STANDARD CHARTERED BANK (GHANA) vs. NELSON [1999-2000] GLR 366

CASES REFERRED TO

(1) Lancashire and Yorkshire Railway v MacNicoll (1919) 88 LTKB 601.

(2) Ayiwah v Badu [1963] 1 GLR 86, 52.

(3) Dam v Addo [1962] 2 GLR 200, SC.

(4) General and Finance Facilities Ltd v Cooks Cars (Ramford) Ltd [1963] 1 WLR 644; [1963] 2 All ER 314; 104 SJ 294, CA.

(5) Yeboah v Kwakye [1972] 2 GLR 39, CA.

(6) Zik’s Press Ltd v Ikoku (1951) 13 WACA 188.

(7) Flint v Lovell [1935] 1 KB 354; 104 LJ KB 199; 152 LT 231, CA.

(8) Pappoe v Bank of British West African (1933) 1 WACA 287.

(9) Senedza v Djokoto [1991] 2 GLR 81.

(10) Kaas Fisheries Ltd v Barclays Bank Ltd [1989-90] 2 GLR 1.

(11) Royal Dutch Airlines (KLM) v Farmex Ltd [1989-90] 2 GLR 623, SC.

(12) Ghana Commercial Bank v Binoo-Okai [1982-83] GLR 74.

NATURE OF PROCEEDINGS

APPEAL by the defendant-appellant-bank from the judgment of the Court of Appeal dismissing his appeal against the decision of the High Court, Accra awarding damages against it for detinue but then varying the judgment of the High Court by founding liability against him in conversion. And Cross-Appeal by the plaintiff-respondent from the failure of the Court of Appeal to award him interest on the

[p.371] of [1999-2000] GLR 366 judgment debt. The facts are fully stated in the judgments of Bamford-Addo and Charles Hayfron-Benjamin JJSC.

COUNSEL

Kudzawu (with Stanley Amarteifio) for the defendant-appellant.

Apatu-Plange (with him Tagoe and De-Paul) for the plaintiff-respondent.

JUDGMENT OF BAMFORD-ADDO JSC.

In this case the plaintiff-respondent-respondent (hereinafter referred to as the plaintiff) was a transport owner who owned Willowbrook bus No AA 6835 which he used for his transport business. The second defendant-appellant-appellant (hereinafter referred to as the second defendant) was a bank carrying on business in Ghana as bankers and also owned a Willowbrook bus No GZ 8643 which was used to transport its workers to and from work. On 24 November 1982 the plaintiff sent his said bus to the first defendant’s workshop called Robert Anum Motors for repairs. The second defendant also had trouble with the gearbox of its bus and sent it to the same workshop for repairs. It transpired that the first defendant surreptitiously transferred the plaintiff’s gearbox from vehicle No AA 6835 and fixed it onto the second defendant’s vehicle No GZ 8643 and abandoned the plaintiff’s vehicle in his workshop. When the plaintiff discovered this theft of his gearbox, he reported it to the police who arrested the first defendant and charged him with stealing the gearbox. He was subsequently tried and convicted at the circuit court and sentenced accordingly.

Even though the plaintiff reported the case to police in 1982 no action was taken by them until 20 June 1983 when they wrote to the second defendant telling them of the theft of the gearbox fixed in its vehicle and asking it to release the bus for investigation. The police sent a reminder to this letter on 15 August 1983 again asking for the release of the second defendant’s vehicle for investigation. The latter replied by a letter dated 18 August 1983 to say that the bus was in a workshop for repairs and that it would be released to the police as soon as it was returned to them from the workshop. The second defendant failed to send the vehicle to the police as promised, even though it was released to them from the workshop but continued to use the vehicle until it was involved in an accident on 1 December 1983.

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Then in March 1985 the second defendant advertised for sale certain vehicles in the Ghanaian, Times of 26 March 1985 including bus No GZ 8643 in which the plaintiff’s gearbox was allegedly fixed. The police then sent another reminder dated 28 March 1985 asking for the release of the said vehicle for investigations but this was once again ignored by the second defendant who went ahead and sold the vehicle fixed with the plaintiff’s gearbox to another person.

On these facts the plaintiff commenced action against the defendants by a writ and statement of claim filed on 22 September 1986, ie nearly three years and three months after the police first made contact with the second defendant requesting for a release of bus No GZ 8643 to them. The police should have seized that bus themselves since they had that power when investigating a criminal case but failed to do that.

In the plaintiff’s writ he claimed in conversion or in the alternative in detinue or both in respect of his gearbox allegedly fixed in the second defendant’s Willowbrook bus No GZ 8643. The plaintiff’s amended statement of claim was formulated as follows:

“(1) The plaintiff claims in conversion and detinue against the defendants jointly and severally special and general damages for the loss of use, and hire of the plaintiff’s gearbox in his transport business done with his Willowbrook No AA 6803 and for loss of profit therein which loss directly flows from wrongful removal of the plaintiff’s gearbox by the first defendant from the plaintiff’s commercial bus aforesaid and the wrongful fixing of same onto the defendant’s Willowbrook bus No GZ 8643 in or about November 1982 which the defendant refused to restore to the plaintiff despite demand for same by the plaintiff, whereof the plaintiff claims as aforesaid ¢28,560 daily sales from the operation of the commercial transport business aforesaid for 25 working days per menses from 8 November up to the date of judgment plus interest on the judgment at the current bank rate from November 1982 up to the date of payment of same.

(2) The plaintiff further claims jointly and severally against the defendants in conversion or in detinue or both for the prevalent replacement value as at the date of judgment of

[p.373] of [1999-2000] GLR 366 his gearbox and interest on the judgment debt at the current bank rate from the date of the removal in or about November 1982 up to the date of judgment or date of payment.”

The second defendant denied this claim. They claimed that after the first defendant had effected repairs on their gearbox they paid the agreed contract sum of ¢21,065 for the repairs and that they did not make any other payment for the purchase of any gearbox.

