FRANK TAWIAH v. BIEGE CAPITAL
March 25, 2019
COURT OF APPEAL
GHANA
CORAM
- MARIAMA OWUSU (MRS.), J.A. (PRESIDING)
- DZAMEFE, J. A.
- WELBOURNE (MRS), J. A
Areas of Law
- Banking and Finance Law
- Contract Law
- Civil Procedure
- Tort Law
March 25, 2019
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
In a Ghana Court of Appeal decision authored by Margaret Welbourne JA, the court dismissed an appeal by the borrower who had prevailed in the High Court on a wrongful seizure claim. The borrower obtained a GH₵10,000 loan from the lender and used his Toyota Hiace AE 1938‑12 as collateral. After an accident and partial payment, the lender re‑possessed a different Nissan Urvan AE 1879‑12 without court order, claiming a corrected agreement covered two vehicles. The trial court declared the seizure unlawful, ordered release of the vehicle and account reconciliation, and awarded GH₵15,000 general damages and GH₵3,000 costs. On appeal, the borrower sought greater damages, alleged the judgment was against the weight of evidence, and asked for GH₵90 per‑day specific damages. The Court of Appeal, applying the rehearing standard, preferred the authentic written loan agreement, found the purported “Exhibit 1” fictitious and non‑binding, held Act 773 does not permit seizing non‑collateral property, rejected unproven daily earnings, and affirmed the damages award.
JUDGMENT
MARGARET WELBOURNE (MRS.) JA.
BRIEF FACTS: This appeal is mounted against the judgment of the High Court Commercial Division) dated 27/5/2015
The facts of this case according to the Plaintiff are that, the Plaintiff took a loan facility of GH₵10,000.00 from the Defendant and he was to repay same within a period of Six (6) months. The facility was secured with the Plaintiff’s Toyota Hiace (Commercial Vehicle) numbered AE 1938-12. The Plaintiff managed to pay GH₵1,200.00 and as a result of an accident, one of his vehicles got burnt and so he defaulted in repayment of the loan as scheduled. Even though the Plaintiff used his Commercial Vehicle numbered AE 1938-12 as security for the loan the Defendant forcefully and without a Judgment or Court Order took away the Plaintiff’s vehicle with registration number AE 1879 -12 on November 1st 2013 and same has been with the Defendant till date. According to the Plaintiff, the said vehicle which was for Commercial use, was making daily sales of Ninety Ghana Cedis (GH₵90.00). Aggrieved by the wrongful seizure of his vehicle, the Plaintiff issued a Writ of Summons and a Statement of Claim from the registry of the High Court, Commercial Division, Kumasi seeking the following reliefs:
1. A declaration that theseizure of the Plaintiff’s Commercial Nissan Urvan bus with registration number AE 1879-12 on the 1st November, 2013 was wrongful.
2. An Order for recovery of possession of the Plaintiff’s said vehicle or in the alternative the recovery of the sum of GH₵35,000.00 being the value of the said vehicle.
3. An Order compelling the Defendant to repair the Plaintiff’s vehicle should same be found in a state of disrepair at the time of recovery of its possession.
4. An Order for recovery of GH₵90.00 per day from 1st November, 2013 till date of recovery of possession being loss of use of same for that period.
5. Damages for wrongful seizure.
On the service of the Writ of Summons on the Defendant they caused their solicitors to enter an appearance and subsequently filed their defence to the Plaintiff’s claim.
The matter was referred to a pre-trial judge to enable the parties settle the issues between them.
Unfortunately the pre-trial settlement failed for which reason the following issues were set down for trial:
i. Whether or not the Plaintiff took a loan of GH₵10,000 from the Defendant.
ii. Whether or not the Plaintiff secured the loan with these two Commercial buses.
iii. Whether or not the Plain