FORSON v.

KOENS AND ANOTHER [1975] 2 GLR 479-487

HIGH COURT, SEKONDI

9 JULY 1975

EDUSEI J.

Trespass—Chattels, to—Act amounting to trespass—Object of the tort of trespass to

chattels.

Damages—Trespass to chattels—Assessment—When exemplary damages may be

awarded.

HEADNOTES

The plaintiff, a private legal practitioner, agreed to purchase the first defendant’s
Mercedes Benz car at the agreed price of ¢11,400.00. He was given possession of
the car after making some part payments leaving an outstanding balance of
¢2,400.00. The car was used by the plaintiff for his professional work as well as his
social activities. There was no express provision in the verbal contract of sale that the
first defendant could seize the car on failure of the plaintiff to pay the full purchase
price at the end of a stated period. Nevertheless, the first defendant, under a false
belief that she had a legal claim to the car for non-payment of the outstanding balance,
authorised the second defendant¸ senior army officer, [p.480] then in his army uniform,
to seize the car (parked at the material time) in a public place at Sekondi where the
plaintiff was practising his profession. The seizure was effected in the presence of a
lot of people. The plaintiff who was thereby embarrassed and had to resort to the
hiring of taxis to enable him carry out his professional and social work, sued for, inter
alia, damages for unlawful seizure.

Held:

(1) the seizure of the car by the second defendant on the instruction of the first
defendant was clearly a tort of trespass (i.e. an intentional and direct interference with
a chattel in the possession of another) whose object was to give not only protection to
a plaintiff in the retention of possession of his chattel and his interest in its physical
condition but also protection against intermeddling with his chattel. Dictum of Lord
Esher M.R. in Johnson v. Diprose [1893] 1 Q.B. 512 at p. 515, C.A. cited.

(2) Damages for the tort of trespass to chattels were always at large and in deserving
cases such as (a) the effect of a wrongful seizure on a plaintiff's credit and (b) an
unfounded pretence of a legal claim such as in the instant case, exemplary damages
might be awarded. In the circumstances of the instant case, the plaintiff was entitled
to general damages against the defendants jointly and severally and this would be
assessed at ¢1,500.00. Owen and Smith v. Reo Motors (Britain), Ltd. (1934) 151 L.T.
274, C.A. and dicta of Scott L.J. in Dumbell v. Roberts [1944] 1 All E.R. 326 at pp.
329-330, C.A. and of Azu Crabbe C.J. in Braun v. Mallet [1975] 1 G.L.R. 81 at p. 95
applied. Brewer v. Dew (1843) 11 M. & W. 625 cited.
CASES REFERRED TO

(1) Majolagbe v. Larbi [1959] G.L.R. 190.

(2) Wilson v. Tumman (1843) 6 Man. & G. 236; 12 L.J.C.P. 306; 1 L.T. (o.s.) 314; 134
E.R. 879.

(3) Johnson v. Diprose [1893] 1 Q.B. 512; 62 L.J.Q.B. 291; 68 L.T. 485; 57 J.P. 517;
41 W.R. 371; 9 T.L.R. 266; 37 S.J. 267; 4 R. 291, C.A.

(4) Owen and Smith v. Reo Motors (Britain), Ltd. (1934) 151 L.T. 274, C.A.

(5) Brewer v. Dew (1843) 11 M. & W. 625; 12 L.J.Ex. 448; 1 L.T. (o.s.) 290; 7 Jur. 953;
152 E.R. 955.

(6) Dumbell v. Roberts [1944] 1 All E.R. 326; 113 L.J.K.B. 185; 170 L.T. 227; 108 J.P.
139; 60 T.L.R. 231; 42 L.G.R. 111, C.A.

(7) Braun v. Mallet [1975] 1 G.L.R. 81.

NATURE OF PROCEEDINGS

ACTION for, inter alia, damages for unlawful seizure of a car sold under a contract of
sale. The facts are sufficiently stated in the judgment.

COUNSEL

W. A. H. Amarteifio for the plaintiff.

Aboagye da Costa for the first defendant.

T. Ahlijah, Senior State Attorney, for the second defendant.

JUDGMENT OF EDUSEI J.

The plaintiff claims against the defendants jointly and severally: "(a) the return of
Mercedes Benz saloon car No. GJ 4722 or the value thereof and (b) damages for
unlawful seizure."

