TAYLOR vs. S.Y. SASU AND SONS [1973] 1 GLR 176

NATURE OF PROCEEDINGS

APPEAL from a decision of the High Court in an action for wrongful seizure of a motor vehicle. The facts are fully stated in the judgment of Amissah J.A.

COUNSEL

Dr. Ekow Daniels for the appellant.

Nii Odoi Annan for the respondents.

JUDGMENT OF AMISSAH J. A.

The appellant is dissatisfied with the judgment of the High Court against him in this case. He has therefore appealed to this honourable court for redress. I proceed now to examine the cause of his complaint in order to determine whether he is deserving of our assistance.

The appellant, as plaintiff, brought this action against the respondents for wrongful seizure of a vehicle. He had entered into a hire-purchase agreement with the respondents to purchase this vehicle, a seven-ton Albion lorry registered No. AT 7889. The date of the agreement, which was exhibited, is 4 August 1966. At the time it was entered into the currency in use was the old cedi. In the course of the relationship of owner and hirer arising from the agreement the currency [p.178] of [1973] 1 GLR 176 was changed to the new cedi. As a result the moneys stipulated under the agreement and paid are sometimes quoted in the record of proceedings in old cedis and at other times in new cedis. For convenience I shall use new cedis throughout this judgment. According to the terms of the agreement the hire-purchase price of the vehicle was N¢12,400. This was to be paid off by a deposit of N¢2,600, followed by fourteen monthly instalments of N¢700 each. The deposit was paid in two lots of N¢2,500 and N¢100. Thereafter the appellant paid five of the monthly instalments, the last being evidenced by a receipt dated 30 March 1967 which acknowledged payment for the January-February instalment. No further payment was made until 19 July 1967. By then the respondents had seized the vehicle. But after the payment of N¢610 in July, the vehicle was apparently released and thereafter further instalments were paid but of reduced amounts. From 1 January 1968 there were three payments of N¢500 covering the months of January, February and March that year. Then a payment of N¢220 was made in June being described as part payment for April, one of N¢273 in February 1969; the last instalment which was made in March 1969 was for N¢140. The respondents had some time in October 1968 seized the vehicle a second time. They seized it for the third and final time in April 1969 and it was this seizure which led to this action.

The case of the appellant was that by the time of the final seizure he had paid more than half of the hire-purchase price of the vehicle. Therefore, by virtue of section 69 of the Sale of Goods Act, 1962 (Act 137), the respondents were not entitled to seize the vehicle without recourse to the courts. If the appellant’s case on the payment of an amount over half the price is substantiated then there is no doubt that the respondents acted illegally because they acted without first seeking the assistance of the court.

The respondents’ defence was that at the time of the seizure in June 1967, the amount paid by the appellant was less than half the high purchase price. That seizure was therefore proper. After that first seizure the hire-purchase agreement of 4 August 1966 was determined. They released the vehicle to the appellant upon a fresh hire-purchase agreement made on 1 December 1967. By that time certain repairs had been done to the vehicle and four fresh tyres bought for it. All this extra expenditure was added on to the outstanding amount under the previous agreement to form a new hire-purchase price. It is not too clear whether the new price was N¢8,410 or N¢7,800. Be that as it may, by this new agreement the appellant was to discharge his obligation by a payment of N¢610 deposit and monthly instalments of N¢550 for fourteen months starting from the beginning of December 1967. The appellant had paid only N¢1,720 which cannot be said to be half of the new purchase price under the second agreement. Hence seizure of the vehicle in April 1969 without first coming to court was perfectly legal.

[p.179] of [1973] 1 GLR 176

The evidence in the case consisted on behalf of the appellant of the testimony of his attorney, who deposed to the fact that he was the person who really carried out the transactions with the respondents. I shall refer to him hereon as the appellant. On behalf of the respondents evidence was given by S.Y. Sasu, one of the partners of the respondent firm and the signatory to the agreement of August 1966. There was documentary evidence which should assist the court to determine where the truth lay in this case which was otherwise one of oath against oath. The learned trial judge decided on the evidence before him that the respondents’ version of the matter was preferable and gave judgment for them. It is this decision that the appellant complains of.

Three grounds of appeal were lodged against the decision. They are that:

“(a) The learned judge erred in holding as a fact that there was a second hire-purchase agreement between the plaintiff and the defendants.

