SUPREME COURT, ACCRA
DATE: 12TH NOVEMBER, 1962
BEFORE: VAN LARE, BLAY AND AKUFO-ADDO, JJ.S.C.
NATURE OF PROCEEDINGS
APPEAL from a judgment of the High Court, Kumasi, dismissing the plaintiff’s claim for damages for wrongful and unlawful seizure and sale of the plaintiff’s vehicles, which the defendant claimed were the subject-matter of a hire-purchase agreement between the parties.
COUNSEL
Lutterodt for the plaintiff-appellant.
Victor Owusu for the defendant-respondent.
JUDGMENT OF VAN LARE J.S.C.
Van Lare J.S.C. delivered the judgment of the court. Sometime in January 1959, the plaintiff-appellant, a timber merchant of Kumasi, entered into negotiations with the defendant-respondent, a building contractor, also of Kumasi, for the sale to him of the respondent’s two second-hand Bedford trucks. The negotiations resulted in a written agreement dated the 2nd January, 1959, which provided as follows: “I the undersigned G. K. Appiah of house No. 31 Mbrom, Kumasi, have received from Mr. R. I. Yankson of house K.O. 97 Kumasi, the sum of £G250 (two hundred and fifty pounds) as part payment against two (2) Bedford diesel timber trucks Nos. AS 8572 and AS 4175. That a further payment of £G150 (one hundred and fifty pounds) will be made on the 2nd day of February, 1959. In default of making the second payment of £G150 (one hundred and fifty pounds at the expiry of the specified time as I, R. I. Yankson had promised, right is reserved for the said G. K. Appiah to seize possession of one (1) of above-mentioned trucks from me, R. I. Yankson, without any obstruction whatever.
[p.126] of [1962] 2 GLR 125
Final agreement between the two of us will be executed in respect of the two or one of the vehicles upon the fulfilment of the above conditions. The total amount of the purchase price of the two (2) vehicles is £G700 (seven hundred pounds). Dated at Kumasi this 22nd day of January, 1950.
1. (Sgd.) G. K. APPIAH
Lorry Owner
2. (Sgd.) R. I. YANKSON
Intended Purchaser.”
The respondent contended at the trial that the “final agreement” mentioned in the last paragraph of the agreement set out above took the form of a hire-purchase agreement in respect of the two vehicles, and was executed on the 4th February, 1959, although it bore on its face the date of the 4th January 1959, which the respondent said was inserted in the agreement in error. This hire-purchase agreement (exhibit 1) provided for an initial payment by the appellant of £G400 and the payment of the balance of £G300 by four monthly instalments of £G75 each, the first payment to be made on the 4th March, 1959. The agreement also vested power in the respondent to seize the vehicles in the event of the appellant making default in the payment of any instalment when the same became due and payable.
On the 15th March, 1959, upon default having been made by the appellant in the payment of the first instalment which became due on the 4th March, 1959, the respondent seized the two vehicles and sold them to the Ashanti Wood-Workers of Mamponteng.
The appellant’s action in the court below was in respect of the seizure of these vehicles which he contended was unlawful, and he claimed, eventually and after several amendments of his claim, “damages for wrongful and unlawful seizure, detention and sale of the plaintiff’s vehicles,” and loss of profits, and alternatively £G700 the value of the two vehicles and loss of profits. A claim to have the sale set aside was eventually abandoned, and the action against the Ashanti Wood-Workers who were also sued as second defendants discontinued.
The appellant in his statement of claim dated the 6th May, 1959, and delivered on the 21st May, 1959, averred, inter alia, as follows: “(1) At the beginning of January, 1959, the plaintiff intended to enter into a hire-purchase agreement with the first defendant in respect of two Bedford timber trucks Nos. AS 8572 and AS 4175, but as the plaintiff was unable to pay the initial deposit of four hundred pounds (£G400) the parties agreed and abandoned the intention.
(2) Some weeks later the first defendant and the plaintiff met again and the first defendant sold the two vehicles to the plaintiff for seven hundred pounds (£G700) (i.e. £G350 each): the plaintiff then paid £G250 on account to the first defendant on the 22nd January, 1959 and it was agreed that the plaintiff should pay a further one hundred and fifty pounds (£G150) on or about the 2nd February, 1959.
(3) The plaintiff in fact paid the said further sum of £G150 in February, 1959 and it was agreed that the parties would meet again and execute a final written agreement as to the balance of three hundred pounds (£G300) but the parties never met for such purpose.
(4) The first defendant wanted the said balance to be paid within a couple of weeks: but the plaintiff asked him to extend the time to the 10th April, 1959, and the first defendant agreed. In consideration of the said verbal agreement the first defendant accepted the sum of three pounds (£G3) which he directed to be paid to his wife and the plaintiff did pay it as directed.”
