SASU vs. NYADUALAH [1973] 1 GLR 221

CASES REFERRED TO

(1) Pickard v. Sears (1837) 6 Ad. & El. 469; 2 Nev. & P.K.B. 488; Will. Woll. & Dav. 678; 112 E.R.

179.

(2) Square v. Square [1935] P. 120; 104 L.J.P. 46; 153 L.T. 79.

NATURE OF PROCEEDINGS

APPEAL against a judgment of a circuit court in an action for wrongful seizure of a motor vehicle. The facts are sufficiently set out in the judgment of Apaloo J.A.

COUNSEL

Nii Odoi Annan (Goodhead with him) for the appellant. J. C. Armah for the respondent.

JUDGMENT OF APALOO J.A.

This appeal is from the decision of his honour Judge Sampson and relates to the seizure of a Mercedes Benz bus by the appellant. There was considerable divergence between the appellant and the respondent on the facts in the court below. That conflict was resolved in favour of the respondent. The learned judge’s resolution of the facts was not contested before us. The complaint which the appellant makes and on the basis of which he invited us to reverse the decision was one of the law. To determine to what extent it is well or ill founded, it is necessary to relate the facts which the learned judge accepted.

[p.223] of [1973] 1 GLR 221

Some time in December 1968, a Nigerian national by the name of Agbejule advertised for sale in the newspapers, a Mercedes Benz bus No. SG 5163 which he owned. The respondent who was then in the employ of the Fire Services, was minded of purchasing this vehicle. He therefore approached Agbejule and offered to buy the bus. This offer was accepted and the vehicle was sold to him for an aggregate sum of N¢2,600. When the respondent made a part-payment of N¢,1,200, the vehicle was released to him. There was some difference between the respondent and his vendor as to the precise terms of the contract and at some stage, Agbejule caused this vehicle to be seized by the police. The vehicle was retrieved by the respondent upon payment of the unpaid balance of the purchase price. The respondent sued Agbejule in this action as the second defendant and sought to recover damages against him but the learned judge found for him. Before us, neither side made any point of his success in the action and the role he played in this case is of little relevance to the question debated in this appeal.

When, as I said the respondent took delivery of the bus, he discovered that it was not roadworthy and needed certain repairs before it could be put on the road. For this purpose, he delivered the bus to a fitter and contracted with him to put right such defects as were found on it. He paid for this. After making these expenses, the respondent ran out of funds. He still needed money to pay for licensing, insurance, new tyres and the like. He therefore fell on the appellant for this. The latter described himself as a “car dealer” and appears to be some one with whom the respondent was acquainted. The appellant promised to oblige. Before the repairs were done with, the respondent took ill and was admitted at the hospital. While he was still there, the mechanic completed the repairs and at the respondent’s request, the vehicle was delivered to one Emmanuel Seth Acquah. The latter is the respondent’s brother. The respondent then by correspondence requested the appellant to honour his promise and provide funds for meeting the cost of road licensing and the like. The appellant was as good as his word and provided some funds for this purpose. He produced in evidence a document in which he itemised the expenses he made on the bus. The total came to N¢976.20. The respondent acknowledged this and signed the document. The appellant paid further sums to the respondent’s vendor Agbejule on account of purchase price of the bus. There can be no doubt that some account of money is owed by the respondent to the appellant. The latter made no claim to this sum in this action and the learned judge while acknowledging this did not feel called upon to determine how much this was or to pronounce for the appellant for that sum. We have not been requested to do so either.

When the actual repairs and the legal requirements were met, the appellant allowed Acquah to drive the vehicle. But he did this only after the latter was made to sign a hire-purchase agreement. This was on 11 January 1969. The respondent was still in hospital. The agreement

[p.224] of [1973] 1 GLR 221

contains the usual hire-purchase clauses and suggests that the property in the bus was vested in the appellant and he let it to Acquah upon payment by him of a deposit of N¢900 and a monthly rental of N¢300. The agreement reserved to the appellant the right to re-possess the vehicle, a right which he in due course exercised to give rise to this litigation. Acquah gave evidence and explained why he came to sign this agreement. He said and I quote him:

“[T]he defendant [meaning the appellant] asked me to sign a document because my brother the plaintiff was sick in hospital and did not know what would happen to him. I was asked to sign the document and the first defendant would discuss with the plaintiff when he was released from the hospital.”

The respondent was discharged from hospital some time after this. He said he then took issue with the appellant and sought an explanation as to why his brother was made to sign such an agreement. The respondent said, “the first defendant confirmed to me that he got my driver to sign a hire-purchase agreement to ensure that he would not lose his money.” After this the respondent did an act on which the appellant placed great reliance in this appeal. The respondent himself then countersigned that agreement as guarantor. His reason for doing so is best expressed in his own words. He testified that, “the first defendant asked me to countersign the agreement or repay his money amounting to N¢3,000.00 alleged by him to have been spent on the vehicle. I countersigned the agreement as requested by the first defendant.”

