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JOSEPH FORSTER WEREDU
V.
WEST COAST COMPANY LIMITED OF CAPE COAST AND OTHERS
THE WEST AFRICAN COURT OF APPEAL, GOLD COAST
ACCRA, 25TH MARCH, 1955
WACA APPEAL No. 19 of 1953
2PLR/1955/66 (WACA)
OTHER CITATION(S)
(1955) XIV WACA PP. 718 – 722
2PLR/1955/66 (WACA)
LEX (1955) – XIV WACA 718 – 722
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
COUSSEY, J.A.
HEARNE, J.A.
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BETWEEN:
JOSEPH FORSTER WEREDU OF NKRONSO AKYEM ABUAKWA PER MENSAH OKWEI OF LABADI, ACCRA – Appellant
AND
1. WEST COAST COMPANY LIMITED OF CAPE COAST
2. D. M. DAVIES, MANAGING DIRECTOR OF WEST COAST COMPANY LTD., CAPE COAST AND
3. J. PETER ASIEDU OF AFOSU AKIM, KOTOKU STATE – Respondents
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ORIGINATING COURT(S)
Appeal by the plaintiff:
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REPRESENTATION
Dr. J. B. Daquah — for the Appellant
Amaa Ollennu — for the first and second Respondents
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
TORT AND PERSONAL INJURY:- Trespass – Conversion – Goods seized by third party, not for defendant’s use – Defendant agreeing to buy the goods – Defendant’s mark put on goods – Defendant not taking possession, nor denying plaintiff’s right
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CASE SUMMARY
“A person who knowingly receives from another a chattel which the latter has wrongfully seized, and afterwards on demand refuses to give it back to the owner, does not thereby become a joint trespasser, unless the chattel was seized for his use”: Wilson v. Barker and Mitchell, 1833, 110 E.R. 587.
“It is clear that there can be no conversion by a mere bargain and sale without a transfer of possession” (viz. of the goods of another): Fowler v. Hollins, L.R., 7 9.B., p. 627, per Collins, J.
“Apart from mere dicta, no case, so far as I am aware, can be found where a man not in possession of the property has been held liable in trover unless he has absolutely denied the plaintiff’s right, although, if in possession of the property, any dealing with it, inconsistent with the owner’s right, would be a conversion”: England v. Cowley, L.R. 8 Ex. 126, at 131, per Kelly, C.B.
The plaintiff (above appellant) sued claiming (inter alia) the value of logs and damages for trespass and conversion of the logs, alleging that the defendants had stopped his lorries, cancelled his property mark on the logs, substituted their own property mark on them, and “appropriated and converted the logs to their own use”.
The trial Judge found that the Stool (or State) within whose area the logs had been felled were, rightly or wrongly, determined to protect what was considered to be Stool property and they, and not the defendants, stopped the lorries and seized the logs. The Stool offered the logs to the second defendant, who agreed to buy them provided they were delivered at a certain port. The third defendant, an employee of the first defendant, put on the Company’s property mark. When the plaintiff’s solicitor wrote to the second defendant to complain that the latter had seized his logs, the second defendant passed the letter to the Stool, who wrote to the solicitor that it was they who had appropriated the logs and agreed to sell them to the Company. The Company withdrew from the affair; they had not attempted to move the logs.
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DECISION(S) FROM THE CAUSE(S) OF ACTION
Held (dismissing the Appeal) that:
(1) It was not the defendants (respondents) who seized the logs but a third party; nor did the third party seize them for the defendants’ use; therefore, the defendants were not liable in trespass.
(2) The mere fact that the second defendant agreed to buy the logs of which there had been no delivery to him, and of which he was, therefore, never in possession, did not of itself amount to conversion by him or his Company of the logs. And putting the Company’s mark on the logs could not in the circumstances be said to be an appropriation and conversion of the logs to the Company’s use; it was apparently done only as a means of identifying the logs the second defendant had agreed to purchase: for the defendants had not attempted to move the logs, and, when the plaintiff’s solicitor wrote, they asserted no right but abandoned all interest in them.