After the trial of the case at the High Court, judgment was given for the plaintiff in detinue and accordingly, damages were assessed against the defendants. The second defendant appealed to the Court of Appeal for a reversal of the High Court’s judgment finding them liable in detinue and for judgment to be given in their favour. The plaintiff also cross-appealed not on the judgment given in his favour in detinue by the trial court, but on the quantum of damages awarded to him, namely:

“(a) The learned trial judge inadvertently omitted to award interest on the judgment debt even though interest was claimed in the plaintiff appellant’s endorsement.

(b) Alternatively, it was a wrong exercise of judicial discretion not to have awarded interest.”

After the hearing of the appeal, the Court of Appeal set aside the judgment of the High Court in respect of the claim in detinue and substituted a finding in conversion, namely the alternative claim of the plaintiff and also modified the quantum of damages awarded by the High Court.

Dissatisfied with this decision, the second defendant appealed to this court on the following important grounds that:

(1) The trial judge having considered the plaintiff’s claims of conversion and in the alternative in detinue in her judgment and on the merits having allowed the plaintiff’s claim in detinue and has thereby rejected the plaintiff’s claim in conversion, the Court of Appeal erred in law, when after setting aside the judgment of the trial court in detinue on appeal, substituted the same proprio motu with a judgment in conversion when the plaintiff had

[p.374] of [1999-2000] GLR 366 neither appealed nor cross appealed against the trial courts rejection of the alternative claim in conversion.

(2) Even if the Court of Appeal had power to entertain in this appeal proprio motu the issue of conversion, having regard to the indisputed evidence that neither the plaintiff himself nor any person on his behalf made any specific demand on the defendant-appellant for the returning of the gearbox, the Court of Appeal erred in law in holding that the defendant-appellant is liable in conversion when the plaintiff-respondent failed to prove the essential elements which constitute the tort of conversion.

(3) The Court of Appeal erred by applying the wrong principle in the assessment of damages and as a result assessed the plaintiff-respondent’s damages so high as to result in an entirely erroneous estimate of the plaintiff respondent’s damages.”

Grounds one and two would be taken together. In the writ of the plaintiff, he was claiming in detinue or in the alternative in conversion or both. This was the case the trial judge was considering and it is the same evidence which would support either of the two. At the trial, two main issues among others which were set out by the plaintiff in the summons for direction were in respect of conversion namely:

“(1) whether or not the second defendant’s failure to surrender the bus and gearbox as and when demanded and the eventual sale of same amounts to conversion against the plaintiff; and

(2) whether the acts done by the second defendant’s transport officer and knowledge acquired by him in the course of his employment as same amount to conversion against the plaintiff.”

The trial judge after hearing evidence, held that the defendants were liable in detinue. Against this finding, the second defendant (hereinafter referred to as the defendant) appealed to the Court of Appeal which court affirmed the judgment of the High Court. The defendant again appealed to this court as per the grounds of appeal.

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The argument of the defendant is that the plaintiff’s cross-appeal did not ask the Court of Appeal for a variation of the High Court judgment in detinue to conversion, therefore it was wrong for the court to suo motu substitute a finding in conversion with the one in detinue.

As stated above, not only did the plaintiff claim in detinue, but also in the alternative in conversion, which is not an inconsistent claim. In any case, the summons for direction dealt only with issues in conversion and also, the evidence before the court supported conversion. For these reasons, when the Court of Appeal was dealing with the defendant’s appeal to have the said court set aside completely the trial court’s finding in detinue against them, the Court of Appeal did not accept this prayer and it was within its powers to have made the alternative finding in conversion, irrespective of the fact that the plaintiff had not filed appeal in this regard, considering that the plaintiff’s claim was for either detinue or conversion and also that there was clear evidence of conversion rather than that of detinue. There being evidence to support the finding of conversion, the Court of Appeal rightly exercised its powers to make that finding.

Her lordship Wood JA correctly analysed the law on conversion vis-à-vis the evidence in this case thus:

“(2) The authorities show that to constitute conversion there must be:

(a) a wrongful dealing with the subject matter in a manner clearly inconsistent with the owner’s right; and

(b) secondly, that the tortfeasor evinced an intention to deprive the owner of his right.”

These are the ingredients that constitute the tort of conversion. Her lordship then went on as follows: “The most distressing matter is that though the unlawful sale of the gearbox was brought to their notice, they nevertheless persisted in its use and eventually sold the bus, sad to say, not to the respondent but another person altogether. These are all positive acts, showing a deliberate and wrongful act inconsistent with the respondent’s rights and an intention to deprive

[p.376] of [1999-2000] GLR 366 him of his right. I think they ought to be found liable in conversion.”

And she was supported by Lamptey JA in his judgment thus:

“The bank did not acquire any title to that gearbox. The bank converted the plaintiff’s secondhand gearbox . . . the gearbox belonged to the plaintiff. The defendant stole it and sold it to the bank. The sale was not in a market overt. The bank had not satisfied the court that it bought the secondhand gearbox in good faith and at a fair and reasonable price. The bank asserted adverse title to the gearbox and sold it. I am satisfied that there was a demand on the bank for the return of the gearbox belonging to the plaintiff. I find the bank failed and refused to return the gearbox. I find that the evidence before the court proved and established the case of conversion of the gearbox by the bank.”

“Conversion” is defined, according to Clerk & Lindsell on Tort (16th ed) as:

“It is conversion when a person entitled to the possession of a chattel is permanently deprived of that possession and the chattel is converted to the use of someone else. Here the wrong is not merely an interference with the plaintiff’s possession or interest in his chattels but also an injury to his right or title in them.”

Whereas an action in detinue lay at the suit of the plaintiff having a right to immediate possession of a chattel, for the wrongful detention of his chattel by the defendant, evidenced by the defendant’s refusal to deliver it up on demand and the redress claimed was the return of the chattel or payment of its value together with damages for its detention, in conversion there should be an act of deliberate dealing with a chattel in a manner inconsistent with another’s right whereby the other is deprived of the use and possession of it and not just a mere refusal to deliver the chattel to and into the possession of the owner.

