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HEAL PRESS LTD. V CHAHIN & SONS LTD.


  • New
  • 1961-01-16
  • HIGH COURT
  • GLR 60-61
  • Print

OLLENNU, J.


Summary

Practice?-Illegal distress?-Whether judgment-creditor entitled to take any personalty on premises of judgment debtor, whether attached or not.

Headnotes

The defendants had taken goods of the plaintiffs in execution based upon a judgment which had been reversed on appeal but subsequently affirmed by the Supreme Court. The plaintiffs maintained that under cover of that execution the defendants took and carried away other goods not attached. A list of those goods was attached to the writ of summons.

Judgement

ACTION for damages for illegal distress and for return of goods taken and carried away by the defendants or their agents, or in the alternative the value of the goods. The defendants counterclaimed for arrears of rent, which were admitted.

Two reliefs are claimed by the plaintiffs; they are: (1) damages for illegal distress, and (2) return of goods taken and carried away by the defendants or their agents, in the alternative G13,542 13s. 10d., value of the said goods. A list of the goods in question is attached to the writ of summons.

The claim for damages for illegal distress is based upon a judgment of the 1st April, 1959, which set aside a judgment of the 31st October, 1958, upon which the distress was levied. It is admitted by the plaintiffs that the said judgment of the 1st April, 1959, was reversed by the Supreme Court on the 29th November, 1960, and the judgment of the 31st October, 1958, restored. It follows therefore that the execution which issued in pursuance of that decree is legal, therefore the plaintiffs' claim for damages for illegal distress must fail.

The evidence led on behalf of the plaintiffs that all the articles listed were in their business premises the last time they left the premises before the execution, but were not there the first time that they re-entered the premises after execution, stands uncontradicted, it was not cross-examined upon, and no evidence was tendered to contradict or even throw doubts upon it. The articles are, in the main, the sort of goods which would reasonably be expected to be on premises of printers and publishers such as the plaintiffs are. The only thing which tends to raise a little doubt is the fact that exact figures as to the quantity of each item of goods is given, when according to the managing director of the plaintiff-company all the books, files and other documents which contain records of the articles were among the goods missing. How the plaintiff got those figures has not been explained.

It has been submitted by counsel for the defendants that since the distress has been held by a higher court to be lawful, no action can lie for wrongful detention of goods which might have been removed by those levying the distress or their agents. This submission would be sound if the goods in question were those which were seized in the cause of the lawful execution, and of which an official inventory was made by the sheriff's officers; but not otherwise. In my opinion execution is not licence to the person lawfully levying it to take and carry away goods which have not been attached; that is the sort of thing the plaintiffs are complaining about. Their case is that upon levying the execution the defendant attached certain properties and made an inventory of them, exhibit A and then under cover of that execution took and carried away other goods not attached. Those, they allege, are the goods set out in the list attached to the writ of summons. In my opinion detention of goods under such circumstances would be a wrongful act.

The difficulty in which the plaintiffs find themselves, however, lie in the fact that they were not present when their premises were allegedly opened at the instance of the defendants and consequently have not been able to substantiate their plea that the defendants or their agents were the persons who carried away or who must have carried away the goods in question. Moreover, while I believe that the plaintiffs had goods of the description of those enumerated in the list on the premises when they last left the premises, I am not satisfied that the quantities alleged are correct. In the circumstances even if it had been proved that the goods were taken and carried away by the defendants, the court would not be in a position to assess their value. General damages for trespass have not been claimed either.

In the circumstances the plaintiffs' claim is dismissed and judgment entered thereon for the defendants with costs.

Decision

<P>Action dismissed.</P>

Plaintiff / Appellant

Plaintiffs in person

Defendant / Respondent

E. Akufo-Addo

Referals

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