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ALFRED BERNARD DAREFOOH
V.
HALIM KARAM
WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST
10TH DAY OF JUNE, 1941
2PLR/1941/16 (WACA)
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OTHER CITATION(S)
2PLR/1941/16 (WACA)
(1941) VII WACA PP. 113 – 116
LEX (1941) – VII WACA PP. 113 – 116
BEFORE HIS LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
GRAHAM PAUL, C.J., SIERRA LEONE
BETWEEN:
ALFRED BERNARD DAREFOOH — Plaintiff-Respondent
AND
HALIM KARAM — Defendant-Appellant
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REPRESENTATION
J. H. Coussey with T. Hutum-Mills — for Appellant
A. K. N. Crabbe — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
TORT AND PERSONAL INJURIES – DETINUE/CONVERSION:- Wrongful seizure of Plaintiff’s lorry – Proper nature of claim writ should have disclosed – Where claimant’s writ disclosed conversion or trover – How treated – Damages – How properly assessed
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held:
(i) that discretionary power in Court to order delivery of particular chattel ought not to be exercised when chattel is an ordinary article of commerce and of no special value or interest and where damages fully compensate.
(ii) It is well settled law that in a claim in trover or conversion, only the value of the chattel at the date of the conversion may be claimed; special damages, however, may be claimed, but this does not include a claim for loss of ordinary earnings after the date of conversion.
(iii) plaintiff entitled to recover the value of the lorry only and was not entitled by way of special damage to recover what he might have earned by it.
(iv) that the return of the lorry and trailer was neither claimed by the plaintiff in his writ nor offered by the defendant in his defence in the Court below. The plaintiff can be fully compensated by damages.
(v) the quantum of damages in both forms of action – conversion and detinue – are the same and so it is immaterial whether the plaintiff sued in conversion or detinue.
Cases referred to:-
Read & anor. v. Fairbanks & ors. (22 L.J.C.P. 206).
Philips v. Hayward (1835) 3 Dowl. 362.
Whiteley Ltd. v. Hilt (1918 2 K.B. 819).
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MAIN JUDGMENT
The following joint judgment was delivered:-
KINGDON C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL C.J., SIERRA LEONE.
The claim of the Plaintiff-Respondent in this case was as follows:-
“The plaintiff claims from the defendant the sum of Three hundred and ninety-seven pounds ten shillings (£397 10s), whereof the sum of Three hundred pounds is for the value of G.M.C. Lorry A.T. 3335, and Titan Trailer A.T. 3724, which have been wrongfully seized and detained by the defendant since the 10th October, 1940, and Ninety-seven pounds ten shillings (£97 10s) is for loss of earnings by the plaintiff from the 9th October, 1940 to date hereof at the rate of one pound ten shillings (£1 10s) per diem.”
The defence of the defendant-appellant as orally stated at the bar in the Court below was as follows:-
”The writ of summons does not state that in the alternative of the defendant returning the lorry, the £300 will not demanded. We say that the ownership of this lorry and trailer is still in A. Chedid. At the time lorry was seized it was not licensed and had not been licensed for some time before. The defendant was justified in seizing this lorry because the plaintiff had pledged a lorry A.T. 5479 to the defendant and plaintiff removed certain parts of that lorry pledged to the defendant and fixed them on the lorry the subject matter of this action – thereby rendering the other lorry useless. For this reason, defendant went and seized this lorry. The defendant has since arranged with the owner of the lorry A. Chedid to keep the lorry. We deny that lorry belongs to the plaintiff as he has not paid for it.”
The Court below gave judgment for the plaintiff for £350 and costs. The basis of the judgment sufficiently appears from the concluding part of the judgment which is as follows:-
“A. Chedid has not appeared before the Court and has made no claim to the lorry. The defendant did not seize the lorry on behalf of A. Chedid. The defendant now claims the lorry seized to be his own. No matter how one looks at it the defendant’s action in seizing this lorry is wrongful and he is liable to pay damages. The plaintiff purchased the lorry for £430 and the trailer for £50 in October, 1936, and I believe the evidence of the plaintiff that the lorry and trailer were worth £300 at the time they were seized by the defendant wrongful seizure and detention the plaintiff would be entitled to £50 damages. So, there will be judgment for plaintiff for £350 plus costs.”
