Contract-Loan secured by
goods-Authority to take goods in
default. Tort-Taking of goods
pursuant to contract.
The dispute
arose out of a contract of loan;
a creditor (Delor) lent money to
a debtor (Foli) who undertook in
the contract to repay by monthly
instalments, secured the loan
with his lorry, and gave his
creditor the right, in default
of payment, to seize the lorry
for the debt. The debtor failed
to pay instalments, the creditor
asked for payment but not being
paid, took the lorry without
opposition from the debtor. The
creditor sued the debtor
claiming delivery of the Road
licence and Petrol Permit, and
the debtor sued him for damages
for wrongful seizure and for the
return of the lorry. The two
suits were consolidated. The
trial Judge held that the
seizure was a trespass,
dismissed the creditor's claim
and awarded the debtor damages
with an order for the return of
the lorry. The creditor
appealed.
For the
appellant it was argued that
there was no rule preventing a
person from authorising another
to seize a chattel belonging to
him; for the respondent that the
appellant was not entitled to
seize the lorry without first
going to Court for help.
Held:
A person may confer the right
upon another to seize a chattel;
the document in this case
granted a licence to the
creditor, should the debtor
default in the payment of
instalments, to seize the lorry
for the debt; consequently there
was no trespass.
Semble:
The creditor was entitled to
have all such steps taken by the
debtor
as were
necessary to transfer the lorry
to him.
Cases cited:-
(1) Osei
Kofi v. lV1ensah, 1
W.A .C.A. 76.
(2) Kwaku
Adu Sei and Kwaku Ansa v.
Johnson Ofori, C.C.L.R.,
1926-9,87.
(3)
Thompson v. Veale
(1896), 74 L.T. 130.
(4)
Chapman v. Beecham, 3
Q.B. 723.
Appeal by the
creditor in consolidated suits
(plaintiff in the first,
defendant in
the second):
No. 31/50.
N. A.
Ollennu for Appellant (Delor,
the creditor). ].
Quist-Therson for Respondent
(Foli, the debtor).
The
following judgment was
delivered:
Foster-Sutton, P. In this
case the appellant sued the
respondent claiming delivery of
a Road Licence and Petrol Permit
in respect of a motor lorry
which he had seized from the
respondent in exercise of a
right which he claimed had been
given to him by a document dated
25th June, 1947, and for damages
which he alleged had flowed from
their non-delivery.
The
respondent also sued the
appellant claiming damages for
wrongful seizure of the r motor
lorry and for its return.
The facts not
in dispute are: The respondent
wishing to purchase and operate
a motor lorry borrowed a sum of
money from the appellant and
purchased the motor lorry which
is the subject of dispute in
these proceedings. The
arrangement regarding repayment
of the loan was reduced into
writing and reads as follows:-
[pg 54]
" I the
undersigned NORLI FOLI of
Srogboe living at Keta received
from Me Reuben Delor of Keta the
sum of Three hundred and sixty
pounds (£360) on loan; and
hereby promise to pay the said
amount (loan) by monthly
instalments of Twenty Pounds
(£20) per month commencing from
the 31st July, HJ47, I hereby
secured myself with my lorry
AC,4937 for the payment of the
above loan of £360, That in the
event of my failure to fulfil
the terms of my promise the said
Me Reuben Delor has the right to
seize the said lorry for the
debt,
" Dated at
Keta this 25th day of June,
1947,"
The
respondent failed to pay the
instalments called for under the
agreement and in October, 1947,
the appellant after an
unsuccessful demand for their
payment took delivery of the
motor lorry from the respondent.
The two
actions were consolidated and
tried before Coussey, J., who
held, on the authority of
Osei Kofi v. Mensah
(1), that the taking of the
motor lorry by the appellant was
a trespass, and he dismissed the
appellant's claim, ordered that
the lorry be returned to the
respondent and awarded the
latter £250, damages against the
appellant.
The learned
trial Judge found as a fact that
the respondent did not offer
opposition to the appellant
taking possession of the lorry,
but went on to say " probably
because he thought the plaintiff
(appellant) was entitled to do
so in the terms of the written
note".
Counsel for
the appellant submitted,
inter alia, that the learned
trial Judge was wrong in holding
that the taking of the motor
lorry constituted a trespass,
that the real question which
arose for determination in the
case of Osei Kofi v.
Mensah was whether there had
been an outright sale of the
chattel or whether it was held
under a hire-purchase agreement.
He submitted that the case was
not, I therefore, relevant to
the present one, and that there
is no rule of law which prevents
a party from authorising another
to seize a chattel belonging to
him,
Respondent's
Counsel relied upon the case to
which I have already referred
and cited the case of Kwahu
Adu Sei and Kwahu Ansa v.
Johnson Ofori (2) in support
of his contention that the
appellant was bound to seek the
intervention of the Court before
he was entitled to seize the
motor lorry, and that having
failed to do so he had clearly
committed a trespass.
The case of
Kofi v. Mensah (1)
turned, as argued by the
appellant's Counsel, on the
question whether the chattel had
been sold outright, in which
case the property in it would
have vested in the plaintiff, or
whether there was a hire
purchase agreement under which
the property would have remained
in the defendant. The facts of
the case are not fully stated in
the judgment, but it is clear
from the judgment of Deane,
c.]., that the Court based its
decision on the case of
Thompson v. Veale
(3). In that case it was held
that the agreement was not a
mere hiring agreement, but an
agreement to buy. The purchase
price was to be paid by
instalments and the agreement
stipulated that, upon default in
payment, the chattel, an organ,
could be seized. The purchaser
transferred the organ to a third
party by way of pledge and the
pledgee received the organ in
good faith and without notice of
the vendor's claim. The Court,
on those facts, held that the
transaction was covered by
section 9 of the Factors Act,
1889, which provides" where a
person ... having agreed to buy
goods obtains, with the consent
of the seller, possession of the
goods, the delivery or transfer
by that person ... of the goods
... under any sale, pledge, or
other disposition thereof ... to
any person receiving the same in
good faith and without notice of
any lien or other right of the
original matter in respect of
the goods ", shall be valid.
There goods in the hands of an
innocent third party had been
seized, a very different case to
the one before us on this
appeal.
In Kwaku
Adu Sei and Kwahtt Ansa v.
Johnson Ofori (2) the
first plaintiff executed a
document promising repayment of
a loan on the security of his
land, and authorising the
defendant, in default of
repayment, to have the property
disposed of by public auction.
The loan was not repaid when
due, and the defendant by his
auctioneer, entered upon the
land, and had the property sold
by auction. The plaintiffs
claimed damages for trespass. At
the trial judgment was given for
the defendant on the footing
that his entry upon the land
must be taken to have been with
the leave and licence of the
first plaintiff. On appeal,
however, it was held that the
document was an equitable
mortgage; but that, as the
defendant had not applied for
and obtained an order of the
Court, the sale was invalid,
that it was an infringement of
the first plaintiff's right to
the peaceful possession and
enjoyment of the land, and
constituted a trespass.
