IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KUMASI - A.D 2017
KWADWO MENSAH, TANKO ZIBILA AND RICHARD OF SUAME MAGAZINE - (Defendants/Appellants)
JOHN NKETIAH - (Plaintiff/Respondent)
DATE: 19TH JULY, 2017
CIVIL APPEAL NO: H1/35/2017
JUDGES: E. K. AYEBI J.A. (PRESIDING), G. TORKORNOO (MRS) J.A., A. M. DOMAKYAAREH (MRS.) J.A.
DOMAKYAAREH (MRS) J A
This is an appeal against the judgment of the High Court, Sunyani, dated 14th October, 2014. What culminated in this appeal is a Writ of Summons issued by the plaintiff/respondent herein on 15-05-2012 against the defendants including the 3rd defendant/appellant herein claiming the following reliefs: -
a) Recovery or return of the GMC Articulated Flat Bed Truck with registration number GT 3607 X and chassis number 4VIDBCFASN701710 which the 1st defendant fraudulently sold to the 2nd and 3rd defendants.
OR IN THE ALTERNATIVE:
a. An order of the Honourable court compelling the defendants to pay to the plaintiff the current value of a Home Used GMC Articulated Flat Bed Truck.
b. An order of Honourable court compelling the defendants to pay to the plaintiff the sum of One Thousand Ghana Cedis (GHC1,000.) per week being the income earned by the plaintiff from the commercial use of the GMC Articulated Flat Bed Truck with registration mark GT 3607 X from November 2010 till date of return of the said truck or date of payment of current value of the said truck by the defendants.
The plaintiff/ respondent narrated the basis of the above claims in his Statement of Claim filed on the same day where he averred that he was the owner of a GMC Articulated Flat Bed Truck with registration number GT 3607 X and chassis number 4VIDBCFASN701710 which was purchased from his brother, Philip Boakye in the United States of America. The plaintiff averred that the truck was used for commercial purposes for which he earned an average amount of One Thousand Ghana Cedis per week and the truck was driven by Issah Mohammed. He averred that in or around August 2010, the said truck was loaded with mining equipment to be transported from Tema to Burkina Faso;
however, Issah Mohammed fell sick on the way hence he the plaintiff/respondent arranged for the 1st defendant, Kwadwo Mensah, to drive the loaded truck to its destination in Burkina Faso. The 1st defendant failed and refused to return the truck after offloading the equipment and went into hiding whereupon the plaintiff in October 2010 caused the arrest of the 1st defendant.
The 1st defendant claimed that the truck had broken down and had been parked somewhere at Burkina Faso. He was granted bail by the Police and at the plaintiff/respondent’s expense, was requested to go to Burkina Faso and bring back the truck. The 1st defendant however jumped bail until March 2012 when the plaintiff/respondent effected his re-arrest at Afienya - Tema.
The plaintiff/respondent averred that upon the re-arrest of the 1st defendant, it came to light that the 1st defendant had sold the head and the trailer of the truck to the 2nd and 3rd defendants respectively who bought same knowing that the head and trailer were not the property of the 1st defendant. The plaintiff further averred that the sale was without his consent since at the time of the sale the documents to the truck were in his possession. The plaintiff therefore instituted an action against the defendants at the High Court, Sunyani for the reliefs endorsed on the Writ of Summons.
The 2nd defendant who was the first to file his Statement of Defence denied the plaintiff’s averments and stated that in the year 2010, the 1st defendant came to his shop and told him that he had a trailer scrap located at his house at Tech- Kumasi which he wanted to sell. The 2nd defendant averred that together with his apprentice, Hakim they went with the 1st defendant to his house to check on the trailer head scrap. Upon arrival, the 2nd defendant said he realised that some parts like the axle, starter, battery, long shaft and condemned tyres, etc. of the head of the vehicle had already been removed. The 1st and 2nd defendant concluded on an agreed selling price of GH₡2,800.00 for the head of the vehicle. The 1st defendant then prepared a document using the name John Nketiah after which the 2nd defendant paid the said amount. The 2nd defendant hired a towing car to tow the scrap to his shop. The head of the vehicle was placed in his shop for two weeks before he dismantled it.
