KUMASI - A.D 2015
ERIC ABROKWAH & ORS - (Plaintiff)


The subject-matter of this interpleader suit is vehicle with registration number AW 5089- 12. The parties to this suit are the execution creditors in an earlier suit against West Palm Investment and the claimant to whom the vehicle in contention was issued by West Palm on “Work and Pay” basis. The claimant was made the Plaintiff, and the execution creditors, the Defendants, for the determination of the issues before this court.


The issues for determination are:(i) Whether or not oral evidence can be admitted to contradict documentary evidence;


(ii) Whether or not the vehicle in issue belongs to West Palm Investment Ltd; and iii) Whether the said vehicle can be attached in satisfaction of a debt owed by West Palm Investment Ltd. The evidential burden as well as the burden of persuasion of the 1st issue first rests on the Plaintiff. This is because it is the Plaintiff who seeks to rely on terms contrary to what is contained in the written agreement between him and West Palm Investment Ltd. He also assumes the same burden since he asserts ownership of the vehicle which has been attached. The Defendants will bear the burden of proof on the third for determination in view of the fact that the vehicle was attached at their instance.


A summary of the Plaintiff’s case as gleaned from his evidence in court is that he applied for and was given the above mentioned vehicle by West Palm Investment under an agreement. Per that agreement, he paid 10% of the cost of the vehicle and was required to make weekly payments of at least GH¢167.00. According to him, the price of the vehicle he applied for was GH¢25,000.00, but what was eventually assigned to him had a faulty engine and so the price was reduced to GH¢19,000.00. He replaced the engine at a cost of GH¢3,100.00. Thus, the cost of the engine was added to the price of the vehicle and he made a down payment of GH¢ 3,000.00. He told the court that the weekly payments were fixed at GH¢167,000.00 but sometimes he paid more. He continued that West Palm failed to carry out repairs on the vehicle as agreed and that whenever he pre-financed repairs, West Palm would issue him with a receipt confirming that such repairs had been done. In all, the Plaintiff said he made payments totaling GH¢12,012.00 and was issued with receipts. In cross-examination, the witness admitted that when the amount spent on repairing the vehicle is deducted, the cash payments he made totaled GH¢9,000.00. However, he stopped making payments when the vehicle was attached in execution of the judgment against West Palm. The agreement with West Palm, the receipts of payment and weekly sales receipts were tendered in evidence as exhibits A, B and C series.


The driver who was in charge of the vehicle at t the time it was attached testified as PW1. He gave vivid details of how the vehicle was attached but these details are not relevant to the resolution of the issue before this court. He confirmed that the Plaintiff was making payments to West Palm and that a West Palm sticker had been fixed onto the vehicle.


Next to testify was the General Manager of West Palm Investment Ltd. He told the court that the vehicle in issue is a Hyundai H-200 mini bus. Per his evidence, the vehicle in respect of which the Plain tiff made a payment cost GH¢ 25,000 but the one actually allocated to him had previously been assigned to a customer. In view of this, PW2 said the price was reduced from GH¢25,000.00 to GH¢19,000.00 but this was not reduced into writing. Further, PW2 said the Plaintiff spent GH¢3,100.00 and GH¢4,000.00 to replace the faulty engine and to fix seats in the vehicle. In cross-examination, PW2 admitted that from the agreement, West Palm is to be the owner of the vehicle until full payment has been made


The reduction in price and cost of repairs were vigorously attacked by the Defendant.


The 5th Defendant testified for himself and on behalf of the other four defendants. Just like the Plaintiff, the Defendants said they applied for vehicles from West Palm Investment Ltd. Each Defendant executed an agreement with West Palm and deposited requisite 10% of the cost of the vehicle applied for. These payments ranged from GH¢1,700.00 to GH¢4,500.00 depending on the vehicle type. To confirm these assertions, he tendered their agreements with West Palm and the receipts of payment as exhibits 1, 2, 3, 4, 5 and 6 series. These documents were admitted in evidence subject to they being stamped but there is no evidence that any stamp duty has been paid.


Continuing, the 5th Defendant testified that upon the failure of West Palm to perform its side of the agreement, the Defendants sued and obtained judgment against the company. Consequently, they attached the vehicle in issue which they believe is the property of West Palm Investment Ltd.


