Wilson v. Osei & Anor. [1982-83] GLR 585.

HIGH COURT, SEKONDI

 ANSAH-TWUM J

Ansah-Twum J. This is a motion for a review of the court’s order made on 26 October 1981 releasing the vehicle No. GZA 8470 impounded by an order of this court for preservation until the determination of the controversy between the parties herein. The order for preservation was obtained on an ex parte application at the time the co-defendant, apparently not being aware of the pendency of the suit, was not a party thereto. The co-defendant became aware of the pendency of this suit when the vehicle No. GZA 8470, one of the three vehicles being the subject-matter of this suit, which was in his possession, was impounded by the deputy sheriff in pursuance of the preservation order made on 7 October 1981. The co-defendant quickly moved the court on notice to the solicitor for the plaintiff to get the preservation order affecting vehicle No. GZA 8470 set aside. The motion was served on the plaintiff’s solicitor on 14 October 1981 but when it was fixed to be heard on 20 October 1981, Mr. Sammy Tay, the solicitor, failed to appear and hearing of the motion was adjourned to 26 October 1981 when again Mr. Sammy Tay did not appear. Counsel for the applicant, Mr. James Mercer, then moved the court, and having satisfied the court that the applicant has a substantial legal interest in the vehicle so impounded, the court granted the application by releasing the vehicle in question from the interim order of preservation, having set aside that part of the order affecting the vehicle No. GZA 8470.

The present application has therefore been brought under the High Court (Civil Procedure) Rules, 1954 (LN 140A), Order 39 for a review of the order which released the vehicle, as explained above. Learned counsel for the plaintiff-applicant has submitted, among other things, that here the plaintiff has pleaded fraud, and having done that the order setting aside the previous order for preservation ought not to have been made since fraud vitiates everything. Counsel cites the case: Ahenkora v. Ofe (1957) 3 W.A.L.R. 145, C.A., the relevance of which I fail to see in this connection.

Learned counsel argued further that the order made releasing the said vehicle from the preservation order was made per incuriam since certain facts were not disclosed to the court. Counsel had not at the close of his arguments disclosed to the court the alleged facts which the respondent had failed to disclose on his application.

Counsel submitted further that the plaintiff pleaded fraud against the defendant, and that there is a valid agreement, exhibit A, between the plaintiff and the defendant, and also referred to the fact that Heritage Motors paid $4,670.30 for the cars in America. He submitted that the poor condition of our roads should lead the court to refrain from releasing the car in question since, as he submitted, the grant of the application militated strongly against only the plaintiff’s interest in the matter. Counsel cited Fine Art Society Ltd. v. Union Bank of London Ltd. (1886) 17 Q.B.D. 705 on wrongful conversion. He cited also Union Credit Bank Ltd. v. Mersey Docks and Harbour Board [1899] 2 Q.B. 205 and submitted that a party who buys goods from another who has no right to dispose of the goods is guilty of conversion.

Learned counsel submitted further that the co-defendant ought to have made a thorough search before he bought the car from Osei, the defendant. He said the maxim is caveat emptor.

In his reply, Mr. James Mercer, counsel for the respondent, submitted that the application is unmeritorious. That an application for a review does not call upon the court to consider any point of law and referred to Order 39, r.1 of LN 140A:

I seem to agree with learned counsel for the respondent that a review of a judgment or order is sought where after the judgment or order there is a discovery of a new and important matter or evidence which with all diligence was not within the knowledge of the applicant or which the applicant could not have produced at the time when the judgment was given or the order was made. This is because Order 39, r.1 of LN 140A says:

“1. (1) Any person considering himself aggrieved

(a) by a judgment or order from which an appeal is allowed, but from which no appeal has been preferred; or

(b) by a judgment or order from which no appeal is allowed; and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the judgment was given or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the judgment given or order made against him, may apply for a review of the judgment or order to the Judge who gave judgment or made the order.”

