IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2018
TRIL GHANA LIMITED - (Plaintiff)
AKWASI OSEI BOATENG - (Defendant)
DATE: 25 TH JUNE, 2018
SUIT NO: OCC 200/2013
JUDGES: DR. RICHMOND OSEI-HWERE JUSTICE OF THE HIGH COURT
LAWYERS: GEORGE FUSEINI FOR THE PLAINTIFF
By a writ of summons filed against the defendant on the 25th June, 2015 the plaintiff sought the following reliefs:
a) A declaration that the failure of the defendant to return the chattels or goods and the continuous use of the same without the consent of the plaintiff after a demand had been made amount to the tort of detinue and conversion.
b) An order for the immediate return of the plaintiff’s chattels\goods or in the alternative the market values of the said chattels\goods
c) General damages for unlawful detention and conversion
d) Any other relief as the justice of the case requires.
Appearance was entered on behalf of the Defendant by their solicitor on the 6th of July 2015.He later filed a statement of defense where he denied liability to the plaintiff’s claim.
After unsuccessful attempts at settlement, the following issues were set down for trial namely:
Whether or not the Defendant’s failure to handover the plaintiff’s chattel\goods to him amount to the tort of detinue or conversion?
Whether or not the Defendant has been using the Plaintiff’s chattel\goods without Plaintiff’s consent?
Whether or not the plaintiff is indebted to the Defendant the sum of Twenty-Nine Thousand, Nine Hundred and Twenty-Four Ghana cedis, Eighty-four pesewas (¢29, 924.84)?
Whether or not the Plaintiff is entitled to all the reliefs endorsed on the Writ of Summons?
It is observed that per the Court’s records, the Defendant was duly served with hearing notices to attend court for the trial to commence but he failed to show up. This is evidenced by some of the affidavits of service sworn on 15/03/2018 and 12/04/2018.
The defendant also failed to comply with the orders of the court to file his witness statement. On 24/05/2018, the court consequently invoked Order 32 rule 7A of the High Court (Civil Procedure) (Amendment) Rules, 2014, CI 87 and struck out the defence of the defendant.
With the continuous absence of the Defendant, the court had no option than to proceed with the case under order 36 rule 1(2)(a) of the High Court (Civil Procedure) Rules 2004, CI 47. It states:
Rule 1(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.
On the basis of the rule, the plaintiff was allowed to prove its claim on the 24/05/2018. The Plaintiff testified through its Managing Director, Richard Amponsah. He relied on his witness statement filed on 02/03/2018.
It is the case of the plaintiff that it is an incorporated limited liability company engaged in the production of bottled and sachet drinking water and that sometime in September 2013, the Defendant, a Ghanaian resident at Aprade, sought to enter a partnership agreement with the Plaintiff company. According to the plaintiff, it was made clear to the Defendant that the company would need cash injection to engage in business since it was indebted to Union Savings and Loans (now Omni Bank) as evidenced by the loan agreement marked Exhibit A.
The Defendant agreed to inject capital of 20,000 pounds into the business and persuaded the plaintiff’s representative to relocate the company and its assets from Asafo H/No. B4 167, Asafo, Kumasi to Plot 15 Block A, Aprade Road, Aprade Kumasi, the Defendant’s house which was obliged. It is also the case of the plaintiff that the defendant agreed to service the debt of the plaintiff company with the Omni Bank. It is the plaintiff’s case that upon the relocation of the business, the attitude of the Defendant changed in sharp contrast to what was earlier agreed. According to the plaintiff, the Defendant has failed to assist in servicing the loan leading the financial institution to confiscate the property of the Plaintiff company used as collateral, being the Plaintiff’s distribution truck, Samsung Yamouzine truck with registration number AW 7654-12 and 2005 model Pontiac Vibe private car with registration number AW 8389-12.
The plaintiff also states that the defendant has refused to render accounts in relation to the business and has also failed to execute the partnership agreement (i.e. Exhibit B). Also, the Defendant has refused or failed to deliver the property of the Plaintiff company upon request. To succeed in its claim, the plaintiff is required to prove his case to the required standard in civil suits, that is by the preponderance of probabilities as required by sections 11(4) and 12 of the Evidence Act, 1975 (NRCD 323). The Plaintiff’s burden of proof is not dispensed with despite the fact that the Defendants chose not to participate in the trial.
In other words, the Plaintiff must demonstrate to the satisfaction of the court that his case is more probable than not, else he loses. Thus, in Takoradi Flour Mills v Samir Faris [2005-2006] SCGLR 882 at 884, the Court held as follows:
“It is sufficient to state that being a civil suit, the rules of evidence require that the Plaintiff produces sufficient evidence to make out his claim on a preponderance of probabilities, as defined in section 12 (2) of the Evidence Decree, 1975 (NRCD 323). In assessing the balance of probabilities, all the evidence, be it that of the Plaintiff or the Defendant must be considered and the party in whose favour the balance tilts is the person whose case is the more probable of the rival versions and is deserving of a favourable verdict.”
