HIGH COURT, ACCRA
DATE: 17 FEBRUARY 1967
BEFORE: AMISSAH J.A.
CASES REFERRED TO
(1) In re Leith’s Estate; Chambers v. Davidson (1866) L.R. 1 P.C. 296; 4 Moo. P.C. (N.S.) 158; 36
L.J.P.C. 17; 12 Jur. (N.S.) 967; 15 W.R. 534; 16 E.R. 276.
(2) Osei Kofi v. Mensah (1930) 1 W.A.C.A. 76.
(3) Delor v. Foli (1952) 14 W.A.C.A. 54.
(4) Thompson and Shacknell, Ltd. v. Veale (1896) 74 L.T. 130, C.A.
(5) Keene v. Thomas [1905] 1 K.B. 136; 74 L.J.K.B. 21; 92 L.T. 19; 53 W.R. 336; 21 T.L.R. 2; 48 S.J.815.
(6) Green v. All Motors Ltd. [1917] 1 K.B. 625; 86 L.J.K.B. 590; 116 L.T. 189, C.A.
(7) Albemarle Supply Co., Ltd. v. Hind & Co. [1928] 1 K.B. 307; 97 L.J.K.B. 25; 138 L.T. 102; 43 T.L.R. 783; 71 S.J. 777, C.A.
(8) Carr v. J. Broderick & Co., Ltd. [1942] 2 K.B. 275; [1942] 2 All E.R. 441; 111 L.J.K.B. 667; 167
L.T. 335; 58 T.L.R. 373
NATURE OF PROCEEDINGS
ACTION by the plaintiff to recover possession of a car seized by the defendants for the plaintiff’s failure to pay for repair charges on the car. The facts are fully stated in the judgment of Amissah J.A. sitting as an additional judge of the High Court.
COUNSEL
Asare for the plaintiff.
H. P. Swaniker for the defendants.
JUDGMENT OF AMISSAH J.A.
The plaintiff entered into a hire-purchase agreement with the defendant company in March 1962. Under it the plaintiff hired a Simca Etoile car No. SG 5187 which was to become her property after a cash deposit of £G300 and the payment of ten monthly instalments of £G41 9s; the total amount payable being £G714 10s. The plaintiff paid all but £G79 10s.
Apparently some fault developed in the car in July 1963, which necessitated repairs to the tune of £G396 8s. 2d. Of this amount, the plaintiff paid £G100 in cash. And it was arranged that the balance be paid by six monthly instalments of £G45 and a final instalment of £G26 8s. 2d. This arrangement was evidenced by a letter written by the defendant company to the plaintiff on 16 August 1963, and produced by the plaintiff. It was also signed by the plaintiff’s husband, Mr. Nseyen, who was her sole witness in the case and who apparently carried on all negotiations and transactions on her behalf as far as this car was concerned. Part of the arrangement was in the following terms: “in case the payment conditions should not be
[p.60] of [1967] GLR 58
fulfilled the company reserve the right to seize the above mentioned car.”
There was a further term by which the defendant company guaranteed parts of the car as follows:“Incidentally, we are prepared to grant a guarantee of six months to the engine parts or 5,000 miles.” The parties’ claims in this dispute have centred round their understanding of the rights and duties to which these terms gave rise. On or about 7 September 1963, the car was sent back to the defendant company’s workshop for what Mr. Nseyen described as an engine check-up because the car was not working properly. He thought there was a fault in the engine which made it impossible for the car to run. To his surprise, he was charged £G38 19s. 6d. He expected that the work done would be covered by the guarantee. So he protested to the workshop manager, Mr. Ibeken, and collected the car without paying for the repairs. Mr. Ibeken’s version of the matter was different.
