TABURY v.

GHANA COMMERCIAL BANK [1980] GLR  90-100

HIGH COURT, SEKONDI

22 FEBRUARY 1979

 
SARKODEE J.

Sale of goods—Bill of lading—Effect of delivery—Whether delivery of bill of lading to purchaser passes

Master and servant—Acts of servant—Liability of master—Circumstances when master liable for

Damages—Quantum—Detinue—Perishable goods wrongfully seized and allowed to deteriorate—Goods of

HEADNOTES

The plaintiff, a fish dealer, based in Dakar, Senegal, sued the Ghana Commercial Bank for unlawful arrest,
wrongful imprisonment and recovery of 339 bags of salted fish or their value wrongly seized by persons
acting on behalf of the defendants.  According to the plaintiff, some time before 1971, he appointed Ekua
Manang and her sister Ama Atta as her agents in Ghana.  As part of the agreement, Ama Atta was the
person appointed to receive all consignment of fish sent to Ghana by the plaintiff.  In September 1976 the
plaintiff sent to Ama Atta 1,108 bags of salted fish (with the bill of lading endorsed in the name of Ama Atta)
and later came over to Ghana to take delivery of the fish with her.   The fish was later distributed to their
customers.  On one occasion when the plaintiff and the two sisters were taking delivery of 339 bags of
salted fish recovered from a customer who was unable to pay for them, they were arrested by a team of
soldiers who were led by a major.  They were then informed that the soldiers had been sent by the manager
of the Sekondi branch of the Ghana Commercial Bank to arrest them for Ama Atta's failure to repay a loan
granted her by the bank.  The three persons were taken in an army truck, accompanied by armed soldiers
to the office of the bank manager where a discussion took place as to [p.91] how Ama Atta was to repay the
loan.  Meanwhile the plaintiff had been protesting all along that he did not owe the bank, and the fish being
delivered did not belong to Ama Atta, but to him but all his protests fell on deaf ears.   After the discussion,
the plaintiff, Ekua Manang and Ama Atta in the company of the soldiers were taken back to the warehouse
where the fish was being kept.  The bags of fish were checked, and the doors locked until all the fish got
rotten.  Not long after this incident, the plaintiff instituted the present action asserting that the Ghana
Commercial Bank was liable for the actions of the bank manager and the soldiers.

The three main issues that the court had to determine were (1) whether the fish belonged to the plaintiff or
Ama Atta; (2) whether the defendant bank was responsible for the acts of its manager and the soldiers; and
(3) whether the plaintiff was entitled to recover the value of the fish from the defendant bank.
Held:

(1) the delivery of the bill of lading operated as a symbolical delivery of the cargo, and whether
property in the goods by the endorsement and delivery of the bill of lading would pass, would
depend upon the intentions of the parties that the property should pass.  In the present case there
was no agreement between the parties that the possession of the fish was to pass to Ama Atta with
the delivery of the bill of lading to her.  Biddell Brothers v. E. Clemens Horst Co. [1911] 1 K.B. 934 at pp.
957-958 cited.

(2) The existence of prohibitions might or might not be evidence of the limits of the servant's employment. 
The master was responsible for acts actually authorized by him for he would be liable even if the relation
between the parties was one of agency; but a master would be held responsible for acts which he had not
authorized provided they were so closely connected with acts he had authorised that they might properly be
regarded as modes, even though improper modes of doing them.  In the present case, the bank manager in
recovering the loan the way he did, was doing an act outside the scope of his employment; but the method
adopted was a wrongful, improper and unauthorized mode of doing an act which was authorized by his
masters.  The defendants were therefore liable for the arrest and detention of the plaintiff, an act done by
the defendants' servant in the course of his employment and for the benefit of the defendants. Canadian
Pacific Railway Co. v. Lockhart [1942] A.C. 591, P.C.; London County Council v. Cattermoles (Garages)
Ltd. [1953] 1 W.L.R. 997, C.A. and Bank of New South Wales v. William Owston [1879] A.C. 270 at p. 289,
P.C. applied.  Narwu v. Armah [1972] 2 G.L.R. 331, C.A. cited.

