YAYO vs. NYINASE [1975]DLCA185

Date	1975-07-31
Suit No.
Citation No.	[1975]DLCA185

ANIN J.A.

HAYFRON-BENJAMIN J.A

FRANCOIS J.A.

E. D. KOM FOR THE APPELLANT.

NO APPEARANCE FOR OR BY THE RESPONDENT.

[1975]DLCA185
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													<main id="main" class="content" style="min-height: 60rem" >YAYO <o:p></o:p>vs. <o:p></o:p>NYINASE<o:p></o:p>&nbsp;[COURT
OF APPEAL, ACCRA]<o:p></o:p>[1975] 1 GLR 422<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:
31 JULY 1974.<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">

E. D. KOM 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">

ANIN, HAYFRON-BENJAMIN AND FRANCOIS
JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF HAYFRON-BENJAMIN J.A.<o:p></o:p>This is an
appeal from the judgment of the Circuit Judge, Ho, dated 27 August 1971 in
favour of the plaintiff on her amended claim under section 69 of the Sale of
Goods Act, 1962 (Act 137), for ¢1,450.00 being money had and received under a
hire-purchase agreement in respect of a commercial vehicle.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff is an illiterate trader who tried her hand at transportation as side
line. She agreed to buy the vehicle the subject-matter of the agreement for
¢2,000.00 from the defendant, a pastor and a farmer, whom she had met through a
prophetess. She paid by way of deposit on the purchase price the sum of
¢400.00, and shortly afterwards made a further payment of another ¢400.00. It
was agreed by the parties that the plaintiff should pay the outstanding balance
of ¢1,200.00 by six equal monthly instalment of ¢200.00 each. The agreement was
oral, and receipts were given only for the payment of the initial deposit. The
parties did not have the advice of a lawyer or anyone acquainted with the
hire-purchase business.<o:p></o:p><o:p>&nbsp;</o:p>The
vehicle itself was not new and the plaintiff relied on the advice of her own
brother a fitter, and her husband a driver, as to its roadworthiness. The tests
carried out on the vehicle are described by the defendant. He said:<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">“The
plaintiff asked her brother who is a fitter and her husband to try the vehicle.
The husband drove it to Sovie and the fitter drove it back to Kpandu. The
plaintiff was also on the lorry at the time. When we came back both of them
recommended the lorry to be good. The plaintiff then asked me which of the two
drivers was better and I told her that if the husband was going to drive the
vehicle then I would not sell it to her as he drove the vehicle roughly. The
husband said he intentionally drove the vehicle that way as if one wanted to
test a second-hand lorry it should be driven roughly. I recommended the fitter.
. .”<o:p></o:p><o:p>&nbsp;</o:p>All the
tyres on the vehicle were threadbare and had to be replaced immediately. The
plaintiff started plying the vehicle for hire, and her gross income averaged
¢200.00 per month out of which she met her operating expenses and paid the
¢200.00 per month instalments. After the expiration of barely half the period
limited for the payment of the outstanding balance the vehicle started
developing serious defects. According to the plaintiff:<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">“After
the vehicle had come to me for about three months the whole engine got spoilt
and I repaired it. This engine which got spoilt was the one which the defendant
inserted on the vehicle before I bought it. I effected other repairs on the
vehicle but as I am only a woman I do not know the names of the parts. I
received a bill on the parts and I paid for them.”<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff, predictably, found difficulty in meeting her payment obligations
under the agreement. She used earnings from her trading activities in paying
for the repairs, and even at times, resorted to a loan to meet the instalments.
She succeeded in paying a further sum of ¢650.00 making a total of ¢1,450.00,
leaving an outstanding balance of ¢550.00. Her difficulties in trying to keep
the vehicle roadworthy were compounded by the lack of adequate garage
facilities at Kpandu; the vehicle had to be brought to Accra for major repairs.
According to the plaintiff:<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">