Learned counsel submitted further that the applicant’s counsel’s submission seemed to suggest that the doctrine of notice does not exist, neither does the doctrine of bona fide purchaser for value without notice nor the Sale of Goods Act, 1962 (Act 137), exist. Counsel submitted further that, afterall, the cheques referred to by the applicant’s counsel were issued in America by Heritage Motors and not by the plaintiff. Moreover, the bill of lading makes Heritage Motors as consignor and J. A. Osei as consignee. Counsel referred to exhibit C, being the official receipt issued by the police in respect of change of ownership, and says that it is rather the plaintiff who has been guilty of failure to conduct proper search before he instituted this action. For, if he did, he would have found out that the police had registered the vehicle in question in the name of John Augustus Osei at Takoradi. The plaintiff would have noticed further the person who is presently in possession of the vehicle, and that there is a third party interest in the vehicle. Counsel submitted further that under Act 137, ss. 10, 26(2), 29 and 30, registration of a vehicle by the licensing authorities constitutes notice to the whole world as to the person who has title in the vehicle as at present.

I have carefully considered the submissions made by both learned counsel and it is my view that this application must fail; firstly, because the application has woefully failed to show that there has been a discovery, since the order was made, of new and important matter or evidence which with all diligence was not within his knowledge or he could not have produced at the time when the order was made. The plaintiff’s solicitor was amply notified of the application and was given more than ample opportunity to appear but he failed to do so. Secondly, it seems to me that the co-defendant having satisfied me on his application that he is a bona fide purchaser for value without notice, and that under the provisions of Act 137, he has a legal 

interest in the car, I think I am right in granting that application by releasing the vehicle from the order of preservation. Section 26 (1) of Act 137 provides:

“26. (1) Subject to section 25 of this Act, the property in goods passes under a contract of sale when the parties intend it to pass.

(2) Unless a different intention appears the property in the goods passes under a contract of sale when they are delivered to the buyer.”

From the pleadings, the co-defendant has stated that the plaintiff has no locus standi in this matter, since the vehicle in question was shipped to the defendant by Heritage Motors as consignor and J. A. Osei as consignee. The co-defendant claims that by the bill of lading, J. A. Osei was the owner of the vehicle as proclaimed to the whole world, and he therefore validly acquired the vehicle from Osei under a contract of sale which passed a valid title in the vehicle to him. He is therefore protected on the face of it all by Act 137.

Again, even if under the agreement referred to by the plaintiff, the defendant must be regarded as a mere agent of the plaintiff, then as a mercantile agent in possession of the car, he could prima facie validly dispose of it to the co-defendant: see section 30(1) of Act 137.

I think on the whole the co-defendant was able to show a substantial and reasonably good cause why his application should be granted. I am satisfied that the order made was in order and requires no review. I am further satisfied that the order by which the vehicle was released from the preservation order was regularly obtained, the respondent having been duly served through his solicitor, and the solicitor having failed on two occasions to appear for argument, through no fault of the co-defendant.

The authorities are clear that the court will not exercise its inherent jurisdiction to set aside a judgment or order regularly obtained to the detriment of the victorious party: see Omaboe v. Kwame [1978] G.L.R. 122, C.A. where it was held, among other things, as stated in the headnote:

“It would be unjust to the respondent if the court were to give itself power to vacate a judgment regularly obtained by him in accordance with its own rules when the other party, while present at the hearing, chose for reasons of his own not to meet his opponent’s case. It could hardly be the respondent’s fault that ‘the appellant’s lawyer was absent from court’.”

Here in this case, the respondent’s solicitor was duly notified of the pendency of the co-defendant’s (respondent’s) application, but he chose, for reasons of his own, to stay out of court on two occasions 

when the application was set down for hearing and there was therefore no one to meet the respondent’s case which I found to be reasonable and highly meritorious and I therefore granted the application.

It is my view that the present application is hardly meritorious and must therefore fail; and it is dismissed accordingly with costs of ¢500 awarded in favour of the respondent herein.