DORMENYOR v. JOHNSON MOTORS LTD. [1989-90] 2 GLR 145–151

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HOME [1989-90] GHANA LAW REPORTDORMENYOR v. JOHNSON MOTORS LTD. [1989-90] 2 GLR 145–151

HIGH COURT, ACCRA

27 JANUARY 1988

AMPIAH J.A.

Contract—Formation—Public advertisements—Reliance on—Breach—Advertisement of availability of vehiclespare parts for repairs—Owner sending damaged vehicle for repairs—No subsequent agreement on cost ofrepairs—Whether valid binding agreement for repair of vehicle.

Contract—Breach of contract—Vehicle repair—Lien for unpaid charges—Whether lien exercisable for storageand risk charges for work not done.

Detinue and conversion—Damages—Redelivery of goods—Vested cause of action—Whether vested actionfor damages for wrongful detention defeated by redelivery of goods—Unsatisfied owner proceeding with actionafter redelivery—Remedy available.

HEADNOTES

The defendants, car repairers, advertised on radio and made public announcements that they had spare partsfor the repairs of vehicles including Peugeot cars. Relying on the advertisements, the plaintiff caused hisextensively damaged Peugeot car to be towed to the defendants' garage in June 1980. His agent gave noinstructions on what was to be done and had no job card prepared as was customary to show the conditions forthe repairs. The defendants therefore refused to repair the vehicle on the ground that no formal agreement hadbeen concluded for the repairs. Within two weeks the defendants wrote to the plaintiff informing him thatcommencement of repairs would depend on a "receipt of a written official acceptance of our estimates." Theplaintiff however ignored the letter. In February 1981 he wrote for the release of his car to him. But on 25February 1981 the defendants replied that the car could be released only on payment of the sum of ¢4,500being their storage and risk charges. The plaintiff refused to pay the charge and sued, inter alia, for damages

for breach of contract and wrongful detention of his car. The defendants counterclaimed for the storagecharges. On 6 February 1986 the court ordered the defendants to release the car. Even though the defendantswere willing to release the car, the plaintiff failed to take delivery and pressed on with his claim contending thatthe car had further deteriorated.

Held:

(1) even if these advertisements had been established with certainty, they could not by themselves constitutevalid binding agreements. Considering the nature of work to be done on the vehicle, it would have beennecessary for a prudent person to be present for the estimation of what was to be repaired and the cost of it. The defendants' letter to the plaintiff warning that repairs would commence on a receipt of a written officialacceptance of the estimate was a reasonable condition, for the repairer would have to be sure that the ownerwould accept his repairing the vehicle at the estimated cost.

Per curiam. In all contracts there must be an offer and an acceptance of some sort. An advertisement may onlybe an invitation to treat or an offer. There must be an acceptance. The plaintiff in the instant case never repliedto the letter.

[p.146]

Even if he had relied on the advertisements . . . [the letter] was a call to him to accept or reject it; it indicated tohim that his vehicle would only be repaired on conditions contained in the letter given him. The plaintiff wastherefore unwise not to have written as requested. There was thus no consensus as to what was to be done.

(2) At common law there was a lien for unpaid charges or fees on vehicles in the possession of the repairer. However, no lien existed on goods on which no work had been done. Since no work was done on the vehicle,no such charge arose. However, the repairer would be entitled to claim storage charges from the customerafter the negotiations had broken down and the owner had failed to collect within a reasonable time after hehad been so notified. Therefore the claim for storage charges immediately the defendant-company refused togo on with the work was not justified. Since the defendants could not have refused to hand over the vehicle to

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go on with the work was not justified. Since the defendants could not have refused to hand over the vehicle tothe plaintiff, there was no other justification for detaining the vehicle. The detention of the plaintiff's vehicle in thecircumstances amounted to conversion and he was entitled to damages for wrongful detention of the vehicle.

