Appeal Court. 30 April.
1935.Appeal from Divisional
Court.
Damages
for unlawful attachment-Strict
proof of special damage Loss of
reputation as trader must be
proved as special damage Award
of damages at variance with the
finding-Loss of profits due to
Court's Order not to Appellant's
unlawful act.
Held: Appeal allowed. Remitted
to Court below for reassessment
of damages.
The facts of this case are
sufficiently set out in the
judgment.
E. O. Asafu-Adjaye
for Appellant.
S. P. Dove
(with him
B. K. Tamakloe)
for Respondent.
The following judgment was
delivered :-
PETRIDES, C.J., GOLD COAST.
This is an appeal from a
judgment of the Divisional Court
held at Kumasi whereby the
respondent was awarded £400
special and £50 general damages
in respect of an attachment of
plaintiff's stockin-trade and
furniture which the learned
trial Judge found had been
illegally made.
From the Appeal Record it
appears that on the 29th
October, 1934, the appellant, by
his attorney, G. B. Moukarzel,
issued a writ of summons in the
Police (now District)
Magistrate's Court in Kumasi
against the respondent for the
recovery of the sum of £33 9s.
1d. The next day Mr.
Asafu-Adjaye, Counsel on behalf
of appellant, moved the
Magistrate's Court praying the
Court to call upon respondent
to furnish security to fulfil
any decree that might be made
against the respondent in that
suit, and on his failing to give
such security to direct that the
goods in the defendant's store
situate at Kumasi in the
premises of S. D. Karam & Sons
be attached until further order
of the Court, and for any other
order or orders as to the Court
might seem meet. The Court
thereupon ordered as follows :-
" Let this Motion be heard on
notice. In the meantime there
will be an Interim Injunction
restraining the defendant or his
agents from disposing of in any
manner the defendant's goods now
lying in the defendant's store
situate at Kumasi in the
premises of S. D. Karam & Sons.
"Hearing date: November 9th,
1934."
The Registrar prepared a
certified copy of the
application and order (Exhibit "
C") for service and instructed
the bailiff to take. an
inventory of the stock. The
bailiff, accompanied by the
Sheriff's clerk and Moukarzel,
then went to the store. There
the Sheriff's clerk served
Exhibit" C " on Choitram, the
respondent's representative
who was in charge of the store,
and told him that he wanted to
take the inventory and after
that was taken he (Choitram)
would be responsible for the
stock· and that he was not to
sell any of it. Choitram
apparently refused to accept
responsibility for the stock,
and the Sheriff's clerk then
sent the bailiff to report to
the Registrar. The bailiff saw
the Police Magistrate, who
thereupon made an order,
Exhibit" B," which is in the
following terms :-
•• Whereas an Order dated at
Kumasi the 30th day of October,
1934, has been issued under the
hand of His Worship B. D. Austin
Cathie, Esq., B.L., Acting
Police Magistrate, at the
instance of the plaintiff for
the attachment of the movable
property of the defendant, W.
Mougrabi, in the above-named
suit the said defendant is
hereby prohibited from
alienating the property below
mentioned by sale, gift or in
any other way and all persons
are hereby prohibited from
receiving the said property by
purchase, gift or otherwise
that is to say :
•• Goods in a store situate at
Kingsway Street in the premises
of S. D. Karam & Sons belonging
to the above-named defendant .
•• Dated at Kumasi this 30th day
of October, 1934 .
.• (Sgd.) AUSTIN CATHIE,
.• Sheriff,
•• Acting Police Magistrate."
Exhibit " B " was posted on the
door and the inventory
commenced that day and
completed the next in the
presence of Choitram and
Moukarzel or his clerk.
On the 15th. December the matter
came up before the Magistrate,
Mr. Gregg, on an application by
appellant's Counsel-at the
hearing of this application Mr.
Idun applied on behalf of
respondent to set aside Mr.
Cathie's order. The Court's
order was in the following terms
:-
.. By
Court:
.• On hearing of Mr. Adjaye's
application, order at page 157
expires automatically .
•• In view of the short period
left up until hearing date I do
not see it would be any great
hardship on the defendant to
continue attachment or to
require security and attachment
in lieu thereof .
.. Security to be furnished to
satisfaction of plaintiff in the
sum of £50 failing this
attachment to issue against
goods mentioned in affidavit .
.• Costs to be costs in the
cause."
On the 29th January, 1935, Mr.
Gregg gave judgment on the
appellant's claim for £33 9s.
1d., awarding him £13 18s. with
costs. The amount of judgment
was paid, but not the costs, and
on the 3rd February a writ of
Fi:Fa: was granted in respect
thereof. On the 29th February
the goods were handed over to a
licensed auctioneer with
instructions to sell sufficient
goods to cover the costs which
apparently amounted to £41. The
auctioneer sold sufficient goods
to realise £49, and the
remainder of the goods were
still in his possession when the
action was commenced.
By his writ dated the 25th
February, 1935, the respondent
alleged that on the 30th
October, 1934, the defendant, by
his servant and agent, G. B.