The plaintiff/respondent on 24th July, 2012 filed a motion ex- parte for leave to enter judgment in default of appearance and was granted same against the 1st defendant and the 3rd defendant/appellant herein. The two of them were adjudged and ordered to pay the current value of a Home Used GMC Articulated Flat Bed Truck to the plaintiff.
Subsequently, on 17th December 2012 an order was made pursuant to pre-trial settlement where the 2nd defendant accepted liability for GH₡20,000.00 to be paid to the plaintiff. The Court adopted the instalmental payment in the Terms of Settlement wherein any default in any of the terms would result in the whole balance falling due for payment by resort to the court’s execution process.
A hearing notice was issued to the 1st and 3rd defendants for the assessment of damages, however, attempt at service proved futile hence an order for substituted service was granted pursuant to a motion moved on same on 17th January, 2013.
The 3rd defendant then filed a Motion on Notice for leave to set aside the default judgment. Same was moved on 21-02-2013 and granted despite being opposed by the plaintiff/respondent herein.
After some further legal gymnastics, the 3rd defendant/appellant herein filed his Statement of Defence on 07 – 06 -2013 wherein he denied the averments of the plaintiff/respondent in his Statement of Claim and stated that in 2010, the 1st defendant introduced himself to the 3rd defendant as the bonafide owner of a trailer which he intended to sell. That the 3rd defendant informed the 1st defendant that he was not interested in the sale since he did not have the means to purchase the trailer; However, through his efforts, one Nana Fritz negotiated with the 1st defendant and agreed to purchase the trailer at GH₡7,000.00. The 3rd defendant/ appellant averred that upon the complaint of the plaintiff at the Berekum Police Station, after investigations, it was realised that the 3rd defendant did not purchase the trailer and he was set free.
The case then went through full trial at the end of which the trial Judge entered judgement in favour of the plaintiff/respondent on 14th October, 2014 for the following reliefs: -
a. Recovery from 1st and 3rd defendants of the current value of a GMC Articulated Flat Bed truck and
b. Recovery of the total of how much plaintiff lost by way of lost earnings at GH₡1000 per week calculated from the last week of November, 2010 till 15th May 2012 with interest on the total amount for the same period.
c. Costs of GH₡5000.00 against the 1st and 3rd defendants.
The 3rd defendant/appellant being dissatisfied with the decision of the High Court then filed this appeal seeking to set aside the judgment of the High Court and in place of that, for judgment to be entered for him. He anchored his appeal on the following two grounds, namely; -
i. The judgment is against the weight of the evidence on record
ii. That the Honourable Court erred in law by proceeding with the case without notice to the defendant/appellant after the withdrawal of the defendant/appellant’s lawyer.
Counsel for the appellant indicated that additional grounds would be filed upon receipt of the Record of Proceedings but no such additional grounds were filed.
As is well known, every appeal is by way of rehearing. This is sanctioned by Rule 8 (1) of the Court of Appeal Rules, 1997 C I 19. The said Rule 8 (1) is well known and provides as follows: -
“8. Notice and grounds of appeal
(1) Any appeal to the Court shall be by way of re-hearing and shall be brought by a notice referred to in these Rules as "the notice of appeal".
Counsel for the appellant argued ground ii of the grounds of appeal first and we accordingly evaluate that ground of appeal first. The said ground ii states that the Honourable Court erred in law by proceeding with the case without notice to the defendant/appellant after the withdrawal of the defendant/appellant’s lawyer.
Counsel for the appellant submitted that on 21st January 2014 when the respondent opened his case the appellant and his Counsel were present in Court. The case was then adjourned to 31st January 2014 but the court did not sit on that day as there is no record to that effect in the Record of Appeal.