(3) In determining the measure of damages in an action for detinue, the market price of the goods had to be
looked at, and especially in the present case where an order for the return of the fish would be pointless.
Since any sum awarded would be in lieu of the return of the fish and also that the cause of action in detinue
was a continuing cause of action, the market value should be taken at the time when the fish would have
been ordered to be returned, that is, at the time of judgment.  However, in the instant case, the goods were
of a perishable nature and could not have been kept up to the time of judgment.   Indeed they had ceased to
have any value at the time of judgment.  It would therefore be unreasonable to assess the value as at the
time of judgment.  The plaintiff was therefore entitled to the value of the fish as at the time it was seized.   J.
E. Hall Ltd. v. Barclay [1937] 3 All E. R.620, C.A. cited.

[Editorial Note.  For an earlier proceedings between the parties see: Ghana Commercial Bank v. Tabury
[1977] 1 G.L.R. 329.]

[p.92]

CASES REFERRED TO

(1) Biddell Brothers v. E. Clemens Horst Co. [1911] 1 K.B. 934; 80 L.J.K.B. 584; 104 L.J. 577; 27 T.L.R.
331; 55 S.J. 383; 12 Asp.M.L.C. 1, C.A.; reversed E. Clemens Horst Co. v. Biddell Brothers [1912] A.C. 18;
81 L.J.K.B. 42, 105 L.T. 563; 28 T.L.R. 42; 50 S.J. 50; 12 Asp.M.L.C. 80; 17 Com.Cas. 55, H.L.

(2) Narwu v. Armah [1972] 2 G.L.R. 331, C.A.

(4) Canadian Pacific Railway Co. v. Lockhart [1942] A.C. 591; [1942] 2 All E.R. 464; 111 L.J.P.C. 113; 167
L.T. 231, P.C.

(5) London County Council v. Cattermoles (Garages) Ltd. [1953] 1 W.L.R. 997; [1953] 2 All E.R. 582; 97
S.J. 505, C.A.

(6) Bank of New South Wales v. William Owston [1879] A.C. 270; 48 L.J.C.P. 25; 40 L.T. 500; 43 J.P. 476;
14 Cox C.C. 267, P.C.

(7) Rosenthal v. Alderton & Sons Ltd. [1946] 1 K.B. 374; [1946] 1 All E.R. 583; 115 L.J.K.D. 215; 174 L.T.
214; 62 T.L. R. 236; 90 S.J. 163, C.A.

(8) J. & E. Hall Ltd. v. Barclay [1937] 3 All E.R. 620, C.A.

NATURE OF PROCEEDINGS

ACTION for damages for unlawful arrest, wrongful imprisonment and detinue.  The facts are fully stated in
the judgment.

COUNSEL

B. J. da Rocha for the plaintiff.

J. Ebow Dawson for the defendants.

JUDGMENT OF SARKODEE J.

By his writ as amended the plaintiff claims against the defendants recovery of 339 bags of salted fish or
their value, and damages for wrongfully seizing or causing the said fish to be seized.  The defendants have
refused to release the said fish to the plaintiff in spite of repeated demands.  The plaintiff also claims
damages for unlawful arrest and wrongful imprisonment.

The plaintiff is a fish dealer and is based in Dakar, Senegal.  The defendants, a financial institution in
Ghana, employed one Felix Oppong Peprah, the manager of Ghana Commercial Bank, Sekondi, as their
agent or servant.  Some time before 1971 the plaintiff and one Ekua Manang, a Sekondi fish dealer, met in
Dakar where it appears the plaintiff appointed her his agent in Ghana and in whose house he stayed
whenever the plaintiff was in Ghana.  Ekua Manang introduced to the plaintiff her sister, the third plaintiff
witness, Ama Atta, as the person who would receive all consignment of fish which the plaintiff would send
to Ghana as Ekua Manang was very often [p.93] travelling.  Following the meeting in Dakar, Ekua Manang
became the customer of the plaintiff.  When the plaintiff sent fish to Ghana all documents were in the name
of Ama Atta.  The plaintiff would then travel to Ghana and would accompany Ama Atta to the harbour to
take delivery of the fish.
In September 1976 the plaintiff brought into Ghana 1,108 bags of salted fish commonly called kako
consigned to Nana Amena also called Ama Atta.  As was the arrangement the plaintiff and Ama Atta took
delivery of the fish which the plaintiff later distributed to his customers as follows: 550 bags to Ekua
Manang, 400 bags to a Madam Diego and the remainder to other customers.  It appears Madam Diego was
unable to pay for all the fish allotted to her and so after one month the plaintiff collected 339 bags of the fish
from her.  He kept this in a warehouse owned by Ekua Manang but which she shared with the plaintiff.  The
339 bags of fish from Madam Diego were stored in the warehouse.

