[1952] EACA 288

#### ORIGINAL CIVIL

#### Before WINDHAM. J.

# KAMAU s/o MWREU, Plaintiff

# PRITAM SINGH, Defendant

### Civil Case No. 284 of 1952

Detinue—Garage proprietor's lien—When revived.

The defendant, a garage proprietor, effected certain repairs to the plaintiff's bus at the latter's request and when the plaintiff came to collect the bus presented him with a bill for Sh. 1,605/09. The plaintiff gave defendant a cheque for this sum next day and drove the bus away. On presentation by the defendant on the next day, payment had already been stopped by the plaintiff. Two weeks later the plaintiff's driver drove the bus to the defendant's garage for the purpose of changing the oil. The defendant refused to allow the bus to be driven away until his bill had been paid. After 17 days the plaintiff through his legal adviser sent a cheque for the amount due and the defendant allowed the plaintiff's driver to take it away. The plaintiff acknowledged the return of the bus in good running order. The cheque was duly honoured.

Held $(23-9-52)$ .—(1) The defendant's lien would ordinarily have been extinguished by his parting with the possession and could not revive on the bus again coming into his possession.

(2) The exception applied, however, that if the bus was taken out of the defendant's possession by the plaintiff in circumstances which gave the plaintiff no right to posses-<br>sion, this right remained in the defendant and revived exactly as if there had been no break in possession.

(3) The plaintiff regained possession of the bus by fraud and accordingly the defendant's lien revived to enable him to detain the bus. Plaintiff's claim for damages dismissed.

Cases referred to: Sweet v. Pym, (1800) 1 East 4, Bristol (Earl) v. Wilsmore, (1823) 1 B. & C. 514.

Holland for plaintiff.

Mandavia for defendant.

JUDGMENT.—The plaintiff sues the defendant for damages incurred through the wrongful detention by the defendant of his (the plaintiff's) passenger bus for a period of 17 days.

It is not in dispute that at some time during the first few months of 1951 the defendant, a garage proprietor, effected certain repairs to the plaintiff's bus at the latter's request and that when, on 26th July, the plaintiff came to collect the repaired bus the defendant presented him with a bill for Sh. 1605/09. Next day the plaintiff returned with a cheque for this amount of Sh. 1,605/09 and gave it to the defendant, whereupon he, the plaintiff, drove his bus away. On the following day, 28th July, the defendant presented the cheque for payment, but by that time it had already been stopped by the plaintiff. On 13th August, 1952, the same bus was driven to the defendant's garage by the plain-

tiff's driver for the purpose of changing the oil. The events that I have narrated up to this point are undisputed. It is in dispute, however, whether on 13th August the driver drove the bus right into the defendant's garage or only to a spot some yards outside it from where it was driven into the garage by the defendant himself. On this point I accept without hesitation the evidence of the defendant himself that the plaintiff's driver drove it right into the garage, and I reject the evidence of the driver, a most unsatisfactory and self-contradictory witness, to the effect that he only drove it as far as a spot a few yards outside the garage. I make this finding of fact for the purpose of record, and without pronouncing on its legal relevance, if any. When the oil had been changed, the defendant refused to let the driver drive it away again because (by reason of the stopping of the cheque) he had not yet been plaid his charges of Sh. 1.605/09 for the repairs of the previous month, nor even any sum towards that amount. The defendant told the driver to inform the plaintiff that he could take his bus away as soon as he had paid that bill, but not before. The driver duly so informed the plaintiff. Eventually, after 17 days, the plaintiff, through his legal adviser, sent a cheque for Sh. $1,605/09$ to the defendant, who immediately permitted the plaintiff's driver to drive it away. The same day the plaintiff acknowledged having received the bus back "in good running order". The cheque was duly honoured.