Cases cited:
(1) Wilson v. Barker and Mitchell, 1833, 4 B. and Ad. 614; 110 E.R. 587.
(2) Mennie v. Blake, 1856, 6 E. and B. 842; 119 E.R. 1078.
(3) Consolidated Company v. Curtis & Son, 1892, 1 9.B. 495.
(4) Lancashire Wagon Co. v. Fitzhugh, 6 H. and N. 502.
(5) Fowler v. Hollins, L.R., 7 0.B. at 627.
(6) England v. Cowley, L.R., 8 Ex. 126, a1 131.
(7) Lancashire and Yorkshire Railway Co. v. MacNicoll, 1919, 88 L.J. (K.B.) 601.
(8) Oakley v. Lyster, 1931, 1 K.B. 148.
(9) Burroughes v. Bayne, 5 H. and N. 296, at p. 309.
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MAIN JUDGMENT
The following judgment was delivered:
HEARNE, J. A.
This is an appeal by the plaintiff in the Court below whose suit against the West Coast Company Ltd., of Cape Coast, the managing director of the said Company, and J. P. Asiedu, the first, second and third respondents respectively, was dismissed with costs.
The case of the appellant, as it was set out in the writ of summons, was that he was transporting eleven logs of timber on “a private road” on the 3rd December, 1950, when the defendants by cutting trees across the road prevented him from transporting the logs (paragraph 2); that the defendants cancelled his property mark on the logs, substituted their own property mark thereon, “and appropriated and converted the logs to their own use” (paragraph 3); and finally that the defendants took possession of and unlawfully detained three of his lorries (paragraph 4). In addition to claiming 4900 being the value of the eleven logs, and £340 being the loss of the services of the three lorries for thirty-three days, he claimed £200 (a) “for trespass and conversion of eleven logs” and (b) “for trespass to the lorries”.
Counsel for the appellant submitted, in reference to the averments contained in paragraphs 2 and 4 of the writ of summons, that the evidence adduced by the appellant to the effect that the order for the cutting of the trees had been given by the third respondent who claimed that he was acting on the instructions of the Company, “was stronger than the evidence” of the respondents that they were not responsible for the cutting of the trees, and that in consequence the learned trial Judge should have held that they (the respondents) were liable in trespass in respect of the logs and lorries which had been obstructed and seized as a result of the felling of the trees. He also submitted in reference to the averment contained in paragraph 3 of the writ of summons, that by putting the property mark of the Company on the logs the respondents” had converted the logs or had contributed to the conversion of the logs.”
I propose to examine first the evidence adduced by the respondents in rebuttal of the trespass alleged to have been committed by them. In a letter (exhibit 3) dated the 9th January, 1951, the Regent of the Akim Kotoku State informed the appellant’s solicitor that he had ordered the road to be blocked, and the Gyasehene of the State in his evidence accepted full responsibility on behalf of the State for the blocking of the road and the seizure of the logs. The Native Authority Police Inspector also gave evidence. “I went to Afosu and blocked the road,” he said, “as I was instructed by the Native Akim Kotoku Authority; the West Coast Company gave me no such instructions. I was given four labourers by the State, and we felled five trees across the road; there were no West Coast labourers involved as far as I know…” and, in cross-examination, he said, “the labourers who put up the block were not employees of the West Coast Company”. The learned trial Judge found that “the Stool, rightly or wrongly, was determined to protect what was considered to be Stool property and they, and not the first, second and third defendants, took the action complained of by the plaintiff. There is no reason to think that this finding of fact was otherwise than right, and it effectually disposes of counsel’s submission that the respondents were responsible for the road block and the obstruction and seizure of the appellant’s logs and lorries.
