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Loan –
Default in repayment - Execution
– Attachment and sizer of
property in matrimonial home –
Damages for wrongful detention -
Special damages – General
damages - Tort of detinue -
Whether or not the consequence
of the sizer, plaintiff has
suffered loss and damage -
Whether or not the defendant is
liable for damages for loss of
use of the vehicle and the
refrigerator - Section 17 (1)
and (2) of the Evidence Act,
1975 NRCD 323.
HEADNOTES
The wife of
the plaintiff, defaulted in the
repayment of loans he took from
the defendant. As a result of
this default, the defendants
instituted action against the
wife of the plaintiff and
obtained judgment against her.
It was in the course of the
execution of the judgment that
the defendants caused the Deputy
Sheriff to attach items which
belonged to the plaintiff from
their matrimonial home. The
items of property seized from
the plaintiff were a Mitsubishi
car and a deep freezer.
Following the failure of the
defendants to return the said
items to the plaintiff upon
repeated demands, the plaintiff
instituted an action in the High
Court against the defendants.
the trial High Court delivered
judgment in favour of the
plaintiff Being aggrieved and
dissatisfied with the level of
damages awarded for the loss of
use, the plaintiff appealed to
the Court of Appeal. The appeal
was dismissed and it was held
that damages for loss of use of
a chattel are special damages
and must be strictly pleaded and
proven
HELD
An appeal
generally is by way of
re-hearing of a case. We are
therefore of the considered view
that, applying the principles on
Detinue as a tort, the plaintiff
herein was legitimately entitled
to replacement value of the
chattels, to wit the
refrigerator and the motor car
for wrongful seizure. On the
same principles, the plaintiff
should not have been entitled to
damages for loss of use of the
chattels as he did not establish
that any damage was caused to
the chattels. On the
contrary, we are of the view
that, the plaintiff should have
claimed damages for wrongful
detention of his chattels, i.e.
damages in detinue and not the
loss of use of the chattels.
In order not to completely
change the tenor of the award of
damages, we would not pursue
that course of conduct but stick
to the following decisions. In
the result, the appeal herein is
dismissed, save for the
following orders:-The damages
for loss of use of the car and
the refrigerator awarded by the
trial and appeal court to the
plaintiff are extended to
include all Saturdays, Sundays
and public holidays during the
period. The said amounts are not
to be taxed.
STATUTES
REFERRED TO IN JUDGMENT
Evidence Act,
1975 NRCD 323.
CASES
REFERRED TO IN JUDGMENT
SCM v.
Whittall [1971] AC 337
The owners of
the steamship “Median A"
and
'the
owners,
master and
crew of the lightship "comet The Mediana a [1900] AC 113
the owners of
no.7 steam sand pump dredger and
the owners of ss Greta Holme
the" Greta Holme[1897] AC 596
Admiralty v.
SS Cheskiang [1926] AC 665
Norgbey & Anr
v Asante & Anr [1992] 1 GLR 506,
Yirenkyi v
Tarzan International Transport
[1962] 1 GLR 75
Chahin and
Sons v Epope Printing Press
[1963] 1 GLR 163 at 168
Tuakwa v
Bosom [2001-2002] SCGLR 61.
BOOKS
REFERRED TO IN JUDGMENT
Halsbury’s
Laws of England (5th
Ed., 1975) volume 12 para 1416.
Salmond and
Heuston on the Law of Torts (19th
Ed.).
Textbook on
Torts (8th Ed.) M.A.
Jones
DELIVERING
THE LEADING JUDGMENT
DOTSE JSC:
COUNSEL
JAMES
AHENKORAH FOR THE APELLANT.
KWAKU ANSA-
ASARE FOR THE REPONDENT.
