COURT OF APPEAL
DATE: 18 DECEMBER 1967
BEFORE: OLLENNU, AZU CRABBE AND APALOO JJ.A.
CASES REFERRED TO
(1) Mercantile Credit Co., Ltd. v. Cross [1965] 2 Q.B. 205; [1965] 2 W.L.R. 687; [1965] 1 A11 E.R.
577; 109 S.J. 47, C.A.
(2) Dean v. Whittaker (1824) 1 C. & P. 347; 171 E.R. 1225.
(3) Jelks v. Hayward [1905] 2 K.B. 460; 74 L.J.K.B. 717; 92 L.T. 692; 53 W.R. 686; 21 T.L.R. 527; 49 S.J. 685.
(4) Jones Brothers (Holloway), Ltd. v. Woodhouse [1923] 2 K.B. 117; 92; L.J.K.B. 638; 129 L.T. 317; 67 S.J. 518.
(5) Carr v. Broderick (J.) & Co. Ltd. [1942] 2 K.B. 275; [1942] 2 A11 E.R. 441; 111 L.J.K.B. 667; 167
L.T. 335; 58 T.L.R 373.
(6) Financings Ltd. v. Baldock [1963] 2 Q.B. 104; [1963] 2 W.L.R. 359; [1963] 1 A11 E.R. 443; 107
S.J. 15, C.A.
(7) North General Wagon & Finance Co., Ltd. v. Graham [1950] 2 K.B. 7; [1950] 1 A11 E.R. 780; 100 L.J. 189; 209 L.T.J. 198; 66 T.L.R. (Pt. 1) 707; sub nom. North Central Wagon & Finance Co. v. Graham [1950] 1 A11 E.R. 780, C.A.
(8) Thomas v. Varney (1957) 107 L.J. 412.
(9) Manders v. Williams (1849) 4 Exch. 339; 18 L.J. Ex. 437; 13 L.T. (o.s.) 325.
(10) Whitmore v. Greene (1844) 2 Dow. & L. 174; 13 M. & W. 104; 13 L.J.Ex. 311; 3 L.T. (O.S.) 241;
8 Jur. 697; 153 E.R. 43.
(11) Hitchin v. Campbell (1772) 2 Wm. B.L. 827; 96 E.R. 457.
(12) Cooper v. Chitty (1756) 1 Burr. 20; 1 Keny. 395; 1 Wm. Bl. 65; 97 E.R. 166.
(13) Eastern Distributors, Ltd. v. Goldring (Murphy, Third Party) [1957] 2 Q.B. 600; [1957] 3 W.L.R.
237; [1957] 2 A11 E.R. 525; 101 S.J. 553, C.A.
NATURE OF PROCEEDINGS
APPEAL from the judgment of Charles J. in an action for money had and received under a hire-purchase agreement and damages for wrongful
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seizure. The facts are set out in the judgment of Ollennu J.A.
COUNSEL
K. K. Dei-Anang for the appellant.
R. S. Blay for the respondents.
JUDGMENT OF OLLENNU J.A.
This is an appeal from a judgment of the High Court, Sekondi, reported in [1962] 1 G.L.R. 350, which dismissed the appellant’s (hereinafter called the plaintiff) claim for
(i) £G687 14s. being money had and received on a hire-purchase agreement and
(ii) £G100 damages. The main facts are not in dispute and are briefly as follows: By a hire-purchase agreement of 28 August 1959, the defendants (respondents herein) let an Austin Omni truck AF 9366 on hire to the plaintiff at a hire-purchase price of £G860. By August 1960, the plaintiff had paid £G687 14s. of the hire-purchase price, which is more than 75 per cent of the hire-purchase price. On 16 December 1960, the vehicle was attached at the instance of one J. K. Korsah, under a writ of fi. fa. in execution of a decree of the Sekondi Local Court against the plaintiff and the vehicle was seized and taken in possession by the sheriff. On 19 December 1960, the execution creditor, J. K. Korsah, went personally to the sheriff and told him to release the vehicle to the plaintiff. He, J .K. Korsah, confirmed these verbal instructions to the sheriff by letter of the same date as follows:n
“Dear Sir,
I have the honour to ask you to release the Car No. AF 9366 which was seized on Saturday the 17th December, 1960 for Mr. B. H. Barnes”.
The sheriff thereupon released the vehicle to one Abdulla, the manager of the defendants’ business, who represented to him, the sheriff that he, Abdulla, was taking delivery for Barnes. The defendants have since kept the vehicle in their possession and not returned it to the plaintiff.
In the meantime the defendants instituted action in the circuit court for (1) £G172 6s. being the unpaid balance of the hire-purchase price, and (2) possession of the vehicle AF 9366. They then moved the court for an interim order permitting them to retain possession of the vehicle pending the determination of the suit. In the affidavit in support of their application, the defendants pleaded, inter alia, that the said vehicle had been released to them temporarily. The circuit court refused their application for permission to retain possession of
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the vehicle. Nevertheless the defendants have continued to keep the vehicle in their possession and have not delivered it to the plaintiff.
The plaintiff appealed against the decision of the High Court on the main ground that upon the undisputed facts, the learned judge of the court below misdirected himself in law in dismissing the plaintiff’s claim because by virtue of section 12 of the Hire-Purchase Act, 1958 (No. 55 of 1958), the right of the defendants, the owners under the hire-purchase agreement, to resume possession of the vehicle withoutnrecourse to the court was forever extinguished, once 75 per cent of the hire-purchase price was paid. It was further submitted for the plaintiff that by the representation made to the sheriff upon which they obtained possession of the vehicle, the defendants constituted themselves agents of the plaintiff, to deliver the vehicle to the plaintiff; they were therefore under a legal obligation, as such agents, to restore the same to the plaintiff. Counsel for the defendants, in this court and in the court below, relied upon clause 8 of the hire-purchase agreement, exhibit A, which provides that: “Should the hirer not observe and perform the foregoing terms, provisions and stipulations or any one of them or if he dies or executes an assignment for the benefit of his creditors or if any execution or distress be levied or threatened to be levied upon the said motor vehicle or if the hirer be a company should a petition towind up be presented or a resolution for voluntary liquidation be passed the owners may forthwith determine the hiring without notice and may forthwith seize and take possession of the said motor vehicle wherever the same may be and may sue the hirer or his representative for all amounts payable in respect of the said motor vehicle for arrears of rent as set forth in clause 2 hereof also for cost of repairs and/or accessories and/or parts, etc. and for all necessary and proper expenses incurred by the owners in the exercise of the powers conferred on them by this agreement or in respect of the failure of the hirer to observe and perform his obligations to the owners hereinunder and the owners shall have the right to exercise the powers of a distraining landlord and that wheresoever the said motor vehicle be stored and retake possession of the said motor vehicle and this agreement shall forthwith be at an end except in so far as the aforesaid amount in respect of rents and other sums due as aforesaid are concerned”. He contended that by virtue of that clause, and by reason of the execution which was levied on the vehicle, the defendants became
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entitled to recover possession of the vehicle to protect their title to the vehicle in exercise of their right under the agreement.