In this case not only did the defendant have notice of the fixing of the stolen gearbox of the plaintiff in its bus, not only did it fail to hand over the bus to the police or the plaintiff, but the defendant

[p.377] of [1999-2000] GLR 366 continued to use the bus with the said gearbox for business to its advantage, and eventually, ignoring the police’s intervention, actually sold the bus with its stolen gearbox to another person. This action of the defendant’s undoubtedly constitute wrongful denial of the plaintiff’s right and title to the gearbox, considering that to its knowledge the first defendant had been convicted of stealing the gearbox. It also shows the intention of the defendant to permanently deprive the plaintiff of his property, such a behaviour was plainly inconsistent with the plaintiff’s right or title to the gearbox and amounted to conversion: see Lancashire and Yorkshire Railway v MacNicoll (1919) 88 L TKB 601 wherein it was stated that: “Dealing with goods in a manner inconsistent with the right of the true owner amounts to a conversion, provided it is also established that there is an intention on the part of the defendant in so doing to deny the owner’s right, or to assert a right which is in fact inconsistent with the owner’s right.”

In conclusion having myself carefully considered the law and the evidence in this case, I agree with the decision of the Court of Appeal in finding in conversion rather than detinue against defendant and I so hold.

As regards the other ground of appeal in respect to the quantum of damages awarded against the defendant, my brother Charles Hayfron-Benjamin JSC, has dealt with this ground in his judgment to be filed later and I agree with him that damages be assessed at ¢10 million plus interest.

Except for the variation made in respect of the quantum of damages, I would dismiss this appeal.

JUDGMENT OF CHARLES-HAYFRON-BENJAMIN JSC.

This is a second appeal wherein the Court of Appeal affirmed the decision of the High Court on different grounds. The plaintiff in an imprecise endorsement of his writ of summons and uncertain statement of claim, claimed damages for the conversion of his gearbox or the value thereof at the market price of ¢250,000 jointly, severally or in the alternative against the defendants. The defendants were the first defendant, the owner of the garage to which the plaintiff’s Willowbrook bus had been sent for repairs, and the second defendant was the Standard

[p.378] of [1999-2000] GLR 366

Chartered Bank Ltd into whose Willowbrook bus the plaintiff’s similar vehicle’s gearbox had been placed or fitted. There is evidence that the second defendant took their bus away from the garage with the plaintiff’s gearbox thereon and though the matter was reported to the police who requested to examine the bus and, in spite of several attempts by the plaintiff to recover his gearbox, the second defendant nevertheless used the vehicle containing the gearbox for about two years and subsequently disposed of the vehicle to some other persons.

It seemed that when the second defendant advertised the bus containing the plaintiff’s gearbox and another bus for a joint sale, the plaintiff in an effort to recover his gearbox made a bid for the two buses, but his bid was not accepted by the second defendants. Before us, the second defendants, if I understand them correctly, contend that in so bidding for the buses when he knew that one of the buses contained his own gearbox the plaintiff was now estopped from laying any claims to the said gearbox. That matter will be considered later in this opinion.

For the present it is interesting to note that at the close of the evidence of the parties and before the addresses, counsel for the plaintiff moved to amend his statement of claim made on 2 July 1991 and a second motion dated the 9 July 1991 praying:

“for the honourable court’s leave to amend the plaintiff’s endorsement in this action as contained in the plaintiff’s amended statement of clam filed on 3 October 1986 on the grounds contained in the supporting affidavit annexed hereto.”

In the amendment dated 3 October 1986 referred to in the immediately preceding prayer cited above, which by the rules of court and by virtue of the fact that the writ had been issued on 22 September 1986 the plaintiff was entitled to file the amendment without leave, the plaintiff had amended his writ thus:

“(1) The plaintiff claims in conversion against the first defendant and the second defendants jointly and severally . . .

(2) And the plaintiff further claims jointly and severally against the defendants the value of the gearbox at the

[p.379] of [1999-2000] GLR 366 market price of ¢250,000 for this wilfull conversion because it is international.”

(The emphasis is mine.)

At the hearing of these two motions before her lordship, counsel for the plaintiff withdrew his motion filed on 2 July 1991 and the court granted the plaintiff’s motion to amend the endorsement on his writ of summons and the statement of claim dated 9 July 1991. On 7 February 1992 the plaintiff filed the amended statement of claim without, as it appears, amending the endorsement. The amendment having been filed about seven months after it had been granted, it was ipso facto void: see Order 28, r 7 of the High Court (Civil Procedure) Rules 1957 (LN 140A) and Ayiwah v Badu [1963] 1 GLR 86, SC. The court was therefore properly left with the original writ as amended on 3 October 1986.

Summons for directions having been agreed, the learned High Court judge set them out in extenso in her judgment. From the seven issues set down for trial the principal issue was: “(1) Whether or not the second defendant has converted the gearbox of the plaintiff” (The emphasis is mine.) The other issues were ancillary to or supportive of proof of conversion. It appears to me therefore that the issue of detinue was not raised for trial. In the course of the hearing, the plaintiff sought to amend the endorsement on his writ to claim “detinue against the first and second defendants jointly and severally, special damages or as general damages ¢28,500.00 per diem . . .” As I have already stated, this and other amendments sought by the plaintiff, except one, became void by reason of the plaintiff’s non-compliance with the rules of court. Consequently, the court could not countenance them.

In her judgment, her lordship in the High Court, held that: “The witnesses impressed me as people who knew what they were talking about and saying what they did in truth, sincerity and honesty.” Further in her judgment the learned judge proceeded: “I will hold their evidence impresses me as true.” Her lordship, cautioning herself when evaluating the performance of the witnesses by not relying solely on the uncertain guide of demeanour, reviewed the evidence and came to the conclusion that “the gearbox which was on the second defendant’s bus as it was driven from the first defendant’s

[p.380] of [1999-2000] GLR 366 workshop on the day in question, was the gearbox which belonged to the plaintiff.”

In the light of her review of the evidence and her conclusions about the gearbox being “driven” in “the second defendant’s bus out of the first defendant’s workshop, the learned judge committed an error that: “the second defendant became liable in detinue as at August 1983 when the police informed him that they were investigating a case in which the first defendant was suspected to have put the plaintiff’s gearbox into their Willowbrook bus, they did not pay heed to the police letters but went ahead to sell the bus. They were therefore liable in detinue.”

