• IN THE SUPERIOR COURT OF JUDICATURE
  IN THE HIGH COURT (COMMERCIAL DIVISION)
  ACCRA - A.D 2016
  

BENJAMIN ALIDU - (Plaintiff)

vs.

ISAAC QUAINOO AND WENDY QUAINOO - (Defendants)

JUDGMENT

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The 1^st defendant herein imported into the country a cargo truck and put it up for sale. After a while,

 

the plaintiff whose friend is one Badu, a nephew of the 1^st defendant got to know of the sale of the truck and expressed interest in acquiring the truck but it so happened that the plaintiff did not have enough resources to buy and pay for the price of the truck outright so the plaintiff was introduced to the 1^st defendant by his friend Badu whereupon the plaintiff entered into negotiations with the 1^st defendant to enable the plaintiff acquire the said truck on a hire purchase basis.

 

 

 

An agreement was eventually reached by the plaintiff and the 1^st defendant after which the cargo truck was released to the plaintiff. This agreement was reduced into writing. In the course of time the 1^st defendant repossessed the truck from the plaintiff. The plaintiff therefore issued the instant writ against the defendants for

 

a. A declaration that by the hire purchase agreement executed between the parties aforesaid the plaintiff is a part owner of the truck in dispute.

 

b. An order compelling the defendants to release the truck forthwith to the plaintiff.

 

c. An order compelling the defendants to pay amount equating GH₵2,000 per month for the period they confiscated the truck from the plaintiff for his loss of income.

 

d. An order compelling defendants to pay damages to the plaintiff.

 

e. Costs

 

 

 

After the service of the writ and its accompanying statement of claim on the defendants an Appearance was entered and later a statement of defence was filed by the 1^st defendant. And after the failure of pre-trial settlement, the case was set down for hearing wherein the plaintiff gave evidence and then called one witness to close his case. The 1^st defendant also gave evidence and called a witness to close his case.

 

 

 

From the pleadings filed by the parties, particularly paragraphs 6 and 7 of the statement of claim as well as paragraph 3 of the statement of defence, the court finds that the parties agree that they entered into a hire purchase agreement whereby the 1^st defendant agreed to sell his truck to the plaintiff on a hire purchase basis and that the said agreement was reduced into writing. Exhibit A tendered by the plaintiff attests to the hire purchase agreement entered by the parties. The 1^st defendant also tendered exhibit 1 which according to him is a copy of the hire purchase agreement.

 

 

 

A close scrutiny of exhibit 1 shows immediately that exhibit 1 is a complete forgery. This is so because the penultimate page contains insertions which cannot be found on exhibit A. The paper used to type the penultimate page is different from the paper used in typing all the other pages. Again the font of the words in the penultimate page is different from all the other pages in both exhibit 1 and exhibit A. Furthermore, a penalty clause had been inserted in the penultimate page of exhibit 1 which is not present in exhibit A. Again the type spacing and paragraphing in the penultimate page of exhibit 1 id different from all the other pages as well as exhibit A. I find that exhibit 1 is a forgery and fraudulent and dangerous to be relied upon by the court.

 

 

 

In exhibit A which the court finds to be authentic, the 1^st defendant agreed to sell his truck to the plaintiff at a hire purchase or a total price of GH₵25,000 and that the plaintiff was to pay an amount of GH₵1,500 a month towards the total price with the understanding that upon the full payment of the total price of the vehicle, the ownership in the truck was to be transferred to the plaintiff. With this understanding therefore the said vehicle was handed over to the plaintiff to enable him work with it and pay the monthly installment. Section 24 of the Hire Purchase Act, 1974 (NRCD 292) defines a hire purchase agreement. It states that

 

 

 

“hire-purchase agreement” means an agreement for the bailment of goods under which the bailee may buy the goods or under which the property in the goods will or may pass to the bailee; and where by virtue of two or more agreements, none of which by itself constitutes a hire-purchase agreement there is a bailment of goods and either the bailee may buy the goods or the property in them will or may pass to the bailee the agreements shall be treated for the purposes of this Act as a single hire-purchase agreement made at the time when the last of the agreements was made”

 

 

 

From the evidence on record it is not in dispute that the truck was handed over to the plaintiff-hirer or bailee herein. It is also not in dispute that the plaintiff started paying for the price of the vehicle. What is in contention is whether the plaintiff was consistent in his payment of the monthly installment in accordance with the agreement. As already pointed out, the parties agreed, per exhibit A, the Hire Purchase Agreement, that the plaintiff shall pay an amount of GH₵1,500 per mensem towards the total price of the truck. The plaintiff tendered exhibit B as evidence of payment of the hire purchase price.