At the same time the defendants deposed that they had not seized the vehicle and that they were prepared to deliver the same to the plaintiff forthwith, without demanding payment of any money. In view of that evidence, and also taking advantage of a remark which emanated from the bench, counsel for the defendants submitted, as a second string to his bow, that the crucial issue of fact which arises upon the evidence is whether there has been a demand by the plaintiff for delivery of the vehicle and whether there has been refusal by the defendants to surrender the same. Counsel submitted that the trial judge failed to resolve that issue of fact, therefore the proper thing for this court to do in the interest of justice is to allow the appeal and remit the case to the court below for trial de novo. The answer to the first submission, namely, that the possession by the defendants of the vehicle is in exercise of a right given under clause 8 of the hire-purchase agreement, exhibit A, or any other right of an owner, is to be found in section 12 (1) of the Hire-Purchase Act, 1958, which says: “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”.
The operative words in that section, for the purpose of the point under discussion are, “the owner shall not enforce any right to recover possession of the goods from the hirer otherwise than by action”. (The emphasis is mine.) The right of the defendants (as the owners) to recover possession of the vehicle, is as set out in clause 8 of the hire-purchase agreement, and accrues upon the happening of certain contingencies, including default in the performance of “the terms, provisions and stipulations” in the agreement or upon “any execution or distress levied or threatened to be levied upon the said motor vehicle”. Therefore but for section 12 (1) of the Hire-Purchase Act, the defendants would be entitled to recover possession immediately the vehicle was seized in execution against the plaintiff.
But section 12 (1) of the Act extinguished the right of the defendants to recover possession under any of the contingencies mentioned in clause 8 of the agreement, e.g. when any execution or distress is “levied or threatened to be levied upon the said vehicle,” the moment 75 per cent of the hire-purchase price was paid. Therefore that
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submission fails. Again the term any right in section 12 (1) of the Act must be interpreted to mean exactly what it says, namely, all legal rights in the owner to recover possession whether or not derived under the hire-purchase agreement and includes his right as bailor at common law. This means that after 75 per cent of the hire-purchase price has been paid, the owner’s right to take possession of the vehicle without the consent of the hirer is forever barred; he can only recover possession upon an order of the court: see Dunstan, The Law Relating to Hire-Purchase at pp. 32-33 note (b) and see also Mercantile Credit Co. Ltd. v. Cross [1965] 2 Q.B. 205, C.A. Therefore the legal effect of section 12 (1) of the Act is, that payment of 75 per cent of the hire-purchase price places the parties in exactly the same position as vendor and purchaser in a credit sale transaction where possession has passed to the purchaser and part payment of the purchase price has been made or where payment of the purchase price is to be made by instalments. It must be emphasised that a hire-purchase agreement is not an ordinary bailment, it is a bailment of a special kind, and therefore unless the agreement prohibits it, a hirer may deal with the chattel in a manner inconsistent with the bailment. This principle is clearly stated in Halsbury’s laws of England (3rd ed.), Vol. 19 at pp. 542-543, para. 877 and the cases there cited as follows: “The general rule of the common law that any act by a bailee entirely inconsistent with the bailment, such as a sale, or a pledge, amounts to a repudiation of the bailment by the bailee, and entitles the bailor to immediate possession of the chattel, does not apply with full effect in the case of a hire-purchase agreement, which cannot be regarded simply as a contract of bailment, but it is a contract of a complex nature, containing an option to purchase, which introduces the element of sale and confers an interest of a proprietary kind. Accordingly, unless the agreement expressly forbids assignment, the interest of the hirer in the agreement, including the option to buy, is assignable by him, and may be enforced by the assignee; but the assignee is bound by the terms of the agreement . . .” That being the position, goods held under a hire-purchase agreement which does not contain a clause such as clause 8 of the present agreement, providing for recovery of possession by the owner upon certain contingencies, are attachable in execution against the hirer, and the owner cannot maintain an action against the sheriff for the sale so long as the hirer has possession at the date of action. The law on the point is further explained in Halsbury’s Laws of England (supra) at p. 562, para. 912 as follows:
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“The property of a judgment debtor in a chattel, which he has let out on hire-purchase and of which he is not entitled to the possession, cannot be seized under an execution; but if the judgment debtor is the hirer, his interest in the chattel so hired may be seized and sold, if the chattel is in his possession and the interest is a saleable one, and the owner cannot maintain an action against the sheriff for the sale. If, however, after notice from the owner, the sheriff purports to sell the absolute property in the chattel, he may be liable for damage to the reversion. If the hiring is of such a nature that the debtor has not a saleable interest, or if his interest has determined before seizure, or is determinable by the act of seizure, the sheriff cannot legally seize and sell; and, if he does so, the owner will be entitled to recover from the execution creditor the sum paid to him by the sheriff, or, if other goods were sold with the hired goods, his proportionate share of the total proceeds”.
The important point to note is that an owner of goods let out on hire-purchase has no common law right to determine the transaction and then seize and recover possession of the goods from the hirer or the sheriff who takes possession of them upon and attachment of the interest of the hirer in them: see Dean v. Whittaker (1824) 1 C. & P. 347. It is only by specific provision in the hire-purchase agreement that such a right may be reserved to him as in clause 8 of the agreement, exhibit A, in this case; that right may be reserved to him to be exercised upon the happening of certain contingencies, i.e. to recover possession either from the hirer, from a person who takes in execution against the hirer, or from any one to whom thehirer gives possession, and to do so without recourse to the court. It is for that reason, that in footnote (d) to the passage cited in Halsbury (supra) it was stated that: “In practice, modern hire purchase agreements provide that the owner shall be entitled to determine the hiring and resume possession of the chattels on the hirer suffering any execution to be levied on them, and there is accordingly no interest for the sheriff to sell . . .” And as is further indicated in the said footnote, it is upon such agreements that the cases of Jelks v. Hayward [1905] 2 K.B. 460 and Jones Brothers (Holloway), Ltd. v. Woodhouse [1923] 2 K.B. 117 were decided; and not upon any common law right. Section 12 of the Act takes away that contractual right of the owner to determine the agreement and recover possession upon payment of 75 per cent of the hire-purchase price. Therefore once 75 per cent of the hire-purchase price is paid, the interest of the hirer cannot be determined
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by an act of seizure. The court cannot, therefore, go outside the agreement as affected by section 12 of the Act in determining the rights and obligations of the parties. It must be emphasised at this stage that we are not here concerned with legal ownership in the goods, and whether or not the owner has lost such ownership. What we are concerned with is the right to immediate possession of the goods at a point of time when 75 per cent or more of the hire-purchase price has been paid. Has the owner such a right without recourse to the court or without the hirer surrendering the goods to him? The answer is provided by section 12 of the Act, and it is clearly, No!