___________________________________________________________________________________
J U D G M E N T
___________________________________________________________________________________
DOTSE JSC:
The facts in
this appeal admit of no
controversy whatsoever. The wife
of the
plaintiff/appellant/appellant,
hereinafter referred to as the
plaintiff, defaulted in the
repayment of loans he took from
the
defendants/respondents/respondent
hereinafter referred to as the
defendant. As a result of this
default, the defendants
instituted action against the
wife of the plaintiff and
obtained judgment against her.
It was in the
course of the execution of the
judgment that the defendants
caused the Deputy Sheriff to
attach items which belonged to
the plaintiff from their
matrimonial home. The items of
property seized from the
plaintiff were a Mitsubishi car
and a deep freezer. Following
the failure of the defendants to
return the said items to the
plaintiff upon repeated demands,
the plaintiff instituted an
action in the High Court against
the defendants. In view of the
issues raised in this appeal,
which hinged on what constitutes
General and Special damages, it
is considered worthwhile to
produce in detail the entire
reliefs that the plaintiff
claimed against the defendants.
“Delivery up
of Mitsubishi Saloon car with
registration number GR 9185 G
unlawfully caused by the
defendants to be seized by the
Sheriff or the value of the said
car and damages for its
detention. Delivery up of one
refrigerator unlawfully caused
by the defendants to be seized
by the Sheriff on execution or
the value thereof and damages
for its detention.”
In a
supporting statement of claim,
the plaintiff provided the
particulars of damages in
paragraph 4 of the statement of
claim as follows:
“The
plaintiff has since the seizure
of the car and the refrigerator
demanded their return but the
defendants have refused to cause
their return or delivery up with
the
consequence that the plaintiff
has suffered loss and damage.
Particulars
of Damage
(i)
Loss of use of the said car at
¢250,00 per day from 8th
September 1997 and continuing
(ii)
Cost of putting the vehicle in a
good and road worthy condition.
(iii)
Loss of use of the said
refrigerator at ¢50,000.00 per
day from 8th
September 1997 and continuing
(iv)
Cost of repair
And the
plaintiff claims
An order for
the delivery up of the said
Mitsubishi Car No. GR 9185 G and
the refrigerator, or payment of
their respective values”.
HIGH COURT
DECISION
After
protracted and delayed
proceedings,
the trial
High Court delivered judgment in
favour of the plaintiff as
follows:
“I now
proceed to deal with damages.
Plaintiff told the court that he
purchased the vehicle at an
amount of ¢65 million he also
said it costs him ¢250,000.00 a
day to secure alternative means
of transport. He told the court
that he is a trader. He gave
evidence on 24/5/2000. I must
say that despite the fact that
no contrary evidence was
offered, I find that figure to
be inflated and quite excessive.
I have formed this opinion
because plaintiff went on to
give the value of the seized
refrigerator as ¢25 million. If
plaintiff had to use alternative
vehicle for his business rounds
I think an amount of ¢50,000.00
per day in those days would be a
fair and reasonable figure. I
therefore hold plaintiff to be
entitled to ¢50,000.00 per day
as damages for the wrongful
seizure of the vehicle with
effect from 8th
September 1997 to the date of
this judgment. From this should
be deducted all Saturdays and
Sundays as well as all national
and public holidays.
I have
already made mention of the
exaggerated figure of ¢25
million placed on the
refrigerator by plaintiff. That
is quite incredible. He also
told the court on 24/5/2000 that
he earned ¢50,000.00 per day
from the use of the
refrigerator. This is also
astronomical. The refrigerator
was seized from the house not a
store. I do not think even if it
was being used commercially, I
can award plaintiff anything
beyond ¢10,000.00 per day. I
therefore award him ¢10,000.00
per day with effect from 8th
September 1997, minus all
Saturdays and Sundays national
and public holidays to date of
this judgment. I order that the
amount so calculated should be
subject to tax.
In respect of
both the vehicle and
refrigerator, I hold plaintiff
to be entitled to their
respective replacement value”.
Emphasis supplied.
