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JUDGMENT
OWUSU-ANSAH, JA.:
This is an appeal from
the Ruling of S.J. Farkye, J. (as he then was) sitting
in the High Court, Accra, on the 31/7/97 whereby he
dismissed the Claimant/Appellant’s claim and denied the
relief sought, namely, ownership of FIAT TEMPRA CAR NO.
GR 6333B taken in execution by the Sheriff Accra under
Warrant of Execution at the instance of the
Plaintiff/Judgment Creditor/Respondent.
At the beginning of the
hearing of this appeal, Counsel for the
Claimants/Appellants made a “plea for waiver of
non-compliance with Rule”. Counsel stated that:—
“owing to the
ill-health of the Appellant's Counsel when the Form 6
was brought to his notice and the failure of the
Solicitor's clerk to promptly bring the said form to
Counsel's notice may be as a result of Counsel's poor
health, this submission could not be filed within the
period stipulated by Rule 20 of C.I.19 as amended by
Rule (1) of C.I.21".
Counsel, therefore,
requested "that the non-compliance with the rule in not
filing his submissions be waived pursuant to the powers
conferred on the court by Rule 63 of C.I.19 upon terms."
Counsel for the
Plaintiff/Judgment Creditor/Respondent indicated that he
had no objection to the application for waiver.
The non-compliance with
the rule was waived accordingly.
The court would have
been inclined to take more critical look at the
applicability or the ambit of the operation of Rule 63
of C.I.19 if there had been a strenuous objection to the
application by Counsel for a waiver.
The facts briefly
stated are that:
On or about the 2nd
November 1995, the Defendant/Judgment Debtor in this
case offered to purchase the
Plaintiff/Judgment/Creditor/Respondent's property at
Teshie-Nungua for the purchase price of seventy-five
million cedis (75,000,000.00 cedis). It was agreed that
the purchase price was to be paid by five instalment
payments of fifteen million cedis (15,000,000.00 cedis)
each. The Defendant paid only the first instalment of
15,000,000.00 cedis. Thereafter, no further payments
were made. Consequently, on the 18/4/96, the Plaintiff
issued a Writ of Summons against the Defendant
(i) For the outstanding
balance of sixty-million cedis (60,000,000.00 cedis)
(ii) Damages for
breach of contract and
(iii) Interest on the
outstanding amount at the prevailing Bank rate from the
date of default until final payment.
On the 20th December,
1996 the Plaintiffs obtained Final Judgment under Order
14 Rule 1 of L.I.1129.
After the filing of the
necessary subsequent process the Plaintiff/Judgement
Creditor/Respondent caused a Fiat Tempra car with
registration No. GR 6333 B to be taken in execution by
the Sheriff of the High Court, Accra, pursuant to the
judgment the Plaintiff had obtained against the
Defendant/Judgment Debtor on the 20/12/96.
On the 27th February
1997, the Appellants caused a notice of Claim and
Interpleader Summons to be issued and served on the
Plaintiffs.
The Claimants
Appellants ("the Appellants") subsequently filed an
affidavit and documents annexed thereto, in support of
their claim of ownership to the said Fiat Tempra No. GR
6333B (hereinafter referred to as "the vehicle" or "the
car”). The Appellants further filed a supplementary
affidavit in support of their claim of ownership and
annexed to the said supplementary affidavit an affidavit
volunteered by International Automobile Ltd. which sold
the said car to the Appellants.
In opposition to the
Appellant's claim, the Plaintiff/Judgment/Creditor
Respondent (hereinafter called "the Respondent") filed
an affidavit in opposition alleging that the real owner
of the vehicle was the Defendant.
After hearing both
Counsel for the Appellants and the Respondents, the
learned High Court Judge dismissed the Appellant's claim
to the said car and held that the car was the property
of the Defendant.
The learned judge also
held that the Appellants failed to establish their claim
of ownership to the vehicle and awarded three hundred
thousand (300,000.00 cedis) costs against the
Appellants.
The Appellants are
aggrieved by the said Ruling and the award of costs, and
have appealed on two main grounds, namely:
(a) That the trial
judge erred in holding that the vehicle, the
subject-matter of the claimant's Interpleader, was the
property of the Judgment/Debtor, and
(b) That the ruling was
against the weight of the affidavit evidence.