Even if the Defendant’s exhibits are excluded from the evidence for failure to pay the requisite stamp duties, their oral evidence is still on record for the court to consider. It is not in dispute that the Defendants obtained judgment against West Palm in respect of payments made on terms similar to that of the Plaintiff.


In her written submissions, counsel for the Defendants conceded that the agreement between West Palm and Prosper Bennoah is not different from that between each of the Defendants and West Palm. In her opinion, these agreements do not qualify as ‘Hire Purchase Agreements”, “Sale of Goods Agreement” or “Employer–EmployeeAgreement”. Notwithstanding the ambiguity of the wording of the agreement, counsel submitted that the agreement hinged on the delivery of a vehicle to the Plaintiff after an initial deposit is paid, with an obligation to pay by weekly installments, and upon certain other conditions till the vehicle is fully paid off and ownership transferred to the Plaintiff. Thus, since Prosper Bennoah has not fully paid for the vehicle, he is not the owner of the same.


Having argued that the agreement with West Palm does not qualify as a Sale of Goods agreement, Counsel interestingly turned round to find solace in the Sale of Goods Act. She referred to section 21 of Act 137 which provides that the property in goods passes under a contract of sale when the parties intend it to pass. From the agreement, counsel argued that Prosper Bennoah and West Palm intended ownership of the vehicle to pass only upon full payment of the purchase price. Counsel emphasized that since full payment has not been made, the documents covering the vehicle are in the name of West Palm. As such, Prosper Bennoah cannot claim to be the owner of the disputed vehicle.


As regards the inconsistencies in the price of the vehicle, counsel invited the court to accept the price quoted in the written agreement between West Palm and Prosper Bennoah. Relying on sections 25 and 177 of the Evidence Act, 1975 NRCD 323 as well as the case of Motor parts Trading Co. V Nunoo (1962) 2 GLR 195-200, counsel argued that when a transaction has been recorded or reduced in writing by agreement of the parties, extrinsic evidence is in general inadmissible to contradict, vary, add to or subtract from the terms of the document. In the same way, she argued that Prosper Bennoah cannot rely on any extrinsic oral arrangement with West Palm concerning the cost price, initial deposit and maintenance, to vary or contradict what is contained in exhibit A.


I will start from the arguments on the admissibility of extrinsic evidence. Counsel for the Defendants stated the general position at law in her submissions. That is to say, extrinsic evidence is inadmissible to vary, add to or subtract from the terms of a written document or agreement. She however failed to show that this rule is not absolute as it is subject to certain exceptions. Indeed, these exceptions are recognized under our own Evidence Act NRCD 323. The relevant part is section 177 of the Act which reads:


Section 177 (1)


Except as otherwise provided by the rules of equity, terms set forth in a writing intended by the party or parties to the writing as a final expression of intention or agreement with respect to such terms as are included in the writing may not be contradicted by evidence of any prior declaration of intention, of any prior agreement or of a contemporaneous oral agreement or declaration of intention, but may be explained or supplemented—

(a) by evidence of consistent additional terms unless the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the intention or agreement, provided that a will and a registered writing conveying immovable property shall be deemed to be a complete and exclusive statement of the terms of the intention or agreement; and

(b) By a course of dealing or usage of trade or by course of performance.

(2) Nothing in this section precludes the admission of evidence relevant to the interpretation of terms in writing.

(3) For the purpose of this section—

(a) "a course of dealing" means a sequence of previous conduct between parties to a particular transaction which is fairly to be regarded as establishing a common basis of understanding for interpreting their expressions and other conduct;

(b) "a usage of trade" means any practice or method of dealing in a place, vocation or trade as to justify an expectation that it will be observed with respect to the transaction in question”


There are a chain of authorities on this subject. Phipson, ON EVIDENCE, 10th ed. Page 731, paragraph 1798 states:


“ Extrinsic evidence is admissible to prove any matter which by substantive law affects the validity of a document or entitles a party to any relief in respect thereof, notwithstanding that such evidence tends to vary, add to or, in some cases, contradict the writing…”


A case worth considering is Duah v Afriyie (1971) 1 GLR 260. In that case, the Appellant sought to recover money lent to the 1st Respondent and guaranteed by the other Respondents. The transaction was evidenced in writing and was tendered in evidence. The document stated that the 1st Respondent received the sum of LG 600 from the Appellant “being money borrowed without interest.” The agreement stipulated the dates when repayments were to be made and the amount of such repayments. The 1st Respondent led evidence to show that the actual money lent was LG 360 out of which the Appellant deducted LG 40 as customary drink or “Nteani” and charged LG 200 as interest bringing the total to LG 600. The Respondent had sought to re-open the transaction but the Appellant contended that he was not a Money Lender.


