pg 113
Judgment for £300 aga1~nst
Defendant for wrongfully seizing
Plaintiff's larry, plus £50 for
lo.~s of earnings resultin.9
therefrom from date of seizure
to that of judg1nent- Writ badly
expressed-Appellant states claim
is a claim in detinue and that
order of Court below should have
been for the retuorn of the
lorry or its value, not for its
value plus an amount for loss of
oornings-Respondent state.s
claim based on trover or
conversion--Immaterial as rules
for assessing the quantum of
damages in both fO'1'1n.~ of
action the same-Appellant claims
prope1' order was for return of
the lorry or its value.
Held: (i) that discretionary
power in Court to order delivery
of particular chattel ought not
to be exercised when chattel is
an ordinary article of commerce
and of no special value or
interest and where damages fully
compensate.
(ii) plaintiff entitled to
recover the value of the lorry
only and was not entitled by way
of special damagE\ to recover
what he might have earned by it.
There is no need to set out the
facts. Cases referred to:-
Read
9"
anor. v. FlI1:rbanks
9"
ors.
(22 L.J.C.P. 206).
Philips v. Hayward
(1835) 3 Dowl. 362.
Whiteley Ltd. v. Hilt
(HH8 2 K.B. 819).
J.
H. Coussey
(1'.
Hutton-Mills
with him) for Appellant.
A. K. N. Crabbe
for Respondent.
The following joint judgment was
delivered:-
KINGDON CJ., NIGERIA,
PETRIDES,C.J., GOLD COAST
AND GRAHAM PAUL, C.J., SIERRA
LEONE.
The claim of the
Plaintiff-Respondent in this
case was as follows: -
" The plaintiff claims from the
defendant the sum of Three "
hundred and ninety-seven pounds
ten shillings (£397 10s), "
whereof the sum of three hundred
pounds is for the value " of
G.M.C. Lorry A.T. 3335, and
titan Trailer Act 3724, " which
have been wrongfully seized and
detained by the " defendant
since the 9th October,
}H40, and Ninety-seven
pg 114
pounds ten shillings (£97 10s)
is for loss of earnings by the
"plaintiff from the 9th October,
1940 to date hereof at the rate
" of one pound ten shillings (£1
l0s) per diem."
The defence of the
defendant-appellant as orally
stated at the bar in the Court
below was as follows:-
" The writ of summons does not
state that in the alternative "
of the defendant returning the
lorry the £300 will not be "
demanded. We say that the
ownership of this lorry and
trailer is still in A. Chedid.
At the time lorry was seized "
it was not licensed and had not
bf9n licensed for some time
"before. The defendant was
justified in seizing this lor~'
, because the plaintiff had
pledged a lorry A.T. 5479 to the
" defendant and plaintiff
removed certain parts of that
lorry " pledged to the defendant
and fixed them on the lorry the
" subject matter of this
action-thereby rendering the
other " lorry useless. For this
reason defendant went and siezed
this "lorry. The defendant has
since arranged with the owner "
of the lorry A. Chedid to keep
the lorry . We deny that " lorry
belongs to the plaintiff as he
has not paid for it."
The Court below gave judgment
for the plaintiff for £350 and
costs. The basis of the judgment
sufficiently appears from the ('oneluding
part of the judgment which is as
follows':-
"A. Chedid has not appeared
before the Court and has made no
" claim to the lorry. The
defendant did not seize the
lorry on behalf of " A. Chedid.
The defendant now claims the
lorry seized to be his own,. "
No matter how one looks at it
the defendant's actIon in
seizing this lorry " is wrongful
and he is liable to pay damages.
The plaintiff purchased " the
lorry for £430 and the trailer
for £50 in October, 1936, and I
" believe the evidence of the
plaintiff that the lorry' and
trailer were " worth £300 at the
time they were seized by the
defendant. Even allow"ing him
just under 6s a day (from 9th
Octo&er, 1940 to date 'of
"judgment) for loss of earnings
as a direct result of this
wrongful ~, seizure and
detention the plaintiff would be
entitled to £50 damages. " So
there will be judgment for
plaintiff for .£350 plus costs."
From that judgment the
defendant-appellant has appealed
tothis Court. His main grounds
of appeal are as follows:-
"5. The learned trial Judge
misdirected himself on the
question " of dalllage~
because--
" (a)
Plaintiff elected tQ. sue in
detinue for value of lorry and
special damages.
" The writ was in substance a
claim for the return af the lorr~'
or its " value although not
properly expressed.
"The writ did not claim that
defendant had converted
plaintiff' Ii " lorry to his own
use nor damages for conversion.
"The defendant's counsel in
pleading called attention to tbl'
•• defective naiure of the writ
of summons but was overruled.