[p.127] of [1962] 2 GLR 125
To this statement of claim the respondent by his defence delivered on the 2nd June, 1959, pleaded inter alia, as follows:
“(1) The defendant admits paragraph (1) of the claim.
(2) In answer to paragraphs (2) and (3) the first defendant denies having sold the said vehicles outright to the plaintiff and will contend that what was agreed upon was that the plaintiff should pay £G250 to the defendant on the 22nd January, 1959, and then again £G150 on the 2nd February and the balance of £G300 to be paid on the 4th March; and in the plaintiff defaulting in the payment of any of the amounts specified at the scheduled dates the first defendant was reserved the right to seize the said vehicles and proceed to sell them after due notice of such an intention has been given to the plaintiff.”
In view of the later developments in the progress of this suit it is pertinent to advert to what are the significant features of the respective averments contained in the statement of claim and in the defence.
These are, (a) the respondent’s unqualified admission of the appellant’s averment that a hire-purchase agreement which had been agreed on in January, 1959, was abandoned, and (b) the complete absence of any reference to a hire-purchase agreement in the defence, and the averment in the defence that the balance of the purchase price, i.e. £G300 was agreed to be paid on the 4th March, 1959. There was no reference to payment by instalments.
On the 19th October, 1959, a summons for directions issued on the 3rd July, 1959, was heard, and issues settled on the basis of the pleadings aforementioned, and the suit fixed for hearing on the 3rd December, 1959. On the 2nd December, 1959, the respondent filed a notice of change of solicitor, and engaged Messrs. Owusu & Reindorf to act for him, and on the same day the new solicitors filed an application by motion on notice to the respondent for leave to amend the defence by deleting the whole of the defence hitherto on record and substituting therefore an entirely new defence, a copy of which was annexed to the application. The application was scheduled for hearing on the 14th December, 1959. On the 12th December, 1959, the appellant’s solicitor without waiting for the court’s order granting leave for the amendment, pleaded to the amended (i.e. the substituted) defence by delivering a reply.
There is no record of what happened to the suit on the 3rd December, 1959, which was the date appointed for hearing by the direction of the court on the hearing of the summons for directions.
The judge’s notes of the hearing of the application for leave to amend the defence on the 14th December, 1959, as reproduced in the record of proceedings make no reference to whether or not leave to amend was granted. As some argument turned on this point, and as counsel for the parties gave conflicting versions of what transpired at the hearing of the application on the 14th December, 1959, we called for the original record of the judge’s notes to be produced. The notes showed that leave was in fact granted for the amendment and, what is more, it was recorded by the judge that counsel for the appellant stated that he did not oppose the application for amendment. It is to be noted that counsel had previously stated to the court that no leave was granted.
While we do not regard favourably an amendment of pleading which seeks to deny material allegations which had previously been unreservedly admitted, counsel for the appellant has himself to blame for allowing the suit to proceed on the basis of the respondent’s amended defence, for he was perfectly entitled by Order 28, rule 4 to apply to have
[p.128] of [1962] 2 GLR 125
the amendment disallowed, and his reference in his submissions to us to the respondent’s conflicting averments touching the hire-purchase agreement can be of no avail to him now. In the circumstances we cannot go beyond the issues raised by the appellant’s amended defence. It is probable that if we were trying this case we would not accord to the respondent’s evidence the same degree of credit-worthiness accorded to it by the learned trial judge, but we cannot for that reason substitute our own view of the evidence for that of the trial judge who dealt with the case strictly on the basis of the issues finally joined between the parties.
The appellant’s counsel’s objection to the admission of oral evidence to correct the date of the hire-purchase agreement from 4th January, 1959, to 4th February, 1959, is easily disposed of by reference to Phipson on Evidence (9th ed.) at page 538 where the principle is clearly stated that “documents are presumed to have been executed on the day they bear date; but where there is no date, or a wrong one, the true date may be proved by parol.”
The effect of the respondent’s amended defence and of the findings of the court below based on the issues raised by this defence and the statement of claim is that the hire-purchase agreement was made on the 4th February, 1959, and constituted the final agreement between the parties and was the only agreement that regulated their contractual relationship concerning the two Bedford trucks the subject-matter of the respondent’s claim, and by the terms of the said hire-purchase agreement the respondent was clearly within his legal rights, in the events that occurred, in seizing the trucks.
The appellant’s counsel has submitted that the judgment of the court below dismissing his claim was against the weight of evidence. There is no merit in this contention. We therefore dismiss the appeal with costs.
DECISION
Appeal dismissed with costs.
J. D