(b) The learned judge erred in law in holding that vehicle No. AT 7889 the subject-matter of the dispute was capable of being sold to the plaintiff twice by two hire-purchase agreements and having two hire-purchase prices.

(c) The judgment is against the weight of evidence.”

The first and last grounds really make the same point. The second was not seriously argued. The learned trial judge did indeed find that there was a second hire-purchase agreement and this finding formed the basis of his decision for the respondents. The finding was one of fact and where a trial court which has heard the witnesses makes a finding of fact, appellate courts should not and do not normally disturb it. It is with a consciousness of this salutary rule that I proceed to examine the evidence in the case, the decision on it and the reasons given by the learned judge therefor. For after a great deal of anxious consideration of the matter I have come to the conclusion that the judgment should, in spite of the rule adverted to, not stand.

The respondents claimed that there was a second hire-purchase agreement dated 1 December 1967 containing different terms and it was the breach of this second agreement that occasioned the final seizure of the vehicle leading to the present action. This agreement was not produced at the trial. The respondents’ explanation of this was that that agreement had been stolen. Sasu, their witness, went almost to the extent of openly accusing the appellant of the theft. Sasu was therefore allowed to give secondary evidence of the contents of the missing agreement. The trial judge, accepting the story that a second agreement was entered into and that the final seizure was made under it, found for the respondents giving the following reasons for his view. First, the receipts for the payments which had been tendered by the appellant showed that the ninth in the series, dated 1 January 1968, was headed “No.1” and the amount received was described in the

[p.180] of [1973] 1 GLR 176 body of the receipt as “being first instalment paid for 7 ton Albion Regd. No. AT 7889 for January 1 1968.” Similarly, the tenth receipt in the series was headed “No.2” and described “as being second instalment paid … etc.” According to the judge there was no question of the appellant being unaware of the contents of the receipts. He himself had testified that he was made aware of what was written on the receipts. Secondly that as from 1 January 1968, the monthly instalments seem to have been N¢500 instead of the N¢700 stipulated on the first agreement and that this difference had not been explained by the appellant. Finally there was exhibited a letter dated 10 April 1969 written by the respondents to the appellant, in which the outstanding balance was given as N¢5,944. The letter quite clearly stated that the vehicle was seized on 1 April 1969 for the appellant failure to honour the hire-purchase agreement entered into by him on 1 December 1967, which I may add was not the original agreement. The appellant did not reply to this letter. He, however, immediately commenced action. These were pieces of evidence which satisfied the trial judge that there was the second agreement.

With the greatest respect to him, I think there were other pieces of evidence which seem to have escaped his attention; evidence which if looked at would undoubtedly have put a completely different complexion on the case.

With regard to the first item of evidence, namely, that from 1 January 1968 the receipts describe the payments as first instalment and second instalment, it must be borne in mind that the appellant was illiterate. What was written on the receipts, obviously by Sasu, would not be known to him unless interpreted. In the ordinary course of things a person in his position would be satisfied if a receipt acknowledged the sum he had paid. Other statements on it would not interest him unless specifically brought to his attention. The learned judge seems to have been impressed by the fact that the appellant was aware of what appeared on the receipts because he is taken to have testified that he was made aware of what was written on the receipts. But looking at the evidence of the appellant I find nowhere stated anything which can be construed as an admission by him that the contents were made known to him generally or, even more important from the point of view of the learned judge’s particular finding, that the fact that the acknowledgment of the sums received were described as first or second instalments in the receipts was brought to his attention.

Turning to the second finding, that as from 1 January 1968, the monthly instalments seem to have been N¢500 instead of the N¢700 in the first agreement and that the reason for this was not explained by the appellant, a reading of his evidence would show that if this was such an important fact needing explanation, he was not asked to explain it. It is important that he should have been because the rest of the receipts after 1 January 1968 do not show a consistent instalment-payment of N¢500. As recited earlier there were three payments of N¢500

[p.181] of [1973] 1 GLR 176 followed by one of N¢220, another of N¢273 and a third of N¢140. So that a possible explanation may have been that after 1 January 1968, the appellant paid not what was stipulated under the agreement but what he could get.

