MOTOR PARTS AGENCIES AND ANOTHER v. YAW OFOSU [1963] 2 GLR 591

DIVISION: IN THE SUPREME COURT

DATE: 23RD DECEMBER, 1963

BEFORE: SARKODEE-ADDO, ADUMUA-BOSSMAN AND BLAY JJ.S.C.

CASES REFERRED TO

(1) Bakare v. Ladjide, C.A., Cyclostyled Judgments, January-June 1959, unreported

(2) Tamakloe v. The Basel Trading Company (1940) 6 W.A.C.A. 231

(3) Bright v. Bright (1943) 9 W.A.C.A. 48

(4) Onwonka v. Minaise (1952) 14 W.A.C.A. 77

(5) Randolph v. Captan [1959] G.L.R. 347

(6) Adjepong v. Fokuo (1945) 11 W.A.C.A. 67

(7) U.A.C. Ltd. v. Owoade (1954) 13 W.A.C.A. 207

NATURE OF PROCEEDINGS

APPEAL from a decision of the High Court given in favour of the plaintiff in an action in which he was claiming damages for the wrongful seizure of a motor vehicle obtained from the first defendant on an alleged hire-purchase agreement.

COUNSEL

Asafu-Adjaye, Snr. (with him Moore) for the appellants.

Osei (with him Mensah) for the respondent.

JUDGMENT OF BLAY J.S.C.

[His lordship read the statement of claim and the defence as summarised in the headnote and continued:] At the trial, the plaintiff deposed that he was introduced by the second defendant to the manager of the first defendant in Accra. He then negotiated with the manager for the sale to him of one of the firm’s Austin buses, and after discussion it was agreed that he could have the bus costing £G1,030, upon payment of a deposit of £G200, and an undertaking to pay the balance by instalments of £G60 per month. He said he paid the sum of £G200 deposit but took no receipt for it.

[p.593] of [1963] 2 GLR 591

After that the manager gave him a note to S.C.O.A. Motors where he was shown the type of bus he wanted. He later returned to the shop of the first defendant where the manager handed him a receipt for the deposit he had paid. When he looked at the receipt he discovered that it had been made out in the name of the second defendant, whereupon he queried the manager about the name in the receipt and was told that it was the practice of the company to issue receipts in the name of the person who introduced the purchaser and not to the purchaser himself. He protested and asked the manager to return his deposit but he refused to do so and put him off by saying that he should wait until the bus was delivered by S.C.O.A. He subsequently took delivery of the bus even though the manager did not change the name on the receipt, and made several payments to the first defendant and on each occasion the receipt was issued in the name of the second defendant. He said he had in all paid the sum of £G730 in respect of which he held receipts in the name of the second defendant. Besides the £G730 paid by him personally he sent a further sum of £G37 7s. to the first defendant in respect of which he had no receipt. Under cross-examination he admitted that he did not sign any hire-purchase agreement with the defendants. He said that although one was promised, the defendants did not give him any.

It would be seen that although the plaintiff based the whole of his claim on the existence of a hire-purchase agreement between him and the defendants, he nowhere in his evidence-in-chief referred to any such agreement. And under cross-examination he denied signing any by himself or through anyone on his behalf.

The plaintiff called only one witness at the trial who nowhere in his evidence mentioned the existence of a hire-purchase agreement either written or oral between the plaintiff and the defendants. For the defendants the manager gave evidence and said that it was he who negotiated the sale of the Austin bus to the second defendant under a hire-purchase agreement. He tendered in evidence as exhibit 1 the agreement and said that the second defendant having failed to pay the instalments in accordance with the terms of the agreement, he caused the bus to be seized after due notice to the second defendant. He said that at the time of the seizure, the second defendant had not paid a total of 75 per cent. of the value of the bus. He, finally, denied that he had conspired with the second defendant to defraud the plaintiff. On the facts as summarised above the learned trial judge on the supposed authority of the case of Bakare v. Ladjide,1 gave judgment for the plaintiff for:

“(a) The return by the first defendant to the plaintiff forthwith of the vehicle No. AG. 6646 and on failure to do so, to refund forthwith to the plaintiff the sum of £G764 paid by him.

(b) For £G250 damages for the wrongful seizure and distress of the said vehicle, and [p.594] of [1963] 2 GLR 591

(c) For £G1,155 being mesne profits (loss of earnings) at £G3 per day from the 20th October, 1961, up to this date.”

He also awarded the plaintiff 100 guineas costs inclusive of 70 guineas counsel’s brief fee. The defendants being dissatisfied with the judgment have appealed to this court on six grounds, namely: “(a) The learned judge erred in giving judgment for the plaintiff on the basis of a credit sale agreement since the plaintiff did not plead any such agreement but pleaded only a hire-purchase agreement under the Hire-Purchase Act, 1958 (No. 55 of 1958).

