section 203 of the Customs Ordinance, Cap 167(1951 Rev) which is a provision similar to section 287 of PNDCL 330, except that section 203 is long winded and includes in its wording animals and the packages in which goods are found as liable to forfeiture. In the Nartey (supra) and Profarms (supra) cases, the court was of the view that

[p.829] of [1997-98] 1 GLR 815 section 203 of Cap 167 which provided for the forfeiture of vehicles, imposed an absolute liability, and that once the court finds that a vehicle was used in conveying, importing or otherwise transporting goods proved to be uncustomed, then irrespective of the innocent mind of the owner or driver, the court must order the forfeiture of the vehicle. These two cases adopted the reasoning in the English case of De Keyser v British Railway Traffic and Electric Co Ltd [1936] 1 KB 224.

For my part, I endorse and consider as in accord with modern tenets of justice, the ruling in the Koppoe case (supra) and the decision of Taylor J (as he then was) in the Sam case (supra). In the Sam case (supra) at 314 of the report, Taylor J (as he then was) observed:

“In my view therefore if it is shown that an owner of a vehicle or his servant, agent or lawful assignee is in no way implicated in a case where the vehicle made use of in the conveyance of contraband goods by someone who is a stranger to them and the vehicle, then the vehicle is not caught by the penalty provision of section 203 of Cap. 167. This is equally so if the said owner or his agent, servant or assignee made use of the vehicle in the conveyance of contraband goods not knowing that the goods were contraband because in such a case they would not be implicated in the custom offence.”

I am of the view, having regard to the evidence led in this case that an innocent owner of vehicle, such as the plaintiff herein, whose property is declared forfeited to the State because it was without his knowledge involved in the carriage of uncustomed or contraband goods, ought to be afforded protection by the court, especially where the plaintiff has satisfied all the requirements of the law by claiming the vehicle and explaining why it should not be forfeited and the authority ordering the forfeiture closes all avenues to a meaningful dialogue by declaring that the decision he has taken on the matter is irrevocable. I think the attitude adopted by the defendant is unjust, unreasonable and in breach of the rules of natural justice. Accordingly, I enter judgment for the plaintiff for the reliefs (1), (2), (3) and (5) endorsed on his writ of summons

[p.830] of [1997-98] 1 GLR 815 and I hold that the carrier penalty imposed on the plaintiff’s vehicle No VR 4726 by the defendant in exhibit G (which is also to be found in exhibit 8) was wrong in law and is hereby set aside, as is the threat to confiscate the plaintiff’s vehicle. It is further ordered that the plaintiff’s vehicle be released to him unconditionally. The defendant’s counterclaim is hereby dismissed.

The plaintiff claimed general and special damages for the unlawful, wrongful seizure of his vehicle and its continued detention. The view I have taken of this case is that the letters written by the defendant to the plaintiff on 12 March 1995 and 7 April 1995 were wrongful, unjust and in breach of the rules of natural justice. On the basis of the decision in the Sam case (supra), and since the plaintiff upon being made aware of the seizure of his vehicle put in a notice of claim and sent other correspondence to the defendant alleging facts which the defendant largely admits are true (having tendered some of this correspondence in evidence), I think the plaintiff is entitled to general damages for the wrongful and unlawful seizure and detention of his vehicle. I award, accordingly, ¢3 million to the plaintiff as general damages.

The plaintiff also gave evidence that his vehicle is used for commercial purposes and that on the average it was giving him a gross amount of ¢1.4 million per month which after deductions gave him a net amount of ¢900,000. The first plaintiff witness, the plaintiff’s driver, also stated that the vehicle was making between ¢900,000 and ¢1 million per month and that the vehicle earned this net amount by traveling to the north of the country to cart goods. The first plaintiff witness said he was rendering accounts to the plaintiff’s father as the plaintiff himself resides in Kumasi. It is to be noted that the plaintiff amended his statement of claim to reflect the fact that his vehicle generates income to the tune of ¢1 million per month and that his driver rendered accounts to his father in his absence while his father in turn accounted to him on his frequent visits to Ho. Apart from challenging the plaintiff and the first plaintiff witness in cross-examination that the vehicle was not making as much as ¢900,000 or ¢1 million a month the defendant led no evidence to rebut that allegation of fact by the plaintiff and his witness. I will, therefore, accept the evidence that the vehicle was generating a net income of ¢900,000 per month.

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The plaintiff told this court that since 20 March 1995 his vehicle has been lying idle as the defendant refused to release it to him. With regard to special damages by way of loss of use of his vehicle, I award the plaintiff ¢900,000 per month with effect from 20 March 1995 up to the date the defendant closed his case, which was on 18 November 1996. This amount is to be taxed down by one-fifth, taking into account the inevitable contingencies attendant upon the operation of a motor vehicle, such as necessary repairs arising out of mechanical breakdowns and the depreciating value of the currency. The registrar of this court is hereby instructed to calculate and determine the amount due to the plaintiff as special damages. I award as the costs of this action in favour of the plaintiff the sum of ¢750,000.

Judgment accordingly.

DECISION

Judgment for the plaintiff.

Endnotes

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