It seems to me that the
material questions raised are:
(1) Whether the
Claimant/Appellant's had a claimable interest entitling
him to the relief sought but denied;
(2) Whether on the
balance of probabilities the Appellant had discharged
the burden of proof;
(3) Whether the
Defendant/Judgment Debtor ("the Defendant" for short)
had a saleable or transferable interest in the vehicle;
(4) Whether the
Defendant/Judgment Debtor had an attachable interest
upon attachment of the vehicle.
It is of utmost
importance in my view to determine the ownership of the
vehicle in question at the time of the purported
attachment.
The party claiming
ownership has the burden to establish it albeit on the
balance of probabilities.
It is true that in the
case of LEMANU VS. DUALA (YACUBU-CLAIMANT) 1962) I GLR
60 at Page 61, Ollennu, J., (AS HE THEN WAS) RELYING ON
THE AUTHORITY OF HUTCHIFUL VS WEST AFRICAN & COLONIAL
COMPANY (1924) P.L. 74 at 76, enunciated the principle
as follows:
“Where the execution
debtor happens to be in possession the claimant takes
upon himself the onus of proving his title to the
property in the same way as a Plaintiff in a suit for
declaration of title takes it upon himself..."
With respect, that is
still good law; but it is clearly distinguishable from
the present case. That was an Interpleader suit in
respect of a house. Affidavit evidence of the Claimant —
De Simone in this case as supported by the undisputed
original owner of the vehicle, International Automobile
Ltd, is very pregnant. It emphatically states that the
vehicle was sold and delivered to the claimant together
with the tendered documents. It is my considered view
that the totality of the unrebutted evidence and
circumstances established at least a prima facie case of
ownership.
Assuming without
admitting that the falcrum propounded in LEMANU'S case
for determining an issue of this nature were to be
applicable—deeply embedded in objectivity as it is—the
burden has demonstrably been discharged on the evidence.
In LEMANU'S case the
stark fact was that "the Execution/Debtor’s dealings
with the attached property are consistent only with his
ownership and inconsistent with the claimants
ownership". I think judicial notice can be taken of the
fact that in this country driving a friend's car is not
inconsistent with the friend's ownership of the car.
It is also significant
to note that in the LEMANU case, the learned judge was
dealing with the possession of landed property, which is
far less transitory than the possession of movable
property such as a car— as in this case. That case in my
view is clearly distinguishable from the instant case.
The evidence here is
that the car was being used by the wife of the Judgement
Debtor who had been permitted to use the car by reason
of his relationship with the owner, De Simone Ltd. There
is no evidence as to how long the car had been in the
Judgment Debtor's possession so as to raise the
presumption of ownership as in LEMANU'S case where,
apart from numerous contradictions, possession had been
for upwards of five years. In this case, it could have
been hours, days, weeks, months or even years. It is not
clear from the evidence before the court.
Yet, this appears to be
the basis of the learned trial judge's reliance upon
S.48 (1) of the Evidence Decree 1975 to raise a
presumption of ownership in favour of the
Judgment/Debtor, and this in spite of the Judgment
Creditor’s own affidavit evidence that "according to the
records at the Vehicle Examination and Licensing
Division of the Ministry of Transport and
Communications, International Automobile Ltd are the
owners". Exhibit KD4 (Affidavit of International
Automobile Ltd) emphatically debunks this assertion—Vide
paras. 4 and 5). This is an apparent own—goal in favour
of the Appellant!
The presumption based
on section 48 of the Evidence Decree 1975, states "The
things which a person possesses are presumed to be owned
by him". That, however, is a rebuttable presumption
under section 30 of the same Decree NRCD 323. On the
evidence on record as a whole and on the balance of
probabilities, that presumption has adequately been
rebutted.
At all events, the
evidence goes on to state that the vehicle in question
was with the wife of the Judgment Debtor, not the
Judgment Debtor himself. So that the Judgment Debtor was
not in the true sense of the word, in "possession" for
this purpose. In any case I do not think that a wife's
possession can necessarily be equated to a husband's
possession. Possession means more than a mere custody or
temporary control of a thing. It includes not only
exclusive physical possession of, or control over, but
also the ability to deal with, or exercise legal rights
in relation to, the disputed property. That, in my view,
is the proper touchstone of the concept of possession,
at any rate in connection with the invocation of the
rebuttable presumption under S.48 of the Evidence Decree
1975 (NRCD 323). The court cannot turn custody into
possession merely by calling it one.