Moukarzel, with his agent the
Sheriff's Officer, broke and
entered the plaintiff's store
and seized the furniture,
stock-in-trade and effects of
the plaintiff contained therein
and deprived him of these things
and the profits thereof from the
30th October, 1934, to the 3rd
day of February, 1935, and the
use of the store up to the
commencement of that action. By
this writ plaintiff claimed £700
damages, whereof he says
(a)
£400 was the value of the goods
missing from the store, which at
the time of the wrongful acts
complained of contained goods to
the value of £500 and
(b)
£300 was general damage.
The learned trial Judge held
that :-
(a)
The order as to the interim
injunction (Exhibit" C ") was
clearly illegal: the applicant
did not ask for this order, and
the mere fact that he asked for"
any other order or orders" could
not, in the Judge's opinion,
justify the grant of an interim
injunction in the circumstances
and the Magistrate could not
base hi~ order on Order 5, Rule
3 (old Supreme Court Rules), as
that rule only applied in the
absence of any special rules to
guide it in dealing with the
motion; that such rules did
exist in Order 13, which dealt
with interim attachment of
property.
(b)
There was a notice purporting to
be an order of attachment but
that in the Judge's opinion
there was no legal foundation
for this and it was therefore
illegal.
(c)
The defendant or his attorney
Moukarzel was responsible for
the illegal attachment as he
knew that he had not obtained an
order to attach the goods in the
store, and that the so-called
attachment order was brought to
the store and upon which the
store was sealed was not in
order, as the Magistrate could(
not possibly vary the Interim
Injunction Order unless and
until the Court had been moved
in the proper way-with all these
facts within his knowledge he
adopted everything that was:
done by the Sheriff's Officer in
the store.
Having come to the conclusion
that the attachment made was
illegal and the applicant was
responsible for it and was
therefore liable to the
respondent, he proceeded to
consider the question 0 damages.
He found that the value of the
goods seized was £411 14s. 2d.
at the date of attachment, 29th
October, 1934, and that none of
these had disappeared when they
were handed over to the
auctioneer in January, 1935, but
that they had very much depre
dated in value by remaining in a
locked store from October 193·
to January, 1935. He came to the
conclusion that the unsold stock
could be of no use to Mougrabi,
who had been deprived of it a
date of judgment for nearly
twelve months and that the
respondent had therefore
suffered special damage to the
extent of the value c the goods
in his store, but as he had
claimed only £400 on his writs
as special damage he could only
award him £400 damage under that
head. As regards general
damages, he held that the
respondent' reputation as a
trader in Kumasi had been
damaged and awarded him £50
general damages. He accordingly
gave judgment for the plaintiff
for £400 as special damages and
£50 as general damages.
Whatever the effect of the
orders of the 30th October was
it did not entitle the Sheriff
to enter upon the premises of
the respondent, take an
inventory of the goods and seal
the premises and deprive the
respondent of the use thereof.
It is clear that he has acted
illegally. The old Order XLIV,
Rule 16, of the Rules of the
Supreme Court rendered the
person prosecuting the decree
liable to any damages arising
from any illegal or irregular
proceedings taken at his
instance. The only question we
have therefore to consider is
what damages was the respondent
entitled to for the wrongful act
committed.
The plaintiff is clearly not
entitled to the special damages
of £400 which he claims in
respect of goods said to be
missing, as the Judge has
clearly found that none were
missing.
There remains to consider what
sum he is entitled to by way of
general damages. Under this head
he claims £300 and the Judge has
awarded him £50 on the ground
that his reputation as a trader
was damaged. Now loss of
reputation is in our opinion
special damage which must be
specially claimed, for the
appellant could not be expected
to come to the trial prepared to
meet such a claim unless he had
notice thereof. (See
Mayne on Damages,
10th Edition, pp. 553
et seq.)
No claim for special damages for
loss of reputation as a trader
having been made, we hold he was
entitled to nothing under that
head.
In considering what general
damages respondent suffered we
have to take into account that
by the second order made on the
30th October the respondent was
prohibited from alienating the
goods in his store. This order
was in the nature of an
injunction, and in the opinion
of this Court was binding on the
appellant until set aside, and
until then the respondent would
have been guilty of contempt if
he had disobeyed it. While this
order was in force, and it must
be observed it was never
cancelled, the respondent was
prevented by an effective order
of Court from disposing of his
goods and thus earning a profit:
it follows therefore that the
loss of profits was due not to
the appellant's unlawful act,
but to the Court's order. In
these circumstances we consider
that the respondent is not
entitled to damages under that
head.
The respondent has claimed
general damages in respect of
his having been wrongfully
deprived of his furniture,
stock-in-trade, goods and
effects from the 30th October,
1934, to the 3rd February, 1935,
and the use of his store to the
3rd February, 1935, and is
clearly entitled to damages
under this head.
We allow the appeal with costs
and remit the action to the
Court below to assess general
damages in the light of the
foregoing, taking into account
the extent to which the goods
have depredated during the
period from the 30th October,
1934, to the 3rd of February
1935, and bearing in mind that
the claim for general damages is
limited to £300. -B
