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MALAM ALIDU
V.
KOFI MANU
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST
16TH DAY OF JUNE, 1944
2PLR/1944/4 (WACA)
OTHER CITATION(S)
2PLR/1944/4 (WACA)
(1944) X WACA PP. 217 – 219
LEX (1944) – WACA PP. 217 – 219
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
HARRAGIN, C.J., GOLD COAST
DOORLY, J.
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BETWEEN:
MALAM ALIDU – Plaintiff-Appellant
AND
KOFI MANU – Defendant-Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
TORT AND PERSONAL INJURY LAW — DETINUE:- Wrongful detention of goods — Right to return— Damages (Special and General) — When applicable — How assessed — Need to consider tear and wear where applicable
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REPRESENTATION
E. P. Asafu-Adjaye — for Appellant
E. A. N. Foulkes Crabbe — for Respondent
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CASE SUMMARY
Appeal by Plaintiff from the decision of the Chief Commissioner’s Court, given on appeal from the Magistrate’s Court, which had made an Order on appeal from the Native Court, Kumasi.
In September, 1942, Defendant asked Plaintiff, who was going to Accra, to buy him two tyres and a tube; Plaintiff was unable to get them, but got a tyre for Kofi Atia, which he gave Defendant subject to Kofi Atia’s consent. Kofi Atia would not consent, but Defendant refused to return the tyre; so Plaintiff gave one of his own to Kofi Atia, whereby his lorry was put off the road. In November Plaintiff sued in the Native Court claiming –
(a) return of cover and tube,
(b) 25s. per day while his lorry was off the road and
(c) general damages.
That Court ordered Defendant to replace the tyre or pay its value but gave no damages. Plaintiff appealed to the Magistrate, who ordered Defendant to return the tyre in a week but disallowed payment of its value as an illegal alternative. Defendant then offered to return the tyre after this Order given on 10th July, 1943, but Plaintiff refused to take it and appealed to the Chief Commissioner’s Court, which ordered instead that Defendant should pay the cost of the tyre (doubtless because Plaintiff said the tyre was spoiled). Failing to get either special or general damages, Plaintiff appealed to West African Court of Appeal.
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
1. Held, that as Appellant had no obligation to give one of his own tyres to Kofi Atia, special damages could not be awarded.
2. Held also, that after the request to return the tyre, Respondent’s detention thereof was wrongful-which entitled Appellant to the return thereof, damages for wear and tear thereto, and general damages for wrongful detention from the date of the request to return the tyre down to the date when Respondent offered to return it, to be assessed by the Native Court.
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MAIN JUDGMENT
The judgment of the Court was delivered by Harragin, C.J. (Gold Coast):-
Some time in September, 1942, Malam Alidu, the appellant in this case, who lives in the Kumasi District, proceeded to Accra. Before leaving the Kumasi District, he was asked by the respondent to purchase for him two motor-car tyre covers and one inner tube, the respondent giving him the necessary money and permit. The appellant was unable to obtain the outer covers or the inner tube for the respondent though he was more successful in obtaining a tyre for one Kofi Atia. When the appellant returned to Kumasi, he told the respondent that he had been unsuccessful in his mission and the respondent asked him to let him have the tyre that appellant had bought for Kofi Atia. The appellant agreed to this but told him to keep it until he saw Kofi Atia and obtained his consent to the transfer. The appellant saw Kofi Atia who refused to allow the respondent to have his tyre, and the appellant returned to the respondent and asked for its return which was refused by the respondent. As a result of the respondent’s refusal, the appellant complained to the Motor Union who ordered the respondent to return the outer cover and inner tube to him. This was at the end of October. The respondent refused to comply with the finding of the Motor Union. As a result of his refusal the appellant felt obliged to give one of his own tyres to Kofi Atia whereby the appellant’s lorry was put out of action.
On these facts the appellant sued the respondent in the Kumasi Divisional Native Court in November, 1942, claiming –
(a) the return of the outer cover and inner tube,
(b) 25s. per day for the period that the appellant’s lorry was off the road as a result of the loan to Kofi Atia of the tyre, and
(c) by way of general damages.
The Native Court found as a fact that the appellant had lent the tyre in question to the respondent, and ordered the respondent to replace the tyre or to pay the value thereof. The claim for damages was dismissed as the Court did not see how any damages were caused by the respondent. The appellant appealed to the Magistrate’s Court at Kumasi which varied the order of the Court below as the Court did not agree to the payment of the value of the tyre in cash as alternative since such an order would authorise the committing of an offence, but once again ordered the respondent to return the tyre in question to the appellant within a week. The appellant then appealed to the Chief Commissioner’s Court which varied the decision of the Magistrate to this extent, namely that the “respondent shall pay the costs of the tyre £8 5s. to appellant. Each party to pay its own costs here”.
This was no doubt done because of the statement made by the appellant to the effect that the cover was now spoiled. It should be noted that the judgment of the Magistrate’s Court was given on the 10th July, 1943, and that the respondent had offered to return the tyre within three days of this judgment but the appellant refused to accept it.
Against the order of the Chief Commissioner, the appellant has appealed to this Court on grounds which may be summarized shortly into a complaint that neither special nor general damages had been awarded against the respondent.
It was argued on behalf of the respondent that it would have been an illegal act for the appellant to have sold the tyre in question to the respondent and that therefore the appellant was estopped from claiming damages. This may or may not be correct, but we have perused the law on the subject and can nowhere find that it is an offence to lend a tyre to a friend in distress and it is upon this basis that the case is brought.
We are not of the opinion that in this case any special damages can be awarded as the appellant was under no obligation to hand over to Kofi Atia one of his own tyres thereby putting his lorry out of commission. It is clear, however, that the respondent wrongfully retained the tyre in question from the date upon which the appellant requested its return. We are therefore of the opinion that the respondent should return the tyre in question to the appellant particularly as it is a matter of common knowledge that the appellant cannot obtain a new tyre without producing an old tyre to the dealer. Should this tyre be worn out as we have good reason to believe, the appellant is entitled to damages for the wear and tear to the tyre, and we are further of the opinion that the appellant is entitled to general damages for the wrongful detention of the tyre from the date on which the appellant requested its return until the date that the respondent offered the tyre to the appellant, which was on or about the 13th July, 1943.
The case is therefore returned to the Kumasi Divisional Native Court to assess damages in accordance with the terms of this judgment.
As the appellant has been successful in his appeal, the respondent shall pay the costs in this Court assessed at £40 2s. 5d. and in the Courts below to be taxed.
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