ALHASSAN vs. SOCIAL SECURITY BANK LTD. [1985]DLHC522

Date	1985-07-18
Suit No.
Citation No.	[1985]DLHC522

BENIN J.

M. MUMUNI FOR THE PLAINTIFF.

T. CODJOE FOR THE DEFENDANTS.

[1985]DLHC522
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													<main id="main" class="content" style="min-height: 60rem" >ALHASSAN <o:p></o:p>vs. <o:p></o:p>SOCIAL SECURITY BANK LTD. <o:p></o:p>[HIGH COURT, TAMALE]<o:p></o:p>[1989-90]1 GLR 549<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:
18 JULY 1988<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">

M. MUMUNI 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">

BENIN J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF BENIN J.<o:p></o:p>By
exhibit 1, being an assignment dated 25 April 1979, the defendants in the
present interpleader suit granted a loan facility of ¢315,000 to a customer of
theirs called Issahaku Fuseini to enable him pay for two vehicles, namely a
combine harvester (the subject matter of the present proceedings) and a Nissan
pick-up. The money was paid direct to Fuseini’s vendors. The further terms of
the assignment were that in consideration of the said sum paid to Fuseini’s
vendors, he Fuseini was assigning to the defendants the said vehicles “by way
of security for the repayment” of the loan. The customer was allowed to take
possession of the vehicles, to maintain and generally to operate them, and
apparently without rendering any account or as it is popularly called “sales”
to the defendants. Fuseini’s only obligation was to repay the loan facility
granted, on payment of which the vehicles would “cease to be the property of
the bank and the bank shall renounce any claim to the same.” It also states in
relevant part as follows:<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">“That if
the bank seizes or takes possession of the vehicles in pursuance of this
agreement the bank may sell the vehicles and retain the proceeds of the sale or
so much thereof as may be equal to the amount then outstanding together with
the expenses of the seizure or taking possession and sale.”<o:p></o:p><o:p>&nbsp;</o:p>The
agreement also enjoined the customer to pay all the licence and registration
fees and deposit all such documents with the bank.<o:p></o:p>Simply
put, this agreement permitted the bank to do one of two things in the event of
a default by the customer; either to recover possession or seize the vehicles
and sell them or to take steps to recover the debt. For the purposes of this
suit I have declined any temptation to go into a detailed interpretation of
this agreement, suffice it to caution that the bank will have to be a little
more circumspect in drawing up such agreements.<o:p></o:p><o:p>&nbsp;</o:p>As I said
earlier the bank had two options open to them on the contract in case of
default in payment by the customer. They opted for the second remedy, i.e. to
recover the unpaid loan and consequently sued Fuseini in this very court in
civil suit No. 5/84 and recovered judgment for the entire amount owed together
with interest and costs on 30 July 1984. In an effort to go into execution the
defendants attached on sale the combine harvester they paid for on behalf of Fuseini.
This has given rise to the present proceedings in that the plaintiff has
interpleaded on the main ground that he purchased it from Fuseini for value
without any notice of a defect in his title or of any adverse title thereto.<o:p></o:p><o:p>&nbsp;</o:p>It thus
behoves us first of all to attempt to find out what the effect of the judgment
recovered against Fuseini had on the agreement between them. It seems to me
that by the agreement the bank could not take both benefits, i.e. they could
not exercise both options to seize and sell the vehicle and at the same time recover
the full amount owed. I am aware that by section 37 (2) of the Sale of Goods
Act, 1962 (Act 137), it is provided that an unpaid seller of goods does not
lose his lien by reason only that he has obtained judgment for the price. But
in this case the agreement clearly stipulates that the bank is not the seller
of the vehicles. They only provided a loan facility to enable Fuseini pay his
vendors. This subsection will therefore not apply to the defendants.<o:p></o:p><o:p>&nbsp;</o:p>When an
action has been successfully brought by the plaintiff against the defendant in
a court of record on the identical demand, and judgment has been recovered
thereon, the cause of action is changed or merged into the matter of record and
the inferior remedy is merged in the record: see Aman v. Southern Rly Co.
[1926] 1 K.B. 59, C.A. This is based on the principle that “damages resulting
from one and the same cause of action must be assessed and recovered once for
all”: see Brunsden v. Humphrey (1884) 14 Q.B.D. 141 at 147, C.A. As Chitty on
C</main>