Perhaps the subject is
now ripe for a more radical revisionism!
The moderately sharp
boundary between possession and custody must be kept
clear and distinct. I think nearly all the legal giants
in the fullness of their wisdom are all agreed that mere
possession without more cannot be conclusive and
irrebuttable evidence of ownership.
Moreover the
applicability of section 26 of the Evidence Decree 1975
(NRCD 323) to the facts of this case can hardly be
supported. It deals with estoppel by own statements or
conduct. The idea is that, because of the party's
misleading conduct, he is barred from insisting upon his
strict legal rights— in legal parlance "the doctrine of
equitable estoppel". The section 26 states: "Except as
otherwise provided by law, including a rule of equity,
when a party has, by his own statement, act or omission
intentionally and deliberately caused or permitted
another person to believe a thing to be true and to act
upon such belief, the truth of that thing shall be
conclusively presumed against that party or his
successor in interest, in any proceedings between that
party or his successors in interest and such relying
person or his successors in interest."
The only evidence
before the court in this connection was that the
Judgment Debtor's wife was using the vehicle at the time
of the purported attachment. No causation or causal
connection appears to have been established. Estoppel
cannot exist in vacuum. In the instant case there is a
vital missing link in the chain.
It is therefore
difficult to see how the Judgment/Debtor "by his own
statement, act or omission intentionally and
deliberately caused or permitted another person to
believe a thing to be true and to act upon such
belief..." I have carefully scrutinised the record and I
am unable to find any evidence in support of this.
If that were so, every
car owner would be at enormous risk to lend his/her car
to anyone whether a wife, a friend or a stranger. To
invoke this provision of S.26 in a case like this, would
be to rob it of its potency in appropriate cases. The
stubborn fact must be that the Judgment/Debtor’s
"dealings with the attached property must be consistent
only with ownership of it". Any other focus is bound to
produce some startling and paradoxical conclusions.
In my view to invoke
the provision of Section 26 there must be evidence:
1. That there was a
statement, act or omission by the party himself.
2. That it was made
intentionally or deliberately.
3. That it caused or
permitted another person to believe in a certain state
of affairs or facts to be true.
4. That the aggrieved
person acted upon it — normally to his detriment.
I find myself
regretfully unable to see any evidence to satisfy these
requirements and, accordingly, Section 26 of the
Evidence Decree 1975 (NRCD 323) is, in my judgment,
inapplicable to the facts of this case.
The alleged
non-registration of the vehicle is another reason given
for dismissing the appellant's claim. It is my view that
this does not, with respect, deprive the claimant of his
ownership of the vehicle under the Sale of Goods Act,
1962 (Act 137).
Section 26 of Act 137
provides as follows: "S.26(1) subject to Section 25 of
this Act, the property in goods passes under a contract
of sale when the parties intended it to pass."'
"(2) Unless a different
intention appears the property in the goods passes under
a contract of sale when they are delivered to the
buyer”.
The unchallenged
affidavit evidence of International Automobile Ltd is
quite emphatic that the vehicle in question was in fact
"sold to De Simone in 1995". This has been confirmed by
the affidavit evidence of the Assistant Managing
Director of De Simone. That affidavit does not only
mention some steps taken to effect a change of
ownership, but also goes on to state that “De Simone
subsequently took an insurance policy in respect of the
car as shown in Exh. KD3"—long before the purported
attachment of the car.
I, therefore, hold that
property in the car had properly passed to De Simone
prior to the purported attachment.
The Sale of Goods Act
1962 does not forbid the transfer or the passing of
ownership of a vehicle without due registration under
the Road Traffic Regulation 1974 or under any other
enactment. In my opinion what is not forbidden is
authorised!
Assuming without
admitting that property in the car had not so passed, it
would in my judgment still remain with International
Automobile Ltd, the original undisputed importers of the
car from overseas as admitted by the Plaintiff/Judgement
Creditor in their affidavit. In such an eventuality, it
would be difficult to see how that would enure for the
benefit of the Judgment Debtor. Nor is there any
evidence to suggest that at any time material to this
suit the Judgment Debtor had acquired the vehicle in any
shape or form.