Alfred B. Darefooh v,. Halim
Karam
" (b)
The Court misdirected itself in
treating the claim as for trover
" and, instead of decreeing the
usual form of judgment in an
action fo! " detinue for
delivery of the lorry or payment
of its value, awarded " general
damages which were not claimed.
" The defendant had in fact not
converted the lorry to his own
use " nor dis~osed of it nor was
this alleged by the plaintiff."
In this Court the broad
contention of the appellant was
that tlu; claim in this case,
though badly expressed, was a
claim in
-detinue and that tlu! order of
the Court below should have been
for the return of the lorry in
question or its value and not
for its value plus an amount for
loss of earnings. The
respondent's contention was that
the claim was a claim based on
trov~r or 90I1versio1':t and
that the Court below was Ti'ght
in ordering pasment of the value
of the car plus the loss of
earnings from the date of the
seizure of the 10r.1J' to the
date of the wrIt of summons.
There is no doubt that the claim
in the--writ is badly expressed
but it has to be construed.
It is well settled law that in a
claim in trover or conversion
only the value of the chattel at
the date of the conversion ~ay
be' claimed: special dainages,
however, may be claimed, but
this does not iliclude a claim
for loss of ordinary earnings
after the date of conversion.
In'
Read and another v. Fairbanks
and others,
22 L.J. C.P. 206, it was held
that the defendants. having
converted a vesSel before she
was finished and having finished
her, the plaintiff~ were
entitled to recover as damages
in trover, the value of the
vessel at the time of her
conversion, but not her value at
a subseq·uent time, nor, as
special.damage, the value of
freight which the plaintiff
might, have earned with her if
Read had completed her, and
delivered her to them.
The posjtion is stated very
clearly in
Clerk and Lindsell on r Torts
(9th Edition p. 354) as
follows:-
" The mere capacity for
profit.able Use is part of the
value " of a chattel, and
therefore the loss of such use
is not a " separate head of
damage, for if so the plaintiff
would,
pro
" tanto, recover
twice over."
.
As regards claims in detinue,
the law' is clearly stated in
Mayne on Damages,
10th Edition at page 399 " The
rules as to assessing th~ value
of the goods, damages for their
detention, and staying
proceedings upon their delivery,
are just the same as in trover."
(Philips
'P.
Hayward
(1825), 3 Dowl 362).
The quantum of damages in both
forms of action being the same
it is immaterial whether the
plaintiff sued)n conversion or
detinue.
In our opinion the plaintiff was
entitled to recover the value of
the lorry and the trailer only
and was not entitled by way of
special dama~e to recover what
he might have earned with them.
lJio
Alfred Bernard Darefooh
v.
Halim Karam.
Kingdon', Petrides and
Graham Paul C.jJ.
•••
,,~..,.--...-- ..
__ •.. -'"-"'--
116,
Alfred Bernard Darefooh
v Halim Karam.
Kingdon, Petride. and
Graham Paul C.]].
Alfred lJ. Darefooh v. Halim
Karam
We cannot accept the contention
by appellant's counsel that the
proper order in the
circumstances was for the return
of the lorry and trailer or
their value. Upon this point we
respectfully agree with the
dictum of Swinfen Eady M.R. in
the case of
Wh1'teley Ltd. v. Hilt
(1918 2 K.B. at p. 819) : - "
The power vested in the Court "
to order the delivery up of a
particular chattel is
discretionary, " and ought not
to be exercised when the chattel
is an ordinary " article of
commerce and of no special value
or interest, and not " alleged
to be of any special value to
the plaintiff, and where
"damages would fully
compensate". In the present case
the return of the lorry and
trailer was neither claimed by
the plaintiff in his writ nor
offered by the defendant in his
defence in the Court below. The
plaintiff can be fully
compensated by damages. In all
the circumstances the learned
Judge was in our opinion right
in not ordering the return of
the lorry and trail~r.
The appellant in order grounds
of appeal raised the question,
of the assessment of the value
of the lorry by the Court below
~t £300. On examination of the
evidence on record it appears
that there is no substance in
the appellant's contention that
the value of £300 was excessive
on the evidence. The trial Judge
believed the evidence of the
plaintiff that the lorry and
trailer were worth £300 at the
time they were seized by the
defendant and he was justified
in doing so as the plaintiff's
statement was not contr'adicted
by the defendant or any of his
witnesses. This Court must take
it that the value put upon the
lorry and trailer by the trial
Judge was correct.
The appeal is allowed as regards
the second part of the claim,
namely the claim for loss of
earnings and that part of the
judgment of the Court below
which awarded the plaintiff £50
on this part of his claim is set
aside and a judgment dismissing
that part of the claim is
substituted. The judgment of the
Court below as regard" the £300
and costs stands. The appellant
is awarded the costs of this
appeal assessed at £46 16s 3d.
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