Agyeibea v.Fahim& Co [1968] GLR 468.

AGYEIBEA v. FAHIM & CO [1968] GLR 463

HIGH COURT, ACCRA

CAMPBELL J.

STATUTORY REF.
Page 464

Campbell J. The plaintiff in this case obtained a Morris Oxford car No. GE 2155 from the defendant Ahmed Fahim, proprietor of Fahim & Co., motor dealers in Accra, under a hire-purchase agreement signed on 28 August 1965 but operative from 30 August 1965. The hire-purchase agreement was tendered in evidence on behalf of the defendant and marked exhibit 1.

The car was duly delivered to the plaintiff without payment by her of the deposit of £G400 specified in the agreement. She made an instalment payment of £G60 on 30 September 1965 as also provided

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for therein, but, finding difficulty in making the deposit of £G400, the defendant was persuaded to accept a deposit of £G100 consequent on which another hire-purchase agreement was entered into relating to the same car purporting to be signed on behalf of the plaintiff by one William Kweku Andrews, her husband.

This was tendered by the plaintiff as exhibit A.

All parties are agreed that exhibit 1, exhibit A and a counterpart of exhibit A tendered as exhibit 2 by the defendant related to car No. GE 2155. The defendant also admitted that certain alterations in exhibit A are bona fide explicable only by reference to exhibit 1, namely, that they were consequential alterations resulting from the reduction of the deposit stated in exhibit 1 from £G400 to £G100. It is clear therefore that exhibit A in particular, cannot be fully understood to be consistent with the bona fides of the defendant without being incorporated with exhibit 1. This is not without legal significance as will be seen hereafter.

There is no dispute that on 30 September 1965, an instalment of £G60 was paid under exhibit 1, also that on 29 October 1965 the deposit of £G100 was paid pursuant to exhibit A and also that on 1 November 1965 a post-dated cheque dated 2 November 1965 for £G60 was accepted by the defendant in payment of the October instalment due and payable on 30 October 1965. Finally there is no dispute about the seizing of the car by the defendant on 3 December 1965 for non-payment of the instalment due and payable on 30 November 1965.

The issues substantially contested were:

(a) whether the plaintiff was given a copy of the hire-purchase agreements entered into in connection with the car when she executed them or only after the car was seized;

(b) whether alterations appearing in exhibit A were made prior to execution, or unknown to the plaintiff subsequent to execution;

(c) whether a cheque was tendered in payment of the November instalment on 2 December 1965, prior to the seizure of the car.

As regards the first issue, the plaintiff herself, on her evidence, was not the negotiator. She however said her husband, the plaintiff’s first witness, signed exhibit 1 in her name with her consent, exhibit A and exhibit 2 were signed on her behalf with her consent by her husband in his own name but her name appeared as the party with whom the defendant was contracting. The plaintiff says the car was delivered to her under exhibit 1 without payment of the £G400 deposit. She however paid £G60 on 30 September 1965 by way of 

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instalment before exhibit 2 was executed. She did not see any document relating to the car prior to its seizure, she asked the plaintiff’s first witness for the document but he was unable to produce it since he said he did not have it. She asked him to obtain it and later he brought it to her, this was after the aforesaid seizure. She was not cross-examined to suggest that what she was saying was untrue.

The plaintiff’s first witness, Andrews, said in evidence that when he asked the defendant for a copy of the hire-purchase agreement entered into subsequent to exhibit 1 he was not given any. As far as exhibit 1 was concerned, he said the agreement was prepared and executed pending the receipt of the deposit of £G400. He did not say he specifically asked for a copy of this but doubtless not having paid the £G400 deposit he would not ordinarily be entitled to a copy. However on payment of the £G100 deposit subsequently agreed upon, and having signed the subsequent hire-purchase agreements he asked for a copy. He said he asked for a copy on at least three occasions. On the first occasion he was told that he could leave it awhile with the defendant since the latter had permitted him to have the car even before a deposit was paid. On the second occasion he was told by the defendant that the latter had something to do on the agreement. On the third occasion he was told by the defendant that the agreements were with defendant’s clerk. This witness said he was only given a copy of the agreement, namely, exhibit A after the car was seized and only after he solicited the help of one Sergeant Wilson of the police force.

The plaintiff’s second witness Sergeant Wilson testified that after the car was seized, the plaintiff’s first witness complained to him that he had not received his copy of the hire-purchase agreement. As a result, he accompanied the plaintiff’s first witness to the defendant and requested delivery of this document. The defendant said it was in the possession of his clerk who was out. He went on another occasion and exhibit A was given to him which he handed over to the plaintiff’s first witness.

