ERIC BROKWA & ORS vs. WEST PALM INVESTMENT AND SEFA KWAKU [2013]DLHC3862

Date	2013-11-07
Suit No.	SUIT NO.INTS/17/13
Citation No.	[2013]DLHC3862

ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT

BILL OSEI AKOMEAH FOR THE PLAINTIFF.

KWAKU ANSAH FOR THE DEFENDANTS.

[2013]DLHC3862
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													<main id="main" class="content" style="min-height: 60rem" ><a name="OLE_LINK1">ERIC
BROKWA &amp; ORS<o:p></o:p></a>vs.<o:p></o:p>WEST PALM INVESTMENT AND SEFA KWAKU<o:p></o:p>&nbsp;[HIGH COURT (COMMERCIAL DIVISION), KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT NO.INTS/17/13&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;DATE: 7TH NOVEMBER, 2013<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>BILL
OSEI AKOMEAH FOR THE PLAINTIFF.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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ANGELINA MENSAH-HOMIAH (MRS.)
JUSTICE OF THE HIGH COURT<o:p></o:p>

JUDGMENT<o:p></o:p>

</div>The
name West Palm Investment has almost become synonymous with interpleader suits
at the Commercial Court. It is my hope that the company will pay off its
judgment debts and spare the court some precious time!<o:p></o:p>In
this interpleader suit, one Sefa Kwaku who claims to be a customer of West Palm
Investment has claimed ownership of a KIA Avella with registration number AW 613-11.
The story is that he paid the sum of GH¢1,700.00 representing a 10% deposit of
the value of the car. Again, the Plaintiff said he incurred expenses to the
tune of GH¢500.00 on repairs at the time the vehicle was given to him. Thus,
the actual price was reduced to GH¢16,500. Thereafter, West Palm allowed him to
use the vehicle for commercial purposes subject to a weekly payment of GH¢125.00
until full payment was made. <o:p></o:p>In
the course of his usual duties, the Defendants who also claim to be customers
of West Palm caused the vehicle in issue to be seized in execution of a
judgment they had obtained against West Palm. <o:p></o:p>On
the sole issue of ownership of the contentious vehicle, the Plaintiff testified
that by virtue of the agreement he entered with West Palm, he is the owner. He
was unable to tender a copy of the agreement as he claimed the document could
not be found.<o:p></o:p>The
C.E.O. of West Palm Investment (PW1) gave evidence to corroborate the
Plaintiff’s story that there is an existing agreement in respect of the vehicle
between his company and the Plaintiff. He testified that the Plaintiff has made
a total payment of GH¢10,000.00 in respect of this vehicle. He explained that
the agreement is in the nature of a hire purchase and a copy was kept at the
West Palm Investment office which has been locked up on the orders of a court.
Thus, he was unable to produce a copy in court. In cross-examination, PW1 said
even though the vehicle is duly registered in the name of West Palm, both the
customer and West Palm are the owners until the customer makes full payment.<o:p></o:p>The
Plaintiff in the course of his evidence tendered various receipts evidencing
payments made to West Palm Investment under the agreement (exhibit A
series).&nbsp; Exhibit A3 is a summary of the
receipts issued to the Plaintiff. As of 28/03/2013, the Plaintiff had made
sales to the tune of GH¢ 7,705.00.&nbsp; On
05/04/2013 and 15/05/2013 (exhibit A4 and A2), he paid GH¢130.00 and GH¢600.00
respectively. These payments put the Plaintiff’s total sales at GH¢8,435.00.I notice
from the arrangement between the Plaintiff and West Palm Investment that
receipts are issued for all payments made. Strangely, neither PW1 nor the
Plaintiff tendered receipts evidencing a total payment of GH¢ 10,000.00. It is
very doubtful whether the total payments amount to GH¢10,000.00. Weighing the
evidence on the balance of probabilities, I accept the total face value on the
receipts tendered by the Plaintiff as evidence of the total amount paid to West
Palm Investment in respect of the vehicle in issue. That is, an amount of GH¢8,
435.00.<o:p></o:p>I
notice from the evidence that West Palm Investment has a standard agreement
form which is executed by all its customers.&nbsp;
Its agreement with the Plaintiff was on the same terms as the agreements
tendered by the Defendants herein (exhibits 1A through 5A).The standard
agreements which have been tendered by the Defendants, suffer from serious
drafting defects. I believe the Plaintiff also signed a very similar agreement
as PW1 has told the court. The agreements do not portray the actual intention
of the contracting parties. It cannot be said to be a hire purchase agreement
looking at the wording. And, I do not think that the parties intended the
normal “employer/employee” relationship as captured in these standard agreements.<o:p></o:p>There
is no doubt at all from the evidence before me that legal ownership is vested
in West Palm Investment since the Plaintiff has not made full payment. In spite
of all these, the Plaintiff herein has made substantial payments arising out of
the existing agreement to West Palm Investment. Indeed, the Plaintiff has some
equity in this vehicle and it would be unfair to take it away from him and give
it to another customer of West Palm Investment.<o:p></o:p>That
being the case, I will apply the same reasoning in my earlier judgment in Eric
Abrokwa &amp; others v West Palm Investme</main>