But an even more serious criticism arises out of the way and manner in which the evidence of the alleged second agreement was introduced. The appellant in his statement of claim relied entirely on the original agreement of 4 August 1966. That statement knew no second agreement. In their defence, when they eventually came round to making it, the respondents pleaded in this connection as follows:

“(4) The defendants deny paragraph (3) of the statement of claim. The defendants aver that by July 1967, the plaintiff had only paid £G3,355 or N¢6,710.00.

(5) The plaintiff in August 1967 brought the vehicle to the defendants for routine inspection as was the custom of the trade and also as provided by the hire-purchase agreement dated 4 August 1966.

(6) That during the inspection the plaintiff complained of engine trouble and worn out tyres.

(7) That the defendants repaired the vehicle and bought four new tyres both costing N¢2,110.00.

(8) That at the end of the hiring period the plaintiff was in arrears of N¢5,690.00.

(9) That on or before 1 December 1967 the defendants entered into a new hire-purchase agreement with the plaintiff, the new hire-purchase price being N¢7,800.00. The hiring period being fourteen months.

(10) The defendants then delivered the vehicle No. AT 7889 and the original copy of the new hire-purchase agreement to the plaintiff and retained the duplicate.”

This was all that was pleaded on the circumstances leading to the second agreement. It will be noticed that the respondents did not plead that the vehicle was seized under the first agreement in about June 1967. Even more significantly, the respondents in paragraph (4) of their defence after denying the appellant’s paragraph (3) of the statement of claim, the paragraph which stated that he had paid more than 50 per cent of the hire-purchase price, went on to aver without any prompting whatsoever that “by June 1967 the plaintiff had only paid £G3,355 or N¢6,710.00.” This was a true statement. The payment referred to in the defence cannot be taken as connected with any other agreement except the original agreement. The importance of this admission that N¢6,710 of the total purchase price of N¢12,400, i.e. over half the total had been paid by July 1967, will appear later. Further, all that was said about the terms of the second agreement was that the new purchase price was N¢7,800, and the payment period was fourteen months; the date was also given. When the appellant gave his evidence,

[p.182] of [1973] 1 GLR 176 the terms of the new agreement were not put to him. There is only a single sentence in his recorded evidence in which he merely denies that there was a second agreement. It reads, “There was no agreement that a new agreement should be entered into when I failed to pay the instalments.” That is all. One would have expected, and I think that it is only fair and just, that the respondents who propounded a new agreement which was allegedly lost should put the relevant terms of it to the plaintiff before he gave his evidence on them. But this the respondents did not choose to do. It was when Sasu came to give his evidence that he gave the terms of the second agreement. His evidence on the point was as follows:

“The date of the second hire-purchase agreement was on 1 December 1967. The new hire-purchase price was N¢8,410. I did not reduce this sum. He paid N¢610 as deposit. The agreed monthly instalment was N¢550 for fourteen months from December 1968.”

It is immediately apparent that the new hire-purchase price as pleaded (N¢7,800) and as testified to (N¢8,410) are different. The new agreement is supposed to have been made on 1 December 1967. Sasu categorically said so. I am prepared to allow that the recording of “1968” in the evidence is a typographical error. The deposit was said to be N¢610. In a case where payments are meticulously supported by receipts it cannot be too much to expect to see the receipt for the deposit of N¢610 bearing a date on or about the date of the agreement, and described as such. No receipt of the kind was exhibited. There was, however, a receipt for N¢610 amongst the exhibits. And this seems to have been accepted by the trial judge as the receipt for the alleged deposit. In this court counsel for the respondents was asked about the receipt for the deposit and he pointed at this same exhibit, stating that the deposit was payment for repairs made to the vehicle. The only thing wrong with this proposition is that the receipt for N¢610 exhibited in the case bears a date nowhere near 1 December 1967 when the alleged second agreement was entered into. It is dated 19 July 1967 earlier even than the time “in August 1967” when according to the respondents’ pleadings the plaintiff brought the vehicle to the defendants for routine inspection as was the custom of the trade and also as provided by the hire-purchase agreement dated 4 August 1966”; earlier than the time when in the course of “the inspection, the plaintiff complained of engine troubles and worn out tyres.” On the respondents’ own pleadings that payment for N¢610 was made earlier than the time when as a result of the routine inspection and the appellant’s complaints the respondents did repairs on the vehicle and bought four new tyres for it, and, of course, much earlier than the date of the second agreement under which it was paid as a deposit against the new purchase price. When that receipt for N¢610 is examined it is found to be an acknowledgment not of a deposit for a new agreement, not even one for repairs but as being part-payment for February 1967 instalment