In this connection reference should be made to section 13 of the Hire-Purchase Act. This section prescribes the discretion which a court may exercise when action is brought by an owner for recovery of possession of the goods after 75 per cent of the hire-purchase price has been paid. These powers are without prejudice to the court’s powers to order payment of the balance of the hire-purchase price and the vesting of ownership of the goods in the hirer upon such payment. Section 13 (4) and (5) are relevant; they provide as follows: “(4) On the hearing of the action the court may without prejudice to any other power,—
(a) make an order for the specific delivery of all the goods to the owner, or
(b) make an order for specific delivery of all the goods to the owner and postpone the operation of the order on condition that the hirer or any guarantor pays the unpaid balance of the hire-purchase price at such times and in such amounts as the Court, having regard to the means of the hirer and of any guarantor, thinks just, and subject to the fulfilment of such other conditions by the hirer or a guarantor as the court thinks just, or
(c) make an order for the specific delivery of a part of the goods to the owner and for the transfer to the hirer of the owner’s title to the remainder of the goods.
(5) No order shall be made under paragraph (b) of the last foregoing subsection unless the hirer satisfies the court that the goods are in his possession or control at the time when the order is made.”
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It would be inferred from the wording of subsection (5) that the action by the owner for recovery of possession may be brought when the goods are no longer in the possession of the hirer, e.g. when they have been seized in execution. What section of the Hire-Purchase Act, 1958, does is this: upon the payment by the hirer of 75 per cent of the hire-purchase price, it immediately strips the owner of his contractual right to determine theagreement without recourse to the court, and thereupon seize and take possession of the goods, and restricts him to his pure common law right, namely, to recover possession only upon an order to the court. Without such order of the court, the owner has no right to possession once 75 per cent of the hire-purchase price is paid. All that is reserved to the owner after 75 percent of the hire-purchase price has been paid is his right to recover the unpaid balance of the hire-purchase price, and a right to apply to the court for an order to recover possession. Therefore recovery of possession of the vehicle after payment of the 75 per cent, otherwise than by action or upon surrender by the hirer, is recovery of possession in contravention of section 12 of the Act. That being the case, and since a court of competent jurisdiction had refused to make an order for possession of the vehicle if they can prove that the vehicle was voluntarily surrendered to them by the plaintiff, or that they took possession with the consent of the plaintiff. They failed to prove any such surrender or consent; therefore their recovery of possession is wrongful, and is in contravention of section 12 of the Act. The trial judge, relying on Jelks v. Hayward (supra) held that the defendants were entitled to terminate the hire-purchase agreement upon the seizure of the vehicle by Korsah, the execution creditor. This reasoning, in my view, is erroneous. The statement that upon seizure under execution against a hirer, “the owner may forthwith determine the hiring without notice and may forthwith seize and take possession of the vehicle wherever the same may be” is not a statement of general principle of law but, as earlier observed, a statement of right given to the owner under the hire-purchase agreement, and only applies to a case where 75 per cent of the hire-purchase price has not been paid, that is to say, so long as the owner’s right under the agreement to recover possession subsists. But once 75 per cent of the hire-purchase price has been paid, the right of the owner to resume possession, whether upon execution levied against the vehicle or upon any of the contingencies stipulated in the hire-purchase agreement, determines. To hold otherwise is to make nonsense of section 12 of the Hire-Purchase Act, 1958; for after all
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a hire-purchase agreement is not, as stated above, a simple contract of bailment, but a contract with an element of sale, and the Act was passed, as the memorandum to the Bill says, purposely “to regulate the rights of the parties to the hire-purchase agreement.”
Moreover, the argument that the execution creditor released the vehicle to the defendants, and that the defendants thereupon became entitled to possess it, is unsound, because an execution creditor cannot in law, by releasing the vehicle from attachment, confer a right to possession of it, on anyone; he, an execution creditor, can only confer a right upon a third party, upon sale effected in pursuance of the execution. Once the attachment was removed, the vehicle reverted to its status quo, that is, the possession thereof vested forthwith in the execution debtor, the person entitled to possession at the moment of the seizure, in this case, the plaintiff. For these reasons, the case of Jelks v. Hayward (supra) decided purely upon the rights of the parties as contained in their hire-purchase agreement, and prior to the English Hire-Purchase Act, 1938 (1 & 2 Geo. 6, c.53) is not applicable to the present case. As to the submission that the trial court failed to make a finding whether or not there has been demand for return of the vehicle, and therefore the case should be remitted to the court below for trial de novo, I must say without hesitation, that the same is misconceived for the following reasons:(i) It was proved beyond doubt, both by the letter exhibit D written by Korsah, a literate person, to the sheriff, and the oral evidence given by the sheriff himself, that the defendants held themselves out to the sheriff as agents of the plaintiff and upon that representation they received the vehicle for the plaintiff. Here, I must say that it is most strange that the trial judge should prefer Korsah’s oral testimony to his written declaration and the testimony of the sheriff, an officer who has no interest of any sort in the dispute. By that representation upon which they obtained possession of thevehicle, the defendants impliedly undertook to deliver the vehicle to the plaintiff forthwith upon their receipt of the same. In those circumstances demand by the plaintiff for the return of the vehicle and refusal by the defendants to comply with that demand is not a condition precedent to attachment of the defendants’ obligation to deliver the same to the plaintiff whom they have held out to be their principal. It would have been otherwise if the defendants had seized the vehicle in the exercise of some claim of right however erroneous; in which case demand for its return would be a condition precedent.
