de HORNE AGAH v. FARKYE BROTHERS

JUDGMENT OF APALOO J.A.

This appeal is from the judgment of the High Court, Accra (Prempeh J., as he then was), dated 28 February 1964. By that judgment, the learned trial judge dismissed a claim by the appellant (hereinafter called the plaintiff) to recover damages against the respondents (hereinafter referred to as the defendants) for wrongful seizure of a vehicle hired to the plaintiff by the defendants on hire-purchase terms.

Both parties were described as transport owners but the defendants' name implies that they are a firm carrying on a transport business. Some time in February 1961 the plaintiff was minded of purchasing from the defendants, a land-rover on hire-purchase terms. He made his intention known to the defendants. The latter were willing to hire to the plaintiff the said vehicle, with the usual option to purchase. Accordingly, on 13 February 1961 the parties executed a formal hire-purchase agreement. This contains the usual hire-purchase clauses. At that date, the Hire-Purchase Act, 1958 (No. 55 of 1958), was in force and the defendants' right of repossessing the vehicle without resort to action was restricted by section 12 (1) of that Act. That is, where 75 per cent of the hire-purchase price has been paid, the owner shall not enforce any right to recover possession of the goods from the hirer otherwise than by action.

Although the plaintiff himself lived at Accra, he entrusted the vehicle to one Mr. Gilbert Kpeglo of Kete Krachi. It was the latter who in fact worked with the vehicle and made payment of instalments as they fell due. The evidence shows that on occasions, Mr. Kpeglo made default with the payments and on more than one [p.475] occasion, the defendants sent a Mr. Andrews to Kete Krachi to re-possess the vehicle. Mr. Kpeglo then made the payments for which the seizure was sought and the agreement continued to run in accordance with its tenor.

On 17 April 1963 the vehicle was finally seized. It is unclear whether it was seized at Kete Krachi or Kumasi where it was said to be laid up. This fact is not however of importance in this appeal. But it is this last seizure that gave rise to this litigation. The plaintiff claimed that at the date of the seizure, he had paid more than 75 per cent of the hire-purchase price and that the defendants were, by reason of that fact, precluded by the provisions for the Hire-Purchase Act, 1958, from repossessing the vehicle without recourse to court action. The plaintiff therefore sought the