(3) When a chattel had been wrongfully taken, detained or otherwise converted, there was a vested cause ofaction which could not be defeated merely by the fact that the plaintiff subsequently got his goods back. But,after such a redelivery, the action was merely for the special damage or deterioration in value, and if there wasno such special damage or deterioration, and the plaintiff was not content (as is the instant case) to accept thereturn of the goods and costs, but insisted upon continuing his action for substantial damages (as in the instantcase) he might be made to pay costs though he recovered nominal damages. Hiort v. London and NorthWestern Rly (1897) 4 Ex. D. 188, C.A. cited.

CASE REFERRED TO

Hiort v. London and North Western Rly Co. (1897) 4 Ex. D. 188; 48 L.J.Q.B. 545; 40 L.T. 674, C.A.

NATURE OF PROCEEDINGS

ACTION against the defendants for damages for breach of contract to repair a car and conversion of the saidcar. The facts are fully set out in the judgment.

COUNSEL

N. B. Afoom for the plaintiff.

S. A. X. Tsegah for the defendants.

JUDGMENT OF AMPIAH J.A.

By his writ of summons, the plaintiff claims against the defendants jointly and severally general and specialdamages for:

"(a) breach of contract to repair the plaintiff's motor car Peugeot 504 Estate No. GX 5709;

(b) wrongful detention of the plaintiff's motor vehicle Peugeot 504 Estate No. GX 5709; and

(c) an order for delivery up by the defendants to the plaintiff of the said vehicle."

[p.147]

The defendants denied the plaintiff's claim and counterclaimed for “. . . the sum of ¢4,500 as storage chargesfrom July 1980 to February 1981, and ¢150 per day from March 1981 to the date of judgment."

The plaintiff is a business executive and managing director of B-Jones Enterprises Ltd. The first defendant is alimited liability company and carries on business of motor repairs, among other. The second defendant is themanaging director of the first defendant company.

Some time in June 1980 the plaintiff sent his vehicle No. GX 5709 to the defendant- company for repairs. Thedefendant-company refused to repair the vehicle on the ground that there had been no formal agreement forrepairs of the vehicle. The vehicle thus remained at the workshop of the defendant-company until some time inFebruary 1981. The plaintiff then wrote for the release of his vehicle to him whereupon the defendants, beforethey would release it, demanded ¢4,500 being storage and risk charges. The plaintiff refused to pay thesecharges and brought this action to court.

At the close of the pleadings and on the evidence, the following main issues arose for determination:

1. whether or not there was a contract for repairs between the plaintiff and the defendants;

2. whether or not the defendants are in breach of the said contract, if any;

3. whether or not the defendants have wrongfully detained the plaintiff's vehicle;

4. whether or not the plaintiff has suffered loss and damage as a result of the breach of contract and thewrongful detention of the vehicle; and

5. whether or not the defendants are entitled to the sum of ¢4,500 and ¢150 per day from March 1981 to thedate of judgment as storage and risk fees.

On 6 February 1986 the plaintiff applied for an order for the preservation of the vehicle. The court ordered thatthe plaintiff remove his vehicle from the premises of the defendants. An order under claim (c) on the writ istherefore unnecessary now.

I find it very difficult to accept the defendants' evidence that the plaintiff was not known as the owner of thevehicle. According to the second defendant he had known the plaintiff personally though not in connection withthe vehicle. Even though the particulars obtained from the police, i.e. exhibit 4, show one John Quainoo as theowner, I do not think that fact alone is conclusive of the ownership of the vehicle, since the defendants acceptedthe vehicle from the plaintiff or at least his agent and dealt with him throughout as the owner. In the pleadings,particularly paragraphs 11 and 12, the defendants admitted [p.148] dealing with the plaintiff as the owner. Onthe evidence, I find that for purposes of the work to be done on the vehicle, it was the plaintiff whom thedefendants treated as the owner of vehicle No. GX 5709. Exhibit 4 was obtained during the pendency of thisaction. I am inclined to accept that it was obtained with a view to support the defendants' refusal to release thevehicle to the plaintiff.

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vehicle to the plaintiff.

