WILSON vs. OSEI AND ANOTHER [1982]DLHC2174

Date	1982-01-27
Suit No.
Citation No.	[1982]DLHC2174

ANSAH-TWUM J.

SAMMY TAY FOR THE PLAINTIFF-APPLICANT.

JAMES MERCER FOR THE CO-DEFENDANT-RESPONDENT.

[1982]DLHC2174
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >WILSON <o:p></o:p>vs. <o:p></o:p>OSEI AND ANOTHER <o:p></o:p>[HIGH COURT, SEKONDI]<o:p></o:p>[1982-83] GLR 588<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:
27 JANUARY 1982<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">

SAMMY TAY FOR THE PLAINTIFF-APPLICANT. <o:p></o:p>

JAMES MERCER FOR THE CO-DEFENDANT-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">

ANSAH-TWUM J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ANSAH-TWUM J.<o:p></o:p>This is a
motion for a review of the court’s order made on 26 October 1981 releasing the
vehicle No. GZA 8470 impounded by an order of this court for preservation until
the determination of the controversy between the parties herein. The order for
preservation was obtained on an ex parte application at the time the
co-defendant, apparently not being aware of the pendency of the suit, was not a
party thereto. The co-defendant became aware of the pendency of this suit when
the vehicle No. GZA 8470, one of the three vehicles being the subject-matter of
this suit, which was in his possession, was impounded by the deputy sheriff in
pursuance of the preservation order made on 7 October 1981. The co-defendant
quickly moved the court on notice to the solicitor for the plaintiff to get the
preservation order affecting vehicle No. GZA 8470 set aside. The motion was
served on the plaintiff’s solicitor on 14 October 1981 but when it was fixed to
be heard on 20 October 1981, Mr. Sammy Tay, the solicitor, failed to appear and
hearing of the motion was adjourned to 26 October 1981 when again Mr. Sammy Tay
did not appear. Counsel for the applicant, Mr. James Mercer, then moved the
court, and having satisfied the court that the applicant has a substantial
legal interest in the vehicle so impounded, the court granted the application by
releasing the vehicle in question from the interim order of preservation,
having set aside that part of the order affecting the vehicle No. GZA 8470.<o:p></o:p><o:p>&nbsp;</o:p>The
present application has therefore been brought under the High Court (Civil
Procedure) Rules, 1954 (LN 140A), Order 39 for a review of the order which
released the vehicle, as explained above. Learned counsel for the
plaintiff-applicant has submitted, among other things, that here the plaintiff
has pleaded fraud, and having done that the order setting aside the previous
order for preservation ought not to have been made since fraud vitiates
everything. Counsel cites the case: Ahenkora v. Ofe (1957) 3 W.A.L.R. 145,
C.A., the relevance of which I fail to see in this connection.<o:p></o:p><o:p>&nbsp;</o:p>Learned
counsel argued further that the order made releasing the said vehicle from the
preservation order was made per incuriam since certain facts were not disclosed
to the court. Counsel had not at the close of his arguments disclosed to the
court the alleged facts which the respondent had failed to disclose on his
application.<o:p></o:p><o:p>&nbsp;</o:p>Counsel
submitted further that the plaintiff pleaded fraud against the defendant, and
that there is a valid agreement, exhibit A, between the plaintiff and the
defendant, and also referred to the fact that Heritage Motors paid $4,670.30
for the cars in America. He submitted that the poor condition of our roads
should lead the court to refrain from releasing the car in question since, as
he submitted, the grant of the application militated strongly against only the
plaintiff’s interest in the matter. Counsel cited Fine Art Society Ltd. v.
Union Bank of London Ltd. (1886) 17 Q.B.D. 705 on wrongful conversion. He cited
also Union Credit Bank Ltd. v. Mersey Docks and Harbour Board [1899] 2 Q.B. 205
and submitted that a party who buys goods from another who has no right to
dispose of the goods is guilty of conversion. Learned counsel submitted further
that the co-defendant ought to have made a thorough search before he bought the
car from Osei, the defendant. He said the maxim is caveat emptor.<o:p></o:p><o:p>&nbsp;</o:p>In his
reply, Mr. James Mercer, counsel for the respondent, submitted that the
application is unmeritorious. That an application for a review does not call
upon the court to consider any point of law and referred to Order 39, r.1 of LN
140A:<o:p></o:p><o:p>&nbsp;</o:p>I seem to
agree with learned counsel for the respondent that a review of a judgment or
order is sought where after the judgment or order there is a discovery of a new
and important matter or evidence which with all diligence was not within the
knowledge of the applicant or whic</main>