DABU vs. ANOBAH [1965]DLHC1794

Date	1965-02-08
Suit No.
Citation No.	[1965]DLHC1794

APALOO J.S.C.

OPARE-ADDO FOR THE APPELLANT.

OLAGA FOR THE RESPONDENT.

[1965]DLHC1794
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													<main id="main" class="content" style="min-height: 60rem" >DABU <o:p></o:p>vs. <o:p></o:p>ANOBAH <o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1965] GLR 38<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
8 FEBRUARY 1965.<o:p></o:p>

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

OPARE-ADDO FOR THE APPELLANT.<o:p></o:p>

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

APALOO J.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF APALOO J.S.C.<o:p></o:p>This is
an appeal from the judgment of a circuit court (his honour judge Attoh, as he
then was) delivered on 29 November 1963. That judgment sustained a claim by the
respondent against the appellant for the sum of £G450 alleged to be due on a
document, which for lack of a better term, I would call a promissory note.<o:p></o:p><o:p>&nbsp;</o:p>The facts
which were canvassed before the trial court were set out in great detail in the
rather comprehensive judgment of the learned circuit judge. What is relevant
for the purpose of this appeal is less elaborate and is within a very narrow
compass. I will relate it briefly. Some time in 1959, the respondent was
desirous of purchasing a one-and-a-half ton Bedford lorry on hire-purchase
terms. He communicated his desires to the appellant and sought his help. It
appears the latter had in the past engaged himself in hire-purchase business
with a Lebanese merchant called Kalmoni Kamel of Accra. The appellant took the
respondent to Kalmoni and a hire – purchase agreement was entered into. By it,
Kalmoni let to the appellant, with an option to purchase a one-and-a-half ton
Bedford truck, AF 7445. The agreement was dated 15 April 1959, and contained
all the usual hire-purchase clauses. The initial deposit of £G150 was provided
by the respondent. To all intents and purposes the respondent was the hirer,
but the agreement ex facie was entered into with the appellant, who was therein
described as the hirer. This may well be due to the fact that the respondent
was a stranger to Kalmoni and the latter wished to do business with a person
with whom he was previously acquainted and on whom he could rely. The upshot of
this was this litigation.<o:p></o:p>The
respondent complained that the appellant did not pay to Kalmoni the actual sums
he paid for transmission to him from month to month. Accordingly, the
respondent said that by reason of the short payments the appellant made default
in paying the instalments and this enabled Kalmoni to seize and repossess the
lorry in accordance with clause 8 of the hire-purchase agreement. The
respondent also claimed that the appellant consented to or authorised the sale
of this lorry by Kalmoni to another person. The respondent thought the
appellant had defrauded him and complained to this effect to the police. The
latter made some investigations and must have concluded that this was a matter
in which the police could not usefully concern themselves. They allowed the
matter to be investigated by one Nsiah.<o:p></o:p><o:p>&nbsp;</o:p>It seems
that the appellant was at some time minded to litigate with Kalmoni about the
sale and instructed a lawyer to commence proceedings. For a reason which is not
disclosed in the evidence, that action was not proceeded with and the appellant
recovered the retainer fees which he paid to the lawyer. The respondent must
have felt some dissatisfaction at this and placed the matter in the hands of
his own solicitor. On 18 November 1961, both the appellant and the respondent
called at the offices of the respondent’s lawyer. The appellant was accompanied
by a man called Alex Adoo (since deceased) who was said to be his uncle. At the
office of the respondent’s solicitor, the appellant appended his signature to
the document which the respondent relies on in this action. On the undisputed
evidence, this document was attested to by the said Mr. Adoo.<o:p></o:p><o:p>&nbsp;</o:p>That
document, if I may respectfully say so, cannot win a prize in legal
draftsmanship. It is an I.O.U. and a promissory note and more besides. I do not
propose to read into it, but whatever its failings, its purport and meaning is
not open to doubt. In it, the appellant promised to pay to the respondent the
sum of £G450 for wrongfully causing his lorry to be sold. It was this sum which
the respondent claimed by his specially endorsed writ. It would seem that not
long after signing that document the appellant had second thoughts about the
matter. He accordingly saw Mr. Cole. Acting on the appellant’s instruction, Mr.
Cole wrote on 4 December 1961, to Mr. Olaga, the respondent’s solicitor and
inter alia expressed as his opinion, that the document (exhibit A) was of no
effect. The respondent’s solicitor, as is only to be expected, did not share
his view of the matter and so wrote to Mr. Cole. This was on 6 December 1961.
Just over a month afterwards, i.e. 16 January 1962, the writ was issued.
Naturally enough the appellant retained Mr. Cole.<o:p></o:p>On 12
February 1962, he filed a statement of defence in which he elaborated in
paragraph (2), his grounds for thinking that the document (exhibit A) was of no
eff</main>