(The emphasis is mine.) Further in her judgment, her lordship fixed the second defendant-appellant’s before us, firmly with liability, when she wrote:

“I have no doubt that the first defendant’s statement is exactly what happened. It corroborates beautifully the evidence of the evidence of the first, second and sixth plaintiff witnesses and even that of the third plaintiff witness who told him that he had put the plaintiff’s gearbox into the second defendant’s bus.”

(The emphasis is mine.)

Of the case for the second defendant, her lordship observed that it was the second defendant’s “intention” “to deny that anything was done to their gearbox.” Having thus recognised that the issue for trial was for damages for conversion, the learned judge unjustifiably found the liability in detinue. It seems to me on a closer look at that part of the record containing the proceedings before her lordship, that there was confusion of thought on her part leading to her conclusions. The learned judge even confused special damages with general damages and gave such astronomical figures for both these heads of damages which were unwarranted by the evidence on the record or the principle upon which damages are awarded.

Now, detinue consists of the wrongful detention of goods or chattels belonging to another and the refusal of that other to return them upon demand to their owner. An action in detinue is therefore for the return of the goods or their value. The value of the goods is to

[p.381] of [1999-2000] GLR 366 be determined at the time of judgment. Damages are not an essential component of an action in detinue unless they are specially pleaded and proved by evidence at the trial. True, there is a thin line of difference between detinue and conversion. But whenever, as in the present case, chattels belonging to one person are appropriated to the use of another, the proper action is in conversion. In so saying, I have derived much assistance from the learned editors of Clerk & Lindsel on Tort (16th ed) where they state: “The word conversion, however, is the recognised legal expression for the wrongful deprivation of the possession of goods and its use in this artificial and fictitious manner has now probably become inveterate.” Indeed, such is the modern situation that where in normal commercial relationships goods or chattels are wrongfully taken possession of, then the least application of the goods or chattel to any purpose whatsoever will amount to conversion. Conversion then is the wrongful possession of goods or chattel belonging to another and the use thereof of the chattel by that other. I need not dilate on the situations in which such wrongful possession might amount to conversion. Judging from the evidence, it was clear that the liability could only be founded in conversion. In any case, as I have said earlier in this opinion, the primary issue for trial was whether or not the second defendant, the appellants herein, was liable in conversion.

Before us, learned counsel for the appellant, relying on the authority of Dam v Addo [1962] 2 GLR 200, SC contends that their lordships in the Court of Appeal were wrong in substituting their own view of the case for what had been found by the trial judge. With great respect to counsel, I think he misconceives the circumstances under which such a submission would succeed. In the present appeal, I have noted that the principal issue which was clearly set down and agreed upon by the parties for trial was whether the defendants were liable in conversion for the wrongful appropriation of the plaintiff’s gearbox. It must also be noted that in making his claim, the plaintiff stated his claim very widely. Indeed, his claims against the defendants were “jointly, severally or in the alternative.” In such circumstances, if the learned judge in the High Court found for a different liability, it was she rather who had substituted another case (liability) for what the plaintiff had prayed for. The Court of Appeal on the evidence was therefore right in restating the correct liability—conversion.

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In Dam v Addo (supra) the learned trial judge having resolved the issues for trial in favour of the plaintiff, nevertheless gave judgment for the defendants “basing himself on details on which no evidence had been adduced since they did not form part of the respondent’s case or disclosed by the pleading.” Clearly, for the principle in Dam v Addo (supra) to apply, the appellate court must not only examine the evidence but it must also look at the pleadings and the issues set down for trial. As it happened, it was rather the defendant before us who was advancing the contention that the Court of Appeal had substituted a finding of conversion for the High Court judge’s finding in detinue. Learned counsel could not be correct. Learned counsel concedes in his submissions that:

“At the trial two main issues among others were specifically set out by the plaintiff-respondent in the summons for direction for determination as to whether or not the second defendant-appellant’s act or acts done by the second defendant’s transport officer amounted to the tort of conversion.”

(The emphasis is mine.)

In my respectful opinion, learned counsel misconceived the correct intendment of that principle as enunciated in Dam v Addo (supra). If anything, as I have found earlier, the learned High Court judge had resolved the issues for trial in favour of the plaintiff and she was bound in compliance with holding (1) as stated in the headnote in the same Dam v Addo (supra) to give judgment in favour of the plaintiff. Indeed, the learned High Court judge gave judgment for the plaintiff but on the wrong ground, which the Court of Appeal was perfectly entitled to correct. Such a situation is entirely different from the Court of Appeal substituting a case “proprio motu, nor accept[ing] a case contrary to, or inconsistent with” the presentations of the parties. Learned counsel for the defendants submits that:

“even if the Court of Appeal has power to substitute conversion for detinue on its own motion as it did, the Court of Appeal misdirected itself and erred in law by holding that the defendant-appellants are liable in conversion as the plaintiff-respondent failed to prove the ingredients constituting the tort of conversion.”

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Secondly, learned counsel for the defendants was not contending that neither counsel for the plaintiff nor their lordships were not conversant with the “ingredients” of the tort of conversion, but rather that: “the ordinary way of showing a conversion by unlawful retention of property is to provide that the defendant having it in his possession refused to give it up on demand by the party entitled.” (The emphasis mine.)

On the issue of the demand made for the return of the gearbox, the learned High Court judge found quite clearly that there was a demand made therefor. Thus wrote her lordship:

“the defence are saying that the plaintiff made no demand for the return of the gearbox. I hold that in the light of the above exhibits, the plaintiff did. Though the plaintiff categorically made a demand for the return of his gearbox way back in 1983 and the defendants had notice through their transport officer, Mr Quist, who was their agent. . .”