APPEAL COURT
Being
aggrieved and dissatisfied with
the level of damages awarded for
the loss of use, the plaintiff
appealed to the Court of Appeal.
The appeal
was dismissed and it was held
that damages for loss of use of
a chattel are special damages
and must be strictly pleaded and
proven.
It was held by the Court of
Appeal that the Plaintiff had
failed to strictly prove his
special
damages and as such, he was
not entitled to same. However,
the Court of Appeal, applied
equitable principles and held
that the plaintiff was therefore
only entitled to nominal damages
which were entirely within the
trial judge’s discretion. The
Court of Appeal found that the
said discretion had been
appropriately exercised and as
such, the Honourable Court
declined to overturn the
judgment of the trial court.
APPEAL TO
SUPREME COURT
As the
plaintiff still felt
dissatisfied with the decision
of the Court of Appeal, he then
filed the following grounds of
appeal to the Supreme Court.
Grounds of
Appeal
(i)
The Court of Appeal misdirected
itself in law when it held that
the claim for damages for loss
of use of the vehicle and
refrigerator was a claim for
special damages whereas such a
claim is one for general
damages.
(ii)
The Court of Appeal erred in
affirming the trial court’s
decision on the assessment of
the damages for loss of use of
the two properties for their
wrongful detention by the
respondent company.
(iii)
The Court of Appeal erred in
seeing nothing wrong with the
exclusion by the trial judge of
certain days from the period
over which the loss of use is to
be calculated when there was no
evidence at the trial indicating
how many such days were within
the relevant period or that on
those days the appellant did not
need those properties for his
use.
(iv)
The Court of Appeal erred in
failing to appreciate the
purport of the complaint that
the trial judge erred in
rejecting the figures mentioned
by the appellant as the general
amount of loss per day during
the period of the wrongful
detention when the figures were
not challenged under
cross-examination and no
evidence to contradict them was
led by anybody and no evidence
to contradict them was led by
anybody and the figures were not
manifestly unreasonable.”
LEGAL ISSUE
Even though
learned Counsel for the parties
have spent considerable time and
space in their statements of
case on what they consider
germane to this appeal, the crux
of the present appeal so far as
we are concerned revolves around
the plaintiff’s assertion that
the defendant committed the
tort of
detinue, and thus, the
plaintiff is entitled to damages
not only for the value of the
chattels seized, but also loss
of use of those chattels.
And as a
corollary, that the plaintiff is
entitled to the loss of use as
general damages and not special
damages.
As a result,
learned Counsel for the
plaintiff Mr. James Ahenkorah in
his written statement of case
did not lose any opportunity to
drive home the fact that the
learned trial Judge should have
treated the claims for loss of
use of the chattels as a claim
for general damages and not
special damages as was held by
the learned trial judge.
What then is
the tort of Detinue and the
legal effects of a person held
to have committed Detinue?
Detinue is “The unlawful failure
to deliver up goods when
demanded and it lies when a
person wrongfully detains the
goods of another”
Halsbury’s Laws of England (5th
Ed., 1975) volume 12 para 1416.
According to Halsbury’s Laws of
England, in detinue, the
judgment is usually for the
return of the chattel detained
or for its value, together with
damages for its detention Ibid,
page 456.
However, where the said chattel
has been actually damaged or
destroyed, then the owner of
that chattel is additionally
entitled to damages for loss of
use. In the case of a chattel
which is not employed for
private gain, the plaintiff is
entitled to general damages for
loss of use. 1 bid, para 1165.
Halsbury’s Laws of England
states emphatically at same
paragraph 11 65 that there is no
rule of thumb about assessment
of damages in a case where the
plaintiff is entitled to general
damages for loss of use.
However, when a substitute is
hired, the damages may be the
cost of hire.
For example, a private
individual is entitled to
general damages for
inconvenience due to the loss of
a chattel such as a motor car.
It is very important to note
that damages for loss of use are
not in general recoverable
unless the loss of use is
consequential on some actual
wrongful damage occasioned to
the chattel. The dictum of Lord
Denning, M.R. in
SCM v.
