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BARNES v. AMEEN SANGARI & CO


  • New
  • 1962-05-14
  • HIGH COURT
  • 1 GLR 350-353
  • Print

CHARLES, J.


Summary

Hire purchase?-Wrongful seizure?-Vehicle taken by sheriff in execution of judgment?-Owner recovers from sheriff and refuses to return to hirer?-Hire-purchase Act, 1958 (No. 55 of 1958), s. 12 (1).

Headnotes

The plaintiff bought a vehicle on hire-purchase from the defendants for the total hire-purchase price of G860. Clause 8 of the hire-purchase agreement, exhibit A, provided that if any execution or distress is levied or threatened to be levied on the vehicle, the owners may forthwith determine the hire without notice and re-take possession of the vehicle. On the 16th December, 1960, the vehicle was seized by the sheriff in execution of a judgment for G25 obtained by a Mr. Korsah against the plaintiff. On representations by the defendants the vehicle was released to them. They refused to return it to the plaintiff. By that time the plaintiff had paid 687 14s., i.e. more than 75 per cent of the purchase price. The plaintiff sued the defendants for the return of the G687 14s. And G100 damages for wrongful seizure and contended that the seizure offended section 12 (1) of the Hire-Purchase Act, 1958 (No. 55 of 1958).

Judgement

ACTION for damages for wrongful seizure.

In this action the plaintiff claims from the defendants the sum of G787 14s. being (1) 687 14s. as money had and received by the defendants under a hire-purchase agreement, and (2) G100 as [p.351] general damages. The plaintiff's claim is brought under the provisions of section 12(1) of the Hire-Purchase Act, 19581 which reads as follows:

"Where goods have been let under a hire-purchase agreement and seventy-five per cent of the hire-purchase price has been paid, whether in pursuance of a judgment or otherwise, or tendered by or on behalf of the hirer or any guarantor, the owner shall not enforce any right to recover possession of the goods from the hirer otherwise than by action."

On the 28th August, 1959, the defendants let to the plaintiff on hire-purchase terms a motor car the price of which was G860 payable by a first instalment of G100 and the balance by twelve monthly instalments of 63 6s. 8d. In November, 1960, the plaintiff, who had not been making payments regularly, was in arrears of G172 6s., though he had paid altogether G687 14s. On the 14th December, 1960, one J.N. Korsah sued the plaintiff and obtained judgment in the local court for G25 with costs of G2. On the 16th December, 1960 execution was levied upon the vehicle and the plaintiff signed a certificate, exhibit E, claiming the car as his own property.

There is a conflict in the evidence concerning the circumstances under which the vehicle was released. The sheriff, P.W.1, stated that on the strength of a letter exhibit D, written by J.N. Korsah he released the vehicle to D.W.1 although D.W.1 was not authorised by the plaintiff to take delivery. D.W.1 stated that he told P.W.1 that the vehicle was owned by the defendants and P.W.1 delivered the vehicle to him after he had promised to try and collect from the plaintiff and pay to J.N. Korsah the amount of the judgment-debt and costs. According to J.N. Korsah he agreed to release the vehicle to D.W.1 who claimed it on behalf of the defendants because D.W.1 promised to pay him the amount of the judgment and costs. I accept this last version as substantially true because I believe that D.W.1 did tell P.W.1 that the defendants were the owners of the vehicle and P.W.1 would not have delivered the vehicle to D.W.1 on behalf of the plaintiff as D.W.1 was never authorised by the plaintiff to take delivery.