The Record showed that the case was next heard on 15th April 2014 in the absence of the appellant and his lawyer and that the Record of Appeal does not indicate that the appellant had notice of that day’s proceedings and no order was made for a Hearing Notice to be served on him or his lawyer.
Counsel submitted that the record does not suggest that there were any circumstances warranting the court to proceed under Order 36 Rule 2(a) of C.I 47 or any other rule. The said Order 36 Rule 2(a) states as follows: -
“Failure to attend at trial
(2) Where an action is called for trial and a party fails to attend, the trial Judge may
(a) where the plaintiff attends and the defendant fails to attend, dismiss the counterclaim, if any, and allow the plaintiff to prove the claim;”
Counsel further submitted that from the Record of Appeal there is no evidence that the appellant was served with notice of all the proceedings from 15th April 2014 and subsequent thereto until the date of the judgment on 14th October 2014. He said the record indicates that between 15th April 2014 and 14 October 2014 the case was adjourned three times to 5th May 2014, 30th May 2014 and 16th June 2014 all of which the appellant did not participate in because no Hearing Notice was ordered to be served on him. Counsel submitted forcefully that all these proceedings were conducted in obvious breach of the rule of natural justice and therefore a nullity and consequently, ought to be set aside. Counsel supported his submission on this point with several decided cases including THE REPUBLIC V COMMITTEE OF ENQUIRY INTO NUNGUA STOOL AFFAIRS; EX PARTE ODAI IV & OTHERS (1996-97) SCGLR 401 where BAMFORD ADDO JSC (as she then was) stated that “A decision made in breach of the rules of natural justice would be quashed even if made correctly”.
The Record of Appeal shows that even though at the end of the proceedings on 15/04/2014 the case was adjourned to 5th May 2014, (see page 129 of the ROA) no sitting took place on that date as there is no record to that effect. Similarly, at the end of the proceedings of 30/05/2014 the case was adjourned to 16th June 2014 (see page 134 of the ROA) but no sitting took place on that day.
In response to this argument Counsel for the plaintiff/respondent conceded that after the respondent opened his case on 21st January 2014 in the presence of both parties and their respective Counsel, the case was adjourned to 31st January 2014 for which no sitting took place and that the next date the matter was heard was indeed 15th April 2014 as captured on page 123 of the Record of Appeal. On this date, the matter proceeded in the absence of the appellant and his lawyer. He however debunked the submission of Counsel for the appellant on this point by pointing to pages 90 and 91 of the Record of Appeal. At page 90 of the ROA is a Hearing Notice to Parties dated 24th March 2014 with 15th April 2014 fixed as the date of hearing. At page 91 of the ROA is the Affidavit of Service dated 26th March 2014 indicating that the said Hearing Notice to parties was served on the appellant on 25th March 2014 at 1:51pm personally at Kumasi. Counsel therefore submitted rightly that the appellant having been thus served and aware of the proceedings scheduled for 15th April 2014 but deliberately refused to participate in same cannot claim that he was not given a hearing in the matter. Counsel for the respondent also supported his submissions with two Supreme Court cases, namely: - THE REPUBLIC V HIGH COURT (HUMAN RIGHTS DIVISION) ACCRA, EX PARTE AKITA (MANCEL-EGALA AND A–G, INTERESTED PARTY)  SCGLR 372 and THE REPUBLIC V HIGH COURT (FAST TRACK DIVISION) ACCRA; EX PARTE STATE HOUSING CO. LTD (NO. 2) KORANTENG – AMOAKO INTERESTED PARTY)  SCGLR 182.