 

 

 

From exhibit B the court finds that apart from the payment made on the 7^th day of June 2007, the very date that payment commenced, the plaintiff never paid to the 1^st defendant the agreed amount GH₵1,500 per month as required by the agreement. The plaintiff was rather consistent in the breach of the monthly repayment as against its honour. There is evidence to the effect that an amount of GH₵4,200 paid by the plaintiff to the 1^st defendant on the 28^th day of March 2008 went largely to offset arrears of the monthly repayment.

 

 

 

From paragraphs 19, 22, 23, 25 and 26 of the statement of claim, the plaintiff avers that the 1^st defendant had seized the truck from him and that the seizure was unlawful. The 1^st defendant sought to justify the seizure of the truck and has pleaded in paragraph 14 of the statement of defence that after he had taken possession of the truck he asked the plaintiff to bring GH₵10,000 before he takes the truck away.

 

 

 

The plaintiff and the 1^st defendant have both agreed that the hire purchase price of the truck was fixed at GH₵25,000. Irregular as the plaintiff’s payment of the monthly installment was, the plaintiff gave evidence that at the time that the defendant seized the truck from the plaintiff, the plaintiff had paid an amount of GH₵20,000 out of the total cost of the vehicle leaving an unpaid balance of GH₵5,000. The 1^st defendant denied the amount which the plaintiff said he had paid at the time of the seizure of the truck. According to the 1^st defendant, the amount truly paid by the plaintiff, at the time of the seizure of the truck, was GH₵15,000 and not GH₵20,000. The court will return to the discussion of how much the plaintiff had actually paid to the 1^st defendant towards the cost of the truck in the course of this delivery.

 

 

 

Nonetheless, it cannot be disputed that at least an amount of GH₵15,000 had been paid by the plaintiff before the truck was seized. In the opinion of the court, the admission by the 1^st defendant that GH₵15,000 had, at least, been paid by the plaintiff makes the truck, which was the subject matter of the hire purchase agreement, a protected good which cannot be repossessed by the defendant, owner of the truck, without first obtaining an order of the court. Section 8(1) (4) of the Hire Purchase Act 1974 (NRCD 292) provides that

 

8.  Restriction on recovery of protected goods

 

(1) The owner or seller shall not enforce a right to recover possession of protected goods from the hirer or buyer otherwise than by an action.

 

(4) For the purposes of this section, “protected goods” are goods

 

(a) Which have been let under a hire-purchase agreement or sold under a conditional sale agreement,

 

(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

 

(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.

 

 

 

From the section quoted above, it is clear that where goods have been sold under a hire purchase agreement which has not been terminated by the hirer or bailee and at least half of the total cost of the goods sold have been paid by the hirer, the owner of the goods sold cannot exercise a right, under the agreement, to repossess the goods.

 

 

 

In the instant matter, the good sold under the hire purchase agreement was the truck and it was sold for a total price of GH₵25,000. The 1^st defendant has admitted that he had taken possession of the said truck and even in his evidence in chief he (1^st defendant) had testified that he had sold the truck.

 

 

 

At the time that the 1^st defendant purported to have repossessed the truck, the plaintiff had paid GH₵15,000 which represents more than half of the cost of the truck to the 1^st defendant. Therefore the truck became a protected good under the law and as a result the 1^st defendant could not have repossessed the truck from the plaintiff without an order from the court.

 

 

 

There is no evidence on record that the 1^st defendant obtained the court’s order before recovering the truck from the plaintiff. The court finds and holds that the repossession of the truck by the 1^st defendant from the plaintiff was completely unlawful since it breaches section 8(1) of the Hire Purchase Act. Furthermore, the court finds, from the evidence on record particularly exhibit A the hire purchase agreement, that under the said agreement no right was reserved in the 1^st defendant as the owner of the truck to repossess same in the event that the plaintiff defaults in the payment of the monthly installment. Hence, the action and or conduct of the 1^st defendant in repossessing the truck does not only breach section 8(1) of the Hire Purchase Act but it constitutes a breach of the hire purchase agreement. The 1^st defendant is therefore liable to the plaintiff in accordance with section 8(2) (3) of the Act which provides that

 

“(2) Where the owner or seller recovers possession of protected goods in contravention of subsection (1), the agreement, if not previously terminated, is terminated, and

 

(a) The hirer or buyer is released from liability under the agreement, and is entitled to recover from the owner or seller, in an action for money had and received, the sums of money paid by the hirer or buyer and the security given in respect the agreement; and

 

(b) The guarantor is entitled to recover from the owner or seller, in an action for money had and received, the sums of money paid under the contract of guarantee or under a security given in respect of the agreement.

 

(3) Despite subsection (2), the Court may, on an application by the hirer or buyer, make an order for the return of the goods to the hirer or buyer and for the rescheduling of payments due under the agreement.”

