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Contract –
Agreement - Mortgage transaction
- Documents unlawfully detained
– Damages – Sale of goods -
unpaid seller - Lien on the
goods - Whether or not that the
four documents were deposited
for the supply of flour -
Section 3 (i) (b) of the
Mortgages Decree, 1972, (NRCD
96) - Sale of Goods Act 1963,
Act 137
HEADNOTES
The plaintiff
company was a registered
distributor of flour supplied by
the defendant company and it
surrendered additional documents
to the defendant company,
pursuant to a supposed
mortgage
transaction they entered
into, so as to secure payment
for the increase in the supply
of flour to the plaintiff
company. However, the defendant
company did not supply
additional quantities of flour
to the plaintiff as presumably
envisaged because the plaintiff
was already indebted to the
defendant. When the plaintiff
company demanded the demanded
the return of its documents the
defendant refused to do so. the
plaintiff sued the defendant for
the return of documents
unlawfully detained by the
defendant. defendant pleaded and
gave evidence that it had
surrendered the documents to the
plaintiff when it obtained
judgment for the recovery of the
debt owed it by the plaintiff.
The substance of the present
suit was the recovery of one of
the documents surrendered to the
defendant but which was not
returned to the plaintiff
company when the defendant
returned the others to it, the
High Court entered judgment in
favour of the defendant company
The plaintiff was dissatisfied
with the judgment and appealed
to the Court of Appeal, which
affirmed the judgment of the
High Court and dismissed the
appeal before it. The defendant
once again appealed to this
court
HELD
The court
proceeded further to mention
three such blunders, as error on
the face of a crucial
documentary evidence, and
finally, “the finding is so
based on erroneous proposition
of law, that if that proposition
be corrected the finding
disappears”. It is important to
point out that the establishment
of a blunder or error per se is
not enough. It must further be
established that the said error
has led to a miscarriage of
justice. We do not think the
appellant herein discharged the
burden on him or passed the test
in the case cited so as to
warrant the findings of fact and
the principles of law applied by
the lower courts, to be
interfered with or set aside in
this appeal. We rather affirm
all of them and dismiss all
grounds of appeal, original and
or additional. For all the
foregoing, the judgment of the
Court of Appeal is affirmed and
the appeal dismissed.
STATUTES
REFERRED TO IN JUDGMENT
Mortgages
Decree, 1972, (NRCD 96).
Evidence Act,
1975,
CASES
REFERRED TO IN JUDGMENT
Achoro v
Akanfela [1996-97] SCGLR 209
BOOKS
REFERRED TO IN JUDGMENT
Osborn’s
Concise Law Dictionary, Eighth
Edition
Snell’s
Principles of Equity,
Twenty-Seventh Edition
Halsbury’s
Laws of England 4th
Edition Volume 28 paragraph 502
DELIVERING
THE LEADING JUDGMENT
ARYEETEY, JSC
COUNSEL
LADY EILEEN
ERSKIN FOR THE PLAINTIFF/
APPELANT/ APPELANT.
CYNTHIA ADWOA
OPARE FOR THE DEFENDANT/
RESPONDENT/ RESPONDENT.
______________________________________________________________________
J U D G M
E N T
______________________________________________________________________
ARYEETEY, JSC
The plaintiff
company was a registered
distributor of flour supplied by
the defendant company and it
surrendered additional documents
to the defendant company,
pursuant to a supposed mortgage
transaction they entered into,
so as to secure payment for the
increase in the supply of flour
to the plaintiff company.
However, the
defendant company did not supply
additional quantities of flour
to the plaintiff as presumably
envisaged because the plaintiff
was already indebted to the
defendant. When the plaintiff
company demanded the demanded
the return of its documents the
defendant refused to do so.
Therefore, for his remedy, as
per his amended writ of summons,
the plaintiff sued the defendant
for following reliefs:
a)
The
return of the following
documents unlawfully detained by
the defendant.
i)
Document No.B3289 registered as
document No. 89/43 relating to
House Number 327/1 Ashanti Road,
Cape Coast, executed between E.C
Wryter and Elizabeth Derby and
her children.
ii)
Uncompleted House No. GHWA4 on
Plot No.3 documented as CR 71/95
and stamped as LVB/CR/1331A/95
in the name of Bontena Ltd Green
Hill, Cape Coast.
iii)
Document No. 70A/95 stamped as
LVB/1330-1330A/95/ Plot No. 12 A
situated at Green Hill Cape
Coast in the name of Bontena
Ltd.
iv)
Document No. CCT682/83 stamped
as LVB/CR/633A-633A/94 on Plot
Nos. 96, 97, 98, 99, and 1090 at
Elwn.
b)
Damages
for unlawful
detention of the documents of
the Plaintiff mentioned supra,
to be determined or calculated
as at the date of judgment.
The
defendant
pleaded and gave evidence that
it had surrendered the documents
to the plaintiff when it
obtained judgment for the
recovery of the debt owed it by
the plaintiff.