Here I would like to
cite with approval the decision of Benin J (as he then
was) in SEIDU V. AGRICULTURAL DEVELOPMENT BANK. High
Court Tamale (1992) 1 GLR 536 at 538. The Learned Judge
held "b Failure to register a change of ownership of a
vehicle in breach of Regulation 6(1) of the Road Traffic
Regulations, 1974 (L.I.953), though a punishable
offence, did not give rise to any cause of action.
Registration of change of ownership only provided notice
of a change to the public in terms of Section 33(1) of
the Sale of Goods Act 1962 (Act 137) and was
consequently in the interests of the Purchaser”.
"In any case, since a
vendor could not impeach a sale of a vehicle on the
ground that the purchaser had not registered the change,
a third party like the Defendants could not challenge
the Plaintiff’s title on that ground". The learned Judge
continues:
"Furthermore since on
the evidence, the Plaintiff had paid the purchase price,
taken delivery and was in possession of the vehicle,
those acts were more effective to confer ownership on
him than a mere change in ownership"!! In my view he
could not have uttered truer words! That case appears to
be on all fours with the instant case in principle.
Again, it was submitted
that non-production of a receipt in respect of the sale
was fatal. My own view is that non production of a
receipt in respect of a sale does not ipso facto nullify
the sale especially when it has not been demanded or
requested, unless there is a specific legal provision to
that effect. Production of a receipt is an alternative
way of proving a purchase as a general rule, subject to
certain statutory exceptions which are not relevant
here. This is probably because even the faintest ink is
better than the strongest memory.
Learned Counsel for the
Respondent submits that "under the Road Traffic
Regulations 1974 L.I.953, the responsibility for
effecting a change of name lies with the new owner who
is enjoined by Regulation 2 of the Legislative
Instrument to complete "FORM A" and submit same to the
Licensing Office as evidence of change of ownership"
Regulation 6 of the
Road Traffic Regulation 1974, LI.953, states:
"1 If the ownership of
a motor vehicle or trailer is changed, the new owner
shall give notice of the change to the Licensing
Authority in Form C in the First Schedule and shall
present the vehicle for inspection to the Licensing
Authority".
"5 If the new owner
fails to comply with this regulation the registration of
the vehicle shall be void".
It is to be noted that
only "the registration of the vehicle" is void without
prejudice to its ownership or the existing property in
the vehicle.
The submission of the
learned counsel for the Respondent on this point
coincides with my own views. However, it must be added
that in the event that a new owner fails to complete or
submit the relevant Form, the sale transaction between
the vendor and the new owner would not, by virtue of
that fact, be rendered void. And even if it did, title
to the vehicle would and should revert to the original
owner, in this case International Automobile Ltd., and
not enure for the benefit of a third party who is a
total stranger to the transaction, in this case the
Judgment Debtor, Mauro Comazzi or his wife so as to make
it possible for the Plaintiff/Judgement Creditor to
cause it to be attached.
I share the submission
of learned Counsel for the Appellants that registration
of a vehicle per se is not a conclusive proof of
ownership. For if that were so, then a thief who stole
my car and successfully registered it in compliance with
L.I.953 would, a fortiori, acquire an indefeasible title
to it. That would be absolutely preposterous, manifestly
wrong and patently unjust. An injustice anywhere is a
threat to justice everywhere.
Indeed, the
blameworthiness, if any, for the non-registration of the
vehicle in this case, cannot in all fairness,
exclusively be visited upon the Claimant/Appellant.
It is not disputed that
the vehicle was originally imported into Ghana by
International Automobile Ltd who owned it until it was
sold to the Appellant. On the 17/6/97, an employee of
the Sales Department of International Automobile Ltd
deposed to and filed an affidavit (Exh KD4) in support
of the company's original ownership of the Fiat Tempra
Saloon car in question, originally registered as EB 7939
and later as GR 6333 B (for reason obvious from the
record of proceedings).
The said affidavit was
quite emphatic as to who was the true owner of the
vehicle. It states among other things, that "The said
vehicle was sold to De Simone Limited in 1995..."
(Paragraph 4) and that "the truth of the matter is that
the new owners of the vehicle are De Simone Ltd" (Para
5).