The defendant’s version touching on this issue was that on the execution of exhibit 1 a copy thereof was given to the plaintiff’s first witness. After the subsequent hire-purchase agreement was executed he also gave a copy to the plaintiff’s first witness. He said it was his clerk Kofi Agyare who prepared the hire-purchase documents and his custom was to prepare them in sets of three, two retained by him and one given to the hire-purchase customer. He tendered in evidence exhibit 2 as being the third of the set which he had in his possession after giving exhibit A to the plaintiff’s first witness at his request; notwithstanding his having been previously given a copy at the time of execution. As his reason for giving exhibit A to the plaintiff’s 

Page 467

first witness, he says that the plaintiff’s first witness and the plaintiff’s second witness came to him and requested a further copy of the hire-purchase agreement for purposes of using the same to secure a loan to pay off the hire-purchase instalment which was then overdue. He says that in respect of exhibit 1 the car was delivered to the plaintiff who was to pay the deposit of £G400 to the defendant’s cousin one Bakir Bashir in the absence of the defendant on leave to the Lebanon.

There is thus a conflict of evidence between the plaintiff and defendant. A significant feature revealed by the evidence is that the plaintiff’s first witness was never cross-examined on whether he was given a copy of exhibit 1. Also, though the defendant tendered in evidence exhibit 2 to support his case that he prepared hire-purchase documents in sets of three, he did not tender the counterpart of exhibit 1 in proof of consistency in his commercial practice, though this counterpart would be with him even if as alleged by him the third counterpart was given to the plaintiff’s first witness. Further, the issue having been raised, the question whether three copies or two only of the hire-purchase agreements were prepared became vital, because once it is admitted that exhibit A was only given to the plaintiff after the seizure of the car, and exhibit 2 was produced by the defendant from his own custody, the availability of a third counterpart capable of being handed over to the plaintiff at the time of execution necessarily depended on whether at least three copies were prepared for execution. The defendant’s clerk, Kofi Agyare, would certainly be a vital witness to establish that he did prepare three such documents, especially as he also featured in the issue of the alterations in exhibit A and was the one who prepared these documents and kept custody of them.

I cannot conceive of the defendant as a businessman going on leave, handing over to the plaintiff’s first witness a copy of exhibit 1 in addition to the car, even though the £G400 stated to have been paid on the execution of this document was not in fact paid. It is in my view more reasonable to infer that this document was left by the defendant with his cousin Bakir Bashir to be handed over to the plaintiff’s first witness when the deposit was paid if such was done in the defendant’s absence on leave. Subsequent events made it unnecessary in the view of the defendant to deliver a copy of exhibit 1, that is to say because of the subsequent execution of exhibit A and exhibit 2.

Again though the plaintiff’s second witness was cross-examined to suggest that in his presence the plaintiff’s first witness represented to the defendant that his copy was lost, which was denied by the plaintiff’s second witness, the plaintiff’s first witness, on being recalled 

Page 468

for further cross-examination after both the plaintiff and the plaintiff’s second witness had given evidence, was never cross-examined on this alleged representation made by him to the defendant in order to secure exhibit A, and the defendant in evidence does not say any such representation was made.

Another feature in this case was the rather belated effort made to elicit from the plaintiff’s first witness that he was given a copy of exhibit A at the time of execution. He was recalled with leave of the court by the defendant ostensibly to be cross-examined on matters arising out of the plaintiff’s evidence. He was not cross-examined on any such issue but on matters which could have been put to him when under cross-examination on 18 and 27 January 1968 or even by recall at the end of the plaintiff’s evidence on 3 February 1968 but before the plaintiff’s second witness gave evidence. I am left in no doubt that his late recall was an afterthought to counter the evidence given by the plaintiff’s second witness which corroborated the plaintiff’s first witness that he, the plaintiff’s first witness, had to enlist the aid of the plaintiff’s second witness to get his copy of the hire-purchase agreement.

I reject the evidence of the defendant that he gave a copy of exhibit 1 and also a copy of exhibit A to the plaintiff through the plaintiff’s first witness when the said documents were executed. I accept the evidence of the plaintiff and her witness that the only copy of the hire-purchase agreement which she obtained was exhibit A and this was only handed over after the car was seized.

Having found as a fact that exhibit A was only handed over to the plaintiff after the seizure of the car, and that a copy of exhibit 1 has not to date been handed over, I must now consider whether the defendant could enforce the hire-purchase agreement embodied in exhibit 1 and exhibit A by recovering possession of the car even for default in payment under the said agreement. My conclusion on this will determine whether it is necessary or not to consider the two other issues raised on the evidence.