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(ii) Again, the defendants were not under any obligation to take charge of the plaintiff’s vehicle without the authority of the plaintiff. They can only justify their taking it into their possession on the grounds that they did so with a purpose to restore it to the owner. In those circumstances it is ridiculous to say that demand for and refusal to return the chattel is a condition precedent to an action for recovery of possession from the defendants. Therefore, in my view, there was no necessity for the trial judge to determine whether or not demand for possession had been made and been refused. That issue does not arise upon the facts proved. I do not, therefore, see any necessity to remit the case to the court below for trial de novo. As earlier stated, the defendants took possession of the vehicle and took it to their premises on 19 December 1960, and on 23 December 1960, they commended an action in the circuit court against the plaintiff for an order permitting them to retain possession of the same. This, to my mind, is irreconcilable with their allegation that they were holding the vehicle until the plaintiff would come for it. Their act is, pure and simple, recovery of possession in contravention of section 12 of the Act. Upon the facts, as proved, the defendants can only succeed if they prove that they had tendered the vehicle to the plaintiff and he had refused to accept it. This they failed to do, therefore the plaintiff’s case stood unanswered and judgment should have been entered for him against the defendants. For these reasons, I would allow the appeal, set aside the judgment of the court below including the order as to costs, and order that the costs if paid, should be refunded. For the judgment of the court below, I would substitute the following: There will be judgment for the plaintiff, by virtue of section 12 of the Hire-Purchase Act, 1958, against the defendants for £G687 14s. the amount which the plaintiff had paid to the defendants in pursuance of the hire-purchase agreement, with costs assessed at 75 guineas or N¢157.50. And I would award the plaintiff costs in this court.
JUDGMENT OF AZU CRABBE J.A.
This is an appeal from a judgment of the High Court, Sekondi, which dismissed the appellant’s (hereinafter called the plaintiff) claim against the respondents (hereinafter called the defendants) for (1) £G687 14s. being money had and received under a hire-purchase agreement and (2) £G100 damages.
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This facts briefly are these: On 28th August 1959, the plaintiff entered into a hire-purchase agreement (exhibit A) with the defendants under which he took on hire-purchase terms, an Austin Omni truck No. AF 9366 at a price of £G860. By clause 8 of the agreement it was provided as follows: “Should the hirer not observe and perform the foregoing terms, provisions and stipulations or any of them orif he dies or executes an assignment for the benefit of his creditors or if any execution or distress be levied or threatened to be levied upon the said motor vehicle or if the hirer be a company should a petition to wind up be presented or a resolution for voluntary liquidation be passed the owners may forthwith determine the hiring without notice and may forthwith seize and take possession of the said motor vehicle wherever the same may be and may sue the hirer or his representative for all amounts payable in respect of the said motor vehicle for arrears of rent as set forth in clause 2 hereof also for cost of repairs and/or accessories and/or parts, etc. and for all necessary and proper expenses incurred by the owners in the exercise of the powers conferred on them by this agreement or in respect of the failure of the hirer to observe and perform his obligations to the owners hereinunder and the owners shall have the right to exercise the powers of a distraining landlord and that wheresoever the said motor vehicle be stored and retake possession of the said motor vehicle and this agreement shall forthwith be at an end except in so far as the aforesaid amount in respect of rents and other sums due as aforesaid are concerned.” The “foregoing terms” referred to in the opening sentence of clause 8 included clause 6 (j) which reads as follows: “6. The hirer shall also: . . . (j) Not represent the said motor vehicle to be his own property or allow himself to be held out as the true owner thereof nor sell, charge, pledge, assign or part with the possession thereof or purport so to do or assume ownership thereof and he shall keep it free and exempt from legal process”.
By clause 12 it was further provided that: “All the original rights and powers of owners under this agreement shall remain in full force notwithstanding any neglect forbearance or delay in the enforcement thereof and no matter what indulgence they may show to the hirer. This agreement is personal to the hirer and is not assignable by him to any other person or persons, company or corporation whatsoever.”
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There can be no doubt that this is a transaction to which the provisions of the Hire-Purchase Act, 1958 (No.55 of 1958), applied. By the end of August 1960, the plaintiff had paid to the defendants an amount of £G687 14s. which was more than 75 per cent of the hire-purchase price. On 14 December 1960, one J. K. Korsah obtained judgment for £G25 with costs against the plaintiff in the Sekondi Local Court, and on 16 December 1960, the vehicle was attached to the instance of Korsah under a writ of fi. fa. in execution of the decree of the local court. On the same day a copy of the attachment notice was served by a local court bailiff upon the plaintiff, who made under it a certificate which was in these terms: “I hereby certify that the above-mentioned Austin lorry No. AF 9366 is for me, and was seized under a writ of Fi. Fa. No. 89/60 dated at Sekondi on the 12th Dec., 1960. (Sgd.) B. H. Barnes, 16.12.60.”
This certificate is of special significance, and I shall later in this judgment consider its bearing on the rights of the parties arising under the hire-purchase agreement. In due course the vehicle was seized and taken in possession by the sheriff. On 19 December 1960, the execution creditor, J. K. Korsah, went personally to the office of the sheriff in the company of one Abdulla, a manager of the defendants’ business in Sekondi, and, according to the evidence for the plaintiff, he requested the sheriff to release the vehicle to the plaintiff. To confirm these verbal instructions, as alleged, Korsah handed to the sheriff a letter of the same (exhibit D) which reads as follows:“Dear Sir, I have the honour to ask you to release the Car No. AF 9366 which was seized on Saturday the 17th December, 1960 for Mr. B. H. Barnes. I have the honour to be,
Sir,
Your Obedient Servant,(Sgd.) J. K. Korsah. w/w to Sig. (Sgd.) J. W. Dadson Letter Writer Lic. No. 43203-60 Sk. Gratis.”
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In consequence of this letter the sheriff released the vehicle to Abdulla who, according to the sheriff, said that he was collecting the vehicle for the plaintiff. The sheriff denied suggestions that both Korsah and Abdulla told him that the defendants were the owners of the vehicle. On this issue both Abdulla and Korsah were agreed that the sheriff was made aware quite clearly that the vehicle which he had seized was the property of the defendants, and that it was partly for that reason that he was persuaded to release it at the request of Korsah. They are supported in this by the chief driver of Sekondi who gave account of the circumstances that led to the release of the vehicle to Abdulla. Korsah further said that he agreed to the release of the vehicle because Abdulla assured him that the judgment debt and costs would be paid to him by the defendants. With regard to the letter exhibit D, Korsah said that it was written for him by a letterwriter. Upon retaking possession of the vehicle the defendants brought an action in the Circuit Court, Sekondi, claiming (1) £G172 6s., being arrears of instalments on the vehicle, and (2) possession of the said vehicle. Before the determination of this suit the defendants moved the court for an interim order permitting them to retain possession of the vehicle, pending the final determination of the action. In their affidavit in support of the application the defendants alleged that the plaintiff had allowed execution to be levied against the vehicle No. AF 9366, but that the same had been released to them temporarily. The defendants’ application was refused, but there is nothing on record to indicate the precise grounds upon which the application was refused. It seems to me, however, that the defendants’ action for possession of the vehicle was pointless, and the application for an interim order was therefore clearly misconceived. The circuit court could not make an order for an owner to retain his own property or deprive him of it; for under section 12 (2) of the Hire-Purchase Act, 1958, the only remedy available to the hirer when the owner seized the goods hired in contravention of section 12 (1) was an action for money had and received. In Carr v. J. Broderick & Co., Ltd. [1942] 2 K.B. 275, the hirer under a hire purchase agreement fell into arrears, and the owners, without seeking by action to recover the goods under section 11 (1) of the English Hire-Purchase Act, 1938 (1 & 2 Geo. 6, c.53), seized the goods hired. The plaintiff (the hirer) brought an action, alleging that the defendants (the owners) had unlawfully, and in breach of the Hire-Purchase Act, 1938, seized and carried away the goods and had subsequently failed to return them to the plaintiff, thereby converting them to their own use and wrongfully depriving the plaintiff of them, and claiming damages for conversion and detinue.