The said affidavit
concludes:
"Wherefore I swear to
this affidavit confirming that the company,
(International Automobile Ltd), has no proprietary
interest in the Fiat Tempra Car GR 6333B and that to my
knowledge, information and belief the true owners of the
car are De Simone Ltd." The appellants.
This is clear
unambiguous and unequivocal evidence in support of the
claim to ownership of the vehicle by De Simone Ltd., as
contained in their affidavit sworn to by the Assistant
Managing Director filed on the 2/5/97 (Exhibit KDB2).
The said affidavit
states, inter alia, that "De Simone Ltd are the owners
of the Fiat Tempra Saloon No. GR 6333B..." and that "The
said car was purchased from International Automobile
Limited, which imported it into Ghana and was at the
time of the purchase registered in the name of the
importers..."
It goes on to state
that "after the purchase of the car by De Simone Ltd,
the vendors wrote to the Vehicle Licensing Office
requesting that the registration particulars be amended
to reflect the new ownership, Exh. K.D 1. A fee of
¢20,000 was paid to the Licensing Office in respect of
the car on 1-6-95 and receipt issued to De Simone the
purchaser Exh. K.D2. De Simone Ltd also subsequently
took out an insurance policy in respect of the car (Exh.
KD3) long before the purported attachment.
It seems incredibly odd
that a Limited Liability Company like International
Automobile Ltd would make such a declaration against
their interest in an affidavit in support of another
party's claim to ownership of a property which they
might have claimed for themselves on the basis that it
was still registered in their name as rightful owners
who imported it from abroad.
Be that as it may, it
is difficult to find a shred of good credible evidence
in support of the assertion that the vehicle belonged to
the Judgment Debtor, which is the thrust of the
Respondent's argument, by virtue merely of the fact that
it was being driven by or in the possession of, the wife
of the Defendant.
With respect, this view
does not enjoy any substantial judicial support, and
appears to be an illegitimate extension of the law of
ownership. There are at least two further cases in
point, although only of persuasive authority, since they
are both of foreign jurisdictions.
In Dennant V. Skinner
1948 2KB. 184 the Plaintiff sold a car by public
auction. The buyer wanted to pay by cheque and take the
car. The Plaintiff was only prepared to agree if the
buyer signed a document stating that property in the car
would not pass until the cheque was cleared. The buyer
signed the document, took the car away and sold it to
the Defendant! However the cheque was not met or
honoured.
It was held that the
expression of intention came too late and that the
property in the car had passed to the buyer upon
conclusion of the sale, but before the document was
signed by the buyer. Therefore, the buyer had good title
which was passed to the Defendant. The Plaintiff could
not recover the car from either the buyer or the
Defendant, but was left with his remedy against the
buyer for the recovery of the purchase price. Thus in
this case even the International Automobile Ltd, the
original owners, cannot reclaim the vehicle from De
Simone Ltd the Claimant, let alone the
Plaintiff/Judgment Creditor.
I think this case can
claim primacy as a determinant of when property passes,
in addition to, but not in lieu of, the statutory
provisions.
Yet, another ground for
hesitation for inclusion of this case in the fabric of
ownership is that it tends to subvert the doctrine of
ownership itself.
The maxim "Nemo dat
quod habet" is not irrelevant here. As a matter of fact
the principle is neatly illustrated by the case of CAR
vrs. UNIVERSAL FINANCE CO. LTD. 1964 ALL E.R. 290 where
it was held that even where sale of a car was voidable
and the owner took appropriate and timely steps to avoid
the sale the purchaser could not pass a valid title to
an innocent third party. The inescapable conclusion is
that even if the sale to the claimant were for any
reason to be regarded as void or voidable the property
in the car would revert to the International Automobile
Ltd (who support the claimant) and not to the
Defendant/Judgment Debtor who has never staked any
serious claim to the car in question.
It is trite Law that
"Property" and "physical possession" are entirely
distinctive and conceptually different as far as the law
is concerned.
Physical possession
could in some instances mature to ownership as a result
of a series of deliberate actions unequivocally
referable to the exercise over a period of time of the
rights of ownership. That, however, is palpably not the
case here.
The Respondents have
strenuously sought to establish that the claimants are
not the owners of the vehicle, but have stopped short of
asserting serious ownership in favour of the Judgment
Debtor.