Whittall [1971] AC 337
buttresses this point:
“When a defendant… causes
physical damage to the person or
property of the plaintiff, in
such circumstances that the
plaintiff is entitled to
compensation for the physical
damage, then he can claim in
addition for economic loss
consequent on it” at 341.
Therefore, in the decided cases
where the court awarded damages
for loss of use against the
defendants, it was always
established that the defendant
had caused an actual damage to
the chattel involved.
In The
Mediana [1900] AC 113,
where the facts were that, the
vessel belonging to the
Appellant collided with and then
sank another vessel which
belonged to the Respondents. The
Respondents sued and prayed,
among other things, for damages
for loss of use of their vessel.
It was held by the House of
Lords that the Respondents were
entitled to damages for loss of
use of their vessel.
Similarly, in The Greta Holme
[1897] AC 118, some trustees
were owners of a ship whose
steam dredger was later damaged
by another ship, causing the
trustees to be deprived of the
ship’s usage. It was held by the
House of Lords that the trustees
were entitled to damages for
loss of use.
Additionally, in
Admiralty v. SS Cheskiang [1926]
AC 665, the
Respondent’s steamship collided
with a light cruiser and damaged
her. It was held by the House
of Lords that the Respondent was
liable for damages for loss of
use.
In the instant appeal, it is
quite clear that, the
authorities cited and provided
by the plaintiff in this case
also support the principle of
law that damages for loss of use
can only be claimed where it is
established that there has been
actual damage to the chattel.
For example,
Salmond and Heuston on the Law
of Torts Heuston & Buckley,
Salmond and Heuston on the Law
of Torts (19th Ed.).
Sweet & Maxwell explains that
“In the case of collision
between two ships or motor-cars
due to negligence of the
defendants, the plaintiff will
be able to recover general
damages for the loss of the use
of his ship during repairs, even
if it be not used for trading
for profit, or for the loss of
the use of his motor-car even
though it be used for pleasure
purposes.”
Emphasis supplied.
The passage is very specific in
mentioning that it is where
actual damage is caused to a
chattel, to wit, a collision
between two ships or motor-cars,
that the plaintiff will be able
to recover general damages for
the loss of the use of his ship
or car during repairs.
M.A. Jones
in his
Textbook on Torts (8th
Ed.). Oxford University
Press stated as follows:
1.5.1.4 Damage to property
“The basic rule for the measure
of damages is again that the
claimant should be restored to
his position before the tort was
committed. Where the property
has been completely destroyed,
the measure of the loss is the
market value of the property at
the time of destruction… Damages
are also recoverable for loss of
use of property before it is
replaced… Damages for loss of
use may include the cost of
hiring a substitute where it is
reasonable to do so...”
Emphasis supplied
Here too, there are broad
indicators in the passage that
what is being stated in
reference to “damages for loss
of use” applies only to cases
where there has been an actual
damage to chattel. The
indicators include the title of
the passage itself (“Damage to
property”), and the fact that
the passage begins with the
phrase ‘in the case of damage to
property’.
Nowhere in any of the
authorities submitted by Counsel
for the plaintiff is it stated
that a plaintiff who does not
establish during the trial that
some damage was caused to his
chattel is nevertheless entitled
to general damages for loss of
use.
In view of all the above, it
follows that although the
Defendant is liable for Detinue
in this case, he is
not
liable for damages for loss of
use of the vehicle and the
refrigerator because the
plaintiff failed to establish
that actual damage had been
caused to these chattels.
However, as stated above, where
the defendant is liable for
Detinue, the plaintiff is
entitled to either a return of
the chattel detained or for its
value, together with damages for
its detention.
In this present case, the
learned trial court judge has
already awarded damages for the
value of the refrigerator and
the car. Therefore, all that the
plaintiff is entitled to in this
case is
damages for wrongful detention.