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Section 12 of the Hire-Purchase Act, 1958, of Ghana is a reproduction of the section 11 of the English Hire-Purchase Act, 1938, except that whereas under the English Act the owner’s right to seize is restricted after payment of one-third of the hire-purchase price, it is three-fourth under the Ghana Act. In his judgment Goddard L.J. (as he then was) said at p.278: “In my opinion, the plaintiff cannot succeed in the present proceedings either on a claim in detinue or on one in conversion. The property in the goods is and always was in the defendants. The plaintiff had no right to possession as default had been made in the payment of instalments, although he could only be properly deprived of possession by an action. I see no ground on which it is possible to order a return of the goods.
Moreover, the defendants have retaken possession, and, therefore, apart from any other consideration, the agreement has been determined by virtue of s. 11, sub-s. 2, of the Hire-Purchase Act, 1938, para.(a) of which gives a remedy to the hirer in these circumstances to recover in an action for money had and received all that has been paid”. Later the lord justice emphasised the same point in these words at pp. 278-279: “It seems to me that the remedy by way of action for money had and received is the only remedy given by the Hire-Purchase Act, 1938, to the hirer when the owner proceeds to seize without bringing an action. It is true that sub-s. 7 of s. 12 seems to contemplate an award of damages, which must mean by way of counterclaim, against the owner, but I think that that subsection must contemplate damages in respect of something other than the actual retaking of the goods, for instance, for trespass on the house in the course of retaking. Be that as it may, for the reasons I have endeavoured to give, I am satisfied that no action of detinue lies. For much the same reason no action lies for conversion. The goods were and are the defendants’ and the plaintiff has no title to possession of them. So far, then, as the plaintiffs’ claim is based on the defendants’ failure to obtain leave to seize under the Hire-Purchase Act, 1938, his only remedy is to recover the amount paid as money had and received to his use, and this he has not claimed.” The defendants remained in possession of the vehicle until 21 January 1961, when the plaintiff commenced the present action. The plaintiff admitted at the hearing that he was not in a position to obtain money to satisfy the judgment debt and costs, and that a
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balance of £G172 2s. was still due and owing by him in respect of the vehicle. Under cross-examination, the plaintiff expressed himself clearly as follows: “I have not paid off the judgment debt and costs of £G27 up to now because the defendants and the judgment-creditor had taken the bus. I regard Korsah’s seizure of the vehicle as satisfactory for the judgment debt and costs.” The learned trial judge appreciated the conflict in the evidence concerning the circumstances under which the vehicle was released from attachment, and then after examining the evidence for both sides he said as reported in [1962] 1 G.L.R. 350 at p. 351: “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.” Having thus concluded that the sheriff was told that the defendants were the owners of the vehicle and that it was on that understanding that he allowed the defendants to take possession of the vehicle, the learned trial judge next considered the effect of clause 8 of the hire purchase agreement. He held, on the authority of Jelks v. Hayward [1905] 2 K.B. 460, that the defendants were entitled to terminate the hire-purchase agreement with the plaintiff, and also to immediate possession of the vehicle upon seizure.On the main question whether the plaintiff was entitled to protection under section 12 of the Hire-Purchase Act, 1958 (No. 55 of 1958), the learned judge gave a negative answer, and for the reason that the plaintiff was not in possession of the vehicle when the defendants recovered it. In this court, Mr. Dei-Anang, counsel for the plaintiff, submitted that the question at issue was whether the plaintiff was in constructive possession of the vehicle at the commencement of this action. He referred to exhibit D under which he said the vehicle was released from attachment and submitted that upon the evidence of the sheriff and exhibit D the release was for the plaintiff. Mr. Dei-Anang next referred to clause 8 of the hire-purchase agreement and submitted that upon a proper interpretation it only applies where the right to seizure remains. Finally, he submitted that upon seizure of the vehicle the sheriff could only release it, when the attachment was
[p.766] of [1967] GLR 749
raised, to the judgment debtor, and that the defendants only had mere custody of it when they purported to retake it.
For the defendants, Mr. Blay argued that they did not seize the vehicle, but that after they had rescued it in order to protect their interest, they sent for the plaintiff to collect it from their business premises, but the plaintiff refused to do so. Mr. Blay said that the defendants were prepared to re-deliver the vehicle to the plaintiff without demanding the arrears due, but he observed that the trial judge failed to resolve the crucial issue of fact in the case, i.e. whether or not the defendants refused to return the vehicle to the plaintiff. Taking advantage of an off-chance remark from the bench, Mr. Blay said that he was agreeable that the case should be remitted to the court below for that issue of fact to be tried. It seems to me a little surprising that Mr. Blay should adopt this apologetic attitude, but there can be no doubt that he was under a misapprehension about the legal position. But the action in this case was initiated by the plaintiff, and the onus was on him to show that he was entitled to succeed on the evidence that he produced to the court.