Now the whole of the plaintiff's claim for damages suffered through the detention of the bus by the defendant for 17 days hinges on the question whether this detention was lawful or unlawful; for if it was lawful the plaintiff has no claim. The defence to the claim is that the defendant had a right to detain the bus by way of lien for his unpaid repair charges. After the account for those repairs had been presented to the plaintiff and the plaintiff in settlement of it had handed the cheque for Sh. 1,605/09 to the defendant, however, the bus had been taken out of the defendant's possession. In the ordinary way, therefore, his lien on the bus would have been extinguished and could not revive on the bus again coming into his possession: Sweet v. Pym, (1800) 1 East, 4; 32 E. & E. Digest, 232. There is a legally recognized exception, however, to this general rule of law, and it is this—that if the bus was taken out of the defendant's possession by the plaintiff in circumstances which gave the plaintiff no right to possession, so that the right to possession remained in the defendant, then upon the bus subsequently coming back into the defendant's possession his lien would revive exactly as though there had been no break in his possession, that is to say until full payment of the original debt which gave rise to the lien, namely the bill for repairs. Such a circumstance, disentitling the plaintiff to lawful possession of the bus when he drove it away upon handing the cheque for Sh. $1,605/09$ to the defendant, would arise if at the time when the cheque was so handed over the plaintiff had already formed the intention not to honour it. For this would be a fraud or trick on the plaintiff's part and would vitiate the transaction whereby the defendant had allowed him to drive the bus away: Bristol (Earl) v. Wilsmore, (1823) 1 B & C 514, 32 E. & E. Digest 685.

In applying the above law to the facts in the present case we are met with a conflict of evidence between the plaintiff and the defendant. The plaintiff has stated that when he gave the cheque he fully intended to meet it, but that later on that same day or in the morning of the following day (he cannot remember which) he instructed his bank to stop payment of it because, having in the interval examined the defendant's statement of account, he considered it to be too high and wanted first to go into it with the defendant and arrive at a lower figure. He states that the defendant had declined to go into it with him at the interview when he presented it, or on the occasion of the giving of the cheque next morning.

The defendant, on the other hand, states that at the interview when he presented the statement of account to the plaintiff, on 26th July, the plaintiff went into it item by item, and agreed with every single item except one for Sh. $53/12$ , and that as regards this item the defendant agreed that it had been included in error and accordingly credited the plaintiff with the amount upon another running account between them. The plaintiff himself has agreed that the defendant deducted this amount, though he states that the defendant paid the Sh. $53/12$ over to him in cash and not by a book entry on another account.

After hearing both the plaintiff and the defendant, and examining the exhibits and correspondence produced, I have not the slightest hesitation in accepting the evidence of the defendant and rejecting that of the plaintiff where the two versions conflict. I accordingly find as a fact that when he gave the cheque for Sh. $1,605/09$ (on the day following the presenting of the account to him) the plaintiff had already examined the account item by item and expressed himself satisfied with it. The reason which he advances for stopping the cheque within 24 hours of handing it over to the defendant and driving away with the bus cannot therefore be true. Why, then, did he stop the cheque? I am left with no other reasonable conclusion than that, when he handed the cheque to the defendant, he had already resolved in his mind that he would stop payment of it after having meanwhile obtained possession of the bus. I can conceive of no other reasonably possible explanation for his stopping the cheque so immediately upon the heels of regaining possession of his bus, after having expressed to the defendant his entire satisfaction (subject to the agreed deduction of the Sh. $53/12$ ) with the statement of account presented to him.

In short I hold that the plaintiff regained possession of the bus from the defendant, who up to that moment had a lien on it for due payment for the extensive repairs, by a fraud or trick, and that in these circumstances, on the authority of the cases which I have cited, the defendant's lien revived upon his coming into possession of the bus some 17 days later, and that the defendant was therefore lawfully entitled to retain possession of the bus under that lien for a further 17 days, until he received for the second time a cheque for Sh. $1,605/09$ , which on this occasion was duly honoured.

For these reasons I hold that the plaintiff's claim for damages incurred through wrongful detention of the bus must be dismissed with costs.