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JUDGMENT
TWUMASI, JA
On the 30th November, 1996, a
Togolese national, the
respondent herein, brought into
Ghana a newly acquired Mercedes
Benz valued forty-three thousand
deutchmarks (DM 43,000). Intent
to saysic in the country for a
while, he duly applied for and
obtained a three-month licence
from the Customs, Excise and
Preventive Services of Ghana (CEPS
for short).
The respondent instituted legal
proceedings against the CEPS and
two others on the grounds stated
in his Statement of claim that,
while the three-month licence
was still valid, the CEPS seized
the vehicle and sold it to a
Lt.-Col. who in turn sold it at
a higher price to another
person. According to the
respondent, CEPS offered him
terms of settlement whereby CEPS
agreed that he repair a damaged
Toyota Lexurus Saloon car and
keep it in replacement of the
Mercedez Benz. He said he duly
implemented the arrangement, yet
CEPS refused to release the
repaired car to him and also
failed to settle the cost of
repairs. The defence put up by
the appellant was that the
respondent breached a condition
under the three-month licence
which forbad him from permitting
a third person to drive the said
Mercedez Benz and thereby
rendered it liable for
forfeiture to the state. The
facts of the case further show
that the settlement just
referred to, was promoted by the
trial court upon an application
made on behalf of the respondent
by his Counsel to the Court
which obliged him the required
leave to proceed and that this
had occurred in the course of
the proceedings when the case
was ripe for hearing. According
to other facts gathered from the
record of appeal, when it became
clear that CEPS had turned a
deaf ear to the demands of the
respondent to release the Toyota
Lexurus Saloon car and to pay
him the expenses incurred in its
repair, his Counsel applied to
the Court to fix a date for
hearing. Upon the orders of the
court hearing notices were
served upon CEPS to defend the
claim but they would not bother
to attend court. The hearing
therefore commenced without CEPS
and judgment was entered in
favour of the respondent. The
original indorsement on the Writ
of Summons was as follows:—
"(a) That the seizure of
Mercedez Benz 190D with
Registration No. RT 8933n on
28th January 1997 was unlawful.
(b) Failure to release the said
vehicle to the Plaintiff amounts
to conversion.
(c) An order for the release of
the vehicle.
(d) An order of injunction
against the defendant".
Claim (d) above was in respect
of a demand make by CEPS after
the seizure of the Mercedez Benz
that the respondent pay a
penalty of six million five
hundred thousand cedis or in
default suffer confiscation of
the said car. The respondent’s
main complaint was that the CEPS
had gone ahead to sell the car
at the time efforts were being
made to settle the case out of
court and when this was brought
to the attention of the court
the CEPS promised to make a
replacement of the vehicle and
therefore asked the respondent
to repair the Toyota Lexurus
car. In the course of the
delivery of the judgment as
mentioned before, the learned
trial judge took the view that
an amendment of the respondent’s
claim as indorsed on the Writ of
Summons was necessary to enable
the court make the appropriate
awards to the respondent in a
manner that would meet the ends
of justice having regard to the
facts of the case as presented
to the court by the respondent
whose testimony stood
unchallenged due to the absence
of the CEPS and the other
parties accused by the
respondent. Accordingly, the
learned trial judge, purporting
to be exercising powers
perceived by her to have been
conferred upon her under Order
28 rule 12 of the High Court
(Civil Procedure) Rules 1954
(LN140A) delivered herself in
the following terms:—
"In exercising the powers
conferred on me by rules of
court, I shall amend the reliefs
endorsed on the Plaintiff’s Writ
and enter judgment for the
Plaintiff as follows:—
(1) An order for refund of the
DM 43,000 which is the value of
the Mercedez Benz Car unlawfully
seized and sold out, or its
cedis equivalent, at the
prevailing exchange rate, with
interest at the prevailing bank
rate from March 1997 to date of
Judgment.
(2) An order for refund of
¢2,070,000 being cost of repairs
of Toyota Lexurus car which
Plaintiff incurred with interest
at the prevailing bank rate from
June 2000 to the date of
judgment.
(3) An award of ¢10 million for
loss of use and the
inconvenience suffered by the
Plaintiff since 1997 due to 1st
defendant’s unlawful act.
(4) I award costs of ¢2 million
against Defendant."
The hottest ground of appeal
against this judgment touches
upon the propriety of the power
of amendment which the learned
trial judge purported to have
exercised. It was strongly
submitted by the appellant’s
counsel that the learned trial
judge misconceived and thereby
misapplied the powers envisaged
under the order. Order rule 12
reads as follows:—
"Order 28 r. 12: The Court or
judge may at any time, and on
such terms as to costs or
otherwise as the court may think
just, amend any defect or error
in any proceedings, and all
necessary amendments shall be
made for the purpose of
determining the real question or
issue raised by or depending on
the proceedings."
In my understanding the farmers
of this rule were principally
motivated by the time-honoured
and sound public policy in the
administrative of justice that
there must be an end to
litigation and second, by the
centuries long experience that
no human conflict is without its
real and fundamental or root
causes or issues and, thirdly
the undeniable fact of life that
errors shall remain the
perennial phonomena to which all
men are err to.