It becomes, therefore, necessary to consider first the submissions of Mr. Dei-Anang. Without meaning to be disrespectful to his arguments which were forcibly presented, I think that they are unsound. As to the question whether the sheriff released the vehicle for the plaintiff or defendants, there was a conflict of evidence, and the learned judge resolved this conflict against the plaintiff. I have myself examined the evidence most carefully, and I think that the legitimate, and indeed, the only rational, inference to draw is that the vehicle was released by the sheriff for the defendants. There can be no reason why the judgment creditor should instruct the sheriff to release the vehicle to the plaintiff when the latter had made no effort at that time to settle the judgment debt and costs. The most interesting point raised by this appeal, and indeed the central issue, is whether the defendants were entitled to recaption by virtue of clause 8 of the hire-purchase agreement, having regard to section 12 (1) of the Hire-Purchase Act, 1958. It is common ground that at the date of the seizure by the sheriff the instalments which the plaintiff had paid under the hire-purchase agreement amounted to more than 75 per cent of the hiring price. The plaintiff’s right to possession of the vehicle derived from the hire-purchase agreement, exhibit A, and the effect of clause 8 of that agreement was to enable the defendants to terminate the hiring upon the occurrence of any of the events therein specified, and to put an end to the hirer’s right to possession of the vehicle: see Financings Ltd. v. Baldock [1963] 2 Q.B. 104 per Diplock L.J. at pp.118-119, C.A. In those circumstances the hirer would lose his right to possession, although by virtue of [p.767] of [1967] GLR 749section 12 (1) of the Hire-Purchase Act, 1958, if he continued to remain in possession he could only be properly deprived of possession by court action: see Carr v. J. Broderick & Co., Ltd. [1942] 2 K.B. 275 at p. 278. In this case there can be no doubt that by his certificate in the notice of attachment the plaintiff represented falsely to the sheriff that he was the owner of Austin lorry No. AF 9366 and thereby permitted execution to be levied upon it contrary to clause 8 of exhibit A. The conduct of the plaintiff was inconsistent with his bailment, and I think that in those circumstances the following passage in Halsbury’s Laws of England (3rd ed.), Vol. 2, at p. 105, para. 205, is pertinent: “The act of the bailee in doing something inconsistent with the terms of the contract terminates the bailment, causing the possessory title to revert to the bailor and entitling him to maintain an action of trover”.
In Pollock and Wright on Possession in the Common Law at pp. 132-133 the law is stated thus: “Any act or disposition which is wholly repugnant to or as it were an absolute disclaimer of the holding as bailee revests the bailor’s right to possession, and therefore also his immediate right to maintain trover or detinue even where the bailment is for a term or is otherwise not revocable at will, and so a fortiori in a bailment determinable at will”. In this present case the act of the plaintiff was repugnant to, and really inconsistent with, the terms of the hire-purchase agreement. The law is that on the breach by the hirer of his stipulations under the agreement, the owner had the right, not merely to terminate the agreement, but to the immediate possession of the thing hired: see North General Wagon and Finance Co., Ltd. v. Graham [1950] 2 K.B.
7, C.A. Mr. Dei-Anang had no criticism against the learned judge’s reliance on Jelks v. Hayward [1905] 2 K.B. 460 and I think that the observations of Kennedy J. completely answer Mr. Dei-Anang’s submission that constructive possession resided in the plaintiff after seizure in execution. In that case Kennedy J. said at pp. 467-468: “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 an 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
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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”.
In view of what the legal position of the parties was after the seizure by the sheriff, as I have endeavoured to show, I am satisfied that exhibit D on which the plaintiff had placed so much hope will not in the circumstances of this case avail him. In my view exhibit D is completely irrelevant, for it seems to me that Korsah, purporting to act under inexpert advice, could not reinvest the plaintiff with the right to possession of the vehicle which the plaintiff lost when he committed breaches of clauses 6 (j) and 8 of his agreement (exhibit A), and allowed the vehicle to be seized in execution. The owner of goods under a hire-purchase agreement remains the owner until payment of the final instalment, or until the time stipulated in the agreement that the property in the goods will or may pass to the hirer, or as soon as the option to purchase has been exercised. The Hire-Purchase Act, 1958, containsno provision curbing the right of the owner to terminate the agreement with the hirer, and he is at liberty to terminate the agreement at any time and upon breach of any conditions stipulated in the agreement. Upon the determination of the agreement (exhibit A) in this case the right to possession immediately vested in the defendant, and, therefore, in my judgment, Korsah could not unilaterally reconvey possession in the vehicle already vested in the defendants to the plaintiff by virtue of exhibit D, which, in my view, is a worthless piece of paper. Can it be the law that after the owner of goods has rescued them from destruction or sale by a third party, not being an assignee or purchaser in market overt, he is to return them to the hirer through whose recklessness or fraudulent conduct the goods got into the possession of the third party? Upon my reading of the provisions of the Hire-Purchase Act, 1958, I do not think that the law contemplates such monstrosity; but if I am wrong then I would say with Mr. Bumble in Dickens, Oliver Twist “If the law supposes that, the law is an ass”. The final, and indeed the crucial question is whether the defendants could recover possession of the vehicle in the way they did, in spite of the provisions of section 12 (1) of the Hire-Purchase Act, 1958. I have no hesitation in saying that they could, and it is with
[p.769] of [1967] GLR 749
profound regret that I differ from my brother Ollennu in the view that under the Act the right of the owner to repossess his goods is extinguished on payment by the hirer of 75 per cent of the value of the goods. With the greatest respect, I do not think that on construing the Act as a whole one is led to that conclusion, for the extrinsic evidence provided by the Act itself compels one to the contrary view. It ismplain that by section 11 of the Act an owner who initiates proceedings for the recovery of possession must prove that he had made a request in writing to the hirer to surrender the goods; evidence of the hirer’s possession of the goods shall then be adverse to the rights of the owner. Considering section 11 alone I think it is impossible to argue that the owner of goods loses his right to recover the goods before final payment, for the Act itself says clearly that he can recover possession. It is one thing to debar a person from the exercise of his rights, and quite another thing to restrict him in the exercise of those rights. In ordinary parlance to debar means to prevent or to stop, and restrict means to limit or keep within certain bounds. Clearly if it was the intention of the legislature to debar the owner from recovering possession of his goods after payment of 75 per cent of the hire-purchase price it would not at the same time give the owner the right to go to court to recover them albeit under certain conditions. By section 12 (1): “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”. In my view the words “otherwise than by action” in section 12 (1) clearly show that the right of the owner to recover his goods under a hire-purchase agreement is only restricted, but not barred, after the payment of 75 per cent of the hire-purchase price. Giving the section its literal interpretation, I think it means simply that after 75 per cent of the hire-purchase price has been paid the only method of enforcing the right to recover possession open to an owner is by court action. I think that this interpretation is made more obvious by the statutory notice in the Schedule to the Act. The Act is to be construed together with its Schedule, and it seems to me that the effect of the wording in the statutory notice, which forms part of the agreement itself, is that if after the payment of 75 per cent of the hire-purchase price the hirer terminates the hire-purchase agreement the owner cannot repossess the goods from the hirer without the hirer’s consent, [p.770] of [1967] GLR 749 except through court action: see Mercantile Credit Co. Ltd. v. Cross [1965] 2 Q.B. 205 per Willmer L.J. at p. 212, C.A.; see also Thomas v. Varney (1957) 107 L.J. 412. The dominant object of the legislature was to protect hirers from harsh and unfair treatment by motor dealers, and the intention of the Hire-Purchase Act, 1958, was to ensure that vehicles are not taken from the hirer without his consent, if he has paid as much as 75 per cent of the hire-purchase price. Where the owner infringes the provisions of section 12 (1) by recovering possession without due court process, section 12 (2) imposes severe penalties, but nowhere in the Act is it said that the owner is to restore the goods retaken other than by action to the hirer. If I may again quote the words of Goddard L.J. in Carr v. J. Broderick & Co. Ltd. [1942] 2 K.B. 275 at p. 278: “The property in the goods is and always was in the defendants. The plaintiff had no right to possession as default had been made in the payment of instalments, although he could only be properly deprived of possession by an action. I see no ground on which it is possible to order a return of the goods.” Where 75 per cent of the hire-purchase price has been paid section 12 (1) applies, and the owner’s right in an action for recovery of possession is restricted by the provisions of sections 13 to 15 of the Act. Whilst the action is pending the owner may make an application under section 13 (3) to the court to make such orders as the court thinks just for the purpose of protecting the goods from damage or depreciation including orders restricting or prohibiting the user of the goods or giving directions as to their custody. It is difficult for me to comprehend that if the intention of the legislature is that the owner’s right to the goods be extinguished after payment of 75 per cent of the hire-purchase price, the legislature should itself give the court power to restrict or prohibit the hirer from enjoying the use of the goods of which inferentially he has become the owner. Surely, if the right of possession to the goods or ownership therein is vested solely in the hirer, why should the court make orders for protecting the goods in his possession from damage or depreciation.
