HIGH COURT, ACCRA
DATE: 9TH APRIL, 1962
BEFORE: OLLENNU, J.
NATURE OF PROCEEDINGS
ACTION for return of vehicle seized by owner under a hire-purchase agreement. The owner counterclaimed for arrears of rentals.
COUNSEL
E. L. Cole for the plaintiff.
K. Ohene Ampofo for O. Y. Asamoah for the defendant.
JUDGMENT OF OLLENNU, J.
The plaintiff’s claim is for the return of a Mercedes Benz car No. TV. 119 seized by the defendant, and for loss of earnings from the 10th September, 1961 the date of the seizure, to the date of judgment.
The defendant is the owner of the car, a second-hand vehicle. He let the same to the plaintiff upon a hire agreement exhibit A dated the 8th November, 1960. According to the plaintiff the engine of the car broke down in May, 1961, while he was travelling from Kadjebi to Accra, and that upon the advice or request of the defendant he took the car to the workshop of Messrs. R.T. Briscoe who repaired it at a cost of £G465. That amount was debited to a running account which the defendant had with the said company. The repairs were completed in June, 1961. The plaintiff said that after the completion of the repairs he had a meeting with the defendant and it was agreed between the two of them in the presence of a witness that the plaintiff should pay £G30 a week to Messrs. Briscoe towards the cost of repairs and that he should suspend payment of the monthly instalments due on the hire agreement exhibit A until he shall have paid off the £G465, the cost of the repairs.
The defendant denies that it was at his request that the plaintiff took the vehicle to the Briscoe workshop for the repairs. He said that he noticed that an amount of £G465 had been debited to his account in June, 1961 and when he enquired he was told it was the cost of repairs effected on the said vehicle which was still registered in his name as owner. He said that he sent for the plaintiff and requested him to pay £G30 a week to Briscoe on account of the £G465, but he denied that he agreed with the plaintiff that payment of the instalments due under the hire agreement should be suspended. I do not believe the evidence of the plaintiff and his witness that it was upon the plaintiff’s request that the car was taken to Briscoe for repairs. As a matter of fact the plaintiff did not plead that it was the defendant who caused him to take the vehicle there.
In paragraph 6 of the statement of claim, the plaintiff admitted he only paid £G168 towards the cost of repairs and thereafter defaulted. That means that at the rate of £G30 a week, the plaintiff must have kept up the weekly payments for only six weeks, the sixth payment being
[p.263] of [1962] 1 GLR 261
only of £G18. Therefore upon his own showing the plaintiff paid nothing after about the middle of July towards the cost of the repairs and he paid no instalments from and after May, 1961. He also admitted that he made default with the instalments for January, 1961, and for April, 1961; he only paid £G50 instead of £G100.
A hire-purchase agreement is defined in the Hire-Purchase Act, 1958,1(1) as “an agreement for the bailment of goods under which the bailee may buy the goods.” The agreement exhibit A comes within that definition and it is therefore a hire-purchase agreement.
It was submitted by counsel for the plaintiff that the agreement exhibit A sins against section 4 (2) of the Act, in that it does not “contain a notice which is at least as prominent as the rest of the contents” of it, “in the terms prescribed in the schedule to this Act”, as laid down by section 4 (2) (c). The notice required to be included as set out in the schedule is with respect to the right of the hirer to terminate the agreement. This right, it should be pointed out, is also a statutory right preserved for the hirer by section 5 of the Act. Everybody is presumed to know the law, and I must presume that the plaintiff knew at all times of his right to terminate the hire-purchase agreement if he wished. I do not believe the evidence he gave that if that notice had been included in the agreement he would have returned the vehicle to the defendant to determine the agreement. From May to August, 1961, he made no payment under exhibit A and from about the middle of July to September 10, 1961, he made no payment towards the cost of repairs either. He knew quite well that Briscoe held the defendant responsible for the £G465, and would claim it from the defendant in any event. Yet throughout the whole period of his default he never once went to see the defendant to talk to him about it. There is no evidence that he had any more trouble with the vehicle after its repair. I feel that his conduct in this respect is not bona fide. It strikes me that he meant to take advantage of section 4 (2) of the Act which prohibits the owner from enforcing the hire-purchase agreement. I am satisfied that the failure to comply with the requirement specified in section 4 (2) (c) has not prejudiced the hirer. I am also satisfied that it is just and equitable to dispense with that requirement. Therefore in exercise of the powers given me by the provision to section 4 of the Act, I dispense with that requirement for the purpose of this action.
