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DANSOWAH v. TOM


  • appeal
  • 1962-05-28
  • SUPREME COURT
  • 1 GLR 403-406
  • Print

VAN LARE, SARKODEE-ADOO AND AKIWUMI, JJ.S.C.


Summary

Detinue?-Goods detained through reliance on invalid right.Damages?-Quantum?-Assessment of value of fish by illiterate fishmonger.Customs?-Trade?-Whether head woman of Fishmongers Association entitled to collect dues.

Headnotes

Aba Tom was head woman of the Fishmongers Association, Kumasi. Her election, so she said, was confirmed by the Regional Commissioner. Relying upon rights thus conferred on her by the Regional Commissioner, or alternatively on trade custom, she demanded dues on all fish brought to the market for sale. Adwoa Dansowah was not a member of Tom's association and refused to pay dues, with the result that Tom detained her consignment of fish until [p.404] it had rotted and was unfit for sale. Dansowah's action for the value of the fish and damages for unlawful detention was successful in the High Court, which awarded damages of G67 10s., being the value of the fish, the court accepting the price Dansowah said she had to pay for it, and G20 as loss of estimated profits. Tom appealed.

Judgement

APPEAL against an award of damages for unlawful detention of goods.

JUDGMENT OF VAN LARE J.S.C.

Van Lare, J.S.C. delivered the judgment of the court. The respondent in this appeal is a fishmonger at Kumasi and receives consignments of fish from Elmina and Kafudidi on the coast for sale. She alleges that one of her such consignments on arriving at the Kumasi market was unlawfully detained by the appellant who refused to deliver the same to her after demand had been made, and that the said consignment remained in the possession of the appellant until the fish rotted and became unfit for sale whereby she suffered damage in the value thereof and the profits therefrom. She therefore instituted an action in the then Magistrate's Court, Kumasi, claiming the value of the fish and damages for unlawful detention from the appellant. Her action was dismissed by that court but on appeal to the High Court, the claim was sustained and judgment was entered for her against the appellant for the sum of G87 10s., G67 10s. being the value of the fish, and, G20 loss of estimated profits. It is from that judgment that this appeal is brought.

Although the appellant denies detaining the respondent's fish, it is nevertheless apparent on consideration of the case as a whole that the respondent was entitled to the possession of the fish which appears to have been detained on the 7th September, 1958, on behalf of the appellant who purports to assert that the detention was lawful because the respondent refused to pay her certain dues. The appellant has pleaded that she is the head woman of the Fishmongers Association in Kumasi and that her election was confirmed by the Regional Commissioner and she is therefore entitled to collect sixpence on every hundred herrings brought to the market for sale. It is a natural inference that because the respondent refused to pay the dues demanded the appellant detained her goods. The evidence is clear that the respondent does not belong to the appellant's association, and also that the respondent's goods were not delivered at the appellant's shed. It abundantly made clear that the appellant herself when approached by the respondent and others with a request to return the goods detained refused to do so, and it was not [p.405] until some weeks later, that is on the 13th October, 1958, when the respondent received a letter from the appellant inviting her to take delivery, but by that time the fish must have rotted and the respondent for that reason refused to take delivery intimating that legal proceedings for damages were under contemplation.

The trial district magistrate in dismissing the appellant's claim expressed the opinion that had the appellant paid "the dues everybody would have been happy thereafter"; his reasons for finding against the claim are that the respondent failed to satisfy the court as to the value of the fish; that the respondent refused to collect the goods when requested by the appellant, and that the appellant as head of the fishmongers is entitled to collect dues, the inference being that the detention is justified upon failure to pay dues.

The learned judge of the High Court in a carefully considered judgment has dealt adequately with the facts and the conclusion of the district magistrate and we are satisfied for the reasons shown that the trial district magistrate's conclusion is based upon inadequate consideration of the evidence. It has been argued before us that the evidence as to the value of the fish is hearsay. Although the evidence is that the respondent was told the value of the fish she had to pay there can be no better evidence. One does not expect way bills or invoices in connection with illiterate fishmonger's trade in the market in this country, and one must be satisfied with the message as to price received from the vendor. In any case this value of the fish was not challenged at the trial and the appellant led no evidence to the contrary. With respect to the respondent's refusal to take delivery at the time the appellant invited her to do so, the trial district magistrate clearly omitted to consider the evidence that by then the goods had rotted and could not be sold. As to the entitlement of the appellant to collect the alleged dues in respect of fish sent to the Kumasi market for sale we observe that this is not clothed with any legal authority. Even if it were so, it may be alright where goods of the members of the association are concerned, but as already pointed out the respondent does not belong to the appellant's association, and the fish in question was not delivered at her shed; under the circumstances, there can be no justification for the appellant's demand for the payments of any dues in respect of the respondent's fish delivered at the market. What the appellant appears to rely on is an alleged right conferred upon her by the Regional Commissioner to collect dues. It is not, however, shown whether the Regional Commissioner himself has any legal power or authority to vest the appellant with such a right. Alternatively it has been argued that the appellant's right to demand dues is in accordance with trade custom. No evidence of such custom has been led and we agree with the learned judge when he says that if in fact such a custom existed, it would in his opinion not necessarily have needed the approval of the Regional Commissioner before it was binding on the respondent. On a proper evaluation of the evidence as has been made by the judge on appeal who was in the same position as the trial district magistrate so far as drawing inferences from the facts are concerned, we are satisfied that there can be no other finding but that the appellant detained the respondent's fish until they rotted relying upon an invalid right in so doing, and that such detention is unlawful and the appellant is liable in damages resulting therefrom.

In the result the learned judge of the High Court is justified in setting aside the judgment of the trial court; the appeal fails and is accordingly dismissed with costs fixed at G54.

Court below to carry out.

Decision

<P>Appeal dismissed.</P>

Plaintiff / Appellant

J. N. Heward-Mills

Defendant / Respondent

Hayfron-Benjamin

Referals

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