(The emphasis is mine.) Learned counsel submits that a demand in these circumstances must be specific. I understand this requirement to mean that the demand may be formal or informal or even casual but such demand must be unconditional in its terms and specifically referable to the return of the chattel or property so appropriated. In my respectful opinion, there was overwhelming evidence of demand for the return of the gearbox. In the little known English case of General & Finance Facilities Ltd v Cooks Cars (Romford) Ltd [1963] 2 All ER 314 at 317, CA Diplock LJ emphasised the distinction between the two torts—detinue—and conversion and stressed the essential requirement for demand before action brought in the tort of detinue. Thus wrote his lordship:

“There are important distinctions between a cause of action in conversion and a cause of action in detinue. The former is a single wrongful act and the cause of action accrues at the date of the conversion. The latter is a continuing cause of action which accrues at the date of the wrongful refusal to deliver up the goods and continues until delivery up of the goods or judgment in the action for detinue.”

His lordship continues at the same page:

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“It is important to keep the distinction clear, for confusion sometimes arises from the historical derivation of the action of conversion from detinue sur bailment and detinue sur trover; of which one result is that the same facts may constitute both detinue and conversion.”

His lordship then concludes at the same page:

“Demand for delivery up of the chattel was an essential requirement of an action in detinue and detinue lay only when at the time of the demand for delivery up of the chattel made by the person entitled to possession the defendant was either in actual possession of it or was estopped from denying that he was still in possession.”

Clearly, if their lordships found the action to be stated in conversion then demand for delivery up of the gearbox was unnecessary and not in any case an essential requirement for the maintenance of the plaintiff’s claim.

Before this court, the defendant seeks to exploit a slight variance in opinion between two of their lordships and the inability of the third of their lordships in the Court of Appeal to venture specific support for either of his colleagues save by concurring in the decision. In the light of the view which I take in the instant appeal as regards the requirement for demand for delivery up of a chattel, if at all, an action for conversion, I will not belabour the point and that ground of appeal must fail.

As I have already premised, the defendant’s ground that the plaintiff’s bid for the defendant’s Willowbrook buses when he knew that his gearbox was fitted into one of the said buses could not amount to estoppel so as to prevent the plaintiff from making his claim therefore. It is of course trite learning that an estoppel is a rule of evidence, the effect of which is to prevent a party from denying a situation which he has previously asserted to be so. However, unlike the general rule that evidence need not be pleaded, estoppel must be specifically pleaded. In the instant appeal, the defendant did not so plead and this court cannot countenance that ground of appeal. In any event, it lay ill in the mouth of the defendant to assert that the plaintiff at any time by this conduct denied that he was the owner of the gearbox. The evidence on the record is replete with instances of

[p.385] of [1999-2000] GLR 366 such demands for delivery up of the gearbox. A brief comment on the defendant’s reliance on section 26 of the Evidence Decree, 1975 (NRCD 323) will serve to illustrate the irrelevance of the submission to the case at bar. Section 26 of NRCD 323 connotes a representation made by a person to another which impels him to believe in the “truth of the thing.” In such a case, he will be estopped from denying the existence of such a thing. In the present appeal, however, the defendant first advertised the two buses with the plaintiff’s gearbox in one of them for sale before the plaintiff bid to buy them. It cannot therefore by the stretch of anyone’s imagination be asserted that it was the plaintiff’s bid that “induced” the defendants to sell the buses.

The defendants contend that their lordships in the Court of Appeal:

“erred in law by applying the wrong principles in the assessment of damages and as result assessed the plaintiff-respondent’s damages so high as to result in an entirely erroneous estimate of the plaintiff-respondent’s damages.”

I agree that the damages awarded was, as I have said, “astronomical.” But that does not mean that he was not entitled to any damages. In General and Finance Facilities Ltd v Cook Cars (supra) at 318 Diplock LJ continuing his exposition writes:

“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 consequential damage flowing from the conversion and not too remote to be recoverable in law.”

The defendant’s reference to and indeed reliance on, the case of Yeboah v Kwakye [1972] 2 GLR 39, CA does not detract from the principle as summed up in the dictum of Diplock LJ in the General Finance case (supra). If I understand the passage in the Yeboah case (supra) correctly, all that is being sought to illustrate is determination of the time from which the period for which damages was recoverable as “the date of formal remand and refusal being often used as evidence of the date of conversion. (The emphasis is mine.)

[p.386] of [1999-2000] GLR 366

Of course, there may be other ways in which the conduct of the wrongdoer may imply a demand for the return of the goods or a refusal so to return them. In all cases, however, it is a matter of evidence as to how and when the wrongful detention was communicated to the person in wrongful possession of the goods.

In the present appeal, there was evidence on the record which taken together would show clearly that a demand was made on behalf of the plaintiff by the police; for in evidence at the trial the police officer said:

“On 7 June 1983 I went to the bank with the intention of arresting the driver of the Willowbrook bus belonging to the bank. The driver took me to the Transport Officer, Mr Quist. I informed him about the case and the investigation involving the theft of the Plaintiff’s gearbox that had been stolen and put on the bank’s bus.”

(The emphasis is mine.) Then again under cross-examination of the second defendants representative by counsel for the plaintiff, the representative stated:

“Q It is clear that your bank received notice from the Korle-Bu police to bring the bus fixed with the gearbox for investigation?

A Yes.”

I think the confusion over the necessity, if at all, of a demand and refusal as a precondition for the action brought, rises from the difficulty of counsel and the judges in appreciating the thin but clear line of distinction between the torts of detinue and conversion. In the former, the action is for restitutio in integrum and damages may be exacted on account of the special quality of the chattel. In the latter, the dealing with the chattel is unlawful and the action is for the recovery of the chattel or its value together with damages for consequential loss where so warranted or indicated. Demand and refusal. If I thus understand the decision in Yeboah v Kwakye case (supra), in an action for damages for conversion the fact that there was demand and a refusal may be evidence from which the date of conversion may be ascertained. In the present appeal, I find myself in agreement with Wood JA when she finally came to the conclu-

[p.387] of [1999-2000] GLR 366 sion that there was conversion and agreed with their lordships in the Yeboah v Kwakye case (supra).