[p.183] of [1973] 1 GLR 176 for AT 7889,” that is for the month immediately after the last receipt of N¢700. To put matters beyond any doubt that this was an instalment under the original agreement there is the further entry on the receipt to this effect “VIZ. Full instalment £G350 (i.e. N¢700) less paid 19 July 1967 £G305 (i.e. N¢610) balance £G45 (i.e. N¢90).” It was admitted to fall short by N¢90 of the recognised instalment under that original agreement. The receipt for the N¢610 was signed by Sasu. Now if the appellant, an illiterate, may be fixed with knowledge of the contents of a receipt which he did not make and in a language he does not understand, how much more the maker of the receipt himself? Clearly the N¢610 had no reference to any new agreement. If paragraph (4) of the respondents’ defence is recalled, especially the averment that by July 1967 £G3,355 or N¢6,710 only had been paid, confirmation of this view will be found in the fact that that sum of N¢6,710 cannot be arrived at as the total then paid under the original agreement unless this very N¢610 is added to the other instalments already paid under it. Furthermore, assuming that the agreed monthly instalment under the new agreement was N¢550 and payment was to be spread over fourteen months the aggregate amount at the end of the period would neither be the N¢7,800 pleaded nor the N¢8,410 sworn to by Sasu.

It would appear that though the learned trial judge found that there was a new agreement, he did not accept the sworn evidence of the respondents’ witness that the new instalment was N¢550. For he said in his judgment that, “as from 1 January 1968, the monthly instalments seem to have been N¢500 instead of the N¢700 stipulated on the first agreement.” This view he could take only if he accepted the figures on the receipts from that date in preference to what Sasu swore to. But then he continued. “The defendant has testified that under the new agreement the monthly instalments payable was N¢500.00.” This was obviously an error because Sasu, the only witness for the defendant, did not so testify. If on the other hand, the figure N¢500 is substituted for Sasu’s monthly instalment figure it still fails to aggregate after fourteen months to the N¢7,800 pleaded or the N¢8,410 he swore to.

It will be recalled that one of the three reasons given in support of the judgment for the respondents was that in a letter dated 10 April 1969 which they wrote to the appellant they stated that the seizure of the vehicle was under the new agreement and that the amount outstanding under the agreement then was N¢5,944. It seems to have been taken against the appellant that he did not reply to this letter. I do not think that this reason by itself or taken together with the others adds much to the case made against the appellant. The learned judge himself admitted that the appellant instead of replying “immediately commenced action.” And it is a fact that this action was commenced on 23 April 1969. If a reply controverting the terms of the letter was called for then what more effective reply was needed than an action in court based on the position that the contents of the letter were false?

[p.184] of [1973] 1 GLR 176

I have set out the reasons of the learned trial judge and examined them in some detail because after great hesitation I have come to the conclusion that his finding and the reasons for it are not supported by the facts proved. One more point should be made. According to the hire-purchase agreement the price of the vehicle was N¢12,400. By June 1967 when as the appellant says, the respondents seized the vehicle, a fact which is admitted in Sasu’s evidence, N¢6,100 had been paid. It was just N¢100 short of the 50 per cent which the legislation required in order to give protection. Technically the respondents were in their rights to seize the vehicle, though only just. A month after the seizure the respondents accepted payment of N¢610. This is what is evidenced by the receipt dated 19 July 1967 which I have discussed already. As indicated I am unable from the date and the terms of the receipt and from the respondents` own pleadings to accept that the N¢610 is referable to any other agreement than the original agreement made on 4 August 1966. On the receipt of that sum the total payments made under that agreement became N¢6,710, more than half the hire-purchase price. Whatever rights the respondents had to determine the agreement without the intervention of the court, they waived by this acceptance. I am sure the respondents realised this, hence their attempt, which appears to me totally unsupported by the facts, to connect this payment of N¢610 with an alleged second agreement. On a fair reading of the evidence it is difficult to avoid the conclusion that the respondents are unscrupulous as well as dishonest. They should not be allowed to profit by such credentials.

For these reasons I would allow this appeal.

