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HALABY v. HALABY AND OTHERS


  • appeal
  • 1961-05-15
  • SUPREME COURT
  • GLR 229-231
  • Print

KORSAH, C.J., VAN LARE AND SARKODEE-ADOO, JJ.S.C.


Summary

Trespass?-Whether plaintiff can succeed where trespass is involuntary and result of plaintiff's own fraud.

Headnotes

The plaintiff, an agent for the partnership firm of Halaby Bros. removed goods belonging to the partnership's branch store at Nandom to his own store. In 1951, the West African Court of Appeal ordered that the partnership properties be sold, and the Divisional Court in pursuance of this direction, ordered the plaintiff to deliver up the said properties to the second defendants who had been appointed receivers and managers. The defendants went to Nandom to carry out the court's instructions. They discovered that goods were missing from the partnership's store and traced them to the plaintiff's store, where they also found the stock books of the firm and the safe from the firm's store. The goods were sold at a public auction by the third defendant and the safe was taken to Kumasi where it was later opened before the registrar of the High Court.The plaintiff claimed for G1,166. 3s. 6d. the value of the goods sold, G200 cash in the removed safe, and G4,000 general damages.

Judgement

APPEAL from the decision of Lingley, J. in the Divisional Court, Kumasi, delivered on the 12th July, 1954, dismissing the plaintiff?'s claim for damages arising from trespass.

JUDGMENT OF KORSAH C.J.

Korsah C.J. delivered the judgment of the court. [His lordship referred to the facts and continued:] in September 1951, the first and second defendants together with the third defendant, a licensed auctioneer, who had been instructed to sell the partnership's properties including one store with goods and a safe arrived at Nandom and requested one Elias Khoury, a former employee of the first defendant to deliver up the store, with stock of goods and the safe, to the auctioneer for sale. They found that all the goods had been removed from the store. Upon enquiry the defendants discovered the goods in a room in a house about 50 yards from the original store, where the plaintiff is alleged to have opened his own store and put Elias Khoury who was the firm?'s former employee, in charge of it. [p.230] Elias Khoury stated in his evidence: ?"Neif Halaby told me to take goods from store of Halaby Bros. And take it to his store. Four days later the auctioneer came and sold the goods, small (sic) of his were inside.?" There is evidence on record showing that not only were the goods identified as some of the stock of goods belonging to Halaby Bros., but also the stock books of the firm were found in the same room where the goods had been stored, together with the safe which had been in the firm?'s store. The said goods were sold at public auction and the safe taken to Kumasi, where it was later opened before the registrar of the High Court.

Upon these facts and other evidence on record, the learned judge found, inter alia: "that the plaintiff and Khoury used the device of opening up the partnership store to enable plaintiff to consolidate a business of his own by selling off partnership goods." In effect, the plaintiff, with the object of defrauding his co-partners in the partnership firm of Halaby Bros., caused the partnership goods to be removed into the room which he called his new store, and which he is alleged to have opened as part of his own separate business after the judgment of the Appeal Court.

There is evidence on record which is accepted by the trial court that the value of the partnership goods found in the room was G538 7s. 3d, and that any surplus goods, i.e., goods found in the said store which did not belong to the partnership firm have been accounted for in the partnership account in court; and that there was no money in the safe.

The learned judge further held: ?"If the plaintiff had conducted himself as an honest man, he would be entitled to some nominal damages at any rate for the unlawful entry and forced sale.?" The expression "forced sale", obviously refers to the surplus goods in the room, which were not the property of Halaby Bros. but those of the plaintiff. The learned judge continued, "I cannot feel it would be proper for any court to afford him even this relief."

It will be observed that whatever damage the plaintiff might have suffered has been due to the plaintiff's wrongful act in fraudulently causing the defendants' goods to be removed from defendants' store to the room hired by plaintiff. In the course of the proceedings, the plaintiff did not specifically describe the goods which belonged to him: he merely claimed 1,166 3s. 6d. as for value of goods sold, thus giving the impression that all the goods found in the room belonged to him. The only evidence that the plaintiff had some of his own goods in the store is the evidence of the plaintiff's agent Elias Khoury: "Neif Halaby told me to take goods from store of Halaby Bros. and take it to his store. Four days later auctioneer came and sold the goods, small of his were inside?", meaning that the plaintiff had some unspecified goods of his own in the store.

In the circumstances it is clear that the unspecified quantity of the plaintiff's goods which might accidentally have been included in the goods sold cannot support a claim for damages against the defendants until it is proved that it was the fault of the defendants. In this case the evidence discloses that whatever trespass to the plaintiff's own goods might have been committed, was in fact an involuntary act. In our view as the trespass [p.231] complained of in this case was involuntary and accidental, the defendant cannot be held liable for any damage the plaintiff might have suffered, as such damage was in the main attributable to the plaintiff's own fraudulent act. This view follows the decision by the Court of Appeal in the case of National Coal Board v. J.E. Evans Co. (Cardiff)1 In the result the appeal is dismissed.

Decision

<P>Appeal dismissed.</P>

Plaintiff / Appellant

Appellant in person.

Defendant / Respondent

J.N. Heward-Mills

Referals

1. National Coal Board v. Evans & Co. (Cardiff) Ltd.;

2. National Coal Board v. Maberley Parker Ltd. [1951] 2 K.B. 861; [1951] 2 T.L.R. 415; [1951] 2 All E.R. 310, C.A.

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