Ama Atta borrowed money from the defendant bank which she was unable to repay.   The plaintiff was not a
customer of the bank and did not owe the bank any money.  On 8 October 1976 whilst the plaintiff was
taking delivery of the fish from Madam Diego he was arrested by armed soldiers led by a Major Enningful of
the Second Battalion of Infantry, Apremdu, near Takoradi.  Before the arrest, Major Enningful told the
plaintiff that he had instructions to arrest all those who owed the bank.  The arrest and detention of the
plaintiff was at the instance of the bank manager who had allowed Ama Atta overdraft facilities, without prior
approval.  The soldiers arrested the plaintiff, Ama Atta and Ekua Manang and took them first to the
manager's office where a discussion took place as to how Ama Atta was going to repay the loan. 
Subsequently, the plaintiff and the two women were taken to the warehouse where the soldiers seized the
fish from Madam Diego which was then being received into the warehouse.  The plaintiff checked the stock
with Madam Diego's storekeeper in the presence of the manager, the major and the four armed soldiers
with him, and he got 339 bags of fish.  Ama Atta and Ekua Manang were also present.  The manager then
caused the warehouse to be locked adding a padlock of his own.  The keys were then given to the major. 
The plaintiff and the two women were taken to the barracks in a military land rover.

The defendants admit that they caused the warehouse to be locked but say that the fish in it including those
sent there later belonged to Ama Atta and her sister, customers who owed the bank, and not to the plaintiff. 
They say further that because of the behaviour of Ama Atta and her sister they decided in accordance with
banking practice to supervise the sale of the fish so as to recover [p.94] the money owed to the bank and
that they duly informed Ama Atta and her sister who readily agreed to the proposal.  The defendants say
therefore that they sought the assistance of the soldiers to supervise the sale of the fish and for that
purpose a major and four other ranks all armed were sent.  They say they sent Ama Atta and her sister to
the barracks but that it was the plaintiff himself who offered to accompany the two women.  The 339 bags of
fish were kept under lock and key until they got rotten and unfit for human consumption.

Three main issues arise in this case, namely: whether the 339 bags of salted fish belong to the plaintiff;
whether the act of the manager of the Sekondi branch amounted to unlawful seizure and lastly, whether the
act of the manager was enough to bind the defendants.  In his evidence the plaintiff said after he and Ekua
Manang had met in Dakar the latter became his agent in Ghana.  That when he brought fish into Ghana he
sold part to Ekua Manang and the rest to other customers.  Later Ekua Manang introduced her sister to the
plaintiff and advised him to be sending all consignment of fish through Ama Atta.   Therefore, when he sent
the fish, part of which became the subject-matter of dispute, as was the practice, he consigned the lot to
Ama Atta but he came to Ghana and he took delivery of the fish with Ama Atta.