In the EX PARTE AKITA case Brobbey JSC (as he then was) stated at page 384 as follows:
“A person who had an opportunity to be heard but deliberately spurned it to satisfy his decision to boycott proceedings, could not later complain that the proceedings have proceeded without hearing him or her and then plead in aid the audi alteram partem rule”
Similarly, in the EX PARTE STATE HOUSING CO. LTD. (NO. 2) case, Georgina Wood CJ (as she then was) stated at page 190 as follows:
“A party who disables himself cannot later turn round and accuse the adjudicator of having breached the rule of natural justice”. Counsel therefore submitted that ground 2 of the appeal ought to be dismissed.
Counsel for the plaintiff/respondent did not however address the absence of the appellant from the proceedings of 30th May 2014, and the date of the judgment on 14th October 2014. No wonder he did not address these dates because the ROA as it stands is blank on same. Rule 31 of the Court of Appeal Rules, 1997 C I 19 gives some general powers to this court. The one that is relevant to the determination off this appeal is Rule 31 (b) where the court may amend any defect or error in the Record of Appeal. To this end, the Court called for the original trial Docket in this case to ascertain whether there was any defect or error in the Record of Appeal. The summary notes by the Court Clerk entered on the covers of the Docket which are extracts from the Record Book provided the answers. The proceedings of 30/05/14 are found at pages 130 to 134 of the Record of Appeal. On that day, the “defendant” is recorded as absent and not represented by counsel notwithstanding the fact that there were two defendants, namely, 1st and 3rd defendants. Same is recorded as such in the Notes on the Docket. However, the case was also head on 6th May, 2014. The note on the Docket for that hearing date is that the 3rd defendant, i.e. the 3rd defendant/appellant herein was present. It was on this 6/5/14 that the suit was adjourned to 30/05/14 in the presence of the 3rd defendant/appellant herein.
This entry was taken from Vol 1, page 401 of the Record Book. The 3rd defendant/appellant cannot therefore attribute his absence in court on 30/05/14 to any defect in the court processes. It does not therefore lie in his mouth to seek refuge in the audi alteram partem rule in respect of the proceedings of 30/05/14.
The next date the 3rd defendant/appellant sought refuge in is 14/10/14 i.e. the date of the judgment. The judgment can be found at pages 135 to 141 of the Record of Appeal. At page 135, it is not even recorded whether or not the defendants were present or absent except to say that “DEFENDANTS (1ST AND 3RD) NOT REPRESENTED” The entry on the Docket is however different. This is what it says: -
“14/10/14 (B Acquah J)
Plt. Present. 3rd deft present. Obeng Manu for plt. present. 1st & 3rd deft (in person not/not represented.
B/C Judgment in case read. Judgment entered for plt against the two defs (1st & 3rd). See reason as per judgment. Cost of GHC5,000.00 to plt against 1st & 3rd deft. Order accordingly.”
With this the plea of the 3rd defendant/appellant that the court did not observe the audi alteram partem rule in respect of him has fallen into shreds.
We must state that every requirement of the Rules of Court is very important and has been put there for a purpose. The Rules must therefore be taken seriously by all counsel. The settlement of the Record of Appeal is a crucial feature of the appeal process and counsel must be diligent in attending to same to make sure that all processes relevant to the determination of the appeal are included in the Record of Appeal and not selective processes that will favour only one side. In particular, proceedings that have to be typed from the Record Book must be meticulously scrutinised to ensure that the correct entries are typed out. Ground ii of the grounds of appeal is dismissed.
We now consider ground I of the grounds of appeal which is that the judgment is against the weight of the evidence.
In arguing ground 1 of the grounds of appeal, Counsel for the appellant demonstrated his correct understanding of the import of this omnibus ground of appeal by referring to the well-known cases of
AYEH AND AKAKPO VRS ANYAH IDDRISU (2010) SCGLR 891, TUAKWA V BOSOM (2001-02) SCGLR 61, ABBEY V ANTWI (2010) SCGLR 17, BROWN V QUASHIGAH (2003-04) SCGLR 930 and DJIN V MUSAH BAAKO (2007-08) 686. These cases set out what is required of the appellant when he relies on this ground of appeal as well as the duties of the appellate court in considering same. In summary, the appellant has to demonstrate clearly from the Record of Appeal that there are pieces of evidence in his favour which if they had been so applied would have turned the decision in his favour and or that certain pieces of evidence were wrongly applied against him. The appellate court also has a duty to re-hear the case by evaluating all the evidence in the case and decide for itself whether or not the trial court’s judgment is supported by the evidence or not.