According to him, on 7 September 1963, when the car was brought to the workshop, there was no fault with the engine parts. The fault then was with the transmission, also described as the differential, which had nothing to do with the engine parts. Therefore the guarantee did not cover this repair and that was why the charge of £G38 19s. 6d for the repair was made. He put in a document, described as a job card, as evidence of the nature of the repairs done on this occasion. Apparently the usual practice in the workshop is for the job card to be prepared itemising the desired repairs and this is signed by the customer to show that he has authorised those repairs. The particular job card for the repairs done on the plaintiff’s car in September 1963, was not signed by the plaintiff or Mr. Nseyen. And although it was not objected to when tendered, the point was made in cross-examination of Mr. Ibeken that there was something wrong with the job card. But having regard to Mr. Nseyen’s own evidence that he could not tell whether a car engine can run properly without the shock absorbers of the car, it may be appreciated that his knowledge of the anatomy of a car is practically non-existent. It is understandable that to him any fault which caused the car not to move should be attributed to the engine. But if his basic lack of knowledge made him think that way, it did not make his thinking right. Mr. Ibeken said that sometimes a customer knew the fault on the car and he decided what repairs were necessary. But if he did not know what was wrong technically then the engineer of the company would test the fault and advise the customer about which specific repair ought to be done. The job card was not signed when the car was brought in on 7 September because the fault discovered, i.e. to the transmission, was not the fault complained of by Mr. Nseyen. After the engineer had
[p.61] of [1967] GLR 58
tested and found this fault which was serious enough to stop the car from moving, the workshop went ahead and repaired it without calling upon him to come and sign the job card, because they had his verbal order to put the car right. The defendant company had demanded the amount involved from time to time.
It seems a reasonable explanation to me and I accept it. The job car itself does not look as if it has been specially prepared for the purposes of this case. If accepted as giving the true picture, then it shows that the repairs done this time were to the differential unit, the shock absorbers post, the exhaust pipe and the gear pot, all of which Mr. Ibeken insisted did not form part of the engine as guaranteed. Mr. Nseyen has not been able to tell me that any of these parts belong to the engine parts guaranteed. Apart from his general allegation that the car broke down again in about August to September 1963, due to a fault in the engine, he does not go further into specifics. And we have got an indication of Mr. Nseyen’s idea of what constitutes the engine parts.
In the circumstances I do not accept that the fault in the car which was repaired in September had anything to do with the parts guaranteed. The defendant company was therefore entitled to charge for the repairs. The misunderstanding over the nature of these repairs done and whether or not the repairs had to be paid for is the central issue in this case. Upon being charged, Mr. Nseyen thought the agreement of 16of August had been broken. On the other hand the defendant company did not see that anything had been done in contravention of the agreement. But this is not the end of the story. In about October 1963, the car again suffered what Mr. Nseyen described as a breakdown. Naturally he ascribed this to further faults which the engine of the car had developed. There is no evidence that he had anyone to check to confirm his opinion. However, he telegraphed the defendant company to collect the car for repairs. The company replied, also by telegram, that the car should be brought in by the plaintiff for the repairs. The car was in fact brought in. But this was four months later, i.e. in February 1964. Why the plaintiff was so tardy in taking a car which was being used as a taxi to the repairer when it had broken down is a mystery to me. For the longer the car remained unrepaired, the more money she lost on it. The mystery is deepened by the fact that as far as Mr. Nseyen was concerned, and however uninformed his opinion is on this score is here not relevant, the repairs necessitated were covered by the guarantee in the letter of August 1963. The plaintiff claimed that after taking the car in, the defendant company seized it.
[p.62] of [1967] GLR 58
Her action is based on section 69 of the Sale of Goods Act, 1962 (Act 137), which denies the owner of goods placed on hire-purchase recovery for default in the payment of the instalments without an order of the court once 50 per cent of the price had been paid. Her case is that the car was seized under the hire-purchase agreement but as she had paid over 75 per cent of the price, this seizure was in breach of the Act. The defendant company countered that the seizure was not under the hire-purchase agreement but under the repair cost agreement of August 1963. The plaintiff replied that the defendant company were themselves in breach of that agreement in that they guaranteed the engine parts of the car by the agreement and yet the car was found broken down only a few weeks later and for the repairs occasioned, a charge was imposed, and that this did not save the car from a further and more complete breakdown shortly afterwards.
If the plaintiff was seeking the protection of the guarantee in the agreement, it must be said against her that she never attempted to prove that it was in force at any of the material times. In terms, the guarantee was for six months or 5,000 miles. The plaintiff never showed that the car had not done the 5,000 on any of the subsequent occasions on which it was taken in. On the other hand the defendant company’s evidence was that when brought in in February 1964, the car had done several thousand miles beyond this. In a last minute attempt to meet this requirement, counsel for the plaintiff submitted that as the car was originally a taxi and had now been painted black and further as there was an entry showing that in July 1965 a lock to the car was repaired, this showed that the defendant company had been using the car. And this explains why the mileage in September 1964, was round about 20,000 miles above that when the major repairs to the car were done in July 1963. But Mr. Ibeken’s evidence on this point, which stood uncontradicted, was that the car was never used while lying in the defendant company’s yard between February and September 1964. They undertook repairs in September because they wanted to sell the car to recover their money which was still not coming from the plaintiff. They were advised against selling. It is not clear to me how the repair of a door lock in July 1965, shows that the car was being used between February to September 1964. In the face of Mr. Ibeken’s evidence, I am unable to say that the plaintiff has shown that the guarantee still operated when the car was brought in during February 1964. Mr. Asare has made a number of submissions which it is now necessary to consider. Some of them are in direct conflict with the case he set out to prove. His original position was that the guarantee in the repair agreement was good and repairs made subsequently to [p.63] of [1967] GLR 58it should have been covered by it. This presupposes that the agreement was valid. But in the end one of his submissions was that the agreement was invalid as it went contrary to some provisions in the hire-purchase agreement.