The substance
of the present suit at the High
Court was the recovery of one of
the documents surrendered to the
defendant but which was not
returned to the plaintiff
company when the defendant
returned the others to it,
namely the original of document,
No. G27/1, Ashanti Road, Cape
Coast. In actual fact the
defendant company did return a
certified true copy of that
document to the plaintiff
company and not the original
one. At the end of a trial,
the High
Court, Sekondi, presided over by
His Lordship Mr. Justice Anthony
Oppong, entered judgment in
favour of the defendant company,
in a well reasoned judgment.
The plaintiff
was dissatisfied with the
judgment and appealed to the
Court of Appeal, which affirmed
the judgment of the High Court
and dismissed the appeal before
it. The defendant once again
appealed to this court
on the
original grounds that:
“i. The
finding that the defendants
promptly returned the four
documents to the plaintiff is
not supported by evidence on
record.
ii. The Court
of Appeal failed adequately or
at all to consider the loss to
the plaintiff/appellant of the
continued retention of the
appellant’s title.
iii. The
Court of Appeal erroneously
applied
Section 3 (i) (b) of the
Mortgages Decree, 1972, (NRCD
96).
iv. The
conclusion of the Court of
Appeal to the effect that the
continued retention of the
appellant’s documents is
inconsistent with its finding
that “the defendant promptly
returned the four documents to
the plaintiff.”
Pursuant to
leave granted by this court on
11/01/11 the plaintiff filed
additional grounds of appeal on
14/1/11, namely:
“1. That the
holding that the plaintiff
deposited the four documents in
addition to the previous two to
secure the payment of debt
arising out of flour supplied to
her by the defendant on credit
is not borne out from the
evidence.
2. That the
Court failed to adequately or at
all to (sic) consider the case
of the plaintiff/appellant that
the four documents the subject
of this appeal were deposited in
anticipation of future supply
and not in respect of flour
already supplied.
3. The
holding that the plaintiff’s
complaint for the production of
the original document forwarded
to the defendant/respondent is a
moot one is erroneous in law.
4. That the
Court of Appeal erred in law
when it held that a certified
true copy satisfies the
requirement of the law having
regard to the peculiar
circumstances of the case and
the provisions of Section 10(3)
of the Mortgages Decree NRCD
96.”
The plaintiff
is hereafter called the
appellant and the defendant the
respondent in this opinion. It
was trite learning that an
appeal to this court is by way
of rehearing.
The Court of
Appeal affirmed the findings of
the High Court that the
appellant charged their title
documents covering the
properties as security for the
due repayment of the cost of the
flour supplied to them, and that
there was justification for
their retention as long as there
was debt due and owing to the
respondent.
There is
evidence that the respondent had
to take action in court for the
recovery of debts owed it by the
appellant successfully. The
appellant had to settle the
judgment debt by instalment
payments. The appellant pleaded
in their statement of claim that
it forwarded the four documents
to the respondent company with a
view to contracting for the
supply of flour. The evidence of
the appellant’s sole witness at
the trial in his viva voce
evidence was that the appellant
company mortgaged first, two
documents of a property upon the
value of which the respondent
supplied it with goods. Later
they were increased to four so
that extra supply could be made
in its favour.
The
appellant’s own evidence led
through its representative, the
Operations Director, Mr. Peter
Stephen Wryter, was that when
the respondent stopped supplying
the appellant flour, the latter
owed the respondent for supply
made earlier, in respect of
which the two documents had been
mortgaged. Apparently, the extra
supply of flour could not be
made since the debt owed to the
respondent had not been
discharged. In fact there was
evidence that the appellant
company was sued for the
recovery of that debt
successfully. It became
reasonable that all documents
surrendered by the appellant to
the respondent were in respect
of the debt that arose from the
supply of flour but not in
respect of the agreement for the
supply that was never made.
The trial
High Court and the Court of
Appeal were right in finding
that the
four documents were deposited
for the supply of flour. In
the result, grounds i and ii of
the original grounds of appeal
fail and are therefore
dismissed.
Grounds 1.
and 2 the additional grounds of
appeal do not merit any lengthy
consideration; the reason is
that there was ample evidence
that the respondent retained the
documents and sued successfully
for the recovery of the debt
owed and before the appellant
paid the debt in full by
instalments. Under
cross-examination the appellant
said through its representative
that the final instalment was
made in November 2001 and that
very month five of the documents
were released to them albeit
except the original 89/43.
There was no
gainsaying that the evidence was
clear the respondent retained
the documents for the appellant
owed in payment of flour
supplied to it. The respondent
sued for the recovery of the sum
owed and the appellant paid the
debt by paying in instalments;
when the last instalment was
paid in November 2001, the
respondent released the
originals of the documents with
the exception of one of them
that very month.
That meant
they were released ‘promptly’ or
as soon as the sum owed was paid
in full in the last installment.
That was how the judgment of the
Court of Appeal is to be
understood. In conclusion
grounds (i) and (iv) of appeal
carry no weight and are
dismissed. The respondent’s
supply of flour to the appellant
was terminated in 1998. It was
not until November 1999 that the
documents were returned to the
appellants. That was because the
appellant had been indebted to
the respondent. the respondent
owed a duty to pay the
respondent for goods supplied
him; the respondent was an
unpaid
seller in terms of the law
on the
sale of goods. As such
unpaid seller one of his
remedies under the law in the
Sale of
Goods Act 1963, Act 137, was
that he had a
lien on
the goods and he may retain
their possession until payment
or tender of the price; see
Section 36 (1) of the Act for
analogy.