That the owner is not debarred from recovering possession of the hired goods after payment of 75 per cent of the hire-purchase price is, in my opinion, further demonstrated by the section 13 (4) and (5) of the Act. These subsections read as follows: “13. (4) On the hearing of the action the court may without prejudice to any other power,— (a) make an order for the specific delivery of all the goods to the owner, or
[p.771] of [1967] GLR 749
(b) make an order for specific delivery of all the goods to the owner and postpone the operation of the order on condition that the hirer or any guarantor pays the unpaid balance of the hire-purchase price at such times and in such amounts as the Court, having regard to the means of the hirer and of any guarantor, thinks just, and subject to the fulfilment of such other conditions by the hirer or a guarantor as the court thinks just, or
(c) make an order for the specific delivery of a part of the goods to the owner and for the transfer to the hirer of the owner’s title to the remainder of the goods. (5) No order shall be made under paragraph (b) of the last foregoing subsection unless the hirer satisfies the court that the goods are in his possession or control at the time when the order is made”.
Although the courts usually adopt the alternative in subsection (4) (b), yet by subsection (5) it can only be adopted if the hirer satisfies the court that he is in possession or control of the goods: see Chitty on Contracts (21st ed.), Vol. 2 at p. 332, para. 600. In my view, section 13 (5) of the Act puts the plaintiff inthis case completely out of court, for as between the owner and the hirer the court has no power under the Act to order specific delivery of the goods to the hirer who is out of possession of the goods or is unable to pay the balance of the hire-purchase price due for the goods or has lost control of them. The expression “order for the specific delivery of goods” in this context is defined in section 13 (8) to mean “an order for the delivery of the goods to the owner without giving the hirer an option to pay their value.” It follows, therefore, in my judgment, that the combined effect of section 13 (5) and (8) is that where the hirer is out of possession the court has no alternative but to order the delivery of the goods to the owner, notwithstanding that 75 per cent of the hire-purchase price has been paid. It needs hardly be emphasised that the restriction imposed by section 13 (1) of the Act operates only in cases to which section 12 (1) applies. But it is however provided in section 12 (3) that the provisions of section 12 (1) and (2) do not apply where the agreement or bailment has been determined by the hirer by virtue of any right vested in him. The result that follows is that the hirer loses the protection of section 12 (2) and the owner’s right to recover possession becomes no longer subject to restrictions. Where the agreement is
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terminated as the result of a breach by the hirer, if he has paid of tendered 75 per cent of the hire-purchase price he is protected but provided he is in possession.
The keynote in section 12 (1) is, in my opinion, “enforce any right to recover possession of the goods from the hirer”; the owner’s rights of recovery against third parties are unaffected by the provision. provided that such third parties are not covered by the definition of “hirer” in section 3 (1) of the Act. Where the hirer voluntarily delivers up the goods, the subject-matter of the hire-purchase agreement, to a third party, not being a “hirer” within the definition, or abandons them, or puts them beyond his control, the owner does not “enforce” a right if he retakes them. It must be pointed that the appellant in this case was absolutely prohibited from assigning his interest in the goods to a third party.
In this case the conduct of the plaintiff amounts to abandoning his right to possession in the vehicle, and neither section 4 (2) nor 12 (1) debars the owner from recovering his property from any person other than the hirer. The learned trial judge considered the right of the owner against a third party and observed at p. 352: “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, 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 . . . 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”. I find myself in entire agreement with those observations by the learned trial judge. For inasmuch as the right of possession reverted to the defendants after distress had been levied, the person in whose actual possession the vehicle was, was in the position of a mere bailee during pleasure, and the defendants would therefore be entitled to sue for trover the sheriff who wrongfully took the vehicle in execution: see Manders v. Williams (1849) 4 Exch. 339 and also Pollock and Wright on Possession in the Common Law at p. 166. I think it is clear at common law that if the execution creditor directed the sheriff to seize and sell the wrong goods then the owner of the goods might sue either the sheriff or the execution creditor in either trespass or trover, or where the goods had been actually sold he might sue either of these parties for money had and received: see[p.773] of [1967] GLR 749 Whitmore v. Greene (1844) 13 M. & W. 104; Hitchin v. Campbell (1772) 2 Wm. Bl. 827 and Cooper v.
(1756) 1 Burr. 20. In England the position is now governed by statute, and the owner of goods which are seized (when in the possession of the execution debtor) should give notice of his interest to the sheriff as soon as possible after hearing of the seizure, otherwise he may lose his rights if the goods are sold without notice of the claim. The sheriff or other officer effecting sale is in such a case protected from liability. In the present case as soon as the vehicle was seized the agreement (exhibit A) came to an end, and thereupon the plaintiff, who had been prohibited against assignment, ceased to have any interest capable of being sold. The defendants as the trial judge found promptly gave the sheriff notice of their claim and collected their vehicle from him. The plaintiff now contends that the defendants are liable to him for taking or having possession of the vehicle without his consent. For my part, I can see no legal or moral justification whatsoever for this contention. For the above reasons, I think that the defendants were entitled to retake the vehicle from the sheriff, and that the plaintiff who had lost possession could not claim any protection under section 12 (2) of the Hire-Purchase Act, 1958. I would therefore dismiss the appeal with costs.