Considering the submissions in detail, the first was that the ownership in the car was always vested in the defendant company, therefore, it could not claim to be exercising any right to a legal lien over the car by seizing it. If anything at all, it had an equitable lien which could be enforced only by recourse to the courts. But I do not think that much profit is to be gained from the law on liens, whether legal or equitable, on this issue. As Lord Westbury said in In re Leith’s Estate; Chambers v. Davidson (1866) 4 Moo. P.C. (N.S.) 158 at p. 170, “. . . lien is not the result of an express contract; it is given by implication of law.” But here we have an express contract; it is given by implication of law.” But here we have an express contract in the form of the agreement of 16 August 1963 to deal with, and that agreement on the face of it gave a right to the defendant company to seize the car in case default is made in the payments scheduled. The case of Osei Kofi v. Mensah (1930) 1 W.A.C.A. 76 was cited in support of the proposition that in spite of the agreement the defendant company should not have seized the car without applying first to the court. Osei Kofi’s case was the one which decided that where an outright sale of goods takes place and the purchaser makes default in paying the agreed instalments, the seller has no right to retake the goods, even though the purchaser in his contract has agreed to that course.
But it is clear from Delor v. Foli (1952) 14 W.A.C.A. 54 that the earlier decision is not entirely a happy one.
The facts of that case as stated were scanty. The only authority relied upon was Thompson and Shacknell, Ltd. v. Veale (1896) 74 L.T. 130, C.A. which dealt with a situation where a third party had acquired the goods in good faith and without notice of the original seller’s rights. And it was from the third party that the goods were seized. That is not the case here. Nor can it be said that the transaction presently under consideration was an outright sale. Besides, on the facts of the present case Delor v. Foli (supra) is the more direct authority. There a creditor lent money to a debtor who undertook in the contract to repay by monthly instalments, secured the loan with his lorry, and gave his creditor the right, in default of payment, to seize the lorry for the debt. The debtor failed to pay the instalments and the creditor seized the lorry. In respect of the debtor’s suit for damages for wrongful seizure and the return of the lorry, the
West African Court of Appeal held that a person may confer the right upon another to seize a chattel, that the creditor having been granted a licence to seize the lorry if the debtor defaulted in his payments, there was no trespass to the lorry.[p.64] of [1967] GLR 58
The only question now is whether the application of this principle to the present case is excluded by section 69 of the Sale of Goods Act, 1962 (Act 137), seeing that the vehicle in this case was on hire to the plaintiff under a hire-purchase agreement with the defendant company and that over 50 per cent of the purchase price had at the material time been already paid. Section 69 (1) provides that: “69. (1) Where goods have been delivered to a buyer under a contract of hire-purchase, and at least fifty per cent, or such other minimum percentage as may be prescribed, of the hire-purchase price has been paid or tendered by or on behalf of the buyer, the seller may not enforce any right to recover possession of the goods from the buyer otherwise than by action.”
It appears to me that the right to recover possession here referred to is a right of the owner under a hire-purchase contract to recover his goods which have not been fully paid for by the hirer. There is, in clause (5) of the hire-purchase agreement between the parties to this case, a provision which terminated the hiring and empowered the defendant company to retake possession of the vehicle, if the plaintiff failed to pay any sum payable by him under the agreement. To my mind, it is the unbridled exercise of thepower conferred by clauses of this nature that section 69 of the Act sets out to control. I do not think that it is intended to deprive a repairer of his protection for the payment of his repair charges. The complication in this case is caused by the fact that the owner of the vehicle is the same as the repairer.
Had the repairer been different, he would have had a lien on the car for his repairs not only against the hirer but against the owner as well.
