BARNES v. AMEEN SANGARI & CO. [1966] GLR 604

Division: SUPREME COURT

Date: 27 JUNE 1966

Before: MILLS-ODOI, SIRIBOE AND LASSEY JJ.S.C.

CASES REFERRED TO

(1) Eastern Distributors v. Goldring [1957] 2 Q.B. 600; [1957] 3 W.L.R. 237; 101 S.J. 553; [1957] 2 All E.R. 525, C.A.

(2) Brooks v. Beirnstein [1909] 1 K.B. 98; 78 L.J.K.B. 243; 99 L.T. 970.

(3) Taylor v. Thompson [1930] W.N. 16; 16 L.J. 116; 169 L.T.J.101.

NATURE OF PROCEEDINGS

APPEAL from a judgment of the High Court, Sekondi, wherein judgment was given in favour of the respondents in a claim on a hire-purchase agreement against the appellant. The facts are fully set out in the judgment of Mills-Odoi J.S.C. COUNSEL

B. J. da Rocha for the appellant.

No appearance by or on behalf of the respondents.

[p.605] of [1966] GLR 604

JUDGMENT OF MILLS-ODOI J.S.C.

This is an appeal from the judgment of the High Court, Sekondi, which on 14 May 1962, dismissed the appellant’s claim for the sum of £G787 14s. which he brought under the provisions of subsection (1) of section 12 of the Hire-Purchase Act, 1958,1 as being (a) £G687 14s. money had and received by the respondents and (b) £G100 as general damages.

The main question which fell for determination in this appeal is, whether on the facts which the trial judge found, he was right in holding (a) that the appellant was not in possession of the motor vehicle bearing registration number AF 9366, the subject-matter in dispute, at the time the respondents exercised their right of seizure under the hire-purchase agreement; and (b) that the appellant cannot claim protection under section 12 (1) of the aforesaid Act, and his claim must fail. It is therefore necessary to set out the facts at some length.

By an agreement in writing dated 28 August 1958, and made between the respondents and the appellant, the respondents agreed to let and the appellant agreed to hire an Omnitruck Austin bus No. AF 9366 for a total hire-purchase price of £G860 payable by an initial rental of £G100 and the balance by twelve consecutive monthly rentals thereafter of £G63 6s. 8d. each, the first such rental being due one month after the date of execution of the agreement. The agreement contained several clauses setting out conditions, stipulations and undertakings by which the hirer was bound. By clause 8 of the agreement, “if any execution or distress be levied or threatened to be levied upon the said motor vehicle … the owners [respondents] 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 [appellant] or his representative for all amounts payable in respect of the said motor vehicle for arrears of rent . .” The appellant complied with the obligations in respect of the initial rental of £G100 and paid the sum of £G63 6s. 8d. in respect of the first rental which fell due on 29 September 1959. In November 1960, the appellant had paid altogether a sum of £G687 14s.; he was therefore in arrears to the tune of £G176 6s.; but no steps were taken by the respondents to enforce their right to recover possession of the vehicle on the ground of default of payment of the rentals.

On or about 14 December 1960, one J. K. Korsah brought an action against the appellant in a local court and successfully obtained

[p.606] of [1966] GLR 604 judgment against him with costs, making a total sum of £G27. In pursuance of that judgment and at the instance of the appellant’s creditor, Mr. Korsah, the registrar of the local court in Sekondi who is also the sheriff, levied execution upon the motor vehicle on 16 December 1960, after the appellant had signed a certificate claiming the said motor vehicle as his property.

On or about 19 December 1960, the appellant’s creditor in the company of the defendants’ first witness (the manager of the respondents) called at the office of the sheriff and the former delivered to the sheriff a letter, exhibit D, dated 19 December 1960. It was addressed to the Registrar, Local Court, Sekondi, and reads as follows:

“Dear Sir,

I have the honour to ask you to release the car No. AF 9366 which was seized last Saturday the 17th December, 1960 for Mr. B. H. Barnes.

I have the honour to be,

Sir,

Your obedient Servant,

(Sgd.) J. K. Korsah.”

On the strength of the letter, exhibit D, the sheriff released the motor vehicle from attachment and delivered it to the respondents’ manager (the defendants’ first witness) on the understanding that it had been released for Mr. B. H. Barnes, the appellant in the instant case, and that the recipient was taking delivery of same on the appellant’s behalf. But the respondents’ manager caused the motor vehicle to be driven to the respondents’ garage.

On the same day the motor vehicle was released the appellant called at the registrar’s office and offered to pay in full the amount due by him to his creditor and have the vehicle released from attachment; but he learned from the registrar that the vehicle had already been released to the respondents’ manager on the appellant’s behalf and on the strength of the letter, exhibit D. As a result of this information the appellant called at the respondents’ store, the same day, to claim the motor vehicle; but the manager refused to allow him to take delivery of the same, on the ground that the appellant was in arrears in the sum of £G172 6s. on the agreement.