On the assessment of damages, I must first restate the principles upon which an appeal court will interfere with an award of damages by a trial court. In Zik’s Press Ltd v Ikoku (1951) 13 WACA 188 at 189 their lordship of the West African Court of Appeal succinctly set out the principles in the following manner: “These principles are clearly set out in the leading case of Owen v Sykes I [1936] 1 KB 192], where the Court of Appeal followed the reasoning and decision in the earlier case of Flint v Lovell [[1933] 1 KB 360]. In the judgment of Slesser, L.J., in Owen v Sykes, the following passage occurs:— ‘In the case of trials by a Judge alone this Court has power, as the hearing is by way of re-hearing, to consider the matter and decide what damages ought to be awarded. In the case of an appeal from a Judge trying a case without a jury I would accept as a criterion what Greer, L.J., states in Flint v.

Lovell, where he says: “In order to justify reversing the trial Judge on the question of the amount of damages, it will generally be necessary that this Court should be convinced (either) that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very small as to make it, in the judgment of this Court an entirely erroneous estimate of the damage to which the plaintiff is entitled.” I read these words to mean that if the amount given is an amount which this Court itself might feel disinclined to agree with as an amount which they themselves would assess, that circumstance alone would not necessarily justify this Court in making any amendment of the Judge’s award, and this Court would normally have to be satisfied that there really was, again to quote the words of Greer, L.J. entirely erroneous estimate of the damage to which the plaintiff is entitled. That is a question of degree, but I wish to guard against the supposition that because this Court is hearing such a case by way of re-hearing, therefore it would be ready to re-assess damages according to what this Court, if they had been trying the case, might have given as damages, and not what the Judge below gave. It is incumbent, I think,

[p.388] of [1999-2000] GLR 366 on the parties wishing to disturb the damages awarded, to satisfy this Court that the Judge had acted upon an erroneous estimate—meaning thereby something in which the error had so tinged the proceedings that it was a proper case for this Court to assess the damages. Otherwise it seems to me a matter of discretion for the learned Judge as to his estimate of the damages.”

In reference to the authority immediately cited above, it is clear that an appellate court may reverse or vary the award of damages on the grounds (a) “that the Judge acted on some wrong principles of law” or, (b) “that the amount awarded was so extremely high or so very small as to make it, in the judgment of this court an entirely erroneous estimate of the damage to which the plaintiff is entitled.” I have restated these principles in the very words of Flint v Lovell [1935] 1 KB 354 at 360 in order to emphasise the limits of an appellate court’s power to interfere in the exercise of the discretion of the trial court in the award of damages. In the instant appeal, their lordships in the Court of Appeal were right on any of the grounds stated above in interfering with the exercise of the discretion by the High Court judge in the award of damages. Her lordship clearly erred even in the heads of damages awarded and came to conclusions which were not warranted in law. Their lordships in the Court of Appeal were thus entitled to make fresh assessment of the damages to which the plaintiff was entitled.

In the General and Finance Ltd case (supra) at 318 Diplock LJ stated that in conversion the judgment is for pecuniary damages only. In his lordship’s view:

“The judgment is for a single sum which the measure is generally the value of the chattel at the date of the conversion together with any consequential damage flowing from the conversion and not too remote to be recoverable in law”

On the evidence, their lordships in the Court of Appeal awarded ¢1 million as the value of the gearbox at the time of conversion and ¢40 million as consequential damages flowing from the conversion.

Before us the defendant has not complained about the value of the gearbox as found by the Court of Appeal, and I see no reason for disturbing that value put on it. The defendant’s main complaint,

[p.389] of [1999-2000] GLR 366 however, is that their lordships arrived at the award by a combination of conjecture and guesswork. I do not agree with such a submission. In my respectful opinion, their lordships applied the right formulae in the assessment of the consequential loss. The defendant contends that it was not open to the Court of Appeal to include in the assessment a period which extended to a date after the commencement of the action. Nor has counsel made any suggestion to the court as to the probable cost of the gearbox as at the time of the conversion. Learned counsel complains, however, that the figure of ¢1 million representing the value of the gearbox as at the middle of 1987 was arbitrary.

In my respectful opinion, counsel was wrong. Counsel in his submission on this issue refers to the very passage in her lordship’s opinion, which rightly gives cogent reasons for arriving at that value. Said her lordship:

“The plaintiff took various steps to retrieve his gearbox, including his offer to purchase the entire bus which was finally disposed of in 1985. By this date then, there was no chance of retrieving his gearbox from the defendant. I will not limit the period of assessment to the date when the bus was sold.”

Her lordship then took into consideration the operation of market forces and the unavailability of spares at the date of conversion. I think that a judge or a court is entitled to take judicial notice of the economic forces and the sharp falls and depreciations of our country’s currency and financial markets in making awards commensurate with the relative values of goods and chattels at the date of assessment of values in respect of the tort of detinue or conversion or indeed, in any circumstances where damages may be awarded for any wrongful act or conduct. In the opinion of her lordship: “the cost of replacement of the chattel as about the middle of 1987 would afford a reasonable compensation for the loss of the gearbox.” I am therefore in entire agreement with their lordships assessment of the value of the gearbox at ¢1 million.

Judging by the evidence on the record that the defendant played “cat and mouse” with the plaintiff for two years while openly plying the bus for the carriage of their employees before disposing of the bus to third parties, I think two years was a reasonable period for [p.390] of [1999-2000] GLR 366 which consequential loss may be awarded. Learned counsel is correct when he submitted that a plaintiff must mitigate his damage. But when in an action for detinue or conversion the tortfeasor refuses to return the goods and on the evidence the tortfeasor continues in wrongful possession of the chattel and applies it to his own profit the court will take that period into consideration in assessing damages. In this appeal, it is clear that if the defendant had hearkened to the request of the police to submit the bus for inspection, the consequential loss would have attracted minimal or minimum damages: see Yeboah v Kwakye (supra).

