COURT OF APPEAL
DATE: 4 JULY 1967
BEFORE: OLLENNU, AZU CRABBE AND APALOO JJ.A.
NATURE OF PROCEEDINGS
APPEAL from a judgment of the High Court, Accra, dismissing a claim by the plaintiff to recover all sums paid under a hire-purchase agreement and also for damages for wrongful seizure of the subject-matter of the agreement.
COUNSEL
Joe Reindorf (Kudjawu with him) for the appellant.
Osei for the respondent.
JUDGMENT OF APALOO J.A.
This appeal is from the judgment of the High Court, Accra (Prempeh J., as he then was), dated 28 February 1964. By that judgment, the learned trial judge dismissed a claim by the appellant (hereinafter called the plaintiff) to recover damages against the respondents (hereinafter referred to as the defendants) for wrongful seizure of a vehicle hired to the plaintiff by the defendants on hire-purchase terms. Both parties were described as transport owners but the defendants’ name implies that they are a firm carrying on a transport business. Some time in February 1961 the plaintiff was minded of purchasing from the defendants, a land-rover on hire-purchase terms. He made his intention known to the defendants. The latter were willing to hire to the plaintiff the said vehicle, with the usual option to purchase.
Accordingly, on 13 February 1961 the parties executed a formal hire-purchase agreement. This contains the usual hire-purchase clauses. At that date, the Hire-Purchase Act, 1958 (No. 55 of 1958), was in force and the defendants’ right of repossessing the vehicle without resort to action was restricted by section 12 (1) of that Act. That is, where 75 per cent of the hire-purchase price has been paid, the owner shall not enforce any right to recover possession of the goods from the hirer otherwise than by action.
Although the plaintiff himself lived at Accra, he entrusted the vehicle to one Mr. Gilbert Kpeglo of Kete Krachi. It was the latter who in fact worked with the vehicle and made payment of instalments as they fell due. The evidence shows that on occasions, Mr. Kpeglo made default with the payments and on more than one
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occasion, the defendants sent a Mr. Andrews to Kete Krachi to re-possess the vehicle. Mr. Kpeglo then made the payments for which the seizure was sought and the agreement continued to run in accordance with its tenor.On 17 April 1963 the vehicle was finally seized. It is unclear whether it was seized at Kete Krachi or Kumasi where it was said to be laid up. This fact is not however of importance in this appeal. But it is this last seizure that gave rise to this litigation. The plaintiff claimed that at the date of the seizure, he had paid more than 75 per cent of the hire-purchase price and that the defendants were, by reason of that fact, precluded by the provisions for the Hire-Purchase Act, 1958, from repossessing the vehicle without recourse to court action. The plaintiff therefore sought the relief to which section 12 (2) of the Act entitled him, namely, recovery of all the sums which he paid to the defendants under the hire-purchase agreement. The plaintiff also put in, no doubt for good measure, claims for general and special damages for wrongful seizure. The defendants admitted the seizure, but claimed that it was lawful inasmuch as the plaintiff paid, in the aggregate, less than 75 per cent of the hire-purchase price. The plaintiff disputes this and put in issue the justification relied on by the defendants. The latter also claimed that in any event, the plaintiff committed a breach of clause 3 (g) of the hire-purchase agreement as the plaintiff in about June 1963 took out a policy of insurance on the vehicle in his own name and represented thereby that he was the owner of the vehicle. The defendants did not however claim that this entitled them to terminate the hiring and recover possession of the vehicle. Thus the only real issue settled in the summons for directions and ordered to be tried was “Whether the plaintiff has paid to the defendants £G1,288 16s. 8d. being 75 per cent of the cost of the vehicle under the hire-purchase agreement prior to the seizure for the vehicle by the defendants.”The learned trial judge determined this issue adversely to the plaintiff as follows: “I hold therefore that at the time of the seizure, the plaintiff had not paid 75 per cent of the cost of the vehicle and that his claim based on this ground must fail.”
Although not expressly made an issue, the judge also held that the taking of the third party policy on the vehicle in the plaintiff’s name was a serious breach of the hire-purchase agreement and entitled the defendants, apart from anything else, to seize the vehicle. The judge found in favour of the defendants yet a third ground on which the seizure could be justified, that is, consent to the seizure by the plaintiff. The evidence on which this finding was based was to the effect that on one occasion, the defendants’ Mr. Farkye expressed dissatisfaction to the plaintiff about the irregular payment of the
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instalments by Mr. Kpeglo and the fact that the latter took out a third party policy provided for in the hire-purchase agreement. The plaintiff was alleged, in reply to this, to have authorised the defendants to seize the vehicle. The plaintiff denied this evidence, but the judge expressed belief in it and held that the defendants could justify the seizure on that ground also. The learned trial judge was of the opinion that any one of the three grounds justified the seizure and accordingly held the plaintiff disentitled to the reliefs which he sought. It is against this judgment that this appeal has been brought.
