IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2016
KWADWO ANTWI - (Plaintiff)
DANIEL ASAMOAH - (Defendant)
DATE: 2ND FEBRUARY, 2016
SUIT NO: OCC/37/15
JUDGES: ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
IBRAHIM ADAMS FOR PLAINTIFF
FREDERICK OWUSU FOR DEFENDANT
This action arose from the sale of a Kia Pregio Vehicle to the Plaintiff, and to which the Defendant also claims ownership. Per the endorsement on the writ of summons filed on 2/10/14, the Plaintiff seeks the following reliefs:
i. A declaration that he is the owner of the Kia Pregio Vehicle with Chasis number KNETB24225K201894;
ii. Recovery of possession of the said vehicle;
iii. General damages for detinue
Perpetual Injunction restraining the Defendant, either by himself, agents, servant, workmen, assigns, representatives and/or any other person(s) claiming through him or on his behalf or derive his interest or title from him from in any way dealing with and/or having anything to do in the form of taking over the vehicle from the plaintiff and/or obstructing the use of the said vehicle by the Plaintiff or doing anything at all with the aim of denying the Plaintiff access to same.
Such further order(s) as the Honourable Court may deem fit, equitable and just.
The facts of the case are uncomplicated. The Plaintiff who is a used car dealer alleged that in the course of his business, one Oppong who is also a known car dealer, brought a KIA Pregio with chassis number KNETB24225K201894, the vehicle in issue for sale. The said Oppong came along with the original documents covering the vehicle which the Plaintiff took the Driver and Vehicle Licensing Authority, Kumasi for verification. The Plaintiff further verified from friends of the said Oppong and he became convinced that the said Oppong was the real owner and had the right to sell the vehicle. After negotiations, the Plaintiff allegedly paid the agreed price of Twenty Thousand Five Hundred Ghana Cedis (GH¢ 20,500.00) to the said oppong and took possession of the car.
The Plaintiff further averred that on 15/09/14, the Defendant came with some armed police men to impound the vehicle on the basis that he gave the vehicle and its documents to Oppong to sell on his behalf but after the sale, Oppong failed to pay the money to him. Those police men seized the vehicle but later released the same to the Defendant without the knowledge of the Plaintiff. It is as a result of this dispossession that the Plaintiff has come to court to claim this vehicle on the basis that he is a bona fide purchaser for value in good faith without any notice whatsoever.
The Defendant's version of the story is that even though he gave the vehicle in issue to Kwame Oppong who is a car dealer, to sell on his behalf, he did not release the title documents to him initially. Later, Oppong came to collect the documents to enable a prospective buyer who had deposited GHC 5,000.00, to verify the genuineness from the Driver and Vehicle Licensing Authority (DVLA). After releasing the documents to Oppong, the Defendant contended that he neither saw the vehicle nor Oppong again. Thus, he reported the case to the police and after a radio announcement, the vehicle was found at Abrepo junction; the police took custody of the same and having obtained an order from the Circuit Court, the Vehicle was duly released to him. It is his case that all the title documents bear his name, and if the Plaintiff had exercised due diligence, he would have known that the vehicle did not belong to the person selling it.
In court, both parties gave evidence in support of their respective cases as outlined above. The Plaintiff who is still in possession of the original title documents tendered a copy in evidence as exhibit A. The Defendant's witness also tendered a copy of the same as exhibit 2.
Explaining why he reasonably believed that Oppong was the owner of the vehicle, the Plaintiff stated that in the second hand car dealership business, when a person presents a vehicle together with genuine title documents, he is presumed to be the owner, since in most instances, the importers of the vehicle are abroad. In that case, the seller's name will not be on the title documents. Thus, in the instant transaction, when Oppong brought the vehicle to the place where he sells his cars together with the Original title documents, he reasonably believed the importer is Samuel Asamoah who was outside the jurisdiction. He denied the Defendant's assertion that GH¢5000 deposit was paid. Instead, he told the court that he made a full payment of GH¢20, 500.00 to the said Oppong, in the presence of a person known as Elder. Concluding, the Plaintiff stated that even if the vehicle belongs to the Defendant, he had authorized Oppong to sell the same, and he purchased it based on that representation. Hence, it is the Defendant's duty to search for the said Oppong to retrieve his money. Counsel for the Defendant extensively cross-examined the Plaintiff on how he would have effected a change of ownership. The Plaintiff duly explained the process which is usually used by second hand car dealers, i.e. by deposing to an affidavit that the real owner was abroad.