Experience has shown that,
oftentimes, there are defects
and errors or omissions in the
way even the most experienced
lawyers may prepare their cases.
In the light of this and in
order to serve the ends of
justice, a trial court or a
judge is given the discretionary
power to make all necessary
amendments so as to give effect
to the determination of the real
issues between the parties as
disclosed by the pleadings and
the evidence before the court,
so that neither party shall
raise any issue again in any
subsequent proceedings. The rule
is therefore designed to afford
the court or a judge the power
to ensure that all errors,
defects and omissions or
inadequate formulations of
claims or reliefs are rectified
so as to give to all parties
what they are entitled to in law
having regard to the facts
proved before the court. Thus in
Nuhum v. O. Wolley & Sons (1961)
1 GLR 242 Adumua Bossman J (as
he then was) amended the
original relief’s brought by the
Plaintiff in a landlord and
tenant suit and held holding (7)
as follows:—
"In these circumstances the
appropriate reliefs are: as
against the 1st defendants, a
declaration that he is entitled
to possession of the premises,
an order for possession and
mesne profits; as against the
2nd defendant, an order to
attorn tenant to the plaintiff,
or in default thereof to be
ejected from the premises, and
an order upon such attornment,
to pay rent to the plaintiff,
and in exercise of the powers
conferred on it by order 28 rule
12, the court can proprio motu
amend the plaintiff’s statement
of claim and substitute the
appropriate reliefs to which on
the evidence before the court he
is entitled."
I entirely adopt the view held
by Adumua Bossman J in this case
and agree with him that rule 28
gives the court or a judge very
wide powers, although it must be
understood that the power is
expected to be exercised within
the permitted conditions
prescribed by the enactment. On
the facts in the instant case,
the respondent was clearly
entitled to the restitution of
his car or, if not possible, to
damages for its conversion, that
is the value of the vehicle and
compensation for loss of its use
as at the date of Judgment. He
was also entitled to a refund of
the cost of repairs of the
Lexurus Saloon Car which was not
given to him. The value of the
respondent’s Mercedez car was
clearly stated and it was not
challenged. Consequently, it is
my view that the learned trial
judge gave the right decision
except that the quantum of the
award would have to be reviewed
and I shall do so at the end of
the judgment. Again trial judge
was entitled to award interest:
see Standard Chartered Bank (Gh)
Ltd. Vrs. Nelson (1998-99) SC
GLR 810 at 813 where the court
speaking through Charles Hayfron
Benjamin JSC said:—
"Interest on debt or damages
awarded by a court must be
exigible up to date of
judgment".
It must, however, be pointed out
that, as I have already hinted,
that the trial judge’s awards
were excessive or inconsiderate
having regard to all the
circumstances of the case.
Before I review the quantum of
the awards I would like to
dispose of the other ground of
appeal which in my view merits
consideration and that is the
ground which accused the trial
judge of proceeding to enter
judgment when it was palpably
wrong to do so. It was contended
that fresh summons for
directions and additional issues
had been filed by the parties
yet the trial judge ignored
them. I found no merit
whatsoever in this ground of
appeal. The record of
proceedings shows that the
alleged fresh summons for
directions and the additional
issues were in fact not taken,
because the appellants were not
co-operating in the prosecution
of the case as they persistently
failed to attend court despite
service upon them of numerous
hearing notices. Counsel for the
1st appellant submitted that
even if they were not in court
the judge still had a duty to
consider the defence which had
been filed and Counsel
specifically referred to their
pleading that the respondent had
breached a condition for his
licence and that in law rendered
the car liable for forfeiture.
This argument does not hold any
iota of water in law. The issue
is one of mixed law and fact. It
was incumbent upon the
appellants to attend court to
tender the document containing
the conditions appertaining to
the licence. In law an
instrument or regulations of
that type should be proved
because, unlike a statute or an
Act of Parliament, it could not
be judicially noticed: See State
vrs. Ababio (1966) GLR 422 SC.
Where a party is served with a
hearing notice to attend court
and he ignores the notice, his
conduct amounts to contempt of
court and the court inflicts
punishment by giving judgment in
default and awarding cost to
serve as a deterrent and to
stamp the authority of the
court:
See Re Pollard (1868) L.R. 2 PC
106. For the foregoing reasons
the appeal is dismissed. I would
now proceed to review the
learned judge’s awards: In lieu
of the awards I would substitute
the following awards:—
(1) An order for refund of the
43,000 DM being the value of the
Mercedes Benz unlawfully seized
or its equivalent at the
prevailing exchange rate with
interest at the prevailing bank
rate from March 1997 to date of
judgment.
(2) An order for refund of
¢2,070,000 being cost of repairs
of Toyota Lexures Car which
plaintiff incurred with interest
at the prevailing bank rate from
June 2000 to date of judgment.
(3) An award of ¢5 million for
loss of use and inconvenience
suffered by the respondent from
January, 28 1997 to date of
judgment.
We award cost of ¢5 million
against appellants.
P.K. TWUMASI
JUSTICE OF APPEAL
OWUSU-ANSAH, JA
I agree.
P.K. OWUSU-ANSAH
JUSTICE OF APPEAL
ANIM, JA
I also agree.
S.Y. ANIM
JUSTICE OF APPEAL
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