BARBER vs. UNION TRADING CO., LTD [1963]DLHC2003

Date	1963-04-09
Suit No.
Citation No.	[1963]DLHC2003

APALOO J

T. A. TOTOE FOR THE PLAINTIFF

AYIM OWUSU FOR THE DEFENDANT-COMPANY.

[1963]DLHC2003
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BARBER

[HIGH COURT, KUMASI]

[1963] 1 GLR 352

DATE: 9TH APRIL, 1963.

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COUNSEL:&nbsp;&nbsp;

T.
A. TOTOE FOR THE PLAINTIFF.

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APALOO J.

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&nbsp;

In this action, the plaintiff claims against the defendant-company
(which I shall hereafter call the company) damages for breach of contracts and
inducing breaches of various contracts entered into between the plaintiff and
various lorry drivers. The company denies that it is liable in any way to the
plaintiff and for its part, counter-claims against the plaintiff for the sum of
£G4,648 13s. 9d. being hire-purchase instalments due and unpaid to the company
by the plaintiff.

The plaintiff who is virtually illiterate and does not strike me
as particularly business-like began his association with the company in or
about 1942. He was then a trade canvasser for the company and was paid
commission for motor vehicles sold through his agency. Whatever his
shortcomings, he maintained his association with the defendant-company from
that time until about 1958. The evidence shows that the company thought then
that he could be relied on to do business of a more responsible type.
Accordingly, the plaintiff discontinued trade canvassing for the company and instead
became its hire-purchase customer on a large scale. The system of business
which developed between the plaintiff and the company was this: When a
prospective hire-purchaser of vehicle from the company did not feel that for
any reason he could enter into direct contract with the company, he saw the
plaintiff. The latter then obtains the vehicle on hire-purchase and enters into
agreement in his own name with the company. He then sub-hires the vehicle to
the purchaser adding to the purchase price a small amount as profit. The
plaintiff himself obtains a rebate which was either credited against the
hire-purchase price or the gross price of the vehicle before the drawing of the
relevant hire-purchase contract. Twenty-three of these agreements were tendered
in evidence and were marked as exhibits 2-24. These contain the usual
hire-purchase clauses and in my opinion, the controversy between the parties in
this case is resolvable on the proper construction of these documents. When the
plaintiff sub-hires this vehicle, he, like the company, enters into written
agreement with his sub-hirers. The plaintiff tendered nine of such agreements
as exhibits El to E9. These are not particularly well drafted documents but
their true meaning does not fall for consideration in this case.

By June 1959, the plaintiff fell into arrears on many of the
vehicles and it seems the company was far from satisfied with his payment
position. On the 12th June, 1959, the company wrote to the plaintiff pointing
out that if the instalments then due on 28 vehicles were not paid by the 20th
of that month, it would feel compelled to seize the said vehicles. From the
evidence I heard in this case, I form the view that the plaintiff was quite
clearly unequal to the work which he undertook to do. As I said, he was
virtually illiterate. He said he went to school up to standard four in 1941.
The payments of the various instalments fell due on divers days. He says he has
no record of these and only made payment when his own sub-hirers made payments.
He did not employ a clerk and had no office or a post office box. A telephone
to him would be a luxury. In the circumstances, it does not surprise me that he
found himself wholly unable to pay the hire-purchase rentals on due dates.

By October 1959, the instalments overdue against the plaintiff in
the company’s books came up to the staggering figure of £G4,482 11s. 10d. This
was in respect of 24 vehicles. As the payment position had not improved at the
end of October 1959, Mr. Waelty said the company decided to repossess the
vehicles. This decision was implemented and between the 2nd October, 1959, and
the 30th November, 1959, all the twenty vehicles listed in the plaintiff’s
schedule to the writ were repossessed. A list was made by the company showing
the dates of seizure and the amounts then owing at the dates of seizure. This
list however for a reason which I do not think was explained, came into
possession of the plaintiff. He tendered it as exhibit F.

The plaintiff does not deny that the amounts shown against the
various vehicles were owed to the company and that they were rentals which were
overdue. He also admits, as indeed he cannot dispute, that the company was
entitled to exercise the right of seizure. He contends however that the
vehicles were not in fact seized and that the company merely squeezed him out
of business by entering into fresh hire-purchase agreements with his customers.
The plaintiff himself said he was not present when this took place and
obviously spoke from hearsay. Mr. Waelty said these vehicles were seized on his
instructions and the various drivers then called on the company to find out the
reason for the seizures. In order to cause them minimum amount of loss, the
company agreed to enter into fresh agreements with them. This offer was
accepted by all the drivers except in five cases, when the vehicle was either
sold outright or as scrap. In an attempt to prove his assertion that there was
no bona fide seizure of the vehicles, the plaintiff put into the witness-box
one of his customers by name Osei Assibey. He gave evidence to the effect that
on one occasion while he was at Kumasi, the company’s manager sent for him. He
said when he went, the manager queried him about his poor payment and he
explained that it wa</main>