Further I do not think it fit to impose any condition for dispensing with the said requirement.
It was pleaded in paragraph 10 of the statement of claim as amended that the defendant failed to disclose in the hire-purchase agreement that the car was a second-hand vehicle, and “the defendant thereby implied a condition of merchantable quality under section 9 (1) (d) of the Act, and consequently the plaintiff has been considerably prejudiced by reason of paragraphs 3, 4 and 5 of the statement of claim.” There is no allegation that the vehicle was not of merchantable quality.
In support of that contention evidence was led by P.W.1. that on the morning after the day when the engine broke down the defendant had met him, P.W.1. at the Peki junction on the Accra-Kadjebi road, waiting by the vehicle and had told him among other things that the engine was an old engine. That story and the circumstances in which it was alleged to have been told by the defendant make it quite incredible.
[p.264] of [1962] 1 GLR 261
But even if that story is believed, what engine can one reasonably expect to be in a second-hand vehicle except an old engine, i.e. a non-first-hand engine?
The plaintiff is a motor driver and ought to know about vehicles. He said that he knew, before entering into the hire-purchase agreement, that the vehicle was second-hand. He further said that after the first month the car began to give him minor troubles. Above all he admitted that the Golokwati-Kadjebi portion of the Accra-Kadjebi road is a very bad road, yet he ran the second-hand vehicle on it from the 8th November, 1960 to May, 1961, with nothing more than minor troubles after the first month. In addition to the evidence that the plaintiff examined the vehicle before concluding the agreement, there is no evidence before the court that there were defects in the vehicle of such a kind as the defendant could reasonably have been aware of. The case therefore is covered by the proviso to section 9 (1)(d).
No grounds have been disclosed which can support any of the reliefs which the plaintiff seeks.
The defendant has counterclaimed for £G797. He did not give express particulars of that amount.
Impliedly it is made up of instalments for the months of January, May to August, 1961, five months at £G100 a month, £G500, and £G297 balance due on the cost of repairs which the defendant had to pay.
There is no difficulty about the claim to the sum of £G297, balance of the cost of repairs. But the claim for £G500 as instalments due under exhibit A raises one or two points. The hire-purchase price of the car is £G1,151. Up to May, 1961, the plaintiff had paid £G650. If judgment is given to the defendant for £G500 instalment in arrear as at September, 1961, the date of seizure, it would mean that the defendant would recover £G1,150 up to and including August, 1961, which is far in excess of 75 per cent of the hire-purchase price. That would contravene section 12, because the seizure was not made upon an order of the court. Again the defendant has not accounted for the car; he has not told the court what its present value is, and if he has sold it, he has not accounted for the proceeds.
Consequently the effect of a judgment in favour of the defendant for the said £G500 will be to assist the defendant to recover the full value of the car or forego the car and claim his money. He can only have the one or the other, not both. He already has elected to take the car, and so the loss should lie where it has fallen.
The plaintiff’s claim is dismissed and judgment entered thereon for the defendant. On the counterclaim, there will be judgment for the defendant against the plaintiff for £G297, the amount the defendant paid to the use of the plaintiff. But his claim to £G500 arrears of instalments due is dismissed. There will be no order as to costs.
DECISION
Claim dismissed.
Counterclaim as to arrears of rentals dismissed.