JUDGMENT OF APALOO J.A.
I also think that this appeal fails. To avail himself of the relief provided by section 12 (2) of the
Hire-Purchase Act, 1958 (No. 55 of 1958), the hirer must show not only that he paid 75 per cent of the hire-purchase price, but also that the owner, without recourse to legal proceedings, recovered possession of the hired vehicle from him. It would seem therefore that before a hirer can bring himself within the protection of the Act, he must establish that he was in possession either by himself or his agent and that this possession was taken from him. If therefore the evidence shows that at the date the owner recovered possession of the chattel, it was not in the possession of the hirer or his agent, but a person who held it adversely to him, then it would seem to me that the hirer fails to bring himself within the protection of the statute. It seems to me that is what happened in this case. The relevant facts are these: On 28 August 1959, the respondents (hereafter called the defendants) hired to the appellant (hereafter called the plaintiff) an Austin Omni truck with an option to purchase. The contract of hire was reduced into writing and contains all the usual hire-purchase clauses (exhibit A). The plaintiff was accordingly given possession of the vehicle in pursuance of the agreement. On 16 August 1960, the vehicle was seized from him by the sheriff who was acting on the
[p.774] of [1967] GLR 749
instructions of a Mr. Korsah. The latter had obtained judgment against the plaintiff which had not been satisfied. It is plain therefore that the plaintiff lost possession of the vehicle on that date. The sheriff held it as an agent of Mr. Korsah and thus was preparatory to its sale to satisfy the judgment. By clause 8 of the hire-purchase agreement, the defendants were entitled to determine the hiring and seize the vehicle if execution be levied upon it. In the case of Jelks v. Hayward [1905] 2 K.B. 460, it was held on the construction of a clause whose wording is similar to clause 8, that in the event of execution being levied on a hired chattel, the interest of the hirer becomes terminable ipso facto and the owners become entitled to the possession of the chattel. Accordingly, the legal position which resulted on 16th August 1960, that is, the date on which the vehicle was seized was this: The legal title to the vehicle was in the defendants. They also became entitled to its possession as against the sheriff who was holding it on behalfof the execution creditor. On 19 August 1960, the defendants asserted their right to possession against the execution creditor. The latter must have felt satisfied that the defendants had an unanswerable claim to this. He accordingly ordered the sheriff to relinquish possession of the vehicle to the defendants. The latter did so and the defendants resumed possession of the vehicle. Mr Korsah, the judgment creditor, himself gave evidence for the defendants and said positively: “I then released the bus to the defendants’ first witness [meaning the defendants’ representative] at the municipal garage. I got the switch key for the bus from an officer in charge of the municipal garage and I gave it to the defendants’ first witness and he got a driver to drive the bus away”. In these circumstances, it does not seem to me that it can be said with any degree of plausibility that the defendants “enforced a right to recover possession of the goods from the hirer”. To so argue, would be plainly contrary to the facts. The plain truth of the matter is, that possession of the vehicle was recovered from the sheriff by the defendants. The latter was holding it as the agent of Mr. Korsah who himself authorised the transfer of possession. Mr. Dei-Anang, who appeared for the plaintiff, seemed fully to have appreciated the fact that his client’s claim to protection under the Act could not succeed unless he was able to show that at the date the defendant recovered possession of the vehicle, it was in the possession of the plaintiff. That clearly was not the case but Mr. Dei-Anang argued that the plaintiff was in constructive possession of the vehicle, because he said, the release of the bus was intended for the
[p.775] of [1967] GLR 749
plaintiff. He found support for this contention in the evidence of the sheriff who testified to this effect and the written authority which Mr. Korsah gave to the sheriff to effect the release (exhibit D). But as I said, Mr. Korsah’s sworn evidence in court was that he in fact released the bus to the defendants and handed them the key. The conflict of testimony which resulted between the sheriff and Mr. Korsah as to whom the latter intended to release the bus, was resolved in favour of Mr. Korsah as the judge accepted his sworn testimony “as substantially true”. That indisputably, is a question of fact and seems to me to dispose of the contention that the release was intended for the plaintiff who thereafter assumed constructive possession of the vehicle. To buttress his contention on this part of the case, Mr. Dei-Anang also argued that when the attachment was raised, the sheriff could only properly release the vehicle to the plaintiff from whom it was seized. I do not see why it should be necessarily so. Mr. Korsah caused the vehicle to be attached because he thought it belonged to the plaintiff. He must have become satisfied soon afterwards that he was mistaken in his belief. No doubt he would have been shown the hire-purchase agreement, and in particular, he would have realised, if he was capable of appreciating the matter, that in the events which happened, the defendants were entitled to the immediate possession of the vehicle as against the plaintiff and he had no better right to the vehicle than the plaintiff had. In those circumstances Mr. Korsah had one of two courses open to him, namely, first, to admit the title of the defendants and release the vehicle to them or secondly, to dispute it and face a full scale action for damages for conversion. In view of the provisions of the hire-purchase agreement especially clause 8, and the fact which was not disputed, that the plaintiff was still owing on the vehicle, the result of such an action would have been a foregone one. It would have, without doubt, resulted in the complete vanquishment of Mr. Korsah’s claim together with its attendant expenses. In conceding the title of the defendants and in releasing the vehicle to them, I think, Mr. Korsah adopted the wiser of the two courses open to him. It follows, in my judgment, that while it could accurately be said that the defendants enforced a right to-recover possession of the bus from the sheriff or Mr. Korsah or both, neither of whom had any business to keep it, it would be wholly false to say they recovered it from the plaintiff hirer. In holding that the action failed because the vehicle was recovered not from the hirer, but someone else, the learned trial judge founded himself on the case of Eastern Distributors v. Goldring 2 A11 E.R. 525 at p. 533, C.A. I think that case
[p.776] of [1967] GLR 749 is in point and reinforces the view of the matter which I have independently formed.
Accordingly, I agree with Azu Crabbe J.A. that the plaintiff failed to bring himself within the protection of section 12 (1) of the Hire-Purchase Act and that his action was rightly dismissed in the court below. In the circumstances, I too would dismiss this appeal.
DECISION
Appeal dismissed.
S. Y. B. B.
