DANSOWAH vs. TOM [1962]DLSC1419

Date	1962-05-28
Suit No.
Citation No.	[1962]DLSC1419

VAN LARE JSC

SARKODEE-ADOO JSC

AKIWUMI J.S.C.

J. N. HEWARD-MILLS FOR THE APPELLANT.

HAYFRON-BENJAMIN FOR THE RESPONDENT.

[1962]DLSC1419
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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:#00B0F0">DANSOWAH<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:#00B0F0">&nbsp;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:#00B0F0">TOM <o:p></o:p>[SUPREME COURT]<o:p></o:p>[1962] 1 GLR 403<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:31.0pt 31.0pt 1.0pt 31.0pt;mso-border-shadow:yes">

DATE:<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:#00B0F0"> 28TH MAY, 1962.<o:p></o:p>

</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">

J.
N. HEWARD-MILLS FOR THE APPELLANT.<o:p></o:p>

HAYFRON-BENJAMIN
FOR THE RESPONDENT.<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">

VAN LARE, SARKODEE-ADOO AND
AKIWUMI, JJ.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF VAN
LARE J.S.C.<o:p></o:p>Van Lare, J.S.C. delivered the judgment of the court. The
respondent in this appeal is a fishmonger at Kumasi and receives consignments
of fish from Elmina and Kafudidi on the coast for sale. She alleges that one of
her such consignments on arriving at the Kumasi market was unlawfully detained
by the appellant who refused to deliver the same to her after demand had been
made, and that the said consignment remained in the possession of the appellant
until the fish rotted and became unfit for sale whereby she suffered damage in
the value thereof and the profits therefrom. She therefore instituted an action
in the then Magistrate’s Court, Kumasi, claiming the value of the fish and
damages for unlawful detention from the appellant. Her action was dismissed by
that court but on appeal to the High Court, the claim was sustained and
judgment was entered for her against the appellant for the sum of £G87 10s.,
£G67 10s. being the value of the fish, and, £G20 loss of estimated profits. It
is from that judgment that this appeal is brought.<o:p></o:p><o:p>&nbsp;</o:p>Although the appellant denies detaining the respondent’s fish, it
is nevertheless apparent on consideration of the case as a whole that the
respondent was entitled to the possession of the fish which appears to have
been detained on the 7th September, 1958, on behalf of the appellant who
purports to assert that the detention was lawful because the respondent refused
to pay her certain dues. The appellant has pleaded that she is the head woman
of the Fishmongers Association in Kumasi and that her election was confirmed by
the Regional Commissioner and she is therefore entitled to collect sixpence on
every hundred herrings brought to the market for sale. It is a natural
inference that because the respondent refused to pay the dues demanded the appellant
detained her goods. The evidence is clear that the respondent does not belong
to the appellant’s association, and also that the respondent’s goods were not
delivered at the appellant’s shed. It abundantly made clear that the appellant
herself when approached by the respondent and others with a request to return
the goods detained refused to do so, and it was not until some weeks later,
that is on the 13th October, 1958, when the respondent received a letter from
the appellant inviting her to take delivery, but by that time the fish must
have rotted and the respondent for that reason refused to take delivery
intimating that legal proceedings for damages were under contemplation.<o:p></o:p><o:p>&nbsp;</o:p>The trial district magistrate in dismissing the appellant’s claim
expressed the opinion that had the appellant paid “the dues everybody would
have been happy thereafter”; his reasons for finding against the claim are that
the respondent failed to satisfy the court as to the value of the fish; that
the respondent refused to collect the goods when requested by the appellant,
and that the appellant as head of the fishmongers is entitled to collect dues,
the inference being that the detention is justified upon failure to pay dues.<o:p></o:p><o:p>&nbsp;</o:p>The learned judge of the High Court in a carefully considered
judgment has dealt adequately with the facts and the conclusion of the district
magistrate and we are satisfied for the reasons shown that the trial district
magistrate’s conclusion is based upon inadequate consideration of the evidence.
It has been argued before us that the evidence as to the value of the fish is
hearsay. Although the evidence is that the respondent was told the value of the
fish she had to pay there can be no better evidence. One does not expect way
bills or invoices in connection with illiterate fishmonger’s trade in the
market in this country, and one must be satisfied with the message as to price
received from the vendor. In any case this value of the fish was not challenged
at the trial and the appellant led no evidence to the contrary. With respect to
the respondent’s refusal to take delivery at the time the appellant invited her
to do so, the trial district magistrate clearly omitted to consider the
evidence that by then the goods had rotted and could not be sold. As to the entitlement
of the appellant to collect the alleged dues in respect of fish sent to the
Kumasi market for sale we observe that this is not clothed with any legal
authority. Even if it were so, it may be alright where goods of the members of
the association are concerned, but as already pointed out the respondent does
not belong to the appellant’s association, and the fish in question was not
delivered at her shed; under the circumstances, there can be no justification
for the ap</main>