Indeed, at paragraph 10
of the affidavit filed on their behalf by Patrick Yaw
Osei a solicitors clerk, the Judgment Creditors
(Christian Health Association of Accra) state that "The
owner of the Fiat Tempra with registration No. GR 6333B
at the time of the execution in February 1997 was
according to the records at the Vehicle Examination and
Licensing Division of the Ministry of Transport and
Communications, International Automobile Ltd."
Moreover, I am unable
to find any evidence in support of the allegation of
collusion.
The allusion to the
possibility of collusion is at best based on suspicion
if not on speculation, bearing in mind that collusion is
normally a secret agreement or co-operation for fraud or
deceit.
It goes without saying
that the attempts by International Automobile Ltd, the
original owners, to transfer the car to De Simone Ltd.,
the purchasers and claimants in this case, were made
well before the Plaintiff/Judgement Creditors obtained a
final judgement against the Judgement Debtor in December
1996 under Order 14 Rule 11 of L.I. 1129—see for example
De Simone's insurance policy taken out on 04/04/96,
following the letter of transfer dated the 18th April,
1995. On the facts the evidence of collusion is
extremely slim indeed.
It is true that the
claimant has to win by the strength of his own case and
not by the weakness of the defence; In this case one
cannot ignore, as already indicated, the weight to be
attached to:
(i) The Affidavit of
Kofi Debrah, Assistant Managing Director of De Simone
Ltd. Exh. KDB 2 (p. 35 of the Record of Appeal)
confirming the sale of the car to the
Claimant/Appellant.
(ii) The Plaintiffs own
affidavit of the 16th May 1997 (which appears to be an
own goal" to the effect that International Automobile
was the owner of the vehicle "at the time of execution
in February, 1997". It is important to note that the
Defendant/Judgment Debtor was not alleged to be the
owner with any degree of seriousness.
(iii) The Insurance
Certificate Exh. KD3 (Page 8) dated 4/4/96 in the name
of the Claimant De Simone Ltd, not the Judgment Debtor.
De Simone Ltd having acquired it from International
Automobile Ltd., according to the evidence.
(iv) The Transfer
Receipt dated 1-6-95 for ¢20,000 in the name of De
Simone Ltd. Exh. KD.2 Page 7, issued by the Vehicle
Examination & Licensing Division; to my mind the
interpretation of this document is quite clear in the
particular circumstances of this case.
(v) The Transfer letter
dated the 18th April 1995 sent by International
Automobile Ltd. to the Licensing office—Exh. KD 1 (Page
6 of the Record) in favour of De Simone Ltd.
(vi) Form A submitted
to Vehicle Examination and Licensing Division on or
about 24/12/95 by International Automobile Ltd, the
original owners of the car.
These documents are
self-explanatory and call for no detailed analysis. In
their totality, together with all the surrounding
circumstances, they definitely tilt the balance in
favour of the Claimant/Appellant.
Thus, in my view, the
learned trial judge, on the facts of this case, erred in
law, in holding that "the combined effect of section 26
and section 48 of the Evidence Decree 1975 (NRCD.323) is
that the vehicle NO.GR 6333B which was attached belongs
to the Defendant/Judgement Debtor". For reasons given
above, I disagree.
Finally, in all the
circumstances, it is right that the Interpleader Summons
be treated summarily. It would really be pointless,
indeed an exercise in futility, to order pleadings in
such a case.
In the result, I hold
that the FIAT TEMPRA SALOON CAR NO. GR 6333B belongs,
and at all material times belongs, to the Claimant
Appellant as claimed. It is therefore, ordered that the
said car be released from attachment.
The appeal is
accordingly allowed, and the Ruling of the High Court,
Accra, dated the 31st July, 1997 including the Order as
to costs, is set aside.
Judgment is entered for
the Claimant/Appellants. The Claimant/Appellants will
have the costs of this appeal fixed at ¢1,000,000.00
(One Million Cedis) court below to carry out. Appeal
allowed.
P. K. OWUSU-ANSAH
JUSTICE OF APPEAL
ESSILFIE-BONDZIE, JA.:
I agree
A. A ESSILFIE-BONDZIE
JUSTICE OF APPEAL.
AFREH, JA.:
I also agree
D. K. AFREH
JUSTICE OF APPEAL.
COUNSEL
S. K. AMOAH for the
Claimant/Appellants
A. NARVPR for the
Plaintiff/J/C/ Appellant. |