From that judgment, the defendant-appellant has appealed to this Court. His main grounds of appeal are as follows:-
“5. The learned trial Judge misdirected himself on the question of damages because—
(a) Plaintiff elected to sue in detinue for value of lorry and special damages.
The writ was in substance a claim for the return of the lorry or its value although not properly expressed.
The writ did not claim that defendant had converted plaintiff’s lorry to his own use nor damages for conversion.
The defendant’s counsel in pleading called attention to the defective nature of the writ of summons but was overruled.
(b) The Court misdirected itself in treating the claim as for trover and, instead of decreeing the usual form of judgment in an action for detinue for delivery of the lorry or payment of its value, awarded general damages which were not claimed.
The defendant had in fact not converted the lorry to his own use nor disposed of it nor was this alleged by the plaintiff.”
In this Court, the broad contention of the appellant was that the claim in this case, though badly expressed, was a claim in detinue and that the order of the Court below should have been for the return of the lorry in question or its value and not for its value plus an amount for loss of earnings. The respondent’s contention was that the claim was a claim based on trover or conversion and that the Court below was right in ordering payment of the value of the car plus the loss of earnings from the date of the seizure of the lorry to the date of the writ of summons.
There is no doubt that the claim in the writ is badly expressed but it has to be construed.
It is well settled law that in a claim in trover or conversion, only the value of the chattel at the date of the conversion may be claimed; special damages, however, may be claimed, but this does not include a claim for loss of ordinary earnings after the date of conversion. In Read and another v. Fairbanks and others, 22 L.J.C.P. 206, it was held that the defendants having converted a vessel before she was finished and having finished her, the plaintiffs were entitled to recover as damages in trover, the value of the vessel at the time of her conversion, but not her value at a subsequent time, nor, as special damage, the value of freight which the plaintiff might have earned with her if Read had completed her, and delivered her to them.
The position is stated very clearly in Clerk and Lindsell on Torts (9th Edition p. 354) as follows:
“The mere capacity for profitable use is part of the value of a chattel, and therefore the loss of such use is not a separate head of damage, for if so the plaintiff would, pro tanto, recover, twice over.”
As regards claims in detinue, the law is clearly stated in Mayne Damages, 10th Edition at page 399. The rules as to assessing the value of the goods, damages for their detention, and staying proceedings upon their delivery, are just as the same as in trover.” (Phillips v. Hayward (1825) 3 Dowl 362).
The quantum of damages in both forms of action being the same it is immaterial whether the plaintiff sued in conversion or detinue.
In our opinion the plaintiff was entitled to recover the value of the lorry and the trailer only and was not entitled by way of special damage to recover what he might have earned with them.
We cannot accept the contention by appellant’s counsel that the proper order in the circumstances was for the return of the lorry and trailer or their value. Upon this point, we respectfully agree with the dictum of Swinfen Eady 11.R. in the case of Whiteley Ltd. v. Hilt (1918 2 K.B. at p. 819):-
“The power vested in the Court to order the delivery up of a particular chattel is discretionary, and ought not to be exercised when the chattel in an ordinary article of commerce and of no special value or interest, and riot alleged to be of any special value to the plaintiff, and where damages would fully compensate”.
In the present case the return of the lorry and trailer was neither claimed by the plaintiff in his writ nor offered by the defendant in his defence in the Court below. The plaintiff can be fully compensated by damages. In all the circumstances the learned Judge was in our opinion right in not ordering the return of the lorry and trailer.
The appellant in [order] grounds of appeal raised the question of the assessment of the value of the lorry by the Court below at £300. On examination of the evidence on record it appears that there is no substance in the appellant’s contention that the value of £300 was excessive on the evidence. The trial Judge believed the evidence of the plaintiff that the lorry and trailer were worth £300 at the time they were seized by the defendant and he was justified in doing so as the plaintiff’s statement was not contradicted by the defendant or any of his witnesses. This Court must take it that the value put upon the lorry and trailer by the trial Judge was correct.
The appeal is allowed as regards the second part of the claim, namely the claim for loss of earnings and that part of the judgment of the Court below which awarded the plaintiff £50 on this part of his claim is set aside and a judgment dismissing that part of the claim is substituted. The judgment of the Court below as regards the £300 and costs stands. The appellant is awarded the costs of this appeal assessed at £46 16s 3d.
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