I would add that even if the respondents had received from the Akim Kotoku State logs belonging to the appellant which the State had wrongfully seized, the respondents would not have been liable in trespass, unless the logs were seized for the use of the respondents. It was held in Wilson v. Barker and Mitchell (1) that “a person who knowingly receives from another a chattel which the latter has wrongfully seized, and afterwards, on demand refuses to give it back to the owner, does not thereby become a joint trespasser, unless the chattel was seized for his use”. Although the State, after the road block had been effected, offered to sell the logs to the second respondent, there is no evidence that the State seized the logs for the use of the respondents. The reason for the felling of the trees was placed beyond any doubt in paragraph 2 of exhibit 3 to which I have referred. “Presumably you do not know the land on which your clients (Mr. J. F. Weredu & Co.) are operating is the Akim Kotolm Stool land … I also have to inform you that your clients have reached no agreement with this office: ultimately we reservedly (sic) ordered that that private road near Afosu village be blocked with trees so as to stop them from hauling any logs.”
It is clear on the authority of Wilson v. Barker and Mitchell (1) that the respondents are not liable in trespass. This does not mean, however, that they are not liable in trover, that is to say for conversion of the logs. In Mennie v. Blake (2) it was held that if goods belong to A, and B unlawfully possessed of them transfers them to C, it is not a trespass, though it may give a good cause of action in trover. In order to decide whether the respondents “converted the logs to their own use”, it is necessary to refer to other facts in the case.
In his evidence the second respondent said,
“The Akim Kotoku people told me they had blocked the road and seized the logs and would I be interested in purchasing them. I said subject to my inspection I would be interested. It was then I went to inspect the logs and I effected negotiations to purchase the logs but I did not complete purchase of them”.
In cross-examination he said,
“I was agreeable to buy these eleven logs provided they were delivered at the port of Takoradi”.
The logs were seized, according to the appellant, on the 3rd December, 1950. On the 31st December a letter (exhibit 2) was addressed to the second respondent by the appellant’s solicitor complaining that his Company had unlawfully blocked the road, seized the appellant’s logs and detained his lorries. The second respondent referred the letter to the Akim Kotoku State who informed the appellant’s solicitor that “it is rather this Native Authority which has appropriated the logs and agreed to sell them to the West Coast Company” (exhibit 3). In his evidence the second respondent said he had not moved the logs or attempted to do so.
The Judge must be taken to have accepted the evidence of the second respondent, for he held that “the defendant Company entered into negotiations to acquire the logs, but as soon as difficulties arose they wisely left the action (sic) and did not assume possession of the logs which still lie at the place where they were removed from the felling site”.
In Consolidated Company v. Curtis & Son (3) it was decided that the sale of goods of another person, accompanied by delivery of the goods, amounts to conversion and both seller and buyer are liable to be sued, except in the case of market overt when the seller alone is liable. In the course of his judgment Collins, J., referred to Lancashire Wagon Co. v. Fitzhugh (4) and to a passage in the judgment of Brett, J., in Fowler v. Hollins (5) which reads,
“So if one enters into a contract to sell, as if they were his own, the goods of another, whether the form of the contract be such as would assume to pass the property at once, or such as could only pass the property on a subsequent delivery, I apprehend that the mere fact of making such a contract is not a conversion”.
Collins, J., then said,
“It is clear that there can be no conversion by a mere bargain and sale without a transfer of possession. The act, unless in market overt, is merely void and does not change the property or the possession”.
It would follow from these authorities that the mere fact that the second respondent agreed to purchase the eleven logs of which there had been no delivery to him and of which he was, therefore, never in possession, does not in itself amount to conversion by him or his Company of the logs.
