SITOU KOMLAN NANEVIE vs. THE COMMISSIONER, C.E.P.S. & 2 ORS. [2004]DLCA6982

Date	2004-03-26
Suit No.	CIVIL APPEAL NO. 33/2003
Citation No.	[2004]DLCA6982

TWUMASI (PRESIDING) JA

OWUSU-ANSAH JA

ANIM JA

[2004]DLCA6982
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													<main id="main" class="content" style="min-height: 60rem" >SITOU KOMLAN NANEVIE<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>THE COMMISSIONER, C.E.P.S. &amp; 2 ORS.<o:p></o:p>(DEFENDANT/APPELLANT)<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">CIVIL APPEAL NO. 33/2003&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; DATE: 26TH MARCH, 2004<o:p></o:p>

</div>CORAM: <o:p></o:p>TWUMASI
(PRESIDING) JA, OWUSU-ANSAH JA, ANIM JA<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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</div>TWUMASI,
JA:<o:p></o:p>On
the 30th November, 1996, a Togolese national, the respondent herein, brought
into Ghana a newly acquired Mercedes Benz valued forty-three thousand
deutchmarks (DM 43,000). Intent to saysic in the country for a while, he duly
applied for and obtained a three-month licence from the Customs, Excise and
Preventive Services of Ghana (CEPS for short). <o:p></o:p>The
respondent instituted legal proceedings against the CEPS and two others on the
grounds stated in his Statement of claim that, while the three-month licence was
still valid, the CEPS seized the vehicle and sold it to a Lt.-Col. who in turn
sold it at a higher price to another person. According to the respondent, CEPS
offered him terms of settlement whereby CEPS agreed that he repair a damaged
Toyota Lexurus Saloon car and keep it in replacement of the Mercedez Benz. He
said he duly implemented the arrangement, yet CEPS refused to release the
repaired car to him and also failed to settle the cost of repairs. The defence
put up by the appellant was that the respondent breached a condition under the
three-month licence which forbad him from permitting a third person to drive
the said Mercedez Benz and thereby rendered it liable for forfeiture to the
state. The facts of the case further show that the settlement just referred to,
was promoted by the trial court upon an application made on behalf of the
respondent by his Counsel to the Court which obliged him the required leave to
proceed and that this had occurred in the course of the proceedings when the
case was ripe for hearing. According to other facts gathered from the record of
appeal, when it became clear that CEPS had turned a deaf ear to the demands of
the respondent to release the Toyota Lexurus Saloon car and to pay him the
expenses incurred in its repair, his Counsel applied to the Court to fix a date
for hearing. Upon the orders of the court hearing notices were served upon CEPS
to defend the claim but they would not bother to attend court. The hearing
therefore commenced without CEPS and judgment was entered in favour of the
respondent. The original indorsement on the Writ of Summons was as follows:—<o:p></o:p>&nbsp;"(a) That the seizure of Mercedez Benz
190D with Registration No. RT 8933n on 28th January 1997 was unlawful.<o:p></o:p>&nbsp;(b) Failure to release the said vehicle to the
Plaintiff amounts to conversion.<o:p></o:p>&nbsp;(c) An order for the release of the vehicle. <o:p></o:p>(d) An order of injunction against the
defendant". <o:p></o:p>Claim
(d) above was in respect of a demand make by CEPS after the seizure of the
Mercedez Benz that the respondent pay a penalty of six million five hundred
thousand cedis or in default suffer confiscation of the said car. The
respondent’s main complaint was that the CEPS had gone ahead to sell the car at
the time efforts were being made to settle the case out of court and when this
was brought to the attention of the court the CEPS promised to make a
replacement of the vehicle and therefore asked the respondent to repair the
Toyota Lexurus car. In the course of the delivery of the judgment as mentioned
before, the learned trial judge took the view that an amendment of the
respondent’s claim as indorsed on the Writ of Summons was necessary to enable
the court make the appropriate awards to the respondent in a manner that would
meet the ends of justice having regard to the facts of the case as presented to
the court by the respondent whose testimony stood unchallenged due to the
absence of the CEPS and the other parties accused by the respondent.
Accordingly, the learned trial judge, purporting to be exercising powers
perceived by her to have been conferred upon her under Order 28 rule 12 of the
High Court (Civil Procedure) Rules 1954 (LN140A) delivered herself in the
following terms:—<o:p></o:p>&nbsp;"In exercising the powers conferred on me
by rules of court, I shall amend the reliefs endorsed on the Plaintiff’s Writ
and enter judgment for the Plaintiff as follows:—<o:p></o:p>&nbsp;(1) An order for refund of the DM 43,000 which
is the value of the Mercedez Benz Car unlawfully seized and sold out, or its
cedis equivalent, at the prevailing exchange rate, with interest at the
prevailing bank rate from March 1997 to date of Judgment. <o:p></o:p>(2) An order for refund of ¢2,070,000
being cost of repairs of Toyota Lexurus car which Plaintiff incurred with
interest at the prevailing bank rate from June 2000 to the date of judgment.<o:p></o:p>&nbsp;(3) An award of ¢10 million for loss of use
and the inconvenience suffered by the Plaintiff since 1997 due to 1st
defendant’s unlawful act. <o:p></o:p>(4) I award costs of ¢2 million
against Defendant."<o:p></o:p>&nbsp;The hottest ground of appeal against this
judgment touches upon the propriety of the power of amendment which the learned
trial judge purported to have exercised. It was strongly submitted by the
appellant’s counsel that the learned trial judge misconceived and thereby misapplied
the powers envisaged under the order. Order rule 12 reads as follo</main>