OWUSU vs. MENSAH [1972]DLHC2405

Date	1972-06-13
Suit No.
Citation No.	[1972]DLHC2405

MENSA BOISON J.

ADUBOFUOR ADDAE FOR THE APPELLANT.

OSEI KWAKU FOR THE RESPONDENT.

[1972]DLHC2405
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													<main id="main" class="content" style="min-height: 60rem" >OWUSU <o:p></o:p>vs. <o:p></o:p>MENSAH <o:p></o:p>[HIGH COURT,
KUMASI]<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1972]
2 GLR 233<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
13 JUNE 1972.<o:p></o:p>

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

ADUBOFUOR ADDAE FOR THE APPELLANT.<o:p></o:p>

OSEI KWAKU 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 windowtext 1.5pt;
padding:0in 0in 0in 0in">

MENSA BOISON J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF MENSAH BOISON J.<o:p></o:p>The
defendant-appellant as landlord (to be referred to simply as the defendant) had
judgment against the plaintiff-respondent as tenant (hereafter referred to as
the plaintiff) for the recovery of arrears of rent for the sum of ¢11.00 plus
costs of ¢5.00. This judgment dated 18 April 1969 is marked exhibit B.
Subsequently on 26 September 1969 defendant applied to the registrar of the
court as deputy sheriff for a writ of fi. fa. to levy execution for the amount
of ¢16. On 15 October 1969 the registrar issued the fi. fa. for a total sum of
¢18.50; the additional ¢2.50 representing the cost of the writ. On 16 October
1969 the plaintiff made part payment of ¢9.00 to the registrar and the fi. fa.
was eventually executed for the balance of ¢9.50. Pursuant to the fi. Fa.
bailiff on 21 October 1969 removed some personal effects of the plaintiff from
his dwelling-house in execution and lodged them with the auctioneer for sale.
No sale, however, took place because before the lapse of the seven days’
statutory period after seizure, the plaintiff paid the accrued sum which on
account of other charges, was ¢14.50, and collected his goods from the
auctioneer.<o:p></o:p><o:p>&nbsp;</o:p>The point
is agreed that during the trial and before the judgment, exhibit B, the
plaintiff paid ¢7.00 as part payment of the claim for the two months’ arrears
of rent as evidenced by the receipt, exhibit A. Therefore when on 16 October
1969 he paid the sum of ¢9.00, the judgment debt of ¢16.00 was extinguished.
Consequently he maintained that the execution of 21 October 1969 was wrongful
as there was no judgment debt outstanding. It was upon this grievance that the
plaintiff brought an action for damages for wrongful seizure of his personal
effects against the defendant and the auctioneer. The trial magistrate dismissed
the action against the auctioneer on the ground of his having acted in good
faith, and found against the defendant, awarding against him damages of ¢200.00
of which ¢13.50 represented special damages together with costs of ¢14.00. The
action against the two defendants lay in trespass, and if indeed the second
defendant was proved to have seized or taken the goods of the plaintiff into
his house without lawful justification, good faith is no defence. But that is
beside the point of the appeal, which is against the decision that the first
defendant was liable in damages for trespass.<o:p></o:p>The three
additional grounds argued were:<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">“(1) The
trial magistrate made findings in his judgment which were not supported in [by]
the evidence on record and therefore naturally gave a wrong judgment in favour
of the respondent. <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">(2) The
trial magistrate was wrong in holding that the appellant could not go into
execution after judgment in his favour for an amount of ¢16.00 and was
therefore liable to pay damages to the respondent, <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">(3) At
any rate the amount of damages the appellant was asked to pay to the respondent
was too excessive in the circumstances.”<o:p></o:p><o:p>&nbsp;</o:p>Mr.
Adubofuor Addae for the appellant concedes that the ¢7.00 paid during the
proceedings was part of the claim. He has nevertheless, submitted in substance
that as the judgment of the court was for ¢16.00, the application for fi. fa.
to levy ¢16.00 was in order. At any rate at the time of actual seizure there
was outstanding the fees or poundage of the writ which could be levied,
notwithstanding that the whole amount of ¢16.00 had then in fact been paid.
Indeed he contends that in so far as any balance of the debt remains unpaid,
execution under a writ endorsed with a sum greater than what was due will not
constitute a wrongful execution. The debtor will only be entitled to sue for
account. He contends therefore that the seizure of the go</main>