JUDGMENT OF APALOO J.A

I have reached the same conclusion. The appellant took his stand on the remedy accorded him by section 69 of the Sale of Goods Act, 1967 (Act 137). He says having paid at least one-half of the hire-purchase price, the respondents were not entitled to seize the vehicle without recourse to the courts. He therefore sought the court’s aid in recovering the sum of N¢8,843.00 which he says he paid to the respondents in part satisfaction of the hire-purchase price. The respondents answered that such a claim did not lie because the original agreement was terminated by seizure and that a new hire-purchase agreement was entered into in respect of the same vehicle. They say, the appellant breached that agreement and inasmuch as he paid less than one-half of the total hire-purchase price under this new agreement, the respondents were entitled to and did repossess the vehicle. The appellant says this averment is false. Clearly, the respondents assumed the onus of establishing this fresh hire-purchase contract.

The learned judge considered that this new agreement was established and gave a variety of reasons for so thinking. I take the entirely opposite view and I am content to adopt the reasons given for the contrary view expressed in the judgment of my brother Amissah who has made a masterly analysis of the evidence. With respect, I think

[p.185] of [1973] 1 GLR 176 the learned judge was a trifle uncritical in accepting the evidence of this new agreement. The oral evidence led by the sole witness in proof of the new contract, was at such variance with the pleadings and exhibits, that that testimony should at least have been regarded as suspect.

It is difficult to escape the conclusion that the object of the so-called fresh agreement was to defeat the protection which section 69 of the Sale of Goods Act, 1962 (Act 137), conferred on the weaker of two contracting parties. In such a situation, a court should, I think, be slow in finding that a party has succeeded in setting at nought clear legislative intent and should decline to so find unless the evidence is compulsive of that conclusion. Section 81 of the Sale of Goods Act, 1962 (Act 137), says:

“A hire-purchase price’ means the total sum payable by the buyer under a hire-purchase contract in respect of the goods being sold excluding any sums payable as a penalty or as damages or compensation, but including any deposit or initial payment, and any charges for installation of the goods, paid or payable by the buyer.”

In view of this somewhat restrictive meaning it would take a lot to persuade me that our law would sanction two sales of the same vehicle by the same vendor to the same purchaser by two successive hire-purchase agreements having two different hire-purchase prices.

Whatever may be the true position in this country, the statagem by which the statutory injunction against seizure without recourse to the courts may be evaded by successive hire-purchase agreements, of the same article, was foreseen and legislated against in the English Hire-Purchase Act, 1938 (1 & 2 Geo. 6, c. 53). By section 11 (1) of the 1938 Act, where a third of the hire-purchase price has been paid, the right to repossess the goods other than by legal proceedings was forbidden. To obviate what the respondents assert happened in this case, section 15 of that Act provides that:

“Where goods have been let under a hire-purchase agreement and at any time after one-third of the hire-purchase price has been paid or tendered the owner makes a further hire-purchase agreement with the hirer comprising those goods, the provisions of section eleven and twelve of this Act shall have effect in relation to that further agreement as from the commencement thereof.”

The intention of this provision appears to be that once a third has been paid under the first agreement, a third shall be deemed to have been paid under the successive agreements and accordingly, the section which prohibits seizure without recourse to the courts becomes applicable.

I am given to understand that our Law Reform Commission has proposed a similar provision in projected legislation on hire-purchase.

[p.186] of [1973] 1 GLR 176

If such a provision had existed in our law, it would have inhibited the respondents from asserting a second hire-purchase agreement in respect of the same vehicle as a defence or at least they could not have put up that defence with the boldness which they did.

Having shared my brother Amissah’s conclusion that no new hire-purchase agreement was entered into between the appellant and the respondents, I must conclude that all the payments made by the former were in respect of the only hire-purchase agreement exhibited in this action. The total of that payment comes to ¢8,843. As it exceeds one-half of the hire-purchase price, the respondents acted in contravention of section 69 (1) of the Sale of Goods Act, 1962 (Act 137), in seizing the vehicle.

Accordingly, by reason of the provisions of section 69 (2) of that Act the hire-purchase contract is determined and the appellant is entitled to recover from the respondents the total sum which he paid under or in respect of that agreement. That sum works out at ¢8,843.00. For that sum, the appellant should have judgment with costs here and below.

JUDGMENT OF SOWAH J.A.

I also agree and have nothing to add.

DECISION Appeal allowed.

S.O.