Was there a binding agreement between the parties for the repair of the vehicle? The plaintiff admitted that thevehicle was towed from SCOA workshop to the defendants' workshop. He did not accompany it to theworkshop. A Mr. Amuzu who had accompanied the vehicle to the defendants' workshop was asked to bring inthe master, i.e. the plaintiff. One Francis Amuzu Domenyor who claimed to be the brother of the plaintiff said hewas the Amuzu who had taken the vehicle to the defendants' workshop. He was challenged on this. Theevidence given by this witness on the incident makes me believe that he was not the real Amuzu described bythe defendants. Be that as it may, the evidence shows that there was no discussion between the plaintiff andthe defendants about the work to be done on the vehicle. The plaintiff said he relied on radio and other publicannouncements as the basis for the contract. According to him the defendants had advertised that they hadspare parts for the repair of vehicles such as the plaintiff's. That was why he had the vehicle removed from theSCOA workshop to the defendants.'

From exhibit A which the plaintiff admits receiving, I find that the plaintiff's vehicle was a total wreck and couldnot under any circumstances have been driven on the road, hence the towing. I find that the body of the vehiclewas also in a bad condition and needed major repair work on it.

There has been a dispute about the nature of the advertisement relied on by the plaintiff. The burden was on theplaintiff to establish these with certainly since it is upon this advertisement that he relies as constituting abinding agreement between him and the defendants. Even if these advertisements had been established withcertainty, could they by themselves constitute valid binding agreements? I do not think so. Considering thenature of work to be done on the vehicle, I think it would have been necessary for any prudent person to bepresent for the estimation of what was to be repaired and the cost of it. I do not accept the plaintiff’s evidencethat he had visited the defendants' workshop two weeks later to collect his vehicle. Exhibit A was written withinthese two weeks and the plaintiff admits receiving it. There were conditions contained in this letter. Underclause 2 of the conditions marked "NB" in the letter it is stated "please take note that commencement of repairswill depend on a receipt of a written official acceptance of our estimate." I think this [p.149] was a reasonablecondition, for, the repairer would have to be sure that the owner would accept his repairing the vehicle at theestimated cost. In all contracts there must be an offer and an acceptance of some sort. An advertisement mayonly be an invitation to treat or an offer. There must be an acceptance. The plaintiff in this case never replied tothe letter. Even if he had relied on the advertisements, I think exhibit A was a call to him to accept or reject; itindicated to him that his vehicle would only be repaired on the conditions contained in the letter given him. Theplaintiff was therefore unwise not to have written as requested. There was thus no consensus as to what was tobe done. And, since the plaintiff could not satisfactorily establish the nature of these advertisements, I cannotfind what contract existed between him and the defendants. I find that there was no contract between him andthe defendants. Consequently, there could be no breach for which damages would be claimed by him. Hisclaim (a) is accordingly dismissed.

The plaintiff claims damages for wrongful detention. On the evidence, I find that the plaintiff went to see thedefendants about his vehicle some time after the vehicle had been delivered to the defendants. That was aboutthe time exhibit A was written. The evidence shows that when the plaintiff went to inspect the vehicle, the tyresand engine had been removed. I am not satisfied that the engine had been changed. I accept the defendants'evidence that since the main work was on the body, the tyres and engine had been removed and kept tofacilitate work to be done on the body after the plaintiff had accepted that work should be done on his vehicle. Ifind that exhibit B was written soon after the plaintiff had gone to the factory and demanded for the return of hisvehicle. Exhibit B was a letter written by the defendants on 25 February 1981 to the plaintiff. In paragraph 2 ofthe letter it is stated: "On payment of the said amount, the workshop manager of Johnson Motors Ltd. will beinstructed to fit back your engine and tyres removed from the car and allow you to remove the said car from ourpremises."