 

 

 

Indeed, the plaintiff seeks, as part of his reliefs against the 1^st defendant, “an order compelling the defendant to release the truck forthwith to the plaintiff”. However, as already stated, the 1^st defendant had testified that he had disposed of the truck and he tendered in proof of the disposition exhibit 3. The court can therefore not make an order for the return of the truck to the plaintiff as required by section 8(3) of the Act. The option opened to the court is to consider the relief available to the plaintiff under section 8(2) (a) of the Hire Purchase Act (NRCD 292).

 

 

 

Section 8(2) (a) comes up for consideration in a situation where the owner of goods sold under a hire purchase agreement, without first obtaining a court order, recovers possession of the said goods when the goods have become protected goods by virtue of the fact that at least half of the hire purchase price of the goods have been paid by the hirer/purchaser/bailee as in the instant case before the court. In such circumstances, the law enjoins the hirer or purchaser or bailee to recover from the owner of the goods the total amount of money which had been paid towards the liquidation of the hire purchase price. The purchaser is also entitled to recover in addition, any security which he had given in respect of the hire purchase agreement. In the present case, there is the need for the court to ascertain the total amount paid by the plaintiff/hirer/purchaser to the 1^st defendant towards the cost of the truck sold to the plaintiff under the agreement.

 

 

 

TOTAL AMOUNT PAID AT DATE OF SEIZURE

 

From the pleadings filed by or on behalf of the parties, particularly paragraph 8 of the statement of claim and paragraph 4 of the statement of defence, it is not in dispute that the hire purchase price was agreed at GH₵25,000. By paragraphs 14 and 17 of the statement of claim, the plaintiff has averred that at the time the defendant threatened to repossess the truck he had paid the hire purchase price leaving an unpaid balance of GH₵5,000. This averment has been denied by the defendant. It has been held in the case of Ababio vs. Akwasi III [1994-1995] GBR 774 that:

 

 

 

“A party whose pleading raised an issue essential to the success of the case assumed the burden of proving such issue. The burden only shifted to the [other party] when [such a party] had adduced evidence to establish the claim”

 

 

 

The court has also explained in the recent case of Okudzeto Ablakwa (No. 2) vs. Attorney General & Another [2012] 2 SCGLR 845 at 867 that

 

“If a person goes to court to make an allegation, the onus is on him to lead evidence to prove that allegation, unless the allegation is admitted. If he fails to do that, the ruling on that allegation will go against him. Stated more explicitly, a party cannot win a case in court if the case is based on an allegation which he fails to prove or establish. This rule is further buttressed by section 17 (b) which, emphasizes on the party on whom lies the duty to start leading evidence…”

 

 

 

In proof of his averment that at the time the 1^st defendant repossessed the truck the outstanding balance on the hire purchase price was GH₵5,000, the plaintiff tendered in evidence exhibit B which, according to the plaintiff, bears the record of the payments he had made. The evidence of the plaintiff is that whenever he made payments, the defendant’s attorney, in the person of Kwasi Badu and his brother Kofi Eric, appended their signatures against the payment as evidence of the receipt of the money paid to them for and on behalf of the 1^st defendant. In the opinion of the court Kwasi Badu who testified as DW1 corroborated the evidence of the plaintiff when he answered the following question during cross examination thus

 

“Q: Kwasi Badu, are you in all honesty telling this honourable court that the signatures here in Exhibit “B” representing your signatures evidencing the payments by Plaintiff to you are not your signatures?

 

A: My Lord, I always sign it and my brother, Kofi Eric, also witness it any time I sign….”

 

 

 

In line with the case of Asante vs. Bogyabi [1966] GLR 232 @240-241 the court has no reason not to accept the evidence of the plaintiff that whenever he pays money to the attorney of the plaintiff, the attorney and his brother acknowledged receipt by appending their signatures on exhibit B.

 

 

 

In his evidence to the court however, Kwasi Badu tried to dispute some of the signatures attributed to him on exhibit B. However, given the totality of the evidence on record, particularly the fact that he failed to dispute signatures attributed to him before going ahead to append fresh signatures upon subsequent payment to him, the court finds that his denial of some of the signatures in exhibit B was meant to throw dust into the eyes of the court and also conceal monies received by him which he had failed to account. At any rate the court has examined, in accordance with section141 of the Evidence Act 1975 (NRCD 323) and the principle of law enunciated in Conney vs. Bentum-Williams [1984-86] 2 GLR 301, all the signatures which he sought to deny and compared them with the signatures which he admitted and the court finds that all the signatures attributed to Kwasi Badu were in fact written by him.

 

 

 

Nonetheless, a summation of the payments acknowledged by the signatures of Kwasi Badu and or Kofi Eric in exhibit B amounts to GH₵18,600 and indeed this figure is less than the sum of GH₵20,000 which the plaintiff says he had paid prior to the seizure of the truck. During cross examination of the 1^st defendant, counsel for the plaintiff stated that the total amount paid by the plaintiff was GH₵19,750. The 1^st defendant and his witness also maintained that the amount paid by the plaintiff prior to seizure was GH₵15,000. The court however finds the evidence of the 1^st defendant and his witness rather ridiculous in that in his counterclaim, the 1^st defendant has made a claim for the outstanding balance which he states to be GH₵6,000.