By clause 8 of the hire-purchase agreement, exhibit A, if any execution or distress is levied or threatened to be levied upon the motor vehicle the owners may forthwith determine the hire without notice and may forthwith seize and take possession of the said motor vehicle wherever the same may be. In Jelks v. Hayward,2 the headnote reads:

"Furniture was let for hire with an option of purchase under a hire-purchase agreement, which contained a clause giving the owners the right without previous notice to determine the hiring and retake possession of the furniture, if it should at any time be seized or taken in execution. The furniture was taken in execution by the high bailiff of a county court, and, no claim having been made to it, was appraised and sold under the execution and the proceeds paid into court, and the furniture delivered to the purchaser. On the day after the sale the owners heard for the first time of the seizure and sale of the furniture, and gave notice of their claim to the proceeds. An interpleader summons was issued at the instance of the high bailiff, and in the course of the interpleader proceedings the execution creditor admitted the title of the claimants, who gave a notice claiming damages against the high bailiff in respect of the alleged conversion of the furniture by selling it:?-

Held, that, as under the hiring agreement the claimants had a right to retake possession immediately upon its being taken in execution, the sale by the high bailiff amounted to an act of conversion for which he was responsible in damages to them." [p.352]

Kennedy J. there said:

"Whatever interest the apparent possessor, the execution debtor, had in the goods seized, he had by the terms of the hire-purchase agreement between him and the respondents; it was in interest terminable ipso facto on the occurrence of such a seizure as actually took place; in other words, the respondents became entitled to the possession of the goods without notice or demand immediately upon that act of seizure by the bailiff. In order to maintain an action of conversion for the subsequent sale by the bailiff, there must be a right in the plaintiff to immediate possession of, as well as a property in, the goods. In the present case there is no question that the goods sold were the property of the respondents: had they also a right to their possession at the time of the sale? In my opinion they had, because the act of the bailiff in seizing entitled them to take possession of the goods immediately upon the seizure."3

I therefore hold that the defendants had a right to terminate the hire-purchase agreement without giving notice to the plaintiff and they were entitled to the possession of the vehicle immediately upon seizure. When D.W.1 took delivery of the vehicle he established unequivocally that he was terminating the hire-purchase agreement. Moreover, the plaintiff, who was a bailee, by certifying that he was the owner of the vehicle, comported himself in a manner so utterly repugnant to the terms of the bailment that he thereby terminated the bailment, and therefore the right to possession revested in the bailors, the defendants.

If the plaintiff is to succeed in his claim he has to prove (1) that 75 per cent of the hire-purchase price has been paid and (2) that the defendants recovered possession of the vehicle from him without obtaining leave of the court. There is no dispute that 75 per cent of the purchase price had been paid prior to execution being levied upon the vehicle. But the important question is whether the defendants were entitled to recover possession of the vehicle from a third party without obtaining leave of the court after it had been seized under a writ of fi.fa. in satisfaction of a judgment debt and costs.

As I have already stated the defendants were deprived of the possession of the vehicle when execution was levied upon it. Section 12 (1) of the Hire-Purchase Act, 1958,4 provides that the owner shall not enforce any right to recover possession of the goods from the hirer otherwise than by action. It does not say that he is deprived of enforcing his right to recover possession of the vehicle from anyone else otherwise than by action. In Eastern Distributors Ltd. v. Goldring (Murphy-Third Party5) the Court of Appeal had to consider the meaning of section 2 (2) of the Hire-Purchase Act, 1938,6 which is pari materia with section 4 (2) of our Act of 1958, and the court held that section 2(2) only deprives an owner of his right to recover goods from the hirer, but not from anyone else.

I therefore hold that as the plaintiff was not in possession of the vehicle when D.W.1 recovered it, his claim does not fall within the ambit of the provision of section 12 (1), and therefore it must fail. It would have been otherwise if the plaintiff were only threatened with execution upon the vehicle and the plaintiff was still in possession thereof. In these circumstances I am of the opinion that the defendants would have been [p.353] restricted in their rights to recover possession by section 12 (1). I must point out that this is only obiter dictum, but this point may arise on some future occasion. The plaintiff's claim is therefore dismissed, and judgment is entered in favour of the defendants with costs fixed at forty guineas inclusive of fee to counsel.

Decision

<P>Action dismissed.</P>

Plaintiff / Appellant

C.M. Cann

Defendant / Respondent

R.S. Blay

Referals

(1) Jelks v. Hayward [1905] 2 K.B. 460

(2) Eastern Distributors Ltd. v. Goldring (Murphy-Third Party) [1957] 2 All E.R. 525

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