SASU vs. NYADUALAH [1973]DLCA2202

Date	1973-11-20
Suit No.
Citation No.	[1973]DLCA2202

APALOO JA

AMISSAH JA

SOWAH J.A.

NII ODOI ANNAN (GOODHEAD WITH HIM) FOR THE APPELLANT. J. C. ARMAH FOR THE RESPONDENT.

[1973]DLCA2202
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													<main id="main" class="content" style="min-height: 60rem" >SASU <o:p></o:p>vs. <o:p></o:p>NYADUALAH <o:p></o:p>[COURT OF APPEAL]<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1973]
1 GLR 221<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
20 NOVEMBER 1972.<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">

NII ODOI ANNAN (GOODHEAD WITH HIM) FOR THE
APPELLANT. J. C. ARMAH 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 windowtext 1.5pt;
padding:0in 0in 0in 0in">

APALOO, AMISSAH AND SOWAH 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 decision of his honour Judge Sampson and relates to the
seizure of a Mercedes Benz bus by the appellant. There was considerable
divergence between the appellant and the respondent on the facts in the court
below. That conflict was resolved in favour of the respondent. The learned
judge’s resolution of the facts was not contested before us. The complaint
which the appellant makes and on the basis of which he invited us to reverse
the decision was one of the law. To determine to what extent it is well or ill
founded, it is necessary to relate the facts which the learned judge accepted.<o:p></o:p><o:p>&nbsp;</o:p>Some time
in December 1968, a Nigerian national by the name of Agbejule advertised for
sale in the newspapers, a Mercedes Benz bus No. SG 5163 which he owned. The
respondent who was then in the employ of the Fire Services, was minded of
purchasing this vehicle. He therefore approached Agbejule and offered to buy
the bus. This offer was accepted and the vehicle was sold to him for an
aggregate sum of N¢2,600. When the respondent made a part-payment of N¢,1,200,
the vehicle was released to him. There was some difference between the
respondent and his vendor as to the precise terms of the contract and at some
stage, Agbejule caused this vehicle to be seized by the police. The vehicle was
retrieved by the respondent upon payment of the unpaid balance of the purchase
price. The respondent sued Agbejule in this action as the second defendant and
sought to recover damages against him but the learned judge found for him.
Before us, neither side made any point of his success in the action and the
role he played in this case is of little relevance to the question debated in
this appeal.<o:p></o:p>When, as
I said the respondent took delivery of the bus, he discovered that it was not
roadworthy and needed certain repairs before it could be put on the road. For
this purpose, he delivered the bus to a fitter and contracted with him to put
right such defects as were found on it. He paid for this. After making these
expenses, the respondent ran out of funds. He still needed money to pay for
licensing, insurance, new tyres and the like. He therefore fell on the
appellant for this. The latter described himself as a “car dealer” and appears
to be some one with whom the respondent was acquainted. The appellant promised
to oblige. Before the repairs were done with, the respondent took ill and was
admitted at the hospital. While he was still there, the mechanic completed the
repairs and at the respondent’s request, the vehicle was delivered to one
Emmanuel Seth Acquah. The latter is the respondent’s brother. The respondent
then by correspondence requested the appellant to honour his promise and
provide funds for meeting the cost of road licensing and the like. The
appellant was as good as his word and provided some funds for this purpose. He
produced in evidence a document in which he itemised the expenses he made on
the bus. The total came to N¢976.20. The respondent acknowledged this and
signed the document. The appellant paid further sums to the respondent’s vendor
Agbejule on account of purchase price of the bus. There can be no doubt that
some account of money is owed by the respondent to the appellant. The latter
made no claim to this sum in this action and the learned judge while
acknowledging this did not feel called upon to determine how much this was or
to pronounce for the appellant for that sum. We have not been requested to do
so either.<o:p></o:p><o:p>&nbsp;</o:p>When the
actual repairs and the legal requirements were met, the appellant allowed
Acquah to drive the vehicle. But he did this only after the latter was made to
sign a hire-purchase agreement. This was on 11 January 1969. The respondent was
still in hospital. The agreement contains the usual hire-purchase clauses and
suggests that the property in the bus was vested in the appellant and he let it
to Acquah upon payment by him of a deposit of N¢900 and a monthly rental of
N¢300. The agreement reserved to the appellant the right to re-possess the
vehicle, a right which he in due course exercised to give rise to this
litigation. Acquah gave evidence and explained why he came to sign this
agreement. He said and I quote him:<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">“[T]he
defendant [meaning the appellant] asked me to sign a document because my
brother the plaintiff was sick in hospital and did not know what would happen
to him. I was asked to sign the document and the first defendant would discuss
with the plaintiff when he was released from the hospital.”<o:p></o:p>