JUDGMENT OF OLLENNU J.A.
This is an appeal from a judgment of the High Court, Sekondi, reported in [1962] 1 G.L.R. 350, which dismissed the appellant's (hereinafter called the plaintiff) claim for (i) £G687 14s. being money had and received on a hire-purchase agreement and (ii) £G100 damages.
The main facts are not in dispute and are briefly as follows: By a hire-purchase agreement of 28 August 1959, the defendants (respondents herein) let an Austin Omni truck AF 9366 on hire to the plaintiff at a hire-purchase price of £G860. By August 1960, the plaintiff had paid £G687 14s. of the hire-purchase price, which is more than 75 per cent of the hire-purchase price.
On 16 December 1960, the vehicle was attached at the instance of one J. K. Korsah, under a writ of fi. fa. in execution of a decree of the Sekondi Local Court against the plaintiff and the vehicle was seized and taken in possession by the sheriff. On 19 December 1960, the execution creditor, J. K. Korsah, went personally to the sheriff and told him to release the vehicle to the plaintiff. He, J .K. Korsah, confirmed these verbal instructions to the sheriff by letter of the same date as follows:
"Dear Sir,
I have the honour to ask you to release the Car No. AF 9366 which was seized on Saturday the 17th December, 1960 for Mr. B. H. Barnes".
The sheriff thereupon released the vehicle to one Abdulla, the manager of the defendants' business, who represented to him, the sheriff that he, Abdulla, was taking delivery for Barnes. The defendants have since kept the vehicle in their possession and not returned it to the plaintiff.
In the meantime the defendants instituted action in the circuit court for (1) £G172 6s. being the unpaid balance of the hire-purchase price, and (2) possession of the vehicle AF 9366. They then moved the court for an interim order permitting them to retain possession of the vehicle pending the determination of the suit. In the affidavit in support of their application, the defendants pleaded, inter alia, that the said vehicle had been released to them temporarily. The circuit court refused their application for permission to retain possession of [p.753] the vehicle. Nevertheless the defendants have continued to keep the vehicle in their possession and have not delivered it to the plaintiff.
The plaintiff appealed against the decision of the High Court on the main ground that upon the undisputed facts, the learned judge of the court below misdirected himself in law in dism
