CFAO GHANA LIMITED (PLAINTIFF) vs. CIG MICROFINANCE (GH.) LTD. (DEFENDANT) [2016]DLHC7361

Date	2016-02-05
Suit No.	SUIT NO: CM/0014/2016
Citation No.	[2016]DLHC7361

HIS LORDSHIP SAMUEL K. A. ASIEDU J.

MR. K. ADU KUSI FOR THE PLAINTIFF/APPLICANT

[2016]DLHC7361
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													<main id="main" class="content" style="min-height: 60rem" >CFAO GHANA LIMITED<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>CIG MICROFINANCE (GH.)
LTD.<o:p></o:p>(DEFENDANT)<o:p></o:p>[HIGH COURT (COMMERCIAL DIVISION), ACCRA]<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:&nbsp; CM/0014/2016&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:
5TH FEBRUARY, 2016<o:p></o:p>

MR.
K. ADU KUSI FOR THE PLAINTIFF/APPLICANT <o:p></o:p>

</div>CORAM:<o:p></o:p>HIS LORDSHIP SAMUEL K. A.
ASIEDU, J.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">RULING<o:p></o:p>

</div>On the 11th day of January 2016, the
Plaintiff issued a writ against the defendant for the recovery of the sum of
GH¢253,128.00 together with interest being the unpaid balance of the cost of
seven (7) vehicles which the Plaintiff sold to the Defendant. The instant application
seeks an order from the court to preserve the seven (7) vehicles sold to the
defendant. The motion comes with a supporting affidavit and it is also opposed
by the defendant whose reasons for so doing are set out in an affidavit in
opposition.<o:p></o:p>The Plaintiff says that the total cost of the seven
buses was GH¢636,800.00 and that the defendant paid, in accordance with the
agreement reached by the parties, fifty percent (50%) of the total purchase
price. The remaining balance was to be spread over 120 days and paid in
instalments. For that reason, the defendant gave some post-dated cheques to the
plaintiff to cover the remainder of the purchase price but when the cheques
were presented on the due dates, they were unfortunately dishonoured and all efforts
to get the defendant to pay the debt have proved futile.<o:p></o:p>Meanwhile the defendant continues to use the
vehicles and according to the Plaintiff the defendant is dissipating the vehicles
and using them in a manner that will reduce, significantly, the value of the
said vehicles or cause damage or injury to same. The Plaintiff therefore prays
for an order for the preservation of the vehicles.<o:p></o:p>Not unexpected, the defendant is opposed to the
application and says that she has paid &nbsp;more than fifty percent of the cost of the
vehicles and that the payment so far made by the defendant is about sixty-four
percent(64%)&nbsp; of the cost price. The
defendant says that having paid about sixty-four percent (64%) of the cost of
the vehicles, the vehicles have become protected goods within the meaning of
the Hire Purchase Act 1974(NRCD 292) and for that reason&nbsp; the defendant should not be deprived of the
use of the vehicles or at all.<o:p></o:p>Section 24 of the Hire Purchase Act 1974 (NRCD 292)
defines conditional sale agreement. It states that<o:p></o:p>“conditional
sale agreement” means an agreement for the sale of goods under which the
purchase price or part of it is payable by instalments, the property in the
goods is to remain in the seller although that the buyer is to be in possession
of the goods and under which certain conditions specified in the agreement are
to be fulfilled by the buyer”<o:p></o:p>In the instant matter the parties are ad idem that
the agreement for the sale of the vehicles to the defendant by the Plaintiff
stipulated that part of the purchase price was to be paid by instalment whiles
the property in the vehicles remain with the Plaintiff till the defendant pays
the full cost of the vehicles before property/title would be passed to the
defendant. The court holds therefore that the agreement for the sale of the
vehicles to the defendant was a conditional sale agreement and is therefore
covered by the Hire Purchase Act of 1974 (NRCD 292).<o:p></o:p>Indeed, the fact that the defendant has paid about
sixty four percent of the cost of the vehicles make the vehicles protected
goods under the law. For, Section 8 (4) states that:<o:p></o:p>(4)&nbsp;&nbsp;For the purposes of this section,
“protected goods” are goods<o:p></o:p>(a) Which have been let under a hire-purchase
agreement or sold under a conditional sale agreement,<o:p></o:p>(b) One-half of the price or total purchase price
of which has been paid, whether in pursuance of a judgment or otherwise, or
tendered by or on behalf of the hirer or buyer or a guarantor, and<o:p></o:p>(c) In relation to which the hirer or buyer has not
terminated the hire-purchase agreement or conditional sale agreement, or, in
the case of a hire-purchase agreement, the bailment, by virtue of a right
vested in the hirer.<o:p></o:p>Under Section 8(1) an owner or seller like the
Plaintiff in the instant case shall not enforce a right to recover possession
of protected goods from the buyer otherwise than by an action. An action is
defined to include judicial proceedings instituted in a court. <o:p></o:p>