(b) The learned judge wrongly applied the principle laid down in the case of Bakare v. Ladjide to this case.

(c) The learned judge was wrong in accepting evidence of fraud of which no particulars were pleaded and upon which no relief claimed by the plaintiff was based.

(d) That the plaintiff’s statement of claim was inconsistent with his contention that there was a credit sale agreement, and the learned judge was wrong in hearing argument concerning a credit sale which was not pleaded and of which no evidence was given.

(e) That there was no basis either in law or in fact for the mesne profits awarded to the plaintiff or for the assessment of the value of the vehicle as £G764.

(f) The plaintiff through his counsel having abandoned paragraph 4 of his statement of claim which was the basis of his claim, the learned judge should have dismissed the plaintiff’s claim.”

Learned counsel for the appellants, argued grounds (a), (b), (d) and (f) together and submitted that the learned trial judge was wrong in giving judgment for the respondent on the basis of a credit sale agreement since the respondent did not plead any such agreement, but pleaded only a hire-purchase agreement under the Hire-Purchase Act, 1958.2 In support of his contention, counsel referred to the following cases: Tamakloe v. The Basel Trading Limited,3 Bright v. Bright4 and Onwonka v. Minaise.5 I am of the view that the contention of learned counsel for the appellants is a correct statement of the law. In the case of Bright v. Bright (supra) the Court of Appeal held that the plaintiff was bound by her pleadings and as they contained no averment that her husband was her trustee, it was not competent for her counsel to argue the point of law depending on the supposed trusteeship. In the course of the judgment in that case, Kingdon C.J. (Nigeria) said,6 “Order XX Rule 4 of the Rules of Court provides that, ‘Every pleading shall contain … a statement … of the material facts on which the party pleading relies . . .’The fact, if it was a fact, that the defendant wasplaintiff’s trustee was not only material but vital to the plaintiff’s case: if she intended [p.595] of [1963] 2 GLR 591 to rely upon it, it was essential that she should aver it in her pleading; and this is no mere technicality due possibly to an oversight.”

See also Order 19, rr. 4 and 16 and Order 20, r. 5 of the Supreme [High] Court (Civil Procedure) Rules, 1954.7 In the present case it is indisputable that the respondent relied solely on the existence of a hire-purchase agreement between him and the appellants and claimed the return of the amounts paid in respect thereof in accordance with the terms of the Hire-Purchase Act, 1958. The respondent did not at any time during the proceedings apply to amend his pleadings to base his claim on a sale of the bus on credit. Having failed to prove the vital averment in his statement of claim it was incompetent for the court to grant him any relief on any other basis. The learned trial judge purported to act on the authority of Bakare v. Ladjide (supra) the facts of which he said were similar to those in the present case. With respect, I do not think the learned trial judge appreciated the ratio decidendi of that case. There, the plaintiff had claimed a refund of an amount alleged to have been paid by him for the purchase of a motor vehicle. It appeared at the trial that the transaction was intended to have been a sale on hire-purchase, but there was in fact no such agreement. The trial court, however, held that there was an oral hire-purchase agreement between the plaintiff and the second defendant for the sale of the vehicle for a sum of £G1,100 on terms that £G760 was paid before delivery and the balance to be paid by monthly instalments of £G50 each. The Court of Appeal on the evidence, held that the trial court erred in so holding because there was no evidence to supply the essential ingredient of a hire-purchase agreement and that the transaction between the parties was a sale of goods on credit in connection with which no right of seizure of the vehicle resided in the defendant. The judgment of the trial court was, therefore, set aside and the plaintiff was given judgment against the defendant for wrongful seizure of the vehicle. In my view that decision was far from saying that a plaintiff can set up a claim based on one set of facts and be entitled to recover on quite another set of facts not pleaded by him. It follows therefore that in the present case the appellants must succeed on the grounds argued together before this court. Learned counsel for the appellants also argued grounds (c) and (e) of the grounds of appeal. In support of his contentions on these grounds he cited the cases of Randolph v. Captan,8 Adjepong v. Fokou9 and U.A.C. v. Saka Owoade.10 However, having held that the appeal must succeed on the grounds already argued, it is unnecessary to consider these two grounds. In the result I would allow the appeal, set aside the judgment appealed from including the order as to costs. In its stead I would substitute a judgment [p.596] of [1963] 2 GLR 591 for the appellants with costs assessed at 100 guineas. The appellants will also have the costs of this appeal assessed at £G49 16s. 3d.

JUDGMENT OF SARKODEE-ADDO J.S.C.

I agree .

JUDGMENT OF ADUMUA-BOSSMAN J.S.C.

I also agree.

DECISION

Appeal allowed.

Judgment for the appellants.

K.T.