In the
instant case, the learned trial
judge has correctly ordered the
plaintiff to be entitled to the
replacement value of the
chattels, i.e. the car and the
refrigerator. In this case, even
though the learned trial Judge
expressed some disgust about the
exaggerated values placed on the
chattels, i.e. ¢65 million cedis
for the car and ¢25 million for
the refrigerator, he nonetheless
granted them.
The plaintiff
must indeed find himself very
lucky to have gone away with the
lackadaisical manner in which he
proved his assertions in a court
of law. What must be noted is
that, the courts have times
without number reiterated the
fact that it is a cardinal rule
of evidence that whoever asserts
must prove. In other words, the
burden of proving an assertion
is on the person who makes the
positive. See
Section
17 (1) and (2) of the Evidence
Act, 1975 NRCD 323.
In our
opinion, it was certainly not
enough for the plaintiff to have
recited some figures as the
replacement values for the
chattels unlawfully detained.
Proof in law means that
sufficient evidence must have
been led before the court i.e.
by the production of Proforma
Invoices from regular and
accredited distributors of the
chattels concerned as the
current sale price of the
chattels.
That way,
there would have been
satisfactory evidence led by the
plaintiff to support the
replacement value and cost of
the chattels.
However,
since there is in fact no appeal
against the replacement costs,
the above is only an academic
exercise and has no bearings on
the fortunes of this appeal.
We are
certain that the assessment of
the damages for loss of use of
the chattels by the trial court
followed established practice.
This is because, from the nature
of the pleadings as already
referred to supra in the
statement of claim, the
particulars of damages given
indicate a clear intention that
the items of damage are special
in nature. This is so because
the plaintiff specifically
mentioned the amounts of loss
per day. One would therefore
expect that, those claims would
be strictly proved by not only
mounting the witness box to
repeat the figures but by the
production of documentary
evidence as proof of payment of
those amounts.
Alternatively, evidence could
have been led to establish that
the vehicle hired in the absence
of the plaintiff’s vehicle which
was unlawfully detained cost so
much and that the period of hire
was for this or that period. The
same could have been done for
the refrigerator.
It was very
unfortunate that the plaintiff
did not do any of the above but
chose only to repeat what he
claimed it cost him to hire
alternative vehicle and
refrigerator.
We believe
that there should have been some
element of seriousness on the
part of the plaintiff to
convince the court about the
genuineness of the claims he had
brought to court.
In the
absence of proper proof, the
trial court was right in
doubting the amounts quoted and
using his discretion to award
the amounts.
Assuming the
nature of the claims for loss of
use by the plaintiff of the
chattels can be put in the
category of general damages, in
which case, the plaintiff need
not strictly prove the amounts
pleaded, under the circumstances
of this case, can the plaintiff
be deemed to have acquitted
himself such as would have
enabled the court to have
granted him enhanced awards
other than what was granted or
awarded him by the trial and
appellate courts?
In evaluating
the submission of learned
counsel for the plaintiff Mr.
Ahenkorah that the damages being
claimed by the plaintiff are in
the nature of general damages,
we realise that from the
endorsement on the writ of
summons, the plaintiff pleaded
“damages for the detention” of
the chattels simpliciter.
It was in the
supporting statement of claim
that the particulars of the
damages were given as
¢250,000.00 per day for the car
and ¢50,000.00 per day for the
refrigerator from the date of
wrongful detention i.e. 8th
September 1997.
The
traditional view which is
supported by a litany of
authorities is that, if the
plaintiff expects the court to
award him the amounts specially
pleaded in the statement of
claim, then he ought to strictly
prove the amounts so claimed.
In the
circumstances of this case, for
example the plaintiff would have
to lead evidence as to the exact
expenditure of the amounts.
It would be
expedient to tender receipts if
these were obtained from the
owners of the chattels that were
hired or procured in lieu of
those that were wrongfully
detained.
