HALABY vs. HALABY AND OTHERS [1961]DLSC5393

Date	1961-05-15
Suit No.
Citation No.	[1961]DLSC5393

KORSAH C.J.

VAN LARE JSC

SARKODEE-ADOO J.S.C.

APPELLANT IN PERSON

J.N. HEWARD-MILLS FOR THE RESPONDENT.

[1961]DLSC5393
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">HALABY <o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">vs. <o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">HALABY AND OTHERS<o:p></o:p><span style="font-size:10.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">&nbsp;[SUPREME COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

APPELLANT
IN PERSON.<o:p></o:p>

</div>CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

KORSAH C.J., VAN LARE JSC,
SARKODEE-ADOO J.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF
KORSAH C.J.<o:p></o:p>Korsah C.J. delivered the judgment of the court. [His lordship
referred to the facts and continued:] in September 1951, the first and second
defendants together with the third defendant, a licensed auctioneer, who had
been instructed to sell the partnership’s properties including one store with
goods and a safe arrived at Nandom and requested one Elias Khoury, a former
employee of the first defendant to deliver up the store, with stock of goods
and the safe, to the auctioneer for sale. They found that all the goods had
been removed from the store. Upon enquiry the defendants discovered the goods
in a room in a house about 50 yards from the original store, where the
plaintiff is alleged to have opened his own store and put Elias Khoury who was
the firm’s former employee, in charge of it.<o:p></o:p><o:p>&nbsp;</o:p>Elias Khoury stated in his evidence: “Neif Halaby told me to take
goods from store of Halaby Bros. And take it to his store. Four days later the
auctioneer came and sold the goods, small (sic) of his were inside.” There is
evidence on record showing that not only were the goods identified as some of
the stock of goods belonging to Halaby Bros., but also the stock books of the
firm were found in the same room where the goods had been stored, together with
the safe which had been in the firm’s store. The said goods were sold at public
auction and the safe taken to Kumasi, where it was later opened before the
registrar of the High Court.<o:p></o:p>Upon these facts and other evidence on record, the learned judge
found, inter alia: <o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“that the plaintiff and Khoury used the device of opening up the
partnership store to enable plaintiff to consolidate a business of his own by
selling off partnership goods.” In effect, the plaintiff, with the object of
defrauding his co-partners in the partnership firm of Halaby Bros., caused the
partnership goods to be removed into the room which he called his new store,
and which he is alleged to have opened as part of his own separate business
after the judgment of the Appeal Court.<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">There is evidence on record which is accepted by the trial court
that the value of the partnership goods found in the room was £G538 7s. 3d, and
that any surplus goods, i.e., goods found in the said store which did not
belong to the partnership firm have been accounted for in the partnership
account in court; and that there was no money in the safe.<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">The learned judge further held: “If the plaintiff had conducted
himself as an honest man, he would be entitled to some nominal damages at any
rate for the unlawful entry and forced sale.” The expression “forced sale”,
obviously refers to the surplus goods in the room, which were not the property
of Halaby Bros. but those of the plaintiff. The learned judge continued, “I
cannot feel it would be proper for any court to afford him even this relief.”<o:p></o:p><o:p>&nbsp;</o:p>It will be observed that whatever damage the plaintiff might have
suffered has been due to the plaintiff’s wrongful act in fraudulently causing
the defendants’ goods to be removed from defendants’ store to the room hired by
plaintiff. In the course of the proceedings, the plaintiff did not specifically
describe the goods which belonged to him: he merely claimed £1,166 3s. 6d. as
for value of goods sold, thus giving the impression that all the goods found in
the room belonged to him. The only evidence that the plaintiff had some of his
own goods in the store is the evid</main>