The first defendant agreed to sell to the plaintiff a Mercedes Benz car which had not
then arrived in the country, and this was in early 1973. In [p.481] April 1973, the car
arrived and was registered as No. GJ 4722 in the name of one Kwakye who was the
consignee of the car. The evidence shows that before the registration of the car, the
plaintiff had paid sums of money to the first defendant to enable her to take delivery of
the car from the Takoradi harbour and the total sum paid by the plaintiff was to be set
against the purchase price to be agreed upon. The first defendant for all practical
purposes was the real owner of the car. The plaintiff testified that the first defendant
offered to sell the car to him for ¢7,000.00, but it is not clear from the pleadings and
the evidence whether this ¢7,000.00 was the concluded purchase price. The first
defendant later returned with one Bedu Addo and asked that the amount of ¢7,000.00
should be increased. The plaintiff offered to add ¢2,400.00 to the price of ¢7,000.00
to make a total purchase price of ¢9,400.00. Whether the first defendant accepted this
additional sum of ¢2,400.00 is not clear from the evidence and she left with the said
Bedu Addo. The first defendant's testimony was that the plaintiff agreed to pay
¢7,000.00 in addition to any expenses that ought in incurred in connection with the
delivery of the car. The said car, nonetheless, came into the possession of the plaintiff.

It is not clear from the evidence what the agreed purchase price was when the car
came into the possession of the plaintiff, though he had, before their meeting at the
offices of the Regional Administration, paid the sum of ¢7,909.00 to the first defendant
as part payment, in my view, of the purchase price that might subsequently be agreed
upon. The first defendant reported to the Regional Commissioner, Sekondi, that the
plaintiff had not made full payment for the car he had purchased from her though no
one could say at this stage what the agreed purchase price was. What represented
the full payment was not known. The Regional Commissioner, however, referred the
matter to the second defendant, his special military assistant, to try to effect amicable
settlement between the parties. The plaintiff's evidence is that during the discussions
before the second defendant both parties agreed that the plaintiff should pay
¢4,400.00 in addition to the ¢7,000.00 to make a total purchase price of ¢11,400.00
for the Mercedes Benz car No. GJ 4722. The first defendant testified that the agreed
purchase price at the offices of the Regional Administration was ¢12,000.00 and that
the agreement as to this amount was made in the presence of the Regional
Commissioner, Sekondi.

I fail to see how this arrangement as regards the purchase price of ¢12,000.00 could
have been reached before the Regional Commissioner when he himself had referred
the matter to his military assistant, the second defendant, for settlement. The
evidence of the second defendant supports the evidence of the plaintiff that it was
agreed before him that the plaintiff should pay an additional sum of ¢4,400.00 to the
first defendant to complete the purchase price. This is what the first defendant said in
examination-in-chief: "In the course of the discussions the plaintiff and the first
defendant agreed on ¢4,400.00 as the balance outstanding on the purchase price of
the car." The first defendant under cross-examination also said: "It is correct that the
amount of ¢4,400.00 was to be paid through the second defendant." It is only
reasonable to infer from this [p.482] evidence of hers that this figure of ¢4,400.00 was
agreed upon before Captain Davis, the second defendant, as the final payment to be
made by the plaintiff. If the contention of the first defendant was that the total purchase
price of ¢12,000.00 was agreed upon before the Regional Commissioner in the person
of Commander Kyeremeh, the burden was on her to establish this fact by calling the
Regional Commissioner to substantiate this fact but she did not. She therefore failed
to prove this assertion: see Majolagbe v. Larbi [1959] G.L.R. 190. In any case I accept
and believe the evidence of the plaintiff and the second defendant that both the plaintiff
and the first defendant agreed that the payment of ¢4,400.00 by the plaintiff should
complete the purchase price of the car.

The general principle of the law of contract as regards its formation is the concurrence
of three distinct elements—agreement, consideration and the intention to create legal
relations. This is the common law standpoint. There can be no doubt that, at least,
there was a contract formed at the offices of the Regional Administration when both
parties agreed that a further payment of ¢4,400.00 to any other sum already paid by
the plaintiff should complete the purchase price. I, myself, am in doubt whether there
was a completed contract of sale of the car before the meeting at the offices of the
Regional Administration, though there was an agreement to sell the car to the plaintiff
long before the meeting at the offices of the Regional Administration but the price had
not been agreed upon between the parties.