On extrinsic evidence, the court of Appeal held at page 264 of the report as follows:

“The Respondents cannot avail themselves of the relief provided them either by the Loans Recovery Ordinance or the Money Lenders Ordinance, unless they satisfied the court of the actual sum lent and the true interest charged. They did so by oral evidence to which no objection was taken or could have been validly taken. In my judgment, the parol evidence led, contradictory of the document, was legally admissible as an exception to the ‘extrinsic evidence’ rule. Accordingly, the Learned Circuit Judge was entitled to give it such weight as he thought fit.” See also Ayiah v Coleman (1982-83) GLR 322 per Wuaku J and Attieh v Koglex (GH) Ltd ( 2001-2002) SCGLR 936.


Again, in Adae v Eyah (1972) 2 GLR 358, extrinsic evidence was admitted to vary or explain the terms of a written agreement as stated below:


“Although the written agreement did not contain any stipulation as to the party who was to bear the extra costs, the oral evidence of the defendant that the plaintiff was intended to be responsible for the payment of any extra cost of building materials was admissible as an exception to the extrinsic evidence rule. This was one of the cases where extrinsic evidence should be accepted in order to get to the true intentions of the parties, and the real terms of the agreement, especially as the plaintiff never objected to the evidence when it was being led.”


In the case before me, the Plaintiff executed exhibit A with West Palm Investment Ltd on 07/07/2012. The latter was to allocate a vehicle to him between three to five months from the date of the agreement. The agreement listed remedies available to the Plaintiff in the event that West palm Investment Ltd reneged on its promise. There is unchallenged evidence on record that West Palm Investment Ltd went into crisis in the year 2012 and it is still in crisis. As a result, West Palm was unable to fulfil its agreement with the Plaintiff within the stipulated period. It is this crisis situation which led the Defendants to sue West Palm Investment Ltd.



That notwithstanding, oral evidence was led on behalf of the Plaintiff to show that West palm Investment Ltd retrieved a vehicle from another customer which they reallocated to the Plaintiff; the agreed price of GH¢ 25,000.00 had to be reviewed downwards to GH¢19,000.00 because of a faulty engine which was replaced at the cost of GH¢3100.00 and GH¢4,000 was used to fix seats in the vehicle. PW2 led further evidence to show that when his Company went into crisis, several people other than the Plaintiff were given reallocated vehicles and the prices reviewed accordingly.


Indeed, the Defendants before me sued West Palm Investment Ltd for a refund of their deposits in view of its failure to allocate vehicles to them. They obtained judgment and then attached the vehicle which West Palm had reallocated to the Plaintiff. Indeed, this goes to buttress the point that West Palm is barely keeping its head above water. Counsel for the Defendants is challenging these figures because a subsequent agreement was not entered to incorporate them into the initial agreement, exhibit A. I have no doubt in my mind that in the face of the challenges of West Palm Investment Ltd, methods such as the retrieval and reallocation of vehicles were adopted to enable it fulfil its agreements with customers and this became acceptable to its customers. In fact, the conduct of the Defendants herein shows that if vehicles were retrieved and reallocated to them, they would have accepted the same. In the circumstance, I will admit the extrinsic evidence led by the Plaintiff and PW2 to supplement the agreement contained in exhibit A.


In terms of exhibit A, West Palm was not responsible for maintenance after a vehicle had been delivered to a customer. However, the oral evidence adduced by the Plaintiff and corroborated by PW2 point to the fact that the engine defect was present before the allocation of the vehicle to the Plaintiff and this necessitated the subsequent oral arrangement on price reduction from GH¢25,000.00 to GH¢19,000.00. The engine replacement cost could not have been passed on to the


Plaintiff under these circumstances. However, the Plaintiff elected to put seats in the bus to suit his purpose and this cost cannot be borne by West Palm Investment Ltd. Even if the Plaintiff had contracted for a vehicle with seats but was allocated a vehicle without seats, the subsequent reduction in price should be adequate compensation. Whilst under cross-examination, the Plaintiff conceded that aside the cost of maintenance, the actual monies he has paid to West Palm is GH¢9,000.00, but inclusive of repairs, the amount paid ought to be GH¢12,012.00. Exhibits C and C1 are receipts of the initial deposit of GH¢3,000 and GH¢3,120 for maintenance.