There are circumstances, however, in which there may be conversion of goods although the defendant has not been in physical possession of them, but the Judge did not consider the question of whether, even if the respondents had never had possession of the logs, they bad converted them to their own use by reason of the averment in paragraph 3 of the writ of summons and the admissions made by the respondents relative to the averment. In the statement of defence the third respondent admitted that he had “assisted in changing the property marks on the eleven logs but that he did so on instructions and as agent of the State of Akim Kotoku”. The second respondent said in his evidence that he “imagined the property marks (of the Company) had been put on the logs as soon as they were seized by Akim Kotoku”, although elsewhere in his evidence he said “the logs were not marked with our property mark”. He admitted that the third respondent was at the time an employee of the Company and that the third respondent, subsequent to his (the second respondent’s) arrival, had put on “my shipping marks”. The property mark of the first respondent is “Westco” in a straight line and their shipping mark is “Westco” in a triangle. To my mind, as ”Westco” whether in a straight line or a triangle is a distinctive mark used by the first respondent on their property, the question that has to be decided is whether, in placing “Westco ” on the logs, the respondents had converted them to their own use. Counsel for the appellant submitted that they had thereby done so though he did not cite any authority in support of this submission or indeed of any of the submissions of law which he made to us.
In England v. Cowley (6) Kelly, C.B., said,
“Apart from mere dicta, no case, so far as I am aware, can be found where a man not in possession of the property has been held liable in trover unless he has absolutely denied the plaintiff’s right, although, if in possession of the property, any dealing with it, inconsistent with the true owner’s right, would be a conversion”.
In Lancashire and Yorkshire Railway Co. v. MacNicoll (7), Atkin, J, said,
“It appears to me plain that dealing with goods in a manner inconsistent with the right of the true owner amounts to a conversion, provided that it is established that there is also an intention on the part of the defendant in so doing to deny the owner’s right or to assert a right which is inconsistent with the owner’s right”.
In Oakley v. Lyster (8) it was held that,
“there may be a conversion of goods even though the defendant has never been in actual possession of them, if his acts amount to an absolute denial and repudiation of the plaintiff’s right”,
for instance, as was said by Scrutton, L.J., in denying the right of the owner to remove his goods or, as was said by Slesser, L.J., in making an unqualified claim of property in the goods coupled with a refusal to allow them to be moved.
The gist of conversion by retention is the withholding of the property of another and the usual way of proving it is to show that there has been a refusal to deliver on demand. It may, however, and, in particular, if the property is not in the custody of the defendant, be inferred from his acts and from the intention he has evinced by his acts. But as Bramwell, B., said in Burroughs v. Bays (9),
“you must look in all cases to see, not whether there has been what can be called a withholding, but a withholding in such a way as may be said to be a conversion to a man’s own use”.
It remains to be decided, on the principles to which I have referred, whether in putting the mark “Westco.” on the appellant’s logs, the respondents converted them to their own use.
If the appellant had attempted to move the logs and been resisted by the respondents, or if they had made “an unqualified claim of property” in the logs and had refused to allow them to be moved or, again, if the respondents themselves had attempted to move the logs for the purpose, for instance, of shipping them, the acts of the respondents in my opinion would have amounted to conversion. But there is no evidence of this.
The Company’s mark “Westco”, it would appear, was affixed to the logs only as a means of identifying them as the logs the second respondent had agreed to purchase; for, on the receipt of exhibit 2, the second respondent, so far from making “an unqualified claim of property” in the logs, or “asserting a right (to them) inconsistent with the owner’s right”, abandoned all interest in them and prudently left the matter in dispute between the Akim Kotolu State and the appellant to be settled by them. I have come to the conclusion that by merely putting the mark “Westco” on the logs the respondents, in all the circumstances of the case, cannot be said to have “appropriated the logs and converted them to their own use”.
It may be that in affixing their mark the respondents were guilty of a trespass as distinct from a trespass by seizure on the basis of which, divorced as it was from the truth, they were sued.
For the reasons I have given I would dismiss the appeal with costs.
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FOSTER-SUTTON, P.
I concur.
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COUSSEY, J. A.
I concur.
Appeal dismissed.
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