I shall proceed to discuss the issues to ascertain whether plaintiff has led cogent evidence to establish its claim. Issues 1 and 2 will be tackled together as they are inextricably linked. In view of the fact that the defendant failed to participate in the trial issue 3 has become moot, as the defendant’s defenceas well as the counterclaim were struck out and as such there is no evidence on record to support the claim.
Issues 1 and 2
Detinue is the intentional and unjustified detention of goods belonging to a person. The defendant to the action must have refused to surrender the goods on demand. The defendant will be liable unless he raises the defence of necessity or that the goods are lost by accident.In Houghland v RR Low (Luxury Coaches) Limited  1 QB 694, the court stated that a bailee will ordinarily be liable unless he disproves fault. Conversion is intentionally dealing with goods in a way that is inconsistent with the possession or right to immediate possession [not ownership] of another. The claimant should have either possession or right to immediate possession in order to sue. See Hounslow LBC v Jenkins  EWHC 315.
From plaintiff’s own showing, the goods were taken to the defendant’s house pursuant to the intended partnership agreement. In paragraph 5 of his witness statement, the plaintiff stated as follows:
“The Defendant pleaded with the Plaintiff to relocate its business premises from House Number BH 167 Asafo, Kumasi to the Defendant’s premises at Plot 15 Block A, Aprade Road, Aprade, Kumasi which the Plaintiff Company agreed to and did.”
It is therefore clear that the goods were sent to the defendant’s house with the consent and concurrence of the plaintiff. Under Ghanaian law, partnership comes into existence after incorporation. Section 4(1) of theIncorporated Private Partnerships Act, 1962 (Act 152) provides:
“After the expiration of three months from the commencement of this Act, it shall not be lawful for a partnership to carry on business unless the firm shall have been duly registered in accordance with section 5 of this Act and not struck off the register under section 51, 52 or 53 of this Act.”
From the evidence on record, the proposed partnership agreement (exhibit B) was not executed by the parties. Consequently, no partnership agreement was incorporated. It therefore goes without saying that there is no partnership between the plaintiff company and the defendant. In view of this, there is no basis for the continued presence of plaintiff’s goods in defendant’s house. As stated earlier on, the properties were not wrongly taken by the defendant. He acquired possession lawfully but has detained them wrongfully, as he has failed to respond to the plaintiff’s request for the return of same and therein lies the defendant’s liability for detinue. In the result, I order the defendant to hand over all the goods belonging to the plaintiff to the plaintiff forthwith. For the avoidance of doubt the goods are listed below:
i. XGF 18.9 Litre bottle washing -filling-capping machine (currently valued at GH¢25,000)
ii. Kia Frontier distribution truck with registration number GE 8267-12 (currently valued atGH¢32,000)
iii. Samsung yamouzine distribution truck with registration number AW 7654-12 (currently valued at GH¢35,000)
iv. Pontiac Vibe private car with registration number AW 8389-12(currently valued at GH¢30,000)
v. Koyo liquid packaging machine (currently valued GH¢8,500)
vi. Air compressor (currently valued at GH¢2,000)
vii. Three 3.5HP water pumps (each currently valued at GH¢1,500)
viii. 3-in-1 printer-scanner-copier (currently valued atGH¢300)
ix. Production records of the Plaintiff before relocating from House Number BH 167 Asafo, Kumasi to the Defendant’s premises at Plot A, Aprade road, Aprade,Kumasi
x. The Plaintiff company’s Certificate of Incorporation and Certificate to Commence Business with its supporting documents
xi. The company’s Food and Drugs authority certification documents
xii. The Plaintiff company’s VAT registration Certificate
xiii. Health certificates of the plaintiff’s workers. (documents covering items attached as exhibits).
In the alternative, the defendant shall pay the monetary value of the goods/chattels to the plaintiff. Is the plaintiff entitled to general damages?
The law is that general damages lie for every infringement of an absolute right. The Supreme Court held in the case of DelmasAgency Ghana Ltd v Food Distributors International Ltd [2007/2008] SCGLR 748, 760 thus:
‘‘General damages is such as the law will presume to be the probable or natural consequences of the defendant’s act. It arises by inference of law and therefore need not be proved by evidence. The law implies general damages in every infringement of an absolute right. The catch is that only general damages are awarded.
Where a plaintiff has suffered a properly quantifiable loss, he must plead specifically his loss and prove it strictly. If he does not he is not entitled to anything unless general damages are also appropriate.’’
From the foregoing, I award GHC 4000 as general damages against the Defendant in favour of the Plaintiff.
I have taken into consideration the provisions of order 74 of C.I. 47 on award of cost. I have taken cognisance of the expenses incurred (including lawyer’s fee) in prosecuting this case by the plaintiff. Accordingly, I award costs of GHC 4000 against the 1st Defendant and in favour of the Plaintiff.