Mr. Dawson, counsel for the defendants, referred to section 62 (f) of the Sale of Goods Act, 1962 (Act 137),
and submitted that the moment the bill of lading was transferred by the seller to the buyer the property in
the goods passed and therefore up to the time the warehouse was locked, property in the 339 bags of
salted fish was in Ama Atta.  "The bill of lading in law and in fact represents the goods.   Possession of the
bill of lading places the goods at the disposal of the purchaser." See Biddel Brothers v. E. Clemens Horst
Co. [1911] 1 K.B. 934 at pp. 956-957.  However, delivery of the bill of lading operates as a symbolical
delivery of the cargo and whether property in the goods by the indorsement and delivery of the bill of lading
will pass will depend upon the intentions of the parties that the property should pass.  This can be inferred
from the manner the parties carried on their business and in any case there must be a seller and a buyer.  
Whether property in the fish should pass to Ama Atta will depend upon the true meaning of the agreement
entered into by the plaintiff and Ekua Manang at Dakar.  It is accepted that whenever the plaintiff brought
fish into Ghana the bill of lading was in the name of Nana Amena alias Ama Atta.  Also it is not disputed
that the plaintiff brought the documents himself and went to the harbour to take delivery of the fish with Ama
Atta.  The plaintiff would then see that the fish was stored in the [p.95] warehouse.  He would then decide
what quantity should go to Ekua Manang and her sister.  It is also not denied that the plaintiff sold part of
the consignment to other customers some of whom the plaintiff had business transactions with even before
he met Ekua Manang and her sister.  The plaintiff’s evidence that the fish was part of the consignment sold
to Madam Diego was amply supported by Ama Atta and Ekua Manang, both of whom denied ownership of
them.  In my view property in the fish was not intended to pass and it never passed to Ama Atta.   I hold in
the circumstances that the 339 bags of kako belonged to the plaintiff.

The plaintiff says that seizure of the 339 bags of fish was unlawful and claims damages.  It is not disputed
that at the time of the plaintiff 's arrest there was some fish in the warehouse.  Also the defendants did not
challenge the quantity of kako in the warehouse.  The plaintiff by a letter earlier written by his solicitor and
dated 22 October 1976 demanded the release of the fish to him.  Again by a letter dated 4 November 1976,
exhibit C., addressed to the plaintiff’s solicitor, the defendants confirmed that the plaintiff was not their
customer and therefore had no dealings with him.  Ama Atta by a letter dated 9 November 1976, exhibit 8,
pointed out to the manager that the 339 bags of salted fish in the warehouse belonged to the plaintiff. She
cautioned that since the manager had locked up the warehouse the fish would get rotten and she went on
to say that the plaintiff had threatened to take legal action against the defendants if they did not release the
fish.  Yet the manager was adamant and flatly refused either to open the warehouse or to give the fish to
the plaintiff until December after it had become unwholesome and unsaleable.  Major Enningful who led the
soldiers saw the fish being off-loaded and stored in the warehouse.  He also caused the fish to be checked
and they got 483 boxes and 339 bags of fish.  He directed that the warehouse should be locked.  That was
done and according to the manager the keys were given to Ama Atta.  Assuming that that was correct the
fact remains that the manager added his own locks and so the situation was that the doors could not be
opened without first contacting the military.  At that stage the plaintiff had no control over the fish nor could
Ama Atta and Ekua Manang exercise any control over the warehouse.  Clearly, the manager prevented the
plaintiff from taking his fish.

The manager was therefore liable for the acts of the soldiers: see Narwu v. Armah [1972] 2 G.L.R. 331,
C.A. I have no doubt in my mind and hold that the manager unlawfully detained the 339 bags of kako,
property of the plaintiff.  On 8 October 1976 the defendants' manager Mr. Oppong Peprah, went to the
warehouse accompanied by the armed soldiers.  They met the plaintiff there supervising the storage
[p.96]of some kako which he was receiving from Madam Diego.  The manager pointed the plaintiff out to
the soldiers who then asked the plaintiff to come with them.  They put him and the two women on the
Landrover and drove first to the office of the manager, then to the office of the area manager at Takoradi
and finally to Apremdu.  When they were waiting in the Landrover at the Takoradi branch of the bank, six
miles from the warehouse, the plaintiff asked permission to go and urinate.  The best the soldiers could do
for him was to allow him to get down from the vehicle and was ordered to do so near the vehicle under the
watchful eye of the armed soldiers one of whom had also alighted from the vehicle.   From the Takoradi
branch the plaintiff and the two women were taken to Apremdu Barracks where they were asked to make
statements.  The plaintiff refused to make one.  They were later released but were instructed to get in touch
with the soldiers if and when they had customers to buy the fish.  The plaintiff says that he was arrested
and deprived of his liberty.  To constitute imprisonment it was not necessary that he should have been
locked up in four walls.  It was enough if he was restrained in his freedom of action and movement.  The
restraint put upon the person of the plaintiff was itself an imprisonment and from the facts it was total: see
Meering v. Graham-White Aviation Co., Ltd. (1919) 122 L.T. 44, C.A. In my view the manager did not
merely invite the soldiers but he actually directed them to effect the arrest.  They were therefore the
servants of the manager for the purpose of the arrest and he accordingly incurs liability in tort for the arrest
and imprisonment: see Narwu v. Armah (supra).