I have already alluded to the principles under which an appellate court will interfere in the award of damages by a trial or lower court. In this appeal, while I have found that the consequential loss or whatever it is called, so assessed by the High Court was astronomical, I think that the award of ¢40 million therefor by the Court of Appeal was in my respectful opinion “so extremely high . . . as to make it . . . an entirely erroneous estimate of the damages to which the plaintiff is entitled.” In my respectful opinion, her lordship in the Court of Appeal clearly identified the factors to be taken into consideration in calculating the estimated consequential loss in terms of cedis and pesewas. While, therefore, I agree that the period for the calculation of the consequential loss should be two years 4 months—I propose to alter the estimate of the number of days of use of the bus from 25 days to twenty days in a month. It seems that their lordships only excluded Sundays and did not take into consideration other exigencies, emergencies and circumstances which could prevent the plaintiff from plying his bus for hire. Therefore in my respectful opinion, five working days in a week, which corresponds with a statutory working week, will be a reasonable weekly number of days on which to base any such assessment. There was evidence which her lordship in the Court of Appeal considered as to probable earnings per diem from the operation of the plaintiff’s bus. Her lordship “struck a balance and fixed his daily profits at ¢30,000.”

Counsel for the defendants does not appear to have any serious objection to the amount so found as per diem loss of earnings save that in his submission there should have been apportionment of the liability between the first and second defendants as the former was liable in detinue and the latter was only liable for the conversion. I fail to appreciate the reasoning in this proposition since the two

[p.391] of [1999-2000] GLR 366 courts below made positive finding of fact that the stolen gearbox had to the knowledge of the defendants been fitted into their bus. It is now cliche in legal language that you take your victim as you find him. In other words, where the damage or loss is attributable to the direct act of the tortfeasor it would be no defence to say that such damage was caused only in part by the tortfeasor if otherwise the chattel remains unusable thereafter.

In the present appeal, the formulation of the consequential loss thus becomes simple. The consequential loss is therefore the number of days of operation per month at the probable earning per diem and, in the present appeal, multiplied by 24 months (two years) = 20 x ¢30,000 = ¢600,000 x 24 = 14,400,000. Taking into consideration days when the vehicle might be at the workshop undergoing repairs or the driver was for some reason unavailable and considering the element of tax in the award, I would settle the amount of consequential loss at ¢9 million. I would thus award a single sum of ¢10 million which includes the value of the gearbox and the damages for the consequential loss.

On 9 January 1992 the plaintiff by motion sought to amend his statement of claim, and it was so granted.

The amended statement of claim filed pursuant to the order of the court was in almost all respects similar to the previous amendments save that in the instant pleading the plaintiff added a claim for interest thus: “. . . date of judgment plus interest on the judgment debt at the current bank rate from . . .”

It does not appear that either the parties or the learned High Court judge adverted to this prayer. In fact, no interest was awarded in the High Court. But the plaintiff cross-appealed and prayed for interest to be awarded on the damages “up to date of the judgment or date of payment.” Before the Court of Appeal, learned counsel for the defendant submitted that the plaintiff could not be entitled interest on the award in his favour and the learned judge was right in denying the plaintiff interest on the award of damages. Counsel for defendant therefore submitted that “in case of detinue the trial judge cannot award interest.” The submission was, of course, rejected by their lordships in the Court of Appeal. Wood JA put it thus: “The plaintiff did put in a claim for interest. When we bear in mind that the sole purpose of awarding interest is to enable the

[p.392] of [1999-2000] GLR 366 court to put into his hands sufficient money as would compensate him for the loss he has suffered, then we at once see that in a country like ours where the inflationary rate is astronomical, the only just and equitable thing to do in circumstances such as these is to allow interest on the amount awarded. If this were not done what we will have placed in his hands would not reflect what he had lost.”

On the principle that an appellate court has all the powers of the court from which the appeal emanates, I agree with her lordship when for the reasons given she exercised her discretion in awarding the interest in terms of the statute.

As I have already pointed out, counsel for the plaintiff cross-appealed on the issue of interest payable on the award of damages and postulated that interest should be payable thereon “up to the date of judgment or date of payment.” My researches from the selected judgments of courts and other sources have revealed that there are principally four instances in which interest may be awarded. Thus interest may be awarded where:

(i) by the custom or trade practice. Such interest is usually awarded on money clause upon proof of custom or trade practice: see Pappoe v Bank of British West Africa (1933) WACA 287; or

(ii) by agreement in transactions between parties where such interest may become payable upon action brought after default: see Senedza v Djokoto [1991] 2 GLR 8; or

(iii) interest charges arising out of contracts—actually stated or implied: see Kaas Fisheries Ltd v Barclays Bank Ltd [1989-90] GLR 1. In Royal Dutch Airlines (KLM) v Farmex Ltd [1989-90] 2 GLR 623 at 644-645, SC expressed himself thus:

“Interest is normally awarded to the plaintiff where the defendant’s breach of contract has deprived him of the opportunity to work with the money to earn profit or income. The power of the courts to award interest is derived from section 98 of the Courts Act, 1971 (Act 372) and the Courts (Award of Interest) Instrument, 1984 (LI 1295) and the rate to be awarded is the bank

[p.393] of [1999-2000] GLR 366 rate prevailing at the time the order was made by the court.”

(iv) By statute. Interest to be claimed under statute may arise under (a) the usury laws (Moneylenders Ordinance, Cap 176/(1951 Rev) or under LI 1295. In the case of Senedza v Djokoto (supra) Benin, J (as he then was) considered the application of LI 1295 to an action for the recovery of an interest-free loan which the defendant had subsequently defaulted in paying. At 87 of the report his lordship put the issue of the award of interest in graphic form when after dismissing the defendant’s counterclaim with costs he stated:

“But thereafter when the defendant became in breach of the agreement to pay, it entitled the plaintiff to be awarded interest on the sum. Can he be awarded interest without putting in a claim for it? Yes, a court can award interest without any claim being made in the pleadings, more particularly when power has been given by a statute . . . The defendant’s breach of the agreement to pay as I said entitled the plaintiff to recover interest. Interest is awardable by virtue of the Courts (Award of Interest) Instrument 1984 L.I. 1295).”

