NICOL vs. CUSTOMS EXCISE AND PREVENTIVE SERVICE [1992]DLHC2046

Date	1992-01-31
Suit No.
Citation No.	[1992]DLHC2046

LUTTERODT J.

JAMES AHENKORAH FOR THE PLAINTIFF.

EBOW PAITOO FOR THE DEFENDANTS.

[1992]DLHC2046
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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">NICOL<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">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">CUSTOMS EXCISE AND PREVENTIVE SERVICE<o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1992] 1 GLR 135<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">

<p class="MsoNormal" align="right" style="margin-bottom:5.0pt;text-align:right;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">Date: 31
JANUARY 1992<o:p></o:p>

</div>COUNSEL:<o:p></o:p>JAMES AHENKORAH FOR THE PLAINTIFF.<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">

EBOW PAITOO FOR THE DEFENDANTS. <o:p></o:p>

</div>JUDGMENT OF LUTTERODT J.<o:p></o:p>In this action, which is founded on detinue, the plaintiff claims
general damages for loss of use as well as exemplary damages for the tort, i.e.
the detention itself. Unfortunately, the plaintiff could not give the exact
date on which the unlawful seizure took place. She put it around the middle of
August 1989. The defendants, a well-known and very powerful governmental
organisation, did not at the trial lead evidence on the date the actual seizure
took place, a fact which is peculiarly within their knowledge and which could
or ought to be easily ascertainable from their official records. Counsel for
the plaintiff has suggested we reckon 11 August 1989 as the actual date on
which the event took place. I however prefer 15 August 1989 in view of the
plaintiff ‘s confession that it happened around the middle of that month.<o:p></o:p>The plaintiff has also testified that during that period, she was
deprived of the use of her vehicle, which the evidence would suggest was a
multi-purpose car. She was spending averagely about ¢5,000 per diem to secure
alternate means of transport. I am more inclined to accept the sum of ¢3,000. I
think that figure is more realistic. Why? After a gruelling cross-examination,
she admitted this was only an average she struck. She confessed she did not
spend as much as ¢5,000 on Sundays. Going by this average she gave, it would
mean that she was spending as much as ¢150,000 per month on transport alone and
yet the evidence clearly shows she herself earns only ¢32,000 per month. True,
trips she makes to places like Dakar, Amsterdam on official duties earn her
extra money. So also, she receives remittances occasionally from her brother
who lives outside the country. But as she herself confesses, these trips are
only occasional—about twice or more (I would think three or four) in a month,
and the remittances are really meant for her father’s upkeep. From her evidence
she is faithful in that regard. Again, it would seem to me on the days she was
out of the country on duty she did not spend that much, i.e. ¢5,000 on transport.<o:p></o:p>The evidence is overwhelming. The vehicle was in fact released to
her on 31 October 1991. I would thus assess damages for loss of use at
¢2,424,000 representing the loss for the period of deprivation, i.e. 15 August
1989 - 31 October 1991 at the rate of ¢3,000 per diem.<o:p></o:p>Counsel for the plaintiff has argued that the plaintiff be awarded
exemplary damages for the sheer deprivation itself. The defence has conceded
they are so entitled and so has left the issue of the quantum to the court.
That the plaintiff is entitled also to this remedy is beyond controversy, the
primary object being to compensate her for the harm done her by the unlawful
and unjustified seizure.<o:p></o:p>The authorities, and I found McGregor on Damages (14th ed.)
particularly useful on the subject, show that these are awarded when the
tortfeasor’s conduct is reprehensible and so outrageous that it deserves
condemnation, as for example where he is actuated by malice, fraud, cruelty,
insolence, brutal show of force or the like. As a general rule though such
exemplary damages are no longer awarded, their lordships in the leading case on
the subject, Rookes v. Barnard [1964] A.C. 1129, H.L., recognised three
categories of cases where exemplary damages may be awarded. Lord Devlin
identified one such category in his speech at 1226 where he said:<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 first category is oppressive, arbitrary or unconstitutional
action by the servants of the government. I should not extend this category—I
say this with particular reference to the facts of this case—to oppressive
action by private corporations or individuals. Where one man is more powerful
than another, it is inevitable that he will try to use his power to gain his
ends; and if his power is much greater than the other’s he might, perhaps, be
said to be using it oppressively. If he uses his power illegally, he must of
course pay for his illegality in the ordinary way; but he is not to be punished
simply because he is the more powerful. In the case of the government it is
different, for the servants of the government are also the servants of the
people and the use of their power must always be subordinate to their duty of
service.”<o:p></o:p>His lordship also looked at these factors which ought to be borne
in mind when considering such an award. The first, which does not pose any
problems as far as this case is concerned, is that a plaintiff is entitled to
the award only where he happens to be the victim of punishable behaviour.
Secondly, such award must not be arbitrary or excessive but moderate. Thirdly,
the award must be dependent on the means of the parties. His lordship opined at
1228 that: “Everything which aggravates or mitigates the defendant’s conduct is
relevant.”<o:p></o:p>