The refusal to allow the plaintiff to remove his vehicle was therefore grounded on the failure by him to paystorage charges. At common law there is a lien for unpaid charges or fees on vehicles in the possession of therepairer. However, no lien exists on goods on which no work has been done. In this respect, exhibit 3 (aspecimen job card for Johnson Complex Ghana Ltd.) was tendered in evidence. This job card containsconditions for the repair of vehicles sent to the workshop. It had been argued that since the company referredto on the card is not the same as the defendant-company, it could not be said that these conditions werebinding on persons who sent their vehicles to the defendant-company. The address and work place of [p.150]Johnson Complex Ghana Ltd. are the same as those of the defendant-company. In fact the defendant-companyis only a "branch" more or less of the Johnson Complex Ghana Ltd., though in law they existed as separateentities. When the plaintiff's solicitor wrote to the defendant-company in exhibit 1, it addressed the letter toJohnson Complex Ghana Ltd. I have no doubt in my mind that if a job card had been prepared for work to bedone on the plaintiff's vehicle, it would have been such similar card which would have been used. There was nocontract, as I have found, so no job card was completed. The conditions referred to in exhibit 3 could thereforenot be binding on the plaintiff since he had no notice of them. In any case, clause 6 which calls for the paymentof storage charges, only arises ten days after a customer has been notified of the completion of work on hisvehicle and he has failed to pay and collect it. Since no work was done on the vehicle, no such charge arose. Iam however of the opinion that the repairer would be entitled to claim storage charges from the customer afterthe negotiations had broken down and the owner had failed to collect within a reasonable time after he hadbeen so notified. I think therefore that the claim for storage charges immediately the defendant-companyrefused to go on with the work was not justified. Since I have already held that the defendants would not haverefused to hand over the vehicle to the plaintiff, there was no other justification for detaining the vehicle. Thedetention of the plaintiff's vehicle in the circumstances amounted to conversion.

The plaintiff claims for damages for wrongful detention. He claims ¢450 a day as loss of use from 1 July 1980to the date of judgment. The evidence shows that the plaintiff's vehicle was towed to the defendants' workshopin a very dilapidated condition. The evidence further shows that, the plaintiff had not been able to repair hisvehicle because of scarcity of spare parts at the time. There is no evidence that the plaintiff for some time

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vehicle because of scarcity of spare parts at the time. There is no evidence that the plaintiff for some timebefore he sent his vehicle to the defendants' workshop had used the vehicle. I do not believe the evidence ofthe second plaintiff witness. He impressed me as a witness who had been called only to support whatever theplaintiff had said. If, in fact, this vehicle had been sent to Danquah Motors before, which evidence is in conflictwith the plaintiff's other evidence, then the vehicle must have been off the road for a very long time. The plaintiffhas not satisfactorily established this loss of use. On an application by the plaintiff for the preservation of thevehicle on 6 February 1986, the court was compelled to make an order for the release of the vehicle to theplaintiff when the defendants informed the court that they were prepared to allow the plaintiff to remove hisvehicle then. Since then no complaints have been made to the court. I [p.151]am inclined therefore to acceptthat the order was complied with and that the tyres, engines and the vehicle were released to the plaintiff.

When a chattel has been wrongfully taken, detained or otherwise converted, there is a vested cause of actionwhich cannot be defeated merely by the fact that the plaintiff subsequently gets his goods back. But, after suchredelivery, the action is merely for the special damage or deterioration in value, and if there is no such specialdamage or deterioration, and the plaintiff is not content to accept the return of the goods and costs, but insistsupon continuing his action for substantial damages, he may be made to pay costs though he recover nominaldamages: see Hiort v. London & North Western Rly Co. (1897) 4 Ex. D. 186, C.A. Since the evidence showsthat the vehicle was in a very deteriorated condition and that there were no spare parts to repair it, it is difficultto assess the further deterioration which had set in. The vehicle was towed to the defendants' workshop andcould only be towed from there. The plaintiff has not made any complaints formally to the court. The courtcannot guess any deterioration in value. Besides, since the plaintiff was to take delivery as from 6 February1986 any further deterioration cannot be laid at the door steps of the defendants. In fact after the order fordelivery, if the vehicle still remained at the workshop, the defendants would be entitled to claim for damages. Inthe circumstances, I award the plaintiff ¢20,000 damages for wrongful detention. I award him costs of ¢15,000. I find that it was not necessary to join the second defendant in the action. The claim as against him isaccordingly dismissed. The damages and costs awarded will be against the first defendant.

The defendants' claim fails and it is dismissed accordingly.

DECISION

Judgment for the plaintiff against the first defendant.

J. A. A.

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DORMENYOR v. JOHNSON MOTORS LTD. [1989-90] 2 GLR 145–151

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