In Keene v. Thomas [1905] 1 K.B. 136, the plaintiff by a hire-purchase agreement, let a dogcart to a person who in the course of time sent the cart to be repaired to the defendant, who was a coach builder. The hire-purchase agreement contained a clause by which the hirer undertook “to keep and preserve the dogcart from injury.” Some instalments under the agreement being unpaid the plaintiff sought to recover the cart, but the defendant claimed a lien on it for the cost of the repairs. It was held that the defendant’s lien was good, not only against the hirer, but also against the plaintiff: see also Green v. All Motors Ltd. [1917] 1 K.B. 625, C.A. and Albemarle Supply Co., Ltd. v. Hind & Co. [1928] 1 K.B. 307, C.A.
If the lien of a third party repairer is good, I do not see why the owner-repairer’s position should be inferior. In the hire-purchase agreement exhibited in this case there is a provision that the hirer at his own expense shall keep the vehicle in good repair and working
[p.65] of [1967] GLR 58
condition and repair or replace any parts thereof which may become worn out or defective. So that had a third party done the repairs to the car, he would have had a lien on it against the payment of his charges. The only difficulty in the case of an owner-repairer is that being the owner he is technically not entitled to a lien on his own property. But should he make an agreement to cover the payment of his repair charges by instalments, I would see nothing wrong with it. Further, I think the agreement of August 1963 is an entirely separate transaction outside the normal operation of the hire-purchase agreement.
No right of recovery created by the relationship of owner or seller on the one hand and hirer or buyer on the other is here involved and therefore section 69 of the Act does not appear to me to apply to it. No doubt the law will not give effect to any colourable agreement entered into collaterally with the hire-purchase agreement with the intention of defeating the section. But that does not appear to me to be the case here. It was contended on behalf of the plaintiff that the agreement of August 1963 cannot stand side by side with the hire-purchase agreement because the latter forbade the charging or pledging of the vehicle. But this was a stipulation between the owner and the hirer to prevent the creation of rights in respect of the vehicle in favour of third persons. I do not think it can be used to deny the owner a right acquired under a collateral agreement. Even if the stipulation was intended to cover the owner himself, which I do not accept, surely the parties themselves made the original agreement and may by a subsequent agreement vary or terminate that stipulation. I would give effect to the agreement. On the point that there was no consideration given for this August 1963 agreement owing to the faulty condition of the repairs, all I can say is that a repairer of a recognisable fault in a car does not guarantee that no other fault will develop in the car. Much depends on its user and as to this we have no evidence.
I do not think much of the submission that the defendant company misrepresented the real reason for their asking the plaintiff to bring the car in for repairs and that they had asked for this with the intention of seizing the car. The plaintiff had asked them to collect the car for repairs. If they were unable to collect it themselves the only sensible thing to do was to ask the plaintiff to bring it. It seems to me ridiculous that it they were so keen on seizing the car as to stoop to such stratagems, they did not take the earliest opportunity of going for the car in order to retain it when they were asked to collect it for repairs. It will be recalled that the telegram from the plaintiff to collect the car was in October 1963. After the defendant company’s reply, it took the plaintiff no less than four months to[p.66] of [1967] GLR 58 produce the car. I do not think that the defendant company’s wait for the production of the car is consistent with an intent to get possession of it by deceit if possible. It appears to me more plausible that the decision of the defendant company to retain the car in February when it was in fact brought in was motivated by the fact that by then the unpaid instalments due under the repair agreement had accumulated for four months. In the previous October when they asked that the car be brought in there was only one month’s instalment outstanding.
It was said further on behalf of the plaintiff that payment for the car on the hire-purchase agreement ought to have finished on 16 January 1963. Thus by the time the car was taken the outstanding amount was long overdue and consequently the seizure was on account of this default under the hire-purchase agreement. This submission failed to take into account the fact that even by the time the major repairs were called for in July 1963, the time for the completion of the instalment payment under the hire-purchase agreement was already overdue. Nevertheless the defendant company did not seize the car on that occasion for the default under the hire-purchase agreement. Again in the following September, the car came into the possession of the defendant company, but surprisingly they did not seize it for the default under the hire-purchase agreement.
I do not think the plaintiff is entitled to damages for wrongful seizure because if there had been such a seizure, her remedy would have been under section 69 of the Sale of Goods Act, 1962 (Act 137): see Carr v. J. Broderick & Co., Ltd. [1942] 2 K.B. 275. For the reasons given the plaintiff’s action fails.
DECISION
Judgment for the defendants.
S.O.