‘‘A lien is
the right to hold property of
another for the performance of
an obligation. A common law lien
lasts only so long as possession
is retained. A possessory lien
is the right of the creditor to
retain possession of the
debtor’s property until his debt
has been satisfied. A particular
lien exists only as a security
for the particular debt
incurred; while a general lien
is available as a security for
all debts arising out of similar
transaction between the
parties…A charging lien is the
right to charge property in
another’s possession with the
payment of a debt or the
performance of a duty’’:
see
Osborn’s
Concise Law Dictionary, Eighth
Edition at page 202,
(emphasis supplied.) and also
Snell’s
Principles of Equity,
Twenty-Seventh Edition, 438.
The trial judge relied on the
definition of a lien as provided
for in
Halsbury’s Laws of England 4th
Edition Volume 28 paragraph 502
at page 221 that:
“Lien in
its primary or legal sense is a
right in one man to retain that
which is rightfully and
continuously in his possession
belonging to another until the
present and the accrued claim of
the person in possession are
satisfied. In this primary sense
it is given by law and not by
contract.”
Thus, on the
evidence on record, so long as a
debt existed on the earlier
transaction between the parties
herein, the respondent had the
general lien over the documents
surrendered to the respondent,
till all debts due and owing by
the appellant were
satisfied.
In the result
there was ample reason to affirm
the Court of Appeal in its
holding that the retention of
the documents by the respondent
was lawful for the respondent
exercised a right of lien over
them.
The
appellant made capital of the
fact that a document was not
returned as the original that it
was when it was first deposited;
it was a certified true copy
that was returned. Therefore the
respondent failed to return the
documents ‘in whole, undefaced
or lost.’
The
appellant did not mince his
words when he submitted there
was no evidence the document was
lost. It did not raise any issue
that it was not what was given
to the respondent, or that the
contents had changed in any way.
Under Section 166 of the
Evidence
Act, 1975,
‘‘A
duplicate of a writing is
admissible to the same extent as
an original, unless
a)
genuine question is raised as to
the authenticity of the original
or the duplicate, or
b)
in the
circumstance it would be unfair
to admit the duplicate in lieu
of the original.”
The appellant
did not show in the least it
would be unfair to admit the
duplicate or certified true copy
of what was surrendered to it by
the respondent. The duplicate or
certified true copy was rightly
held to be treated as original
by the Court of Appeal.
That ground
of appeal is also accordingly
dismissed.
Considering
the record as a whole it was
clear the Court of Appeal
concurred with the findings of
facts and conclusions of law by
the trial High Court. The law on
situations such as obtained in
this case has been stated
several times over by this court
and must be repeated only for
emphasis that:
The principle
governing appeals against
concurrent findings of fact as
in the instant case, had been
stated and re-stated on a number
of occasions in this court. In a
recent unanimous decision in a
chieftaincy appeal,
Achoro v
Akanfela delivered on 9 July
1996 and reported in [1996-97]
SCGLR 209, ante, Acquah, as
he then was, JSC at 214-215
said:
” … in an
appeal against findings of fact
to a second appellate court,
like this court, where the lower
appellate court had concurred in
the findings of the trial court,
…. this court will not interfere
with the concurrent findings of
the lower courts unless it is
established with absolute
clearness that some blunder or
error resulting in a miscarriage
of justice, is apparent in the
way in which the lower tribunals
had dealt with the facts”.
The court
proceeded further to mention
three such blunders, as error on
the face of a crucial
documentary evidence, and
finally, “the finding is so
based on erroneous proposition
of law, that if that proposition
be corrected the finding
disappears”. It is important to
point out that the establishment
of a blunder or error per se is
not enough. It must further be
established that the said error
has led to a miscarriage of
justice.
We do not
think the appellant herein
discharged the burden on him or
passed the test in the case
cited so as to warrant the
findings of fact and the
principles of law applied by the
lower courts, to be interfered
with or set aside in this
appeal. We rather affirm all of
them and dismiss all grounds of
appeal, original and or
additional.
For all the
foregoing, the judgment of the
Court of Appeal is affirmed and
the appeal dismissed.
(SGD) B. T.
ARYEETEY
JUSTICE OF THE SUPREME COURT
(SGD) W.
A. ATUGUBA
JUSTICE OF
THE SUPREME COURT
(SGD) DR.
S. K. DATE-BAH
JUSTICE OF
THE SUPREME COURT
(SGD) J. ANSAH
JUSTICE OF
THE SUPREME COURT
(SGD) P.
BAFFOE-BONNIE
JUSTICE OF THE SUPREME
COURT
COUNSEL:
LADY EILEEN
ERSKIN FOR THE PLAINTIFF/
APPELANT/ APPELANT.
CYNTHIA ADWOA
OPARE FOR THE DEFENDANT/
RESPONDENT/ RESPONDENT |