I believe exhibit C1 is evidence of the cost of engine replacement which the Plaintiff and PW2 led evidence on. The difference of GH¢ 20.00 is negligible and can be overlooked. Exhibits C2 to C11 are said to be weekly sales of GH¢170 per week totalling GH¢ 1,700.00; exhibits C12 to C20 are also weekly payments of varying amounts but totalling GH¢4, 432.00. The sum total of the sales receipts is GH¢6,132.00. When this is added to the figures on exhibits C and C1 (deposit and maintenance), the resultant figure is GHS 12, 252.00. This even exceeds the GH¢ 12,012.00 quoted by the Plaintiff in his evidence. Since the GH¢12,252.00 is borne out by the documentary evidence on record, I accept it as the total amount to be credited to the Plaintiff in the transaction in issue.


There is no doubt from the evidence on record that legal ownership of the vehicle in issue is vested in West Palm Investment Ltd. However, the Plaintiff has some equity in the vehicle after paying over 60 percent of the cost price to West Palm Investment Ltd. Since West Palm is the legal owner by virtue of the fact that full payment has not been made by the Plaintiff, it follows that the vehicle can be attached in satisfaction of a debt owed by West Palm, but subject to the Plaintiff’s interest in the vehicle. It is to be noticed that the Plaintiff was keeping up to his agreement before the vehicle was attached and it will be unjust to consider his interest in the vehicle. If the vehicle had not been attached by the Defendants, the Plaintiff would have probably finished paying for the same by this time taking into consideration his repayment history.


In deciding the extent of the Plaintiff’s interest in this vehicle, I will follow my reasoning in the following cases which are on all fours with the instant case but with a slight variation: i) Eric Abrokwa & Ors v West Palm Investment Ltd And Barima George Ints 16/2013 dated 16/10/2013; Eric Abrokwa & Ors v West Palm Investment Ltd And Sefa Kwaku Ints/17/2013 dated 07/11/2013. In both cases, I released the vehicles in issue to the claimants to enable them work and pay the balance outstanding to the execution creditors instead of West Palm Investment Ltd but they refused to make the payments and run down the vehicles according to the Defendants herein.


Informed by the above, I will enter judgment in favour of the Plaintiff on these terms: (i) The Plaintiff shall pay the balance of the price of the vehicle which now stands at GH¢6,748.00 ( i.e. GH¢19,000 less GH¢12,252.00) into court in favour of the Defendants herein within three months from the date of this judgment. After the money has been paid into court as evidence of full payment of the price of vehicle with registration number AW 5089 - 12, the Deputy Sheriff of this court is to withdraw from possession and hand over the same to the Plaintiff. Each of the five Defendants will be entitled to 20% of the GH¢6,748.00. West Palm Investment Ltd will then be required to transfer ownership to the Plaintiff. If the Plaintiff fails to pay the balance outstanding as ordered by the court, the vehicle is to be auctioned, subject to a reserved price to be fixed by the court. All the proceeds from the auction sale shall be paid into court. After the deduction of the GH¢12,252.00 due to the Plaintiff, the auctioneer’s commission and the 0.5% revenue due to the Judicial Service, any balance outstanding is to be paid to the Defendants. Each Defendant is to be given 20% of the residue. In my earlier judgments, I awarded different percentages to the Defendants depending on the amounts paid. It appears to me now that each Defendant is to be given the same percentage regardless of the deposit paid in view of their present financial circumstances. In enforcing the two previous judgments alongside the instant one, the Registrar of this court is to ensure that each Defendant does not receive more than the deposit paid to West Palm Investment Ltd. Any excess is to be paid to West Palm Investment Ltd.


I must add that this judgment was written without having the benefit of the written address of counsel for the plaintiff.


Judgment entered for the Plaintiff. The parties are to bear their own cost.