DE HORNE AGAH vs. FARKYE BROTHERS [1967]DLCA1493

Date	1967-07-04
Suit No.
Citation No.	[1967]DLCA1493

OLLENNU JA

AZU CRABBE JA

APALOO J.A.

JOE REINDORF (KUDJAWU WITH HIM) FOR THE APPELLANT.

OSEI FOR THE RESPONDENT.

[1967]DLCA1493
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													<main id="main" class="content" style="min-height: 60rem" >DE HORNE AGAH <o:p></o:p>vs. <o:p></o:p>FARKYE BROTHERS <o:p></o:p>[COURT OF APPEAL]<o:p></o:p>[1967] GLR 473<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:
4 JULY 1967.<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">

JOE REINDORF (KUDJAWU WITH HIM) 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">

OLLENNU, AZU CRABBE AND APALOO JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF APALOO J.A.<o:p></o:p>This appeal
is from the judgment of the High Court, Accra (Prempeh J., as he then was),
dated 28 February 1964. By that judgment, the learned trial judge dismissed a
claim by the appellant (hereinafter called the plaintiff) to recover damages
against the respondents (hereinafter referred to as the defendants) for
wrongful seizure of a vehicle hired to the plaintiff by the defendants on
hire-purchase terms.<o:p></o:p><o:p>&nbsp;</o:p>Both
parties were described as transport owners but the defendants’ name implies
that they are a firm carrying on a transport business. Some time in February
1961 the plaintiff was minded of purchasing from the defendants, a land-rover
on hire-purchase terms. He made his intention known to the defendants. The
latter were willing to hire to the plaintiff the said vehicle, with the usual
option to purchase. Accordingly, on 13 February 1961 the parties executed a
formal hire-purchase agreement. This contains the usual hire-purchase clauses.
At that date, the Hire-Purchase Act, 1958 (No. 55 of 1958), was in force and
the defendants’ right of repossessing the vehicle without resort to action was
restricted by section 12 (1) of that Act. That is, where 75 per cent of the
hire-purchase price has been paid, the owner shall not enforce any right to
recover possession of the goods from the hirer otherwise than by action.<o:p></o:p><o:p>&nbsp;</o:p>Although
the plaintiff himself lived at Accra, he entrusted the vehicle to one Mr.
Gilbert Kpeglo of Kete Krachi. It was the latter who in fact worked with the
vehicle and made payment of instalments as they fell due. The evidence shows
that on occasions, Mr. Kpeglo made default with the payments and on more than
one occasion, the defendants sent a Mr. Andrews to Kete Krachi to re-possess
the vehicle. Mr. Kpeglo then made the payments for which the seizure was sought
and the agreement continued to run in accordance with its tenor.<o:p></o:p><o:p>&nbsp;</o:p>On 17
April 1963 the vehicle was finally seized. It is unclear whether it was seized
at Kete Krachi or Kumasi where it was said to be laid up. This fact is not
however of importance in this appeal. But it is this last seizure that gave
rise to this litigation. The plaintiff claimed that at the date of the seizure,
he had paid more than 75 per cent of the hire-purchase price and that the
defendants were, by reason of that fact, precluded by the provisions for the
Hire-Purchase Act, 1958, from repossessing the vehicle without recourse to
court action. The plaintiff therefore sought the relief to which section 12 (2)
of the Act entitled him, namely, recovery of all the sums which he paid to the
defendants under the hire-purchase agreement. The plaintiff also put in, no
doubt for good measure, claims for general and special damages for wrongful
seizure.<o:p></o:p><o:p>&nbsp;</o:p>The
defendants admitted the seizure, but claimed that it was lawful inasmuch as the
plaintiff paid, in the aggregate, less than 75 per cent of the hire-purchase
price. The plaintiff disputes this and put in issue the justification relied on
by the defendants. The latter also claimed that in any event, the plaintiff
committed a breach of clause 3 (g) of the hire-purchase agreement as the
plaintiff in about June 1963 took out a policy of insurance on the vehicle in
his own name and represented thereby that he was the owner of the vehicle. The
defendants did not however claim that this entitled them to terminate the
hiring and recover possession of the vehicle. Thus the only real issue settled
in the summons for directions and ordered to be tried was “Whether the
plaintiff has paid to the defendants £G1,288 16s. 8d. being 75 per cent of the
cost of the vehicle under the hire-purchase agreement prior to the seizure for
the vehicle by the defendants.” The learned trial judge determined this issue
adversely to the plaintiff as follows: “I hold therefore that at the time of
the seizure, the plaintiff had not paid 75 per cent of the cost of the vehicle
and that his claim based on this ground must fail.”<o:p></o:p><o:p>&nbsp;</o:p>Although
not expr</main>