PW1 was the person described as Elder. He told the court that he is also a car dealer and was present when Oppong brought the vehicle in issue with its documents, for sale, whereupon the Plaintiff collected the documents and verified the chassis number. PW1 said since he did not have money that day, the Plaintiff negotiated with Oppong and paid the agreed purchase price of GH¢20,500.00 by cash to him. Oppong in turn handed over the vehicle and the title documents to the Plaintiff. He also disgreed with the defendant's assertion that only a GH¢5,000.00 commitment fee was paid to Oppong. According to PW1, the transaction was concluded in one day. PW1 added that Oppong had previously sold two vehicles to him.
The Defendant virtually repeated the averments contained in his statement of defence on oath. In effect, he said he gave the vehicle to Oppong to sell on his behalf , but Oppong represented to him that he had found a prospective buyer who wanted to verify the documents and had even deposited GH¢5,000.00. As proof of his ownership, the freight forwarder who cleared the vehicle at the port for the Defendant testified on his behalf. He tendered a copy of the title documents which he had kept for his personal records as exhibit 2.
The sole issue for determination is whether or not the Defendant authorized his agent to sell the vehicle in issue. Both in the pleadings and the evidence in court, the Defendant did not dispute the Plaintiff's assertion that he gave the vehicle to Oppong to sell on his behalf. Does that make Oppong an agent of the Defendant?
In Black's Law Dictionary, 9th edition, "Agency" is defined in general terms as follows:
A fiduciary relationship created by express or implied contract , or by law, in which one party (the agent), may act on behalf of another party (the principal), and bind that other party by words or action."
There are various types or forms of agency. But, for the purpose of the case at hand, two kinds of agency which are relevant will be looked at. These are "Apparent or Ostensible Agency"and "Undisclosed Agency".
An " Apparent Agency" is created where a principal's actions lead a third party to conclude that an agency exists. It is sometimes described as "Agency by Estoppel". This has been explained in
Halsbury's Laws of England (3rd ed.), Vol. 1, pp. 158-159, para. 374 thus:
"Agency by estoppel arises where one person has so acted as to lead another to believe that he has authorized a third person to act on its behalf, and that other in such belief enters into transactions with the third person within the scope of such ostensible authority."
The Defendant's account of events fit perfectly into this type of Agency by estoppel in the sense that he in fact authorized Oppong to sell the vehicle in issue on his behalf, and went ahead to release the original title documents to him. Any reasonable person encountering Oppong with both the vehicle and the original title documents in circumstances such as these will be entitled to presume two things: either (i) Oppong is the real owner or (ii) Oppong has the authority of the real owner to sell the vehicle. If, the second scenario holds, it will just be a mere surplusage if the buyer chooses to look for the real owner to ascertain his title. For, the principal will be bound by the acts of the agent ordinarily.
A case in point is Ada Co-operative Food Farmers Union Ltd v Abodei (1982-83) GLR 114. The facts of that case were that the plaintiff union bought some tractors and equipment between 1969 and 1970 with a loan from the Agricultural Development Bank. The tractors were all registered in the name of the union and the bank. In February 1976, the officers of the union saw the defendants in possession of the tractors and equipment. All attempts to retrieve them failed because the defendants asserted a claim of right on the basis that they had bought the tractors and the attachments from one Azakpoe, an officer of the Department of Co-operatives which had guaranteed the loan from the bank. The Plaintiff therefore brought an action for, inter alia, recovery of possession of the tractors and their attachments.
In delivering the judgment of the court, Cecilia Koranteng Addo J. resorted to Halsbury's Laws of
England (3rd ed.), Vol. 1, p. 208, para. 475 where it is stated that:
"Where a person has by words or conduct held out another person, or enabled another person to hold himself out as having authority to act on his behalf, he is bound, as regards third parties, by the acts of such other person to the same extent as he would have been bound if such other person had in fact had the authority which he was held out as having . . ."
Her Ladyship further indicated that if it were established that the plaintiff union by its conduct enabled Azakpoe to hold himself out as the owner or as one entitled to sell, then the plaintiff union would be precluded from denying his authority to sell.
The Plaintiff in that case was successful, because as her ladyship observed, a mere guarantor does not have the authority to dispose of that which he guaranteed, especially, where the guarantor has not paid for the said equipment. In effect, the said guarantor could not have given any valid authorization to Azakpoe to dispose of the equipment.
But, in the case before me where the Defendant has not denied that he authorized another person, Oppong, to sell the vehicle in issue on his behalf, he is precluded from challenging the sale of the vehicle to the Plaintiff by the said Oppong, who for all intent and purposes, acted as his agent.