The defendant has admitted that it was under exhibit 1 that the car No. GE 2155 was delivered to the plaintiff. No other car was delivered under exhibit A. It was therefore only one car that was ever sold under the hire-purchase agreement. The cash price of this car was stated in exhibit 1 to be £1,000, there has never been, on the evidence given by the defendant, any variation in the cash price nor the hire-purchase price; the only agreed variation was in respect of the deposit payable, the monthly instalments, and the currency of the monthly payments. Exhibit 1 and exhibit A have to be read together, and this is part of the defendant’s case, in order to explain his bona fide in effecting the alterations in exhibit A. The reference to the cash price of this car as £G1,250 in exhibit A even though 

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it was stated in exhibit 1 as £G1,000 must be considered as an error. If however it was a deliberate and calculated entry then the only inference which I can draw from this is that it is a deliberate attempt to inflate the cash price of the car in exhibit A to evade the requirements of the Sale of Goods Act, 1962 (Act 137), by invoking section 75(2) thereof. The provisions of the Act are imperative in respect of hire-purchase transactions which are genuinely within its purview and it is not permissible to escape its consequences by adopting the ruse of inflating the cash price of the subject-matter of the hire-purchase agreement. Under the English Hire Purchase Act, 1938 (1 & 2 Geo. 2, c.87), the Act applies to transactions where, unlike here, the hire-purchase price, and not the cash price, does not exceed a particular limit. It was held in Menzies v. United Motor Finance Corporation [1940] 1 K.B. 559, C.A. that the rigours of the Act cannot be evaded by incorporating in the hire-purchase price a notional payment never in fact made so as to inflate the hire-purchase price beyond that to which the Act applies. By analogous reasoning I hold that it is not permissible to incorporate in the cash price the hire-purchase charges so as to lift the cash price into the area where the parties can opt out of Part VIII of the Sale of Goods Act, 1962. A reference to the prices in exhibit 1 and exhibit A shows that this is what in fact has been done. The hire-purchase charge of £G250 has been added to the cash price of £G1,000 in exhibit 1 and incorporated in exhibit A as the cash price with no hire-purchase charges, but with the hire-purchase prices being identical in exhibit 1 and exhibit 2. I hold that the cash price, notwithstanding the figure thereof in exhibit A, is £G1,000 and this was correctly stated in exhibit 1 whereunder the car was delivered. Part VIII of the Sale of Goods Act, 1962, therefore applies to this transaction despite its purported exclusion both in exhibit 1 and exhibit A.

Under section 66(3) of the Sale of Goods Act, 1962, a seller is precluded from enforcing a hire-purchase contract or exercising any right to recover the goods from the buyer unless he has previously complied with the provisions of that section. One of the requirements of the section is that the seller must deliver or send to the hire-purchaser a copy of the note or memorandum of the hire-purchase transaction within fourteen days of the making of the agreement. Ordinarily this requirement is complied with by giving the buyer a copy of the hire-purchase agreement within the specified period. This requirement was not on my finding complied with; despite repeated requests of the plaintiff through the plaintiff’s first witness, her negotiator, she was not given exhibit A until after the car was seized. 

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Having regard to the circumstances surrounding the seizure, namely, the indecent haste in seizing the car after a default of only two days, even though the defendant pretends friendship with the plaintiff’s husband through whose instrumentality the car was sold; the fact that the plaintiff had in that very year paid off satisfactorily, albeit slightly irregularly, the hire-purchase price of another car obtained from the defendant; the fact that the defendant purports to enforce strictly the rights conferred on him by clause (5) of the agreement without even a prior warning to the plaintiff to pay up punctually, I find that there is no equity in my exercising the discretion vested in me by section 66(4) of the aforesaid Act in favour of the defendant by waiving the statutory breach to which I have referred. It cannot be said that the plaintiff was not prejudiced by not being given a copy of the agreement within the statutory period. Had she been given this, she would have seen that the defendant reserved to himself the absolute right at any time without notice to seize the car even if he had induced the plaintiff into a false sense of security by previous indulgences and forbearances. It would further not be fair and equitable for me to exercise my discretion in the defendant’s favour as he has himself acted in a most unconscionable manner motivated solely by his alleged need for money. I find that by failing to comply with section 66(3) of the aforesaid Act the defendant was not entitled to recover possession of car No. GE 2155, his seizure thereof was unlawful and the plaintiff succeeds in her action for wrongful seizure.

The plaintiff has, notwithstanding her success in this action, asked for reliefs to which in law she is not entitled. The authorities as they stand show that she cannot claim a return of the car or damages for conversion, nor can she claim loss of profits in such circumstances based on the wrongful seizure. She has in addition claimed N¢1,000 damages for the wrongful seizure. The only damages if it may be so called, to which she is entitled is the damages measured by the loss of the instalments and deposits paid prior to the seizure. This on the evidence not disputed amounts to N¢440.00.

To avoid the necessity for a subsequent suit to recover this I will grant leave for additional relief to be added to the writ of summons and pleadings, claiming a refund of the deposit and instalments totalling N¢440.00, as was done in Carr v. Broderick (J) & Co. [1942] 2 K.B. 275, and give judgment for the plaintiff in this sum with costs in her favour of N¢100.00 only, having regard to the late amendment permitted. 

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