The learned judge found on the facts that the appellant seized or caused this vehicle to be seized, apparently in exercise or purported exercise of his right under the hire-purchase agreement. He held that that agreement did not confer on the appellant the “rights and or obligations known to the Hire-Purchase Act.” He thought the remedy open to the appellant was “a civil claim for debt and not by seizing vehicle No. SG 5163.” He concluded therefore that the seizure was wrongful and ordered that the appellant should return the bus in question to the respondent or pay its value of N¢2,034.00. He also awarded the respondent damages for loss of earnings in the lump sum of N¢5000.00.

The appellant says that conclusion was wrong and invites us to reverse it. The only ground on which the judgment is contested, was formulated in the notice of appeal as follows: “The learned circuit judge erred in holding that the hire-purchase agreement was binding on the plaintiff.”

Mr. Annan who appeared for the appellant urged that that agreement was in fact binding on the respondent and that having signed that agreement as a guarantor, the respondent was estopped in law from disputing its binding efficacy. Counsel also contended that by signing the hire-purchase contract as a guarantor, the respondent was a stranger to it and can seek no rights under its provisions.

[p.225] of [1973] 1 GLR 221

The latter point is easily answered. The respondent did not in fact seek any rights under the agreement. The remedy which he sought is dehors that contract. His claim was in detinue to recover the vehicle or its assessed value. That plainly was a right ex delicto not ex contractu.

The more serious point is the complaint that the respondent well knowing that an agreement was entered into between the appellant and Acquah which represents his own vehicle as the appellant’s, lent credibility to that representation by countersigning it as a “guarantor.” Accordingly, counsel says the respondent ought not to be heard to aver that that vehicle was in truth his own. In the language of the lawyers, counsel urged us to hold that the respondent was estopped by conduct from claiming that vehicle as his own. In the old case of Pickard v. Sears (1837) 6 Ad. & El. 469 the rule on which this submission is based was stated by Denman C.J. at p. 474 as follows:

“[W]here one by his words or conduct wilfully causes another to believe the existence of a certain state of things, and induces him to act on the belief so as to alter his own previous position the former is concluded from averring against the latter a different state of things as existing at the same time.”

I believe the policy justification for the rule is that a party should be held to any act or statement which it would be unconscionable to permit him to deny. It is plain that on the facts of this case, this doctrine cannot be successfully invoked by the appellant. The latter was clearly not misled by the respondent signing the agreement as guarantor nor did he act to his prejudice in reliance on that signature. Indeed on the accepted facts, the appellant pressurised the respondent to countersign the agreement in circumstances in which the latter had no alternative but to submit. Whatever a third person may be led to believe by reason of the countersigning of the hire-purchase agreement by the respondent, both the appellant and the respondent knew the truth, namely, that the property in that vehicle was vested in the respondent and that the latter signed the agreement to guarantee payment of the debt which the respondent owed to the appellant. In a dispute between the appellant and the respondent, no sound reason exists for precluding either party from relating the truth about the respondent’s signing of the agreement. As Langton J. said in Square v. Square [1935] P. 120 at p. 126: “If two people with the same sources of information assert the same truth, or agree to assert the same falsehood, at the same time, I cannot see how either can be estopped as against the other from asserting differently at a later time.”

One also ought to bear in mind the admonition in the old law books that “estoppels are odious” inasmuch as they prevent a party from telling the truth. My judgment is, that the plea that the respondent was estopped by conduct from disputing the validity of the hire-purchase agreement is ill founded and ought not to be acceded to. It follows that that hire-purchase agreement does not hold water. If that be right, [p.226] of [1973] 1 GLR 221 the only question left for determination is, on the facts found by the judge and related above, what rights and obligations do the parties incur vis-a-vis each other. I think the proved facts create a debtor-creditor relationship between the respondent and the appellant. The latter acquires a right in personam against the former to the repayment of his money but acquires no right in rem which he can exercise by seizure of the vehicle. That is the learned judge’s appreciation of this matter and it is this that led him to conclude that the seizure was wrongful and entitled the respondent to damages against the appellant. That conclusion was right and ought to be affirmed. I think therefore that this appeal fails and ought to be dismissed with costs.

JUDGMENT OF AMISSAH J.A.

I agree.

JUDGMENT OF SOWAH J.A.

I also agree.

DECISION Appeal dismissed with costs.

S.E.K.