In the TUAKWA casefor instance cited supra, Sophia Akuffo, J.S.C. (as she then was) laid down the principle for tackling the ground of the judgment being against the weight of evidence in these terms:
“…an appeal is by way of a rehearing, particularly where the appellant alleges in his notice of appeal that the decision of the trial court is against the weight of the evidence. In such a case, although it is not the function of the appellate court to evaluate the veracity or otherwise of any witness, it is incumbent upon an appellate court, in a civil case, to analyse the entire record of appeal, take into account the testimonies and all documentary evidence adduced at the trial before it arrives at its decision, so as to satisfy itself that, on a preponderance of the probabilities, the conclusions of the trial judge are reasonably or amply supported by the evidence.”
Counsel for the appellant, in discharging the obligation imposed on him by the authorities he cited pointed out what he termed salient pieces of evidence on the record which were ignored by the Honourable trial court and which should have been considered in favour of the appellant. Counsel also contended that the trial High Court relied on facts which did not form part of the evidence on record.
Counsel submitted that the respondent averred that he was the owner of GMC Articulated flat-bed truck which he purchased from one Philip Boakye and merely repeated same in his testimony. He said the Exhibits tendered in respect of ownership, i.e. Exhibit A and A1- A25 where all in the name of Philip Boakye. That the respondent could not produce even a receipt of payment to show that he purchased the said vehicle. He said once the appellant denied that the respondent was the owner of the said vehicle, it became incumbent on the respondent to prove same by positive evidence. He submitted that this state of affairs ought not to have been ignored by the trial judge.
Counsel for the appellant also referred to the claim by the respondent that he earned Gh⊄1,000.00 per week from the commercial use of the GMC Articulated Flatbed truck and submitted that in the face of denial of same by the appellant, the respondent was duty bound to prove same and not merely repeat same in the witness box. Counsel submitted that the respondent’s driver was a material witness in respect of his alleged earnings but the respondent failed to call him as a witness. He submitted that the court ought not to have also ignored this matter as not having been proved; therefore, the finding of the trial judge that the respondent was entitled to the said claim/relief was not backed by the evidence.
Counsel also referred to the testimony of the respondent in his evidence -in- chief that given the state of the vehicle the last time he saw it he would have sold it for Gh⊄120,000.00 and said there was no evidence of the age of the vehicle in the ROA. He submitted that the age of the vehicle could not be ignored in determining the value of the vehicle, pointing out that the documentation on the vehicle, Exhibits A and A1-A25 showed that the vehicle was a “home used vehicle” which entered Ghana in 2006. Exhibit A at page 144 of the ROA indicates that the vehicle was a1995 model meaning it was fifteen years at the time of its conversion in 2010. The appellant did not challenge the value of the vehicle under cross examination and will therefore be held bound.
Counsel also submitted that it was unjust for the trial judge to grant the respondents relief for the current value of the vehicle in view of the fact that the evidence on record was that the 2nd defendant bought the head of the Articulator and that it was Nana Fritz who purchased the trailer without the front axle tyres and with some of the springs broken. Counsel referred to Exhibits D4 and D5 at pages 181 and 183 of the ROA in support of his statement that Nana Fritz and not the appellant purchased the trailer of the articulator as aforesaid. We agree with him but for a different reason which will be stated shortly. Exhibits D4 and D5 are extracts from the Police Diary of Action which do not support the assertion by Counsel for the appellant. Exhibit D4 talks about the arrest of the 2nd defendant and his admission that he bought the articulator head one and a half years earlier and the allegation by the first defendant that he also sold the trailer to one Richard who is the 3rd defendant/appellant herein. Exhibit D5 on the other hand details the arrest of the 3rd defendant/appellant herein and his allegation that the 1st defendant pledged the trailer with him for cash of GH⊄4,000.00. He also identified the 1st defendant as the one who sold the trailer to him about one and half years earlier.