The plaintiff contested the judgment on tree main grounds. Firstly, it was submitted on his behalf that the learned trial judge was wrong in holding that the legality or otherwise of the seizure ought to be determined at the date when possession was taken. It was said that this was wrong and that it ought to be determined by reference to the date when 75 per cent of the hire-purchase price was paid. It was pointed out that in this case, by 29 January 1962, that percentage of the hire-purchase price had been paid and the seizure which was made long after that date, that is, on 17 April 1963 was wrongful. Secondly, it was contended that the learned judge added extraneous sums to the hire-purchase price and these disabled him from holding that by 29 January 1962 the plaintiff had in fact paid 75 per cent of the hire-purchase price. For this, counsel points to section 3 of the Hire-Purchase Act, 1958, which defines “hire-purchase price.” Counsel for the plaintiff next referred to the judge’s conclusion that the taking out of a third party policy in the plaintiff’s name in June 1963 constituted a breach of the contract entitling the defendants to seizethe vehicle. To this, it was replied that even if such were the case, the right of seizure was lost, three-quarters of the hire-purchase price having been paid by that date. Lastly, the learned judge’s finding that the plaintiff himself authorised the seizure was assailed. It was said that that was an incredible story because if he had wanted to terminate the hiring, he was entitled to do so by giving notice of this to the defendants and by following this up by returning the vehicle. That was not, counsel argued, what happened in this case. Here, it was said, that the defendants seized the vehicle off their own bat and sought to justify it. In any event, it was said, the facts grounding the justification not having been pleaded, they ought not to have been countenanced by the court. There can be no doubt that the argument urged against the judgment was formidable and was well presented. Counsel for the defendants attempted to answer it with obvious diffidence but gave up part of the way. In answer to the contention that the learned
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judge added to the hire-purchase price expenses which were not legally permissible, it was submitted for the defendants, that the parties by their conduct maintained only one account in which both debit and credit transactions were recorded and that account shows that in April 1963, when the defendants repossessed the vehicle, less than 75 per cent of the hire-purchase price was paid. It was urged therefore that the exercise of the right of seizure did not sin against section 12 (1) of the Hire-Purchase Act, 1958.
In any event, it was contended that there was clear oral evidence accepted by the judge that the seizure was made with the plaintiff’s express authority and that in those circumstances, the plaintiff could not justly complain of any legal injury.
Although the preamble to the statute is silent, it cannot be disputed that the Hire-Purchase Act, 1958, was passed to protect hirers from unscrupulous owners. That being so, it would take a lot to persuade me that a hirer can be said to lose the protection of the statute merely because the owners chose to keep one instead of two accounts. In any case, it is difficult to see how that can be said to be conduct attributable to a hirer. The defendants knew or ought to know that by reason of the provisions of section 3 of the Hire-Purchase Act, 1958, sums by way of penalty, compensation, damages and the like cannot properly be debited to the hire-purchase price. On the agreed accounts, the actual sum which the plaintiff paid to the defendants was £G1,437 11s. 8d. Of this sum, £G133 6s. 8d. was intended to be utilised for the payment of fees due for licensing and insurance and was so expended. A further sum of £G20 was intended as part-payment for spare parts which the defendants fitted to the vehicle at the plaintiff’s request. The rest of the actual sum paid to the defendants was intended to be on account of the hire-purchase price. Accordingly, by 29 January 1962 the plaintiff had paid on account of the hire-purchase price the sum of £G1,283 16s. 8d. The hire-purchase price of the vehicle is £G1,650 and 75 per cent of this sum is £G1,237 10s. 0d. It would follow from these figures that by 29 January 1962 the plaintiff had paid on account of the hire-purchase price, a sum which exceeds 75 per cent of the total hire-purchase price by £G46 6s. 8d.
I think therefore that Mr. Reindorf, counsel for the plaintiff, was right in contending that the defendants’ right to seize the vehicle without recourse to legal proceedings was lost on 29 January 1962. On the undisputed evidence, the seizure was made in April 1963 and was clearly in contravention of section 12 (1) of the Act. The plaintiff was therefore entitled to the remedy provided by subsection (2) of that section. Inasmuch as the learned judge held otherwise, I think he was in error.
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As I said, the learned judge also accepted oral evidence tendered to him which shows that the plaintiffhimself authorised the seizure. The judge attached credence to that evidence because he said a witness whose testimony supported the defendants’ Mr. Farkye, impressed him. It seems to me, with respect, that that finding was wholly inconsistent with the position which the defendants took up all along. The defendants claimed that they exercised their right under the agreement and repossessed the vehicle on the ground that the plaintiff failed to keep up his instalments and sought to defeat the protection afforded to the plaintiff by the Act by evidence that the latter made payment which in the aggregate was less than 75 per cent of the hire-purchase price. Indeed in paragraph (10) of the statement of defence they averred that, “the defendants say that they exercised their powers under the said agreement and that the seizure of the said vehicle was lawful.” That being the stand of the defendants, evidence by them which shows that they did not in fact exercise their right of seizure must be an afterthought and ought to have been rejected however perfect might have been the demeanour of the witnesses who gave it. I think the judge was a trifle credulous in accepting that evidence. In my opinion, the defendants failed to justify the seizure which was statutorily wrongful.
The remedy which the Act provides for the plaintiff, is the recovery of the sums paid by him to the defendants. That sum is £G1,283 16s. 8d. For that sum, the plaintiff is entitled to judgment. As I said, the plaintiff also made a claim for general and special damages. His counsel said he would not press those claims. It would not have made the slightest difference if he had. The plaintiff is entitled to no more than the statute provides.
In the result, I would allow the appeal and set aside the judgment appealed from. In lieu of it, I would enter judgment for the plaintiff against the defendants for the sum of £G1,283 16s. 8d. (N¢2,567.67). The plaintiff is entitled to his costs in the High Court which I assess at N¢300.00. He will also have his costs in this court.
JUDGMENT OF OLLENNU J.A.
I agree
JUDGMENT AZU CRABBE J.A.
I also agree.
DECISION
Appeal allowed.
L. F .A.
