ATADI v. LADZEKPO

JUDGMENT OF EDWARD WIREDU J.A.

The facts of this case which have provoked the present appeal may be briefly stated as follows: The defendant-appellant, hereafter referred to as the appellant, was prior to the events giving rise to this action the owner of vehicle No. WE 6604. The evidence shows that he originally employed the plaintiff-respondent, also hereafter referred to simply as the respondent, as the driver of the said vehicle. In the course of his relationship, the appellant agreed with the respondent for the sale of the vehicle to him (the respondent) under what has come to be called "work and pay" basis in local parlance. A written agreement to this effect was executed between them. This agreement was tendered in evidence as exhibit 1.

Under exhibit 1 two conditions were set down which entitled the seizure of the vehicle. These were contained in clauses 5 and 6 which respectively read:

"5. The vendee has agreed that if he fails to pay the said monthly instalment of ¢83.69 (Eighty-three cedis sixty-nine pesewas) for any two consecutive months the vendor has the right, to seize the said Land Rover vehicle or can cause the vehicle to be seized by any person upon the vendor's written authority.

6. The vendee agreed that any balance due unpaid by the end of December 1971 will be paid in block; at the same time failure which the vendor should seize the said vehicle or cause the vehicle to be seized by any person upon a written authority by the vendor till such time that the amount is paid in full."

The event which immediately sparked off the present action was the seizure of the vehicle by the appellant. The date of the seizure became the bone of contention between the parties. The respondent claiming that the seizure was on 20 May 1971 whilst the appellant contended that the seizure was on 26 July 1971 when the respondent had been in arrears of instalments for two months in breach of clause 5 of exhibit 1.

The simple issue of fact raised for determination was on which of the two rival dates the vehicle was seized ? If it was seized on 20 May 1971 as was contended by the respondent then his case is made [p.221] out and he will be entitled to succeed against the appellant otherwise his action fails.

The learned trial circuit judge after reviewing the case for parties found in favour of the respondent and rejected the appellant's claim that the seizure was on 26 July 1971 and proceeded to enter judgment in his favour and granted him the followin