The sequence of events thereafter shows that the plaintiff paid ¢2,000.00 in November
1973 to the second defendant for the benefit of the first defendant and again in
December 1973 made a further payment of ¢1,000.00 to the second defendant to be
paid to the first defendant who refused to accept it until the whole outstanding balance
of ¢2,400.00 was paid outright. I think I must make it clear that before the Regional
Commissioner referred the matter to the second defendant to try to effect amicable
settlement between the parties, the first defendant had reported to the Chief Justice in
Accra that the plaintiff had not paid her for the car he bought from her. The evidence
indicates that the plaintiff explained his side of the story to the Chief Justice and the
matter presumably ended there. The first defendant then again made a written
complaint to the Attorney-General, Accra and, according to her, as she was finding it
difficult to see the Attorney-General personally she went to see one Colonel Tetteh at
the Castle, Osu. Colonel Tetteh was at the time the head of the Special Action Unit. It
was this Colonel Tetteh who got in touch with the Regional Commissioner and the
latter referred the matter to the second defendant. The first defendant went to see
Colonel Tetteh a second time when the balance of ¢2,400.00 had not been paid and
the Colonel telephoned the second defendant in his office to seize the car if the plaintiff
was not ready to make immediate payment. This was in the presence of the first
defendant at the office of the Regional Administration. The second defendant said
that: “when the first defendant refused to accept the ¢1,000.00 and also to wait for the
balance of ¢1,400.00, she [p.483] told me (i.e. the second defendant) to carry out the
instructions of Colonel Tetteh.”

It is clear from the evidence of the second defendant that he wanted to have the matter
amicably settled, and he was not prepared, according to him to carry out the
instructions of Colonel Tetteh but for the insistence of the first defendant. This is what
he said: “If the first defendant had not asked me to carry out the instructions if Colonel
Tetteh I would have not. I proceeded to seize the car because the first defendant was
insisting on seizure.”

I think it was clear to the second defendant that Colonel Tetteh, though head of the
Special Action Unit, had no power to order the seizure of the plaintiff’s car. Such a
command does not fall within the preview of his jurisdiction. The functions of the
Special Action Unit are set out in the Special Action Unit Decree, 1972 (N.R.C.D. 80),
and the main function of this unit is (by section 2 therefore) “to follow up decisions of
the National Redemption Council and the Executive Council and to ascertain to what
extent they are being executed.” It is true there is a wing of the Special Action Unit
known as the Expediting Committee whose duty is, in the main, to investigate
complaints from the members of the public against public officers in the performance
of their official duties. It is clear therefore that neither the Special Action Unit nor the
Expediting Committee has any power to intervene in any dispute between two private
persons in the community. It follows therefore that Colonel Tetteh had no power to
order the seizure of the plaintiff’s car on the ground of the non-payment of the purchase
price which was a private matter between two private individuals, a lawyer in private
practice and a trader-cum-farmer. This was not a military command to be carried out
in the course of military duties in stricto sensu. It was an instruction, though from a
superior officer, the performance of which was to take place in a civil, as opposed to
a military jurisdiction, and such an order must be silhouetted against the background
of the general civil law of the land to determine its legality or otherwise. It does seem
to me that the second defendant knowing of the illegality of Colonel Tetteh’s
instructions to him to seize the plaintiff’s car was only minded to gloss over them and
only to try to get the outstanding balance of ¢1,400.00 from the plaintiff and add it to
the ¢1,000.00 already in his possession and pay the total of ¢2,400.00 to the first
defendant. Undoubtedly he wanted an amicable settlement of the matter. He did not
want to see any rancour or bitterness between the parties. But the first defendant
would have none of the noble intentions of Captain Davis, the second defendant, and
she, berserk with anger, insisted that the second defendant should proceed to seize
the car as previously instructed by the colonel. It was the first defendant who pointed
the car out to the second defendant to seize it. I find therefore the seizure of the car
No. GJ 4722 on 18 December 1974 by the second defendant was procured by the first
defendant whose chief pre-occupation was the seizure of the car if the plaintiff failed
to pay the outstanding balance of ¢2,400.00.

[p.484]

The next question is: did the defendants commit any wrong by this action? The answer
is that any person who authorises or procures a tort to be committed by another person
is responsible for that tort as if he had committed it himself. This principle of the law
of delict or tort or civil wrong is adequately described in the Latin rubric: Qui facit per
alium facit per se. The principal and the agents in such circumstances are both jointly
and severally liable as joint tortfeasors for the wrong authorised or procured by the
former and committed by the latter. In Wilson v. Tumman (1843) 6 Man. & G. 236
Tindal C.J. stated clearly the principle thus at p. 244: "all who procure a trespass to be
done are trespassers themselves ..."

