YEBOAH vs. KWAKYE [1972]DLSC2426

Date	1972-03-21
Suit No.
Citation No.	[1972]DLSC2426

BENTSI-ENCHILL J.S.C

JIAGGE JA

KINGSLEY-NYINAH J.A.

W. BOSSMAN FOR THE APPELLANT.

MISS A. A. AYISI FOR THE RESPONDENT.

[1972]DLSC2426
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													<main id="main" class="content" style="min-height: 60rem" >YEBOAH <o:p></o:p>vs. <o:p></o:p>KWAKYE <o:p></o:p>[COURT OF APPEAL]<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 39<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:
21 MARCH 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">

W. BOSSMAN FOR THE APPELLANT.<o:p></o:p>

MISS A. A. AYISI 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">

BENTSI-ENCHILL J.S.C., JIAGGE AND KINGSLEY-NYINAH
JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGEMENT OF BENTSI-ENCHILL
J.S.C.<o:p></o:p>The
appeal in this case was, at the hearing, confined to the issue of the quantum
of damages awarded by Mrs. Owusu Addo, circuit court judge (as she then was),
for the loss of use of a vehicle wrongfully seized by the appellant.<o:p></o:p><o:p>&nbsp;</o:p>The
vehicle thus seized had previously been owned by the appellant; but he had sold
it to one Yaw Kuma who, after paying only part of the price, had then sold the
vehicle to the respondent. On 25 November 1966 the appellant seized the vehicle
on the pretext, found by the court below to be unwarranted that, the title had
not yet passed from him to the respondent’s vendor.<o:p></o:p><o:p>&nbsp;</o:p>The
Kumasi police had earlier come to more or less the same conclusion when,
following a complaint against the appellant by the respondent, they had
investigated the matter. According to the police officer who was detailed to
investigate the complaint and who gave evidence as the second witness for the
appellant, the appellant had in consequence been told to look to Kuma for
payment of the balance due to him and had been ordered to bring the vehicle to
the police station for return to the respondent who was found to have purchased
it properly from Kuma. The appellant accordingly took the vehicle to the police
station in Kumasi on 11 January 1967. As the appellant was not there at the
time, it was decided to keep the vehicle at the police station for handing over
to the respondent by the police themselves when he turned up. The vehicle had
since remained at the police station because the respondent could no longer be
traced. Investigation revealed that he had travelled to Abidjan, and the
appellant, when approached to come and take the vehicle, refused to do so
because the respondent had already sued him.<o:p></o:p>The
learned trial judge held that the respondent was entitled to claim for the full
value of the vehicle plus any consequential loss of profit arising from the
seizure. And she awarded the respondent by way of damages for conversion, as
claimed, the unchallenged full market value of the vehicle and, in addition,
the sum of ¢1,560.00 being the consequential loss of profit at the rate of
¢20.00 per day for a period of three months (excluding Sundays) reckoned from
the date of seizure. Why she fixed upon three months is not explained.<o:p></o:p><o:p>&nbsp;</o:p>In
grounds three and four of the grounds of appeal filed by the appellant’s
earlier counsel in the court below, this award for consequential loss of
profits was challenged in the following terms:<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">“Ground
three: Having found that the conduct of the defendant constituted a conversion
by him of the vehicle . . . the learned circuit judge erred in law when, in
assessing damages, she applied principles appropriate to an action in detinue.
Ground four: The learned circuit judge erred in law in failing to consider
whether the plaintiff had discharged the duty on him to mitigate his loss.”<o:p></o:p><o:p>&nbsp;</o:p>In my
view these are meritorious grounds of appeal. The appellant’s counsel, however,
confined his submissions to a question of the factual basis of the computation.
These were nevertheless pertinent. With great respect to the learned trial
judge and for the trouble and care taken over the judgment, it is difficult to
discern, in the light of </main>