 

 

 

Surely, if the plaintiff had in fact paid only GH₵15,000 out of the amount of GH₵25,000, the 1^st defendant would ask for an outstanding balance in the region of GH₵10,000. The court therefore holds that at the time of the seizure of the truck, the plaintiff had paid not less than GH₵19,000 to the 1^st defendant under the hire purchase agreement. In the circumstance, the court will, on the strength of section 8(2) (a) of the Hire Purchase Act (NRCD 292), order the 1^st defendant to refund to the plaintiff cash the sum of GH₵19,000 together with interest at the current bank rate from April 2009, that is, the date of seizure of the truck, till the date of final payment.

 

 

 

The court will also award general damages of GH₵6,000 to the plaintiff against the 1^st defendant.

 

 

 

The suit against the 2^nd defendant will be dismissed for the reason that the evidence before the court shows clearly that the 2^nd defendant was never a party to the contract entered between the plaintiff and the defendants. The only reason the 2^nd defendant’s name was added to the writ was because her name appears on the contract document, exhibit A, executed by the plaintiff and the 1^st defendant but there is no evidence whatsoever that she took part in the negotiations leading to the agreement or that she even appended her signature on exhibit A the hire purchase agreement. In all candour, the 2^nd defendant was not a proper party to the suit and under Order 4 rule 5 (2) of the Rules of the High

 

 

 

Court, the court has power to strike out the name of the 2^nd defendant as not being a necessary party to the suit. See also the case of Morkor vs. Kuma [1998-1999] SCGLR 620.

 

 

 

The 1^st defendant has filed a counterclaim against the plaintiff wherein he prays for

 

a. The outstanding balance of GH₵6,000

 

b. Interest on the GH₵6,000 from May 2007 to the final date of payment.

 

c. Cost of air ticket from the UK to Ghana at £4,000 on the five trips.

 

d. The expenses of GH₵800 whilst in Ghana during his visits at the instance of the plaintiff.

 

 

 

I find the first two claims endorsed on the counterclaim to be very ridiculous and not made in good faith. This is so because the 1^st defendant gave evidence to the effect that he had repossessed the truck from the plaintiff and actually sold it per exhibit 3 which he tendered. That being the case I do not see how, in all honesty, the 1^st defendant seeks to recover from the plaintiff the unpaid balance of the cost of the truck sold under the hire purchase agreement. These claims are dismissed.

 

 

 

Next, the 1^st defendant seeks to recover from the plaintiff an amount of £4,000 which he claims represents the cost of air ticket with which he flew to Ghana from UK on five occasions. Apart from the lack of concrete evidence on record to show that the 1^st defendant came to Ghana on those alleged five trips purposely to demand payment of the hire purchase installments from the plaintiff, not a single receipt was tendered in evidence by the 1^st defendant in an attempt to prove the alleged cost of the air ticket. Thus the 1^st defendant failed to discharge the duty cast on him by sections 14 and 17 of the Evidence Act 1975 (NRCD 323). The said sections provide that

 

 

 

“14.  Allocation of burden of persuasion

 

 

 

Except as otherwise provided by law, unless it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence that party is asserting.

 

 

 

17. Allocation of burden of producing evidence

 

Except as otherwise provided by law,

 

(a) The burden of producing evidence of a particular fact is on the party against whom a finding on that fact would be required in the absence of further proof;

 

(b) The burden of producing evidence of a particular fact is initially on the party with the burden of persuasion as to that fact.”

 

 

 

In Ackah vs. Pergah Transport Ltd [2010] SCGLR 728, the court pointed out that

 

 

 

“It is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. The method of producing evidence is varied and it includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things (often described as real evidence), without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as a jury. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more reasonable than its non-existence. This is a requirement of the law on evidence under sections 10(1) and (2) and 11(1) and (4) of the Evidence Act, 1975 (NRCD 323).”

 

 

 

Besides, the 1^st defendant has admitted before the court that he appointed Kwasi Badu as his attorney to receive the payment of the monthly installment of the hire purchase price from the plaintiff. Hence, his so called travels or trips to Ghana from UK purposely to demand the payment of the hire purchase installments was totally unnecessary and he would thus not be allowed by the court to demand the cost of his travels including any expenses incurred in connection therewith from the plaintiff. The counterclaim endorsed by the defendants on the statement of defence is therefore dismissed.

 

 

 

The court will award costs of Eight Thousand Ghana Cedis (GH₵8,000.00) to the plaintiff against the 1^st defendant.