Before the seizure the Mercedes Benz car No. GJ 4722 had become the property of
the plaintiff and he was in possession of it. Indeed, he was using it for his professional
work as a private practising lawyer as well as for his social activities. The seizure of
the plaintiff's car by the second defendant on the authority of the first defendant was
clearly a tort of trespass, which simply is an intentional interference with a chattel in
the possession of another. The interference must of course be direct as it was in this
case. Thus Lord Esher M.R. in Johnson v. Diprose [1893] 1 Q.B. 512 at p. 515, C.A.
said: "The plaintiff in an action of trespass must at the time of the trespass have the
present possession of the goods, either actual or constructive, or a legal right to the
immediate possession." A modern definition of the tort of trespass is stated in Salmond
on the Law of Torts (11th ed.) at p. 358 as follows:

"The wrong of trespass to chattels consists in committing without lawful justification

any act of direct physical interference with a chattel in the possession of another—that
is to say, it is such an act done with respect to a chattel as amounts to a direct forcible
injury within the meaning of the distinction drawn in the old practice between the writ
of trespass and that of trespass on the case."
This distinction brings to mind the famous statement of Maitland in his Forms of Action
at Common Law (1948 Reprint) at p. 2 that "The forms of action we have buried, but
they still rule us from their graves." It is still necessary, however, to bear in mind the
distinction in order to know what evidence may be required to establish a particular
tort as distinct from the form of procedure to be adopted, which is no longer of any
practical importance. Be that as it may, the tort of trespass gives protection to a
plaintiff in the retention of possession of his chattel; it also affords protection to his
interest in the physical condition of his chattel and it also protects the plaintiff against
intermeddling with his chattel.

In this case the evidence has established that the second defendant on the authority
of the first defendant took away the plaintiff's car which had been parked at the yard
of the Ghana National Trading Corporation (G.N.T.C.), Takoradi, and there was no
justification for it. If the plaintiff was indebted to the first defendant in the sum
of ¢1,400.00 or ¢2,400.00 she had no right to seize or order the seizure of the car.
The only remedy [p.485] open to her was to sue for the amount and when she recovers
judgment against the plaintiff she can then proceed to sell the car under a writ of fi.fa.
Anything done short of the institution of an action is unjustifiable unless there was an
express provision in the contract to seize the car on failure to pay the amount at the
end of a stated time. There was no such express provision. Even if there was a time
limit within which payment should be made and there was a failure to pay, the first
defendant could not order seizure in the absence of express power to do so. It is clear,
in my view, therefore that the second defendant who actually seized the car is liable
to the plaintiff; the first defendant who authorised the seizure and in fact pointed out
the car to the second defendant, is equally liable.

I now turn my attention to the consideration of damages, which is the main concern of
the plaintiff now. Since the car was returned to him on 11 January 1975, on payment
of the outstanding amount, his claim for the return of the car does not now arise. It is
therefore struck out.

The plaintiff is claiming damages for unlawful seizure of his car No. GJ 4722. The
evidence is that the plaintiff is a legal practitioner in the twin city of Sekondi-
Takoradi. At the time of seizure a lot of people, apparently customers of the G.N.T.C.,
were in the G.N.T.C. yard (old R. T. Briscoe yard) where the car had been parked, and
they gathered around it. They saw the second defendant in his army uniform take the
car away. I could agree with the plaintiff in saying that he was greatly embarrassed
when his car was being driven away. He had to resort to the use of taxis for his
professional work, not only in the courts in Sekondi and Takoradi, but also he had to
travel to do a case at Axim. He also travelled to Accra on two occasions to attend
meetings of the Ghana Amateur Football Association and the Young Men's Christian
Association. It was near Christmas period and he visited Cape Coast his hometown
on one occasion. All these travels entailed expenditure, and inconvenience to the
plaintiff who was used to riding in his own car.

