Harragin, C.J. (Gold Coast) :- Some time in September, 1942, Malam Alidu, the appellant in this case, who lives in the Kumasi District, proceeded to Accra. Before leaving the Kumasi District, he was asked by the respondent to purchase for him two motor-car tyre covers and one inner tube, the respondent giving him the necessary money and permit. The appellant was unable to obtain the outer covers or the inner tube for the respondent though he was more successful in obtaining a tyre for one Kofi Atia. When the appellant returned to Kumasi, he told the respondent that the had been unsuccessful in his mission and the respondent asked him to let him have the tyre that appellant had bought for Kofi Atia. The appellant agreed to this but told him to keep it until he saw Kofi Atia and obtained his consent to the transfer. The appellant saw Kofi Atia who refused to allow the respondent to have his tyre, and the appellant returned to the respondent and asked for its return which was refused by the respondent. As a result of the respondent’s refusal, the appellant complained to the Motor Union who ordered the respondent to return the outer cover and inner tube to him. This was at the end of October. The respondent refused to comply with the finding of the Motor Union. As a result of his refusal the appellant felt obliged to give one of his own tyres to Kofi Atia whereby the appellant’s lorry was put out of action.
On these facts the appellant sued the respondent in the Kumasi Divisional Native Court in November, 1942, claiming (a) the return of the outer cover and inner tube, (b) 2f's. per day for the period that the appellant's lorry was off the road as a result of the loan to Kofi Atia of the tyre and (c) by way of general damages. The Native Court found as a fact that the appellant had lent the tyre in question to the respondent, and ordered the respondent to replace the tyre or to pay the value thereof. The claim for damages was dismissed as the Court did not see how any damages were caused by the respondent. The appellant appealed to the Magistrate’s Court at Kumasi which varied the order of the Court below as the Court did not agree to the payment of the value of the tyre in cash as alternative since such an order would authorise the committing of an offence, but once again ordered the respondent to return the tyre in question to the appellant within a week. The appellant then appealed to the Chief Commissioner’s Court which varied the decision of the Magistrate to this extent, namely that the “respondent shall pay the costs of the tyre £8 5s. to appellant. Each party to pay its own costs here “. This was no doubt done because of the statement made by the appellant to the effect that the cover was now spoiled.. It should be noted that the judgment of the Magistrate’s Court was given on the 10th July, 1943, and that the respondent had offered to return the tyre within three days of this judgment but the appellant refused to accept it. Against the order of the Chief Commissioner, the appellant has appealed to this Court on grounds which may be summarized shortly into a complaint that neither special nor general damages had been awarded against the respondent.
It was argued on behalf of the respondent that it would have been an illegal act for the appellant to have sold the tyre in question to the respondent and that therefore the appellant was estopped - from claiming damages. This mayor may not be correct, but we have perused the law on the subject and can nowhere find that it is an offence to lend a tyre to a friend in distress and it is upon this basis that the case is brought.
We are not of the opinion that in this case any special dan1ages can be awarded as the appellant was under no obligation to hand over to Kofi Atia one of his own tyres thereby putting his lorry out of commission. It is clear, however, that the respondent wrongfully retained the tyre in question from the date upon which the appellant requested its return. We are therefore of the opinion that the respondent should return the tyre in question to the appellant particularly as it is a matter of common knowledge that the appellant cannot obtain a new tyre without producing an old tyre to the dealer. Should this tyre be worn out as we have good reason to believe, the appellant is entitled to damages for the year and tear to the tyre, and we are further of the opinion that the appellant is entitled to general damages for the wrongful detention of the tyre from the date on which the appellant requested its return until the date that the respondent offered the tyre to the appellant, which was on or about the 13th July, 1943.
The case is therefore returned to the Kumasi Divisional Native Court to assess damages in accordance with the terms of this judgment.
As the appellant has been successful in his appeal, the respondent shall pay the costs in this Court assessed at £40 2s. 5d. and in the Courts below to he taxed.