Depending on
the circumstances of the
particular case, evidence might
have to be led by calling
witnesses from the places
concerned to support the fact
that the amounts claimed were in
fact duly expended and paid.
On the other
hand, the pleadings of the
plaintiff can also be taken to
be a claim for general damages.
In this case, the amounts stated
by the plaintiff in the
statement of claim as damages
for loss of use can be used as a
guide or indicator upon which
the trial court is to act.
In the
instant case, the learned trial
Judge and those of the Court of
Appeal considered the figures
mentioned by the plaintiff in
his evidence in chief as grossly
exaggerated. We are of the
considered view that it was
perfectly within the discretion
of the trial and appellate court
Judges to have cut down the
amounts the plaintiff claimed
without proof
in view of
the evidence on record.
It must be
noted that, the lower courts
correctly applied themselves to
the law when they held that the
plaintiff did not strictly prove
the damages for loss of use
being claimed by him. It does
not really matter whether the
damages are described as general
or special. The distinction
between the two really lies in
the fact that whilst
special
damages must be strictly
proved in order for a claimant
to succeed, that of general
damages need not be strictly
proved. Like in the instant
case, because the trial and
appellate court judges did not
consider the plaintiff as having
proved satisfactorily the
damages for loss of use, they
awarded what in law is called
nominal damages. Since both
parties have all referred to the
case of
Norgbey & Anr v Asante & Anr
[1992] 1 GLR 506, at 516,
where Acquah J, (as he then
was) commented in some detail on
this issue of special damages
and what is considered as proof
and the various levels of proof
required at each stage, we will
quote in extenso the said
statement from page 516 – 517 of
the report
“The
plaintiff claims special and
general damages against the
defendant. And it is trite
learning that special damages
must be proved and proved
strictly. But let me digress a
little to explain what is
required in a proof of special
damages and the consequences
following from the failure by a
claimant to satisfy the said
requirements. A successful proof
of a special damage involves
basically proof of the subject
matter of the special damage,
and then proof of the value
claimed for that subject matter.
Now these two-fold requirements
may boil down to two, three or
four steps depending on the
nature of the claim. For
example, where someone claims as
special damage the sum of
¢10,000 as being the value of
his damaged watch, this will
involve the claimant in proving
first, that the defendant did
indeed destroy his watch; and
secondly, that the value of the
damage watch is ¢10,000. Again
where the claim for special
damage is ¢10,000 being cost of
repairs for a damaged watch, the
claimant has to prove first that
the defendant did damage his
watch; secondly, that the
claimant did repair the said
damaged watch; and thirdly, that
the repairs cost him ¢10,000.
Thus in my recent judgment in
Fuseini v Ayivor, High Court,
Ho, 12 April 1991,
unreported, I explained what is
required of a plaintiff who
claims as special damages the
cost of repairs on his damaged
vehicle as follows:
“I am of the
view that a desirable way of
establishing cost of repairs on
a vehicle is first to establish
the actual damage to the
vehicle. And this may be
achieved by the evidence and
report of the vehicle examiner
who examined the vehicle at the
request of the police. In the
absence of a vehicle examiner,
or in addition to him, any
competent engineer who examined
the vehicle after the accident
can equally testify on the
extent of damage the vehicle
sustained. Having established
the extent of damage, the second
step is to call evidence of the
mechanics who actually worked on
the vehicle to testify on the
work done and how long it took
them to complete the work. And
the final step is the tendering
of the receipts for the items
bought and the amount paid as
workmanship. Where there are no
receipts, satisfactory evidence
can be led to establish that the
parts and workmanship testified
to by the mechanics were in fact
paid for. In my view these are
the three steps a plaintiff has
to go through in establishing
his claim for cost of repairs.”
