HALABY vs. WIREDU [1973]DLHC2381

Date	1973-07-06
Suit No.
Citation No.	[1973]DLHC2381

KORANTENG-ADDOW J.

SOTOMEY FOR THE PLAINTIFF.

T. A. TOTOE FOR THE DEFENDANT.

[1973]DLHC2381
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													<main id="main" class="content" style="min-height: 60rem" >HALABY <o:p></o:p>vs. <o:p></o:p>WIREDU <o:p></o:p>[HIGH COURT,
KUMASI]<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]
2 GLR 249<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:
6 JULY 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">

SOTOMEY FOR THE PLAINTIFF.<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">

KORANTENG-ADDOW J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF KORANTENG-ADDOW J.<o:p></o:p>The
plaintiff was an alien who was trading in Ghana, dealing in motor spare-parts.
He had to leave the country as a result of the government legislation requiring
all aliens trading in some fields to leave the country to enable Ghanaians to
take up those activities. Before leaving he sold his business to the defendant.
He entered into two separate transactions in that regard. The first agreement
is dated 14 November 1970 with a supplementary one dated 20 March 1971. And the
second transaction was made under an agreement dated 1 December 1970. There was
also a supplement to this.<o:p></o:p>Under the
first agreement the plaintiff, described as the vendor, sold to the defendant
“the business of a dealer in spare-parts heretofore carried on by the vendor in
the premises comprising a four door store with one wholesale situate at plot
No. 1 Block A Suame.”<o:p></o:p><o:p>&nbsp;</o:p>The
stock-in-trade of the business is, as I have stated above, motor spare-parts.
The value of the goods in the store and wholesale at the time of the sale was
¢37,602.00 and was to be paid by monthly instalments of ¢5,000.00. By the
supplementary agreement the purchase price was reduced by ¢417.84 and the
monthly instalments were reduced from ¢5.000.00 to ¢3,000.00. At the time of
the supplementary agreement the balance outstanding was ¢25,184.00. This amount
was to be paid in seven instalments. At the time the action was brought the
balance stood at, ¢19,184.16.<o:p></o:p>Under the
second transaction the plaintiff sold his business that was carried on in a two
door store and a small wholesale situate at plot No.600 Old Town, section B,
Dominase Road, Kumasi. The purchase price in the case was ¢29,924.32 and had to
be defrayed by monthly instalments of ¢5,000.00. By another supplementary
agreement the quantum of the instalments was also reduced to ¢3,000.00. At the
time of the supplementary agreement the amount outstanding was ¢18,924.32. That
amount also had to be paid in seven instalments. And the balance still unpaid
when this action was instituted was ¢15,924.32. The total indebtedness of the
defendant to the plaintiff is now ¢35,108.48 and it is for this amount that the
plaintiff brought this action.<o:p></o:p><o:p>&nbsp;</o:p>As the
claim is for a liquidated debt, after the defendant had appeared to the writ,
the plaintiff took out a summons under Order 14, r. 1 of the Supreme [High]
Court (Civil Procedure) Rules, 1954 (L.N. 140A). As a consequence of that move
the defendant filed an affidavit asking to be allowed to defend the action
because, according to him, the transactions are in law to be regarded as
hire-purchase agreements within the meaning of the term under the Sale of Goods
Act, 1962 (Act 137). The foundation of that contention is that the payment of
the purchase price is to be made in more than five instalments.<o:p></o:p><o:p>&nbsp;</o:p>As
hire-purchase agreements, submitted learned counsel for the defendant, the
transactions infringed the mandatory provisions of section 66 (1)-(3) of the
Sale of Goods Act, 1962. They are, therefore, unenforceable at law. Learned
counsel submitted, therefore, that the defendant had a good defence to the
action and should be allowed to defend it. Mr. Totoe argued that the vital
distinction between credit sales and hire-purchase agreements is obliterated by
the Sale of Goods Act, 1962, and that all agreements for sale of goods should
be regarded as hire-purchase agreements whenever the payment of the purchase
price of the goods is to be made in five or more instalments. By a forceful
argument and with ingenuity he submitted that the definition of hire-purchase
in section 81 of the Act left no two minds on the matter. He contended that
whatever the view or intention of the parties was, once the instalments were
five or more the transaction was caught by the Sale of Goods Act, 1962. To
buttress his submission on this point, Mr. Totoe cited the case of Domestic
Electric Rent</main>