Damages are always at large, and it is not unknown that exemplary damages have
been awarded in deserving cases. Thus in Owen and Smith v. Reo Motors (Britain),
Ltd. (1934) 151 L.T. 274, C.A. the defendants seized certain cars in the presence of a
creditor of the plaintiffs (who were motor dealers) when they were only entitled to seize
the chassis of each car. The court in awarding damages considered not only the
manner of taking but also the effect of the wrongful seizure on the plaintiff's credit. This
English case seems to be of interesting relevance to the circumstances of this case
except that even here the defendant had no right whatsoever to take out any part of
the car in question. Exemplary damages were also awarded where there was an
unfounded pretence of a legal claim: see Brewer v. Dew (1843) 11 M. & W. 625. The
first defendant had no legal claim, at the time of seizure, to the plaintiff's car. The
seizure was based on "an unfounded pretence of legal claim" on the part of the first
defendant. Again as regards the award of exemplary damages the judgment of Scott
L.J. in Dumbell v. Roberts [1944] 1 All E.R. 326, C.A. is pointedly apposite. He said
at pp. 329-330:

[p.486]

"By the common law there is no fixed measure of damages for such an interference
when unjustifiable because the damages are at large, and in so far as they represent
the disapproval of the law ... for improper interference with personal freedom they may
be 'punitive' or 'exemplary,' given by way of punishment of the defendant or as a
deterrent example, and then are not limited to compensation for the plaintiff's loss."

In the very recent local case of Braun v. Mallet [1975] 1 G.L.R. 81, Azu Crabbe C.J.
sitting in the High Court, Accra, also said at p. 95:

"This cruel act of the defendant and his relatives has caused the plaintiff great distress,
and I think that the amount of damages I award the plaintiff should reflect my strong
disapproval of the conduct of the defendant and his relatives. I also think that the
plaintiff ought to be compensated for the mental torture which she has suffered since
19 October 1974. Accordingly, I award the plaintiff ¢2,000.00 general damages."

Indeed, in this case the first defendant under false belief that she had a legal claim o
the car for non-payment of ¢2,400.00 by the plaintiff seized it through her agent, the
second defendant, in a public place. She herself admitted in evidence that the proper
course for her was to have sued the plaintiff for the amount due to her. Surely, being
a woman of some intelligence she could have saved herself all this trouble by seeking
legal advice if she had honourable intentions about the plaintiff. Considering the
totality of the evidence I can say that the first defendant's purpose or one of her
purposes of seeking the assistance of the army, in the country's present situation, was
to disgrace the plaintiff. She, undoubtedly, wanted to show the plaintiff, to use local
parlance, "where power lay." We are all witnesses of the conduct of some army
personnel who have unjustifiably and illegally interfered in private disputes between
two private persons in recent times, and the humiliation to which such persons have
been subjected. An attempt was made by some members of the Armed Forces who
wanted to take away to the barracks my court clerk for non-payment of a private debt
some time ago but I asked my registrar (Mr. Tamakloe) to make it quite clear to the
servicemen concerned that they had no right whatsoever to intermeddle in such
private matters of two private citizens. I think it was really humiliating for the plaintiff at
the G.N.T.C. yard where whispering rumours might have taken place when the people
there saw the second defendant in his army uniform and the first defendant, a woman,
seizing the car of the plaintiff. The effect of this on the plaintiff must have been
distressing indeed.
I think I must award such amount of damages as will indicate my frank and vehement
disapproval of, and utter disgust at, the conduct of the defendants, and which will be
a lesson also to the people in this country that the army personnel are not clothed with
jurisdiction to be debt collectors for private citizens. I shall in the circumstances award
the plaintiff ¢1,500.00 general damages against the defendants jointly and severally.

[p.487]

The first defendant has counterclaimed for ¢3,011.00 being the balance due on the
sale of the car to the plaintiff. There is not a tittle of evidence whatsoever in support of
this amount. However, the plaintiff himself in evidence said that it was agreed between
himself and the first defendant that he should pay a further sum of ¢4,400,00 in
addition to the ¢7,000.00 to make a total purchase price of ¢11,400.00. It is admitted
on both sides that before the meeting at the offices of the Regional Administration the
plaintiff had paid ¢6,909.00 to the first defendant. The additional ¢4,400.00 was
ultimately also paid through the second defendant. The total payment made by the
plaintiff was therefore ¢11,309.00. The first defendant is therefore entitled to ¢91.00
(i.e. ¢11,400.00 less ¢11,309.00). Setting off this sum of ¢91.00 against the plaintiff's
¢1,500.00, I finally enter judgment for the plaintiff against the defendants jointly and
severally for the sum of ¢1,409.00 with costs of ¢300.00 inclusive of counsel's brief
fee.

DECISION

Plaintiff awarded general damages.

S. Y. B.-B.