HEWARD-MILLS vs. R. T. BRISCOE (GHANA) LTD. [1977]DLCA1319

Date	1977-07-06
Suit No.
Citation No.	[1977]DLCA1319

AMISSAH JA

ARCHER JA

KINGSLEY-NYINAH J.A.

NO APPEARANCE BY OR ON BEHALF OF THE APPELLANT.

JOE REINDORF FOR THE RESPONDENTS.

[1977]DLCA1319
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													<main id="main" class="content" style="min-height: 60rem" >HEWARD-MILLS <o:p></o:p>vs. <o:p></o:p>R. T. BRISCOE (GHANA) LTD. <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1977] 1 GLR 138<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">

DATE:
6 JULY 1976<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">

NO APPEARANCE BY OR ON BEHALF OF THE APPELLANT.<o:p></o:p>

JOE REINDORF FOR THE RESPONDENTS.<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">

AMISSAH, ARCHER AND KINGSLEY-NYINAH
JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ARCHER J.A.<o:p></o:p>The
plaintiff sent his car to the defendants in May 1971 for certain repairs to be
carried out. After the work had been completed, the defendants’ bills for the
repairs payable by the plaintiff amounted to ¢1,300.88. The plaintiff was
unable to pay the full amount but he offered to pay half the amount, that is
¢650.00 and promised to pay the balance of ¢650.88 by the middle of July 1971.
This offer was accepted by the defendants and upon the receipt of ¢650.00, they
released the car to the plaintiff. However, the plaintiff did not fulfil his
promise to pay the balance of ¢650.88 by the middle of July 1971 despite
reminders sent to him.<o:p></o:p><o:p>&nbsp;</o:p>In
September 1972, the plaintiff sent his car to the defendants for other repairs
to be undertaken. Upon completion of the work, they charged the plaintiff
¢305.72, which was promptly paid by the plaintiff on 17 October 1972. However,
when the plaintiff’s driver collected the car and was driving it out of the
defendants’ workshop, he was stopped at the gate and the defendants refused to
let the car out. The explanation given by the defendants was that they still
had a lien over the car on account of the plaintiff’s failure to pay the
balance of ¢650.88 for the earlier work done in May 1971. Notwithstanding the
protestations of the plaintiff, the defendants continued to detain the car in
their workshop.<o:p></o:p><o:p>&nbsp;</o:p>On 28
March 1973, the plaintiff sued the defendants and claimed the return of the car
and damages for detention of the car. The defendants resisted the action and
counterclaimed for the sum of ¢650.88. Learned counsel for the parties agreed
to set down for hearing the only legal point relevant to the dispute, namely,
whether the defendants were entitled to a lien over the plaintiff’s car for the
outstanding balance. After hearing legal arguments, the learned trial judge
delivered his ruling on 16 May 1973 and upheld the plaintiff’s submission that
as soon as the defendants released the car to the plaintiff after receiving the
part payment, they abandoned possession of the car and accordingly lost their
common law lien. As a result of this ruling, the defendants released the
plaintiff’s car to him the next day, that is, 17 May 1973.<o:p></o:p><o:p>&nbsp;</o:p>Subsequently,
the court below heard evidence on the question of damages and made its award.
Although the plaintiff claimed ¢35.00 per day for loss of use of his car for
213 days, that is, from 17 October 1972 when the car was detained to 17 May
1973 when the car was released, the learned trial judge thought the period was
unreasonable and allowed him instead ¢25.00 per day for 76 days, that is, for
the periods, 17 October 1972 to 9 November 1972 and 27 March 1973 to 17 May
1972. The reason for reducing the number of days was that the plaintiff should
have issued his writ earlier after the defendants had disclosed their intention
and determination not to release the car. The court below also allowed the
defendants’ counterclaim for the outstanding balance of ¢650.88. The plaintiff
being aggrieved by the quantum of damages awarded him appealed to this court.
The defendants did not cross-appeal but applied under rule 16 of the Court of
Appeal Rules, 1962 (LI 218), for variation of the judgment of the court below.
The plaintiff did not appear at the hearing and the court therefore proceeded
to hear the defendants’ application for variation of the judgment of the court
below.<o:p></o:p><o:p>&nbsp;</o:p>The first
ground was that:<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 trial judge erred in law in the interlocutory ruling delivered by him
on or about 16 May 1973, in failing to rule that the defendants were justified
in exercising a lien over the vehicle in question since the security offered by
the plaintiff to induce the defendants to forgo the said lien in the first
place and had been dishonoured by plaintiffs.”<o:p></o:p><o:p>&nbsp;</o:p>