During interrogations, 3rd defendant/appellant provided the third variation to his story that the trailer was rather sold to his friend one Kwabena Francis and that he only acted as a middleman and a cash of Gh⊄7,000.00 was paid to the 1st defendant who was then facing criminal prosecution. Exhibit D5 also stated that the 3rd defendant/appellant herein was released on Police enquiry bail in the sum of Gh⊄ 5,000.00 with one surety in the person of Kwaku Agyemang of H/No. Plot 9 Block 11, New Suame, Kumasi on mobile phone no 0244694734. His assertion that he was set free by the Police after investigations cannot therefore be true.
Counsel for the appellant also pointed to the settlement liability of Gh⊄ 20,000.00 accepted by the 2nd defendant in respect of the purchase of the Articulator head which was not taken into account when the trial judge decreed that the 1st and 3rd defendants were liable to the respondent for the full current value of the truck. We agree with him on this point. The Gh⊄20.000.00 should be set off against the value of the truck. As to the argument by Counsel for the appellant that it was Nana Fritz who purchased the trailer but that this was not taken into account, we must disagree with Counsel on that submission. This is because the 3rd defendant/appellant has provided so many variations of the story of who purchased the trailer from pleadings, evidence and statements to the Police that no credibility should be attached to those pieces of evidence. Although the Police Diary of Action per Exhibit D5 and D6 showed that the trailer was found with Nana Fritz at Sakora No. 4 between Madina and Adenta in Accra, yet he was not a party to this suit and the trial judge could thus not make any order against him.
Counsel also submitted that he has gleaned through the ROA but he did not find any terms of settlement at the pre-trial stage where the 2nd defendant settled with the plaintiff/respondent herein. The implication of this assertion as stated by Counsel is that the trial judge relied on evidence that was not before him in arriving at his judgment. This is however far from the truth. At page 31 of the ROA is an Order pursuant to Pre-trial settlement dated 17th December 2012 where the 2nd defendant accepted the liability for GH⊄20,000.00 as well as the terms of payment. Page 32 of the ROA contains the Memorandum of Agreement also itemizing the acceptance of liability for Gh⊄20,000.00 by the 2nd defendant and the terms of payment. Counsel for the appellant also took exception to the description of the 2nd defendant as apparently being a good Muslim and stated that as the 2nd defendant did not testify in the trial or appear before the trial judge there was no basis for him to come to such a conclusion. The trial judge may have expressed such an opinion but that is of no moment as it did not affect the ratio decidendi of his judgment.
Counsel for the respondent countermanded the submissions of his colleague on the other side. On the ownership of the vehicle, he submitted that the respondent pleaded and testified that he bought it from one Philip Boakye and this was not challenged by way of cross-examination. This court is not oblivious of the fact that in Ghana some people purchase vehicles and for several years hold on to the title documents of the vendor without effecting change of ownership. The appellant’s Counsel himself concedes that the vehicle entered Ghana in 2006 and was in commercial use when it was converted by the defendants sometime in August 2010, a period of about four years. All this while if the ownership of the vehicle had not properly changed hands, its original owner, Philip Boakye would have lodged a complaint in respect of same to the Police Service. The Police conducted investigations into the said vehicle following the report lodged by the plaintiff/respondent to them in October 2010. The evidence does not disclose that the vehicle was never owned by the said Philp Boakye. This court therefore endorses the trial judge’s acceptance of the plaintiff/respondent as the owner of the vehicle.
