BARNES v. AMEEN SANGARI & CO.
[HIGH COURT, SEKONDI]
DATE: 14TH MAY, 1962
COUNSEL
C.M. Cann for the plaintiff.
R.S. Blay for the defendants.
JUDGEMENT OF CHARLES, J.
In this action the plaintiff claims from the defendants the sum of £G787 14s. being (1) £687 14s. as
money had and received by the defendants under a hire-purchase agreement, and (2) £G100 as
[p.351] of [1962] 1 GLR 350
general damages. The plaintiff’s claim is brought under the provisions of section 12(1) of the
Hire-Purchase Act, 19581(1) which reads as follows:
“Where goods have been let under a hire-purchase agreement and seventy-five per cent of the
hire-purchase price has been paid, whether in pursuance of a judgment or otherwise, or tendered by or on
behalf of the hirer or any guarantor, the owner shall not enforce any right to recover possession of the
goods from the hirer otherwise than by action.”
On the 28th August, 1959, the defendants let to the plaintiff on hire-purchase terms a motor car the
price of which was £G860 payable by a first instalment of £G100 and the balance by twelve monthly
instalments of £63 6s. 8d. In November, 1960, the plaintiff, who had not been making payments
regularly, was in arrears of £G172 6s., though he had paid altogether £G687 14s. On the 14th
December, 1960, one J.N. Korsah sued the plaintiff and obtained judgment in the local court for £G25
with costs of £G2. On the 16th December, 1960 execution was levied upon the vehicle and the
plaintiff signed a certificate, exhibit E, claiming the car as his own property.
There is a conflict in the evidence concerning the circumstances under which the vehicle was released.
The sheriff, P.W.1, stated that on the strength of a letter exhibit D, written by J.N. Korsah he released
the vehicle to D.W.1 although D.W.1 was not authorised by the plaintiff to take delivery. D.W.1
stated that he told P.W.1 that the vehicle was owned by the defendants and P.W.1 delivered the
vehicle to him after he had promised to try and collect from the plaintiff and pay to J.N. Korsah the
amount of the judgment-debt and costs. According to J.N. Korsah he agreed to release the vehicle to
D.W.1 who claimed it on behalf of the defendants because D.W.1 promised to pay him the amount of
the judgment and costs. I accept this last version as substantially true because I believe that D.W.1 did
tell P.W.1 that the defendants were the owners of the vehicle and P.W.1 would not have delivered the
vehicle to D.W.1 on behalf of the plaintiff as D.W.1 was never authorised by the plaintiff to take
delivery.
By clause 8 of the hire-purchase agreement, exhibit A, if any execution or distress is levied or
threatened to be levied upon the motor vehicle the owners may forthwith determine the hire without
notice and may forthwith seize and take possession of the said motor vehicle wherever the same may
be. In Jelks v. Hayward,2(2) the headnote reads:
“Furniture was let for hire with an option of purchase under a hire-purchase agreement, which contained
a clause giving the owners the right without previous notice to determine the hiring and retake
possession of the furniture, if it should at any time be seized or taken in execution. The furniture was
taken in execution by the high bailiff of a county court, and, no claim having been made to it, was
appraised and sold under the execution and the proceeds paid into court, and the furniture delivered to
the purchaser. On the day after the sale the owners heard for the first time of the seizure and sale of the
furniture, and gave notice of their claim to the proceeds. An interpleader summons was issued at the instance of the high bailiff, and in the course of the interpleader proceedings the execution creditor
admitted the title of the claimants, who gave a notice claiming damages against the high bailiff in respect
of the alleged conversion of the furniture by selling it:—
Held, that, as under the hiring agreement the claimants had a right to retake possession immediately
upon its being taken in execution, the sale by the high bailiff amounted to an act of conversion for
which he was responsible in damages to them.”
[p.352] of [1962] 1 GLR 350
Kennedy J. there said:
“Whatever interest the apparent possessor, the execution debtor, had in the goods seized, he had by the
terms of the hire-purchase agreement between him and the respondents; it was in interest terminable ipso
facto on the occurrence of such a seizure as actually took place; in other words, the respondents became
entitled to the possession of the goods without notice or demand immediately upon that act of seizure by
the bailiff. In order to maintain an action of conversion for the subsequent sale by the bailiff, there must
be a right in the plaintiff to immediate possession of, as well as a property in, the goods. In the present
case there is no question that the goods sold were the property of the respondents: had they also a right to
their possession at the time of the sale? In my opinion they had, because the act of the bailiff in seizing
entitled them to take possession of the goods immediately upon the seizure.”3(3)
I therefore hold that the defendants had a right to terminate the hire-purchase agreement without
giving notice to the plaintiff and they were entitled to the possession of the vehicle immediately upon
seizure. When D.W.1 took delivery of the vehicle he established unequivocally that he was
terminating the hire-purchase agreement. Moreover, the plaintiff, who was a bailee, by certifying that
he was the owner of the vehicle, comported himself in a manner so utterly repugnant to the terms of
the bailment that he thereby terminated the bailment, and therefore the right to possession revested in
the bailors, the defendants.
If the plaintiff is to succeed in his claim he has to prove (1) that 75 per cent of the hire-purchase price
has been paid and (2) that the defendants recovered possession of the vehicle from him without
obtaining leave of the court. There is no dispute that 75 per cent of the purchase price had been paid
prior to execution being levied upon the vehicle. But the important question is whether the defendants
were entitled to recover possession of the vehicle from a third party without obtaining leave of the
court after it had been seized under a writ of fi.fa. in satisfaction of a judgment debt and costs.
As I have already stated the defendants were deprived of the possession of the vehicle when execution
was levied upon it. Section 12 (1) of the Hire-Purchase Act, 1958,4(4) provides that the owner shall
not enforce any right to recover possession of the goods from the hirer otherwise than by action. It
does not say that he is deprived of enforcing his right to recover possession of the vehicle from
anyone else otherwise than by action. In Eastern Distributors Ltd. v. Goldring (Murphy-Third
Party5(5)) the Court of Appeal had to consider the meaning of section 2 (2) of the Hire-Purchase Act,
1938,6(6) which is pari materia with section 4 (2) of our Act of 1958, and the court held that section
2(2) only deprives an owner of his right to recover goods from the hirer, but not from anyone else.
I therefore hold that as the plaintiff was not in possession of the vehicle when D.W.1 recovered it, his
claim does not fall within the ambit of the provision of section 12 (1), and therefore it must fail. It
would have been otherwise if the plaintiff were only threatened with execution upon the vehicle and
the plaintiff was still in possession thereof. In these circumstances I am of the opinion that the
defendants would have been
[p.353] of [1962] 1 GLR 350
restricted in their rights to recover possession by section 12 (1). I must point out that this is only
obiter dictum, but this point may arise on some future occasion. The plaintiff’s claim is therefore
dismissed, and judgment is entered in favour of the defendants with costs fixed at forty guineas inclusive of fee to counsel.
DECISION
Action dismissed.
