MOTOR PARTS TRADING CO. vs. NUNOO [1962]DLSC1598

Date	1962-12-21
Suit No.
Citation No.	[1962]DLSC1598

SARKODEE-ADOO JSC

MILLS-ODOI JSC

BLAY J.S.C.

A. W. DOVE (WITH HIM ARMAH) FOR THE APPELLANTS.

M. T. AFUTU-NARTEY FOR THE RESPONDENT.

[1962]DLSC1598
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">MOTOR PARTS TRADING CO.<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">&nbsp;vs. <o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">NUNOO <o:p></o:p>[SUPREME COURT]<o:p></o:p>[1962] 2 GLR 195<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:31.0pt 31.0pt 1.0pt 31.0pt;mso-border-shadow:yes">

DATE:<span style="font-size:10.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0"> 21ST DECEMBER, 1962.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

A.
W. DOVE (WITH HIM ARMAH) FOR THE APPELLANTS.<o:p></o:p>

M.
T. AFUTU-NARTEY FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 6.0pt 0in">

SARKODEE-ADOO, MILLS-ODOI AND
BLAY, JJ.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF
BLAY J.S.C.<o:p></o:p>Blay J.S.C. delivered the judgment of the court. The appellants in
this suit against the respondent herein claimed (a) the sum of £G57 as one
month’s arrears of instalment due and owing in respect of bus No. AF 7988; (b)
£G5,000 as damages for breach of contract and (c) an injunction to restrain the
respondent from going into execution in respect of a judgment obtained by the
defendant against the appellants. The appellants based their claim on an
agreement entered into between them and the respondent made on the 27th May,
1959, and admitted in evidence as exhibit F or L. The respondent, while not
denying that he signed the agreement, contended that the said written agreement
did not contain all the terms agreed upon between the parties, and that there
was a collateral oral agreement that the appellants would deliver to him as his
absolute property one Mercedes car No. AE 8080 as part of the consideration for
the agreement. He also contended that this so-called collateral oral agreement
was not inserted in exhibit F or L because the appellants wanted to evade
payment of income tax on the amount involved in the transaction. Paragraph 3 of
his statement of defence reads as follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“3. The defendant avers that the plaintiff decided not to pass the
transaction regarding the Mercedes car AE 8080 through the firm’s account books
so as to evade income tax. Hence this part of the agreement was made an oral
collateral transaction, which was fraudulently omitted from the written
agreement.” He further contended that because the appellants refused to hand
over the Mercedes car AE 8080 he in turn repudiated exhibit F or L on which the
appellants rely for their claim. Paragraphs 4, 5 and 6 of the statement of
defence read as follows: “4. The defendant says also that after the signing of
the alleged agreement, the said Renault bus AF 7988 was alone transferred to
him, and when he called three weeks later to collect the said Mercedes car AE
8080, the plaintiff refused to hand it over, asserting that it was not part of
the agreement. 5. On the ground of the plaintiff’s anticipatory breach of the
agreement the defendant also refused to sign the hire-purchase agreement in
respect of Renault bus AF 7988 and so repudiated the entire agreement. The
plaintiff has since demanded and re-taken possession of the said Renault bus AF
7988. 6. The defendant contends that owing to the plaintiff’s fraud there is no
effective agreement which could possibly have been breached by execution, which
also has now been satisfied in full.”<o:p></o:p>To appreciate the appellants’ case against the respondent and the
defence thereto it is necessary to examine in some detail the evidence adduced
at the trial. From the record it is clear that the following facts were proved
and/or admitted: On the 17th April, 1959, the respondent obtained judgment in
the sum of £G1,447 together with costs of 45 guineas as against the appellants.
On the 20th April, 1959, the appellants filed notice of appeal against the said
judgment, and applied to the court for a stay of execution pending the hearing
and determination of the appeal. This application was heard by Gwira,
Commissioner of Assize and Civil Pleas, as he then was, and was refused on the
4th May, 1959. The appellants thereupon applied to the Court of Appeal for stay
of execution and the application was granted. In the meantime further and other
proceedings had been instituted between the parties by and against each other
in the High Court, additional to the appeal proceedings pending in the Court of
Appeal. Whilst these proceedings were pending in the various courts, one Fatal,
who appears to be a friend of both parties, intervened and suggested a
settlement of all the disputes standing between the parties. Consequently the
respondent on the 26th May, 1959, wrote two letters one to Mr. Toutoungi who
appears to be the manager of the appellants and another to the appellants.
These letters were tendered in evidence at the hearing and marked exhibits H
and J respectively. Exhibit H reads as follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“Dear Mr. Toutoungi, <o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">Under the following conditions, I will agree to finish all cases
between us pending in the court for the following cars Nos. AE 8080, AE 6565
and AE 6000.<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">That you will give me one Renault bus for the sum of £G798 under
the hire-purchase system for fourteen months instalment. Plus an amount of £G98
compensation. I will be very grateful if you will confirm the above-mentioned
conditions and we start fresh business. Please if you agree, cause your
solicitor to make all necessary steps in dropping all cases before the court.
Yours faithfully, (Sgd.) E. A. Nunoo.”<o:p></o:p>