I have observed that in the Farmex case (supra) at 644-645 Aikins JSC awarded the interest as first arising under contract and then in any case under LI 1295. With the greatest respect to his lordship, the rate of interest awardable at the time of the breach of contract had nothing to do with the laws of Ghana. In Kaas Fisheries Ltd v Barclays Bank of Ghana Ltd (supra) at Brobbey J (as he then was) with respect mixed and therefore missed the issues raised by Order 42, r 15 of LN 140A and LI 1295. His lordship put it thus at 4: “. . . where debt arises under an agreement and action is taken to recover the debt, the debt will merge with the judgment and what will thereafter become recoverable will be the judgment debt up to the date of final payment is what is provided for by law. That law which was enacted in 1954 was that interest exigible was four percent. . . On 10 February 1984 the Courts

[p.394] of [1999-2000] GLR 366

(Award of Interest) Instrument, 1984 (LI 1295) was promulgated. LI 1296 provided that the interest which the court may award shall be at the prevailing bank rate to be calculated at simple interest. Although LI 1295 did not specifically refer to Order 42, r 15 LN 140A, both statutes dealt with the same subject matter, ie award of interest by the court. To the extent that LI 1295 was later in point of time than LN 140A (the latter having been enacted in 1954 and LI 1295 in 1984) and to the extent that the two statutes are inconsistent with each other, LI 1295 should be deemed to have emended LN 140A by implication. To my mind, the prevailing law is as contained in LI 1295, and therefore the interest exigible on the judgment debt up to the date of final payment is the prevailing bank rate calculated at simple interest. The argument that interest exigible on the judgment debt should be four percent fails and is consequently dismissed.”

With very great respect to the learned judge the passage quoted from his opinion in the Kaas Fisheries Ltd case (supra), is not only profound and attractive but it also contains errors of legal principles and procedure. It will however suffice to point out that Order 42, r 15 of 140A concerns “Every writ of execution . . .” A writ of execution is a direction to the sheriff by the execution-creditor to compel a defendant against whom a judgment, decree or order has been obtained from a court of competent jurisdiction “compelling the defendant to do or to pay what has been adjudged.” On the other hand, LI 1295 speaks of a situation in which:

“. . . the Court makes an order for the payment of interest on any sum due to the plaintiff other than any sum claimed by a plaintiff under Order 13 Rule 3 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A). . .”

The difference in the two situations are clear. Order 42, r 15 of LN 140A deals with interest exigible on the successful party going into execution while LI 1295 vests the judge with the discretion to award interest on any sum claimed or awarded up to date of judgment. The concept of the same rate of interest prevailing after judgment and subsisting until final payment is not supported by authority. In the Annual Practice, 1956 at p 753 are two notes under the subheadings

[p.395] of [1999-2000] GLR 366

“Rate of Interest” and “On judgments in default of Appearance.” It must be noted that in that volume of the Annual Practice referred to, Order 42, r 15 of LN 140A corresponds to Order 42, Rule 16 of the English rules. For the sake of brevity, I will set them down.

“Rate of Interest—A contract to pay the debt with interest at e.g. £10 per cent, does not entitle a Plaintiff to levy under his execution more than the statutory interest of £4 per cent. The contract (or a subsequent agreement) must state specifically that any judgment obtained for recovery of the debt shall carry interest at (e.g.) £10 per cent, and the higher rate of interest should form part of the judgment: see Re European Central Ry (1877). 4 Ch. D. 33; Ex p. Fewings (1883), 25 Ch. D. 338; Arbuthnot v Bunsilall (1890). 62 L. T. 234: and see Economic Life Assurance Society Vrs. Usborne, [1902] A .C. 147.”

(The emphasis is mine.) The court has no duty to make a contract for the parties but will enforce the terms of a contract so made by the parties. And then under the latter it provides:

“On judgment in Default of Appearance—Judgment in default of appearance for a liquidated claim may include interest (if claimed), at the rate specified, or if no rate is specified, at 5 per cent to date of judgment (O. 13, r. 3); subsequent to that date the rate, as above stated, is 4 per cent.”

I think the two statements from the Annual Practice, 1956 amply illustrate that interest on debt or damages awarded by court must be exigible up to date of judgment. Thereafter, no matter what the arrangement of the parties might be, the only interest exigible will be what is provided by the rules governing execution. I think the drafters of LI 1295 were aware of the law and procedure for enforcing judgments for debts and damages. The learned judge, Brobbey J (as he then was), in the Kaas Fisheries case (supra) acknowledges the exclusion of default judgments under Order 13, r 3 of LN 140A from the operation of LI 1295 and concludes that Order 42, r 15 of LN 140A is “impliedly repealed.” With great respect to his lordship, I do not share that view. As has been illustrated above; after judgment, whether by default or after trial, the interest exigible on a debt or damages can only be stated at the

[p.396] of [1999-2000] GLR 366 rate stated in Order 42, r 15 of LN 140A. In my respectful opinion, there has been no necessity for Brobbey J (as he then was) to distinguish the case before him in Kaas Fisheries (supra) from Ghana Commercial Bank v Binoo-Okai [1982-83] GLR 74. I think Cecilia Koranteng-Addow J was right when, as she said at 78, she took “a commonsense approach to resolve the problem” of when to conclude the award of interest. Her lordship stated at 78 of the report:

“The judgment for the principal sum and interest up to the date of judgment is more potent than the mere right to take an action for these sums. The judgment gives the successful plaintiff a legal right, the enforcement of which the law places at his disposal the whole panoply of the enforcement machinery of the State.”

Clearly, interest on judgments to be claimable until date of payment is unwarranted in law. A judgment should therefore conclude the debt or damages with the interest thereon calculated to the date of judgment. Thereafter the parties must be free to pursue any course of execution.

In the result, I shall, subject to altering the award of damages of ¢41 million for the conversion of the plaintiff’s gearbox to ¢10 million with interest thereon as contained in the order of the court, dismiss the appeal.

JUDGMENT OF AMPIAH JSC.

I agree.

JUDGMENT OF ACQUAH JSC.

I agree.

JUDGMENT OF AKUFFO JSC.

I also agree.

DECISION Appeal by appellant dismissed.

Cross-Appeal by respondent allowed.

LSNA