BANK FOR HOUSING AND CONSTRUCTION vs. BOAHEN [1994]DLCA5287

Date	1994-06-02
Suit No.	[1994 - 95] 2 G B R 655 – 649 C A
Citation No.	[1994]DLCA5287

LAMPTEY JA

ESSIEM JA

BROBBEY JA

JOE REINDORF (WITH HIM MISS ANKRAH) FOR THE APPELLANT.

DR SETH TWUM FOR THE RESPONDENT.

[1994]DLCA5287
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													<main id="main" class="content" style="min-height: 60rem" >BANK FOR HOUSING AND
CONSTRUCTION<o:p></o:p>vs.<o:p></o:p>BOAHEN<o:p></o:p>[COURT
OF APPEAL]<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">

[1994 - 95] 2 G B R 655 – 649&nbsp; C A&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;DATE: 2
JUNE 1994<o:p></o:p>

DR
SETH TWUM 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 1.0pt 0in">

LAMPTEY
JA, ESSIEM JA, BROBBEY JA<o:p></o:p>

</div>LAMPTEY JA. <o:p></o:p>In
July 1988, Adu Boahen (hereinafter called the plaintiff) sued the Bank for
Housing and Construction (hereinafter called the “defendant”) and claimed the
following reliefs as per his amended writ of summons:<o:p></o:p>“(1) ¢25,000,000 damages for the
wrongful detention of the plaintiff’s vehicle No ARA 1359 whereof ¢21 million
represents special damages and the balance, general damages.<o:p></o:p>(2) An injunction to restrain the
defendant or its agents or servants from selling, disposing of or in any way
dealing with the said vehicle without the consent of the plaintiff.<o:p></o:p>(3) An order for the delivery by the
defendant to the plaintiff of the said vehicle.”<o:p></o:p>The
writ of summons was not accompanied by a statement of claim; one was filed some
six days later. The cause of action was founded on the seizure by the defendant
of the said vehicle sometime in July 1983. The defendant omitted to file its
statement of defence on time. In due course and with leave of the court the
defendant filed its statement of defence on 18 October 1988. The defendant
resisted the claim put forward by the plaintiff. Briefly put, the defendant
countered that it lawfully seized the said vehicle and was therefore not liable
to the plaintiff in damages. It therefore counterclaimed for ¢2,322,159.17
being the sum plaintiff owed on 9 October 1988 and two other reliefs which I
need not reproduce here.<o:p></o:p>The
case was fought on the merits. On 22 January 1991 the plaintiff obtained
judgment against the defendant “for the reliefs endorsed on his amended writ of
summons with ¢21 million as special damages and ¢3 million as general damages.”
The defendant was aggrieved by the judgment and appealed to this court.<o:p></o:p>Before
us, learned counsel for the defendant argued grounds (d), (e), (f) and (g)
together. These grounds of appeal dealt with the issue whether the said vehicle
was assigned to the defendant by the plaintiff. He submitted that on the
undisputed evidence before the trial court, the said vehicle was assigned to
the defendant by the plaintiff. He took this court through the evidence before
the court and showed that the new vehicle was substituted for the seven
vehicles listed in exhibit A. He submitted that exhibit A was varied by
agreement between the parties to that effect. He submitted that the defendant’s
right to seize the vehicles in case plaintiff defaulted as contained in exhibit
A was lawfully exercised. The trial judge erred in law when he held the seizure
was unlawful.<o:p></o:p>In
reply, learned counsel for plaintiff submitted that the seizure of the new
vehicle was unlawful. He contended that the new vehicle was never assigned by
the plaintiff to the defendant because it was not listed as one of the vehicles
in exhibit A. He argued that exhibits 1 and 2 did not amend and could not have
amended exhibit A so as to include the new vehicle. He contended that there
must be evidence of intention on the part of the parties to amend or vary the
terms of exhibit A. In the instant case, there was no evidence to that effect.
He submitted that as soon as all the vehicles listed in exhibit A were sold
with the knowledge and consent of the defendant, exhibit A became a spent
force, in other words it did not have any force or effect in law, and was not
enforceable. The defendant therefore did not have power to seize the new
vehicle. In the instant case, there was a binding contractual relationship
created by exhibit A between the plaintiff and the defendant. The view of the
plaintiff was that as soon as the seven vehicles were sold by him, the deed of
assignment, exhibit A, ceased to have any legal effect. In other words, exhibit
A became unenforceable, because it was no longer of any legal force and effect.<o:p></o:p>For
the defendant, it was argued that exhibit A was varied and or amended. It was
binding on the parties.<o:p></o:p>I
must first observe that as a broad statement of law, an agreement in writing
may be varied and or altered by an oral agreement or by agreement in writing.
Thus in Berry v Berry [1929] 2 KB 316 the court held that an agreement in
writing to vary the terms of a separation deed was enforceable. The court held
further that the subsequent agreement may be written or oral. I am not
unmindful of the law that an agreement in writing can only be varied by a
subsequent agreement in writing. On this same issue I refer to Phipson’s The
Law of Evidence 9th ed at page 599 as follows:<o:p></o:p>“When a transaction has been reduced
into or recorded in writing either by requirement of law, or agreement of parties,
extrinsic evidence is, in general, inadmissible to contradict vary, and to or
subtract from the terms of the document.”<o:p></o:p>This
broad statement is subject to exceptions. It means and can only mean that in
appropriate cases, extrinsic evidence is admissible to vary the terms of a
written document. See on this Motor Parts Trading Co v Nunoo [1962] 2 GLR 195
at 198 per Blay JSC. The question that arises in the instant case is whether
the case is one of variation of the terms of an agreement in writing or a
rescission? The test was laid down by Lord Dunedin in Morris v Baron &amp; Co
[1918] AC 1 at page 5 in the following language:<o:p></o:p>“There should have been made manifest
the intention in any event of a complete extinction of the first contract, and
not merely the desire of an alteration however sweeping, in terms which leave
it still subsisting.”<o:p></o:p>Simply
put, do the </main>