The important question is whether the defendant bank can be held liable for the acts of the manager in
causing the fish to be locked up and the plaintiff arrested and imprisoned.  The first consideration is the
ascertainment of what the servant, the manager was employed to do.  The existence of prohibitions may or
may not be evidence of the limits of the employment: see Canadian Pacific Railway Co. v. Lockhart [1942]
A.C. 591 at p. 600, P.C. The master is responsible for acts actually authorised by him for he will be liable
even if the relation between the parties is one of agency; but a master will be held responsible for acts
which he has not authorized provided they are so closely connected with acts he has authorised that they
may properly be regarded as modes, even though improper modes, of doing them.  This means that the
master is liable not only for what he authorises his servant to do but also for the way he does it.  In London
County Council v. Cattermoles (Garages) Ltd. [1953] 1 W.L.R. 997, C.A. the defendants; employed a
general garage hand whose duty it was to assist in getting motor cars out of the way of other [p.97] cars.  
He was expressly forbidden to drive since he did not hold a driving licence.  He got into a van, drove it to
the highway with a view to driving it back into the garage.  He collided with the plaintiff 's van and damaged
it.  It was held by the Court of Appeal (as stated in the headnote) at p. 997:

"that in driving the van the garage hand was not doing something outside the scope of his employment, but
what he did was merely a wrongful, improper and unauthorised mode of doing an act which was authorised
by his masters, the defendants, and that accordingly they were liable for his negligence."

The Privy Council in Bank of New South Wales v. Owston [1879] A.C. 270, at p. 289 said:

"The duties of a bank manager would usually be to conduct banking business on behalf of his employers,
and when he is found so acting, what is done by him in the way of ordinary banking transactions may be
presumed, until the contrary is shown, to be within the scope of his authority; and his employers would be
liable for his mistakes, and, under some circumstances, for his frauds, in the management of such
business."

The transaction of granting the loan was between Ama Atta and the defendants, the manager merely acting
as the servant of the defendants.  The manager said he looked at the bank balance of Ama Atta and the
way the earlier facility was being repaid and granted her an additional loan far in excess of his limit and
without prior approval of his head office.  Whatever mode the manager adopted the money lent belonged to
the defendants and they have an interest in its recovery.  The manager of a bank, more than anybody else,
has a duty to recover money owed to the bank.  Indeed Mr. Peprah admitted this under cross-examination;
and the steps the manager takes towards recovery of money owed to the bank must necessarily be in the
course of his employment.  He said it was his personal responsibility to see that the money was recovered
and that the decision that the military be called was entirely his own.  In my view in recovering the loan the
way he did, the manager was doing an act outside the scope of his employment, but he adopted a wrongful,
improper and an unauthorised mode of doing an act which was authorised by his masters.  The masters are
accordingly liable.  I hold therefore that the arrest and detention of the plaintiff was a deliberate act done by
the defendants' servant in the course of his employment and for the benefit of the defendants.   They are
therefore liable.

[p.98]

In considering the measure of damages in an action of detinue the market value of the goods must be
looked at, especially in the instant case where an order for the return of the fish will be pointless.   In any
case, whether the goods are or are not returned, damages would be such a sum as would represent the
normal loss through the detention of goods; which sum should be the market rate at which the fish could
have been sold.  Strictly speaking, and since any sum awarded will be in lieu of the return of the fish and
also that the cause of action in detinue is a continuing cause of action, the market value should be taken at
the time when the fish would have been ordered to be returned; that is at the time of judgment.  This
principle was finally established in Rosenthal v. Alderton & Sons, Ltd. [1946] 1 K.B. 374, C.A. where
Evershed J. (as he then was) stressed at pp. 377-378 that:

"the action of detinue was essentially a proprietary action implying property in the plaintiff in the goods
claimed . . . It was, and still is, of the essence of an action of detinue that the plaintiff maintains and asserts
his property in the goods claimed up to the date of the verdict."