Counsel submitted that the 3rd defendant /appellant has implicitly conceded that the plaintiff/respondent is the owner of the vehicle in his depositions at paragraphs 11 and 12 of his Affidavit in Support of his Motion to Set aside the Default Judgment against him. The said Affidavit in Support can be found at pages 47 to 48 of the ROA where the 3rd defendant/appellant deposed that the plaintiff/respondent dealt with Nana Fritz on the sale of the trailer.
On the weekly earnings of GHC1,000.00 from the commercial use of the Articulator, counsel submitted that once this averment was not challenged under cross-examination, same is deemed to be a tacit admission by the defendant appellant. Although this amount was not proved in the strict sense, this court is prepared to hols that as a commercial vehicle on the road at the time it was converted, it was earning some income and that the GHC1,000.00 per week does not appear to be unreasonable, outrageous or scandalous. However, the vehicle cannot be earning the same amount for all the weeks consecutively. This is because the vehicle will have to undergo periodic maintenance during which period it will not be earning any income. It could also suffer a breakdown and the driver is also entitled to some periods of rest aside week ends. All these will have to be factored in and discounted against the time the earnings are to be calculated. Therefore, the trial judge erred in awarding the earnings of GHC1,000.00 per week from the last week of November 2010 till 15th May, 2012, a period of about one and a half years. Taking cognisance of the fact that the vehicle may go for quarterly maintenance of about one week each, we discount the period by six weeks. On account of possible break downs, we discount same by another two weeks. Under section 20 (1) of the Labour Act 2003 (Act 651) every worker in an undertaking is entitled to not less than fifteen working days leave with full pay in a calendar year of continuous service. Accordingly, we give a further discount of three weeks. In sum, the period awarded by the trial judge is discounted by eleven weeks. Interest will also will be paid on the total amount at the commercial bank rate for the revised period.
On the claim by the defendant/appellant that it was Nana Fritz who bought the trailer and not him, the defendant appellant at one time in his proposed Statement of Defence found at page 66 of the ROA stated at paragraph 8 thereof that he would seek leave of the court to apply for Nana Fritz to be joined to the suit so as to avoid multiplicity of suits but failed to do so after filing his Statement of Defence.
We are satisfied from the evidence on record that the 3rd defendant/appellant together with the 1st and 2nd defendants are responsible for the conversion of the plaintiff/respondent’s Articulator truck. As is well known, Conversion arises when there is an intentional act that has the effect of permanently depriving the owner of the goods of ownership and use of same. There is no doubt that the activities of the 1st and 2nd defendants as well as the 3rd defendant/appellant in respect of the Articulator truck has permanently deprived the plaintiff/respondent of the ownership and use of the said vehicle.
The consequential outstanding issue to determine therefore is the level of the liability of the 3rd defendant/appellant for the said conversion.
It I noted that the judgment in default of appearance dated 24-07-2012 is still valid and subsisting against the 1st defendant since it was only the 3rd defendant/appellant who applied and successfully set it aside in respect of only himself. That being the case, the 1st defendant is liable for part of the cost of the Articulator. Even though the plaintiff/respondent sued the three defendants jointly and severally, yet the justice of this case demands that the liability should be apportioned in view of the different roles played by the defendants. This court accepts that the Articulator would have sold for ghc120, 000 as same was not challenged under cross-examination. GHC20, 000.00 of this amount was admitted by the 2nd defendant and paid. Of the balance of GHC100, 000.00 this court apportions
GHC70, 000.00 to the first defendant since he is the principal architect of the conversion. The 3rd defendant /appellant is therefore liable for GHC30, 000.00 which is thirty per cent (30%) of the balance. Similarly the 3rd defendant /appellant is to pay 30% of the earnings and interest awarded.
On the whole, save for the liability of the 3rd defendant/appellant varied as above, the appeal is dismissed.