Some few days later, the appellant was served with a specially endorsed writ issued out by the respondents claiming against him the sum of £G172 6s.”being arrears of instalments … on vehicle No. AF 9366 under a hire-purchase agreement dated 28 August 1959.” They also claimed “possession of the said vehicle No. AF

[p.607] of [1966] GLR 604

9366.” Attached to the writ were two documents, a motion paper and an affidavit filed along with the writ, wherein the respondents, the plaintiffs-applicants in that suit, were applying to the court “for an interlocutory order permitting the plaintiffs [respondents herein] to retain possession of the said vehicle No. AF 9366 pending the final determination of the action . . .”

Paragraphs (4) and (5) of the affidavit referred to above and sworn to by the respondents’ manager contained the following averments:

“(4) That the said vehicle has been released to the plaintiff’ company temporarily.

(5) That I swear to this affidavit in support of my application for an interlocutory order permitting the plaintiff company to retain the possession of the said vehicle No. AF 9366 pending the determination of this action.”

There is no record as to what happened to the respondents’ writ; but the application for the interlocutory order was dismissed by the Circuit Court at Takoradi. On or about 21 January 1961, the appellant brought this action in the High Court, Sekondi, claiming against the respondents the sum of £G787 14s. being money had and received by the respondents to the appellant, inclusive of the sum of £G100 which represented general damages.

The issues which fell for the determination by the trial court were: “(a) Whether the respondents recovered possession of the vehicle No. AF 9366, the subject-matter of this action, on or about 19 December 1960; and

(b) whether the appellant was entitled to protection under section 12 of the Hire-Purchase Act, 1958.” The learned judge resolved both issues in favour of the respondents and dismissed the appellant’s claim in a judgment which contains the following passages2:

“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.

[p.608] of [1966] GLR 604

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, 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.”

The learned judge then referred to the case of Eastern Distributors v. Goldring3 and concluded his judgment in the following words4:

“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 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.” From this judgment the appellant appealed to this court and the ground argued by learned counsel in support of the appeal is as follows:

“The judgment was against the weight of evidence or otherwise erroneous; because at the time of the seizure the hirer was in constructive possession or entitled to possession and therefore comes within the ambit of section 12 (1) of the Hire-Purchase Act of 1958.”

There was no appearance by the respondents or of counsel on their behalf. Learned counsel for the appellant, Mr. da Rocha, in his argument submitted that the learned judge erred in holding that the motor vehicle was not in the possession of the appellant at the time of seizure by the respondents. He contended that at the time the sheriff released the vehicle, possession reverted to the appellant and the latter is therefore entitled to claim protection under section 12 (1) of the Hire-Purchase Act, 1958, for recovery of all sums paid by him under the agreement.

[p.609] of [1966] GLR 604

Since the appellant’s claim was founded on section 12 of the Hire-Purchase Act, 1958, the onus was upon him to prove that at least 75 per cent of the hire-purchase price had been paid by him under the agreement and that the respondents recovered possession of the motor vehicle from him without any order from a court of competent jurisdiction, Section 12 (1) reads as follows:

“Where goods have been let under a hire-purchase agreement and seventy-five per cent of the 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 only way of finding out how far Hire-Purchase Act, 1958, intends to go is to consider the words which it uses, giving full weight to each and bearing in mind that rights of parties are not to be taken away except expressly or by implication. By subsection (1) of section 12 stated above, the owner of the goods is deprived of “any right to recover possession of the goods from the hirer otherwise than by action.” It does not say that the owner is deprived of his right to recover possession of the goods from anyone else, and in my judgment is not to be construed as meaning that.

It was common ground that 75 per cent of the hire-purchase price was paid prior to the date when execution was levied upon the vehicle. The main point for decision therefore is: was the appellant in possession of the vehicle at the time the respondents exercised their right of seizure? It would seem, therefore, that possession is now a sufficient emblem of authority to entitle the appellant to claim protection under subsection (1) of section 12 of the Act.

It is not in dispute that execution was levied upon the vehicle by the sheriff about 16 December at the instance of the appellant’s creditor. It is equally not in dispute that the vehicle remained in the possession of the sheriff from that date until 19 December 1960. On that date the appellant’s creditor, Mr. J. K. Korsah, who was at the time the only person clothed with authority to give directions to the sheriff about the vehicle, delivered the letter, exhibit D, to the sheriff and requested him to release the vehicle for the appellant. Thereupon the vehicle was released from attachment on the understanding that it would be returned to the appellant. The evidence of the sheriff, the plaintiff ‘s first witness material to this issue contains the following passages:

“On the strength of this letter, exhibit D, I released the vehicle to Abdulla [the defendants’ first witness]. I asked Abdulla for B. H. Barnes and he told me he had come for the [p.610] of [1966] GLR 604 vehicle on behalf of Barnes. I gave the vehicle to Abdulla for B. H. Barnes but he did not sign for it … I was releasing the vehicle to B. H. Barnes when I gave it to Abdulla.”