However, in the instant case, the goods were of perishable nature and could not have been kept up to the
time of judgment. Indeed they had ceased to have any value at the time of judgment. It will therefore be
unreasonable in my view, to assess the value as at today.  I think the matter should be looked at as the
normal measure of damages for conversion: see J. & E. Hall Ltd. v. Barclay [1937] 3 All E.R. 620, C.A. The
plaintiff will accordingly be entitled to the value of the fish as at the time it was seized which is ¢90 a bag.

The plaintiff also claims damages for unlawful seizure. In this regard I must take into account the conduct of
the manager. The plaintiff, Ama Atta and Ekua Manang protested when the fish was about to be seized.  
They told the soldiers that the 339 bags of kako belonged to the plaintiff.  A letter from the plaintiff’s solicitor
did not in the least set the manager thinking. Above all the plaintiff was not a customer of the bank and did
not owe the bank. The manager was in no doubt about this. Even if the plaintiff was a customer and owed
the bank, the manager should not have sought the assistance of the military.  How can one negotiate the
repayment of a loan at gun point and when did soldiers become debt collectors for financial institutions, one
may ask? The defendants did not at any time offer to open the warehouse and make the fish available to
the plaintiff.  It was not enough merely to open the place and have it cleaned. Even before the plaintiff
collected the fish from Madam Diego he had a customer who had travelled from Kumasi to buy it.
[p.99]

The plaintiff took the customer to his solicitor who talked to the bank manager on telephone and pleaded
with him to release the fish. Still the manager refused to release the fish and so the customer returned to
Kumasi.  When the fish got rotten the defendants did not tender the market value to the plaintiff so as to
minimize damage. The manager was adamant and did not care what happened to the plaintiff or his fish. 
The plaintiff bought the fish at Dakar obviously in convertible currency. He had his capital tied up because
of the uncompromising attitude of the manager and for two years and over had to stay in Ghana to
prosecute this case.  But for the conduct of the manager the plaintiff would have paid his creditors in Dakar
and perhaps brought in more fish into Ghana.  I believe the manager behaved the way he did because he
thought he had the protection of the military.  Soldiers should stay in their barracks and play their traditional
role of defending the country. The circumstances of this case are such that nothing but exemplary damages
will be adequate compensation to the plaintiff.  Having regard to the present rate of inflation what was
¢30,000 in 1976 will be three times that amount.  I will accordingly award ¢50,000 against the defendants
for unlawfully detaining the fish.

I now come to damages for unlawful arrest and wrongful imprisonment.  I do not think it is true that the
plaintiff volunteered to go with the two women when they were arrested by the soldiers.   The plaintiff should
have been released immediately after the meeting in the manager's office when the soldiers realized that he
did not owe the bank. Instead he was put on the Landrover guarded by armed soldiers.   When a man is
faced with armed soldiers he can have no choice but to do what they say.   The arrest and detention of the
plaintiff was a deliberate act done by the defendants' servant in the course of his employment and
calculated to ridicule the plaintiff. It was an act done by a man who was desperate because he had given an
overdraft without authority and wanted to have his job.  His aim was to recover the money at all cost
regardless of the interest of others and by so doing he trampled upon the fundamental rights of the plaintiff. 
In my view it makes no difference whether the arrest and imprisonment lasted only a few hours.  The
plaintiff and the two women were put on the Landrover surrounded by armed soldiers and driven through
the main streets of Sekondi and then six miles to Takoradi again along principal streets to the head office of
the bank in broad day light at a time when people found in such situations were branded smugglers,
hoarders and profiteers. They were later released at Takoradi market square.  The plaintiff, a visitor to this
country, was made to suffer for what he had not done and by way of compensation I will award him
¢20,000.

[p.100]

Finally, I enter judgment in favour of the plaintiff as follows:

Cost of 339 bags of fish at ¢90 per bag              ..           ..         ..          ¢30,510

Damages for unlawful seizure             ..            ..           ..         ..          ¢50,000

Damages for unlawful arrest and wrongful imprisonment            ..          ¢20,000

Total       ..            ..            ..             ..            ..           ..         ..          ¢100,510

DECISION

Judgment for the plaintiff.

[ 1980]  GHANA LAW REPORT