Acquah J, (as
he then) was, continued the
judgment as follows:-
“The legal
position therefore is that in a
claim for special damages where
the claimant succeeds in proving
both the subject matter and the
value, he is entitled to be
awarded the value he claims. But
where he succeeds in proving
only the subject matter but
fails to prove the value of the
subject matter, the claimant is
not to be denied any
compensation. In such a
situation the claimant is
entitled to be awarded some
value for the damaged subject
matter. In
Yirenkyi v Tarzan International
Transport [1962] 1 GLR 75
at 78, Ollennu J (as
he then was) explained it thus:
“The
plaintiff completely failed to
prove the special damages as
claimed. But that failure does
not disentitle him to some
damages. There is no doubt that
he suffered some loss. The fact
that the evidence he led has not
made it possible for the court
to assess damages is not
completely fatal. It has been
held that in such cases he
should be awarded nominal damage
[sic]…”
Applying the
facts of the above case to the
facts of the instant case, we
are of the considered view that,
the plaintiff in the instant
case failed to actually prove
the replacement values of the
chattels as well as the damages
for the loss of use.
However,
since there is no appeal against
the replacement value we will
rest that matter. The issue of
the damages for loss of use
however raises some concern in
view of the fact that the
plaintiff also failed to
satisfactorily prove the need
for the payment of an enhanced
amount. It was definitely not
sufficient for the plaintiff, to
mount the witness box and repeat
the same amount pleaded as
damages for loss of use without
more.
We are indeed
fortified in the views we have
taken in this case by reference
to the statement of Blay JSC in
the case of
Chahin
and Sons v Epope Printing Press
[1963] 1 GLR 163 at 168
S.C where Blay JSC stated
thus:-
“They (i.e.
the plaintiffs- respondents)
merely presented a list of
articles they alleged they had
lost, fixed prices to them, and
without attempting in any way to
prove their values, expected the
court to award them damages to
the tune of the amounts claimed.
I am therefore in agreement with
the submissions of counsel for
the appellants that the learned
trial Judge erred in assessing
special damages of £2,507 10s
which is the amount the
respondents claimed in their
statement of claim and
particulars.”
We are
however of the view that there
was in fact no real basis for
the exclusion of Saturdays,
Sundays and public holidays from
the computation of the damages
for loss of use of the chattels
at the rates awarded by the
trial court and affirmed by the
Court of Appeal.
It should be
noted that once the car and the
refrigerator were not being used
in strict sense for commercial
activities but for personal and
domestic use, the exclusion of
those days were unwarranted.
We would also
direct that being chattels,
which were personally being
used, the order that the amounts
of damages awarded should be
taxed is not well founded and is
accordingly set aside.
An appeal
generally is by way of
re-hearing of a case. See case
of
Tuakwa v
Bosom [2001-2002] SCGLR 61.
We are
therefore of the considered view
that, applying the principles on
Detinue as a tort, the plaintiff
herein was legitimately entitled
to replacement value of the
chattels, to wit the
refrigerator and the motor car
for wrongful seizure. On the
same principles, the plaintiff
should not have been entitled to
damages for loss of use of the
chattels as he did not establish
that any damage was caused to
the chattels.
On the
contrary, we are of the view
that, the plaintiff should have
claimed damages for wrongful
detention of his chattels, i.e.
damages in detinue and not the
loss of use of the chattels.
In order not
to completely change the tenor
of the award of damages, we
would not pursue that course of
conduct but stick to the
following decisions.
In the
result, the appeal herein is
dismissed, save for the
following orders:-
1.
The damages for loss of use of
the car and the refrigerator
awarded by the trial and appeal
court to the plaintiff are
extended to include all
Saturdays, Sundays and public
holidays during the period.
2.
The said amounts are not to be
taxed.
(SGD) J. V. M. DOTSE
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
(SGD) V.
AKOTO-BAMFO (MRS)
JUSTICE OF THE SUPREME COURT
COUNSEL;
JAMES
AHENKORAH FOR THE APELLANT.
KWAKU ANSA- ASARE FOR THE
REPONDENT |