Under cross-examination by learned counsel for the respondents the sheriff stated, inter alia, the following: “Abdulla offered to take delivery for Barnes so that was why I instructed the bailiff to deliver the vehicle for the plaintiff [appellant].”

The evidence of the respondents’ manager (the defendants’ first witness) also contains the following passages:

“On the instructions of the registrar [sheriff] J. K. Korsah wrote this letter exhibit D authorising the release of the car. Joseph Amoo was present with J. K. Korsah and myself when we spoke to the registrar. The registrar called the bailiff and instructed him to give the switch key of the vehicle to J. K. Korsah and not to me. The bailiff gave the key to J. K. Korsah and J. K. Korsah gave me the key and I instructed my driver Kofi Mensah to drive the vehicle to my place and he did so.”

When cross-examined by counsel for the appellant the first defendants’ witness said, inter alia, as follows, “The car was delivered to me on 19 December 1960 by J. K. Korsah and the vehicle is on my premises up to now.”

A critical examination of the evidence of these two witnesses shows that the sheriff refused to release the vehicle to the first defendants’ witness. This view is amply supported by the evidence of the first defendants’ witness himself that “The registrar [sheriff] called the bailiff and instructed him to give the switch key of the vehicle to Mr. J. K. Korsah and not to me.” It is clear therefore that the vehicle was released from attachment and delivered to the appellant’s creditor who had requested unequivocally in his letter, exhibit D, that it should be released “for Mr. B. H. Barnes,” the appellant. Mr. Korsah therefore received the vehicle for and on behalf of the appellant.

Furthermore, quite apart from the letter, exhibit D, the facts and circumstances of this case show that the vehicle was in the possession of the appellant at the time of execution. In my view, possession reverted to the appellant the moment the sheriff released it from attachment. Therefore, the appellant was in constructive possession of the vehicle at the time the respondents exercised their right of seizure upon it. In my judgment, the finding of the learned judge that the appellant was not in possession of the vehicle when the first defendants’ witness recovered it is not supported by the evidence and is therefore erroneous.

[p.611] of [1966] GLR 604

Under and by virtue of clauses 6 (j) and 8 of the agreement the respondents had the right without previous notice to determine the agreement and consequently to repossess the vehicle if (a) the appellant should at any time “represent the said vehicle to be his own property or allow himself to be held out as the true owner thereof . . .”or (b) “if any execution or distress be levied or threatened to be levied upon the said motor vehicle . . .” The appellant committed breaches of these two clauses but the respondents did not think it fit to exercise their right to possession by the seizure of the vehicle on those grounds. If they had exercised their right of seizure on the ground that the appellant was in breach of either clause 6 (j) or clause 8 of the agreement they would be in lawful possession of the vehicle and would still be entitled to pursue all other rights which they were entitled to under the said agreement, including the right to sue for the arrears of rent due by the appellant: see Brooks v. Beirnstein5 and Taylor v. Thompson.6 But the respondents elected to exercise their right to recover possession of the vehicle from the appellant on the ground that the latter had failed to pay “punctually all rents” and “was still owing a balance of £G172 6s.” Since the respondents had resumed possession of the vehicle on the ground of non-payment of arrears of rent and since it is common ground that at the time of seizure 75 per cent of the hire-purchase price had been paid they (the respondents) must prove that they obtained possession of the vehicle from the appellant by action. And this they failed to do.

It is not without significance to note that shortly after the respondents had recovered possession of the vehicle they instituted an action against the appellant, claiming, inter alia, “possession of the said vehicle No. AF 9366.” They also applied to the Circuit Court, Takoradi, “for an interlocutory order permitting the plaintiffs [respondents herein] to retain the possession of the said vehicle No. AF 9366 pending the final determination of the action”; but the application was dismissed. In my view, the conduct of the respondents subsequent to the date of recovery of possession of the vehicle is a clear manifestation of their awareness that they were not in lawful possession of the said vehicle.

In my opinion, the appellant has proved satisfactorily that 75 per cent of the hire-purchase price had been paid and that the respondents recovered possession of the vehicle from him without any action. He is therefore entitled to judgment in respect of all sums paid by him under the agreement, and nothing more. For these reasons, I would allow the appeal, set aside the judgment of the High Court, Sekondi, dated 14 May 1962, including the order

[p.612] of [1966] GLR 604 as to costs. Any costs paid by the appellant to the respondents in pursuance of the judgment appealed from should be refunded. In lieu of that judgment, the following is substituted: There will be judgment for the plaintiff for the sum of £G687 14s. The appellant is awarded costs in the court below assessed at 40 guineas. He is also entitled to costs in this court.

JUDGMENT OF SIRIBOE J.S.C.

I agree and have nothing to add.

JUDGMENT OF LASSEY J.S.C.

I also agree.

DECISION

Appeal allowed.

E. D. K.