There is no reason for me to disbelief the defendant's story that the said Oppong did not hand over the money accruing from the sale of the vehicle to him, after informing him of the GH¢5,000.00 commitment fee. That is highly probable, especially so, when Oppong disappeared into thin air after the transaction between him and the Plaintiff. That transaction has also been sufficiently proved in court.
On the totality of the evidence adduced by the parties, i find that Oppong acted as the Defendant's authorized agent; Oppong breached the fiduciary relationship between him and the defendant in respect of the sale of the vehicle in issue; the Plaintiff, being an innocent party, and reasonably believing that Oppong had the authority to sell, also parted with money. The Plaintiff is therefore an innocent purchaser.
What redress can the Plaintiff seek under these circumstances? Generally, the innocent purchaser can seek redress from the principal whose actions have caused him to suffer. If the Defendant had not authorized Oppong to deal with the vehicle in the manner he did, the Plaintiff could not have acquired any title under the sale transaction.
On the one hand, the Defendant's vehicle has been sold without him receiving any benefit; on the other hand, the Plaintiff has been dispossessed of a vehicle which he has paid for. Which of these two persons must suffer in the given circumstances?
Counsel for the Defendant in his closing submissions cited and relied on a host of decided Land cases on bona fide purchasers, among others, to convince the court to find in favour of his client, but those authorities have not been of any assistance to the court. In my opinion, the Defendant whose authorization to Oppong has brought about these undesirable results, must suffer the consequences thereof. To quote an American Judge, Savage C.J. in Henderson & Co. v. Williams  1 Q.B. 521 at p. 529, C.A.:
"... when one of two innocent persons must suffer from the fraud of a third, he shall suffer, who, by his indiscretion, has enabled such third person to commit the fraud."
Even if the Plaintiff did not know of the existence of any principal at the time he dealt with Oppong, he is still entitled to seek redress from the principal under the principle of " Undisclosed Agency". In the Black's Law Dictionary, referred to supra, at page 71, "Undisclosed Agency" is defined as:
An agency relationship in which an agent deals with a third party who has no knowledge that the agent is acting on a principal's behalf."
Therefore, in the case at hand, it is immaterial whether or not at the time of parting with the money, being the purchase price, the Plaintiff had, or could reasonably have had knowledge of the existence of any principal. What is of essence is the apparent authority of Oppong which has been proved.
I therefore conclude that the Defendant duly authorized his agent to sell the Kia Pregio in issue to the Plaintiff. There was a valid sale. Thus, the Plaintiff acquired a good title to the vehicle and I so declare him as the new owner by way of purchase. He is entitled to recovery of possession of the said vehicle. Further, since the original documents on the vehicle are in the Plaintiff's possession already, I order the DVLA to cause a transfer of ownership to be effected into his name. It is up to the Defendant to trace his agent to recover whatever monies he received under the sale, and any other pecuniary loss he may have suffered! He certainly cannot have the vehicle back!
Is the Plaintiff entitled to general damages for Detinue as claimed? The Supreme Court in Standard Chartered Bank (GH) Ltd v Nelson (1998-99) SCGLR 810 had occasion to determine whether ordinarily damages will lie in an action in detinue. This was what the court said in holding (1):
"detinue consisted of the wrongful detention of goods or chattels belonging to another and the refusal of that other to return them upon demand to the owner. An action in detinue was therefore for the return of the goods or their value which was to be determined at the time of judgment. Damages were not an essential component of action in detinue unless they were specially pleaded and proved by evidence at the trial..."
As the pleadings show, the Plaintiff did not specifically plead any special damages. Neither did he give evidence of any specific pecuniary loss he has suffered ever since the Defendant dispossessed him of the vehicle in issue. His claims for declaration of title and recovery of possession have been granted. However, he is not entitled to any damages in detinue.
Finally, I will grant the relief for perpetual injunction since it is just to do so. The Defendant, either by himself, agents, servants, workmen, assigns, representatives and/or any other person(s) claiming through him, or on his behalf or deriving his interest or title from him from are PERPETUALLY RESTRAINED from taking over KIA PREGIO with CHASSIS No. KNETB24225K201894 from the plaintiff and/or obstructing the use of the said vehicle by the Plaintiff or doing anything at all with the aim of denying the Plaintiff access to same.
Judgment entered in favour of the Plaintiff against the Defendant.
Cost of GH¢2000.00 is awarded against the Defendant.