Ghana Law Reports

ldonot alsodeemitnecessaryto considerthe individual devises and [1992)2 GLR

thatthe shares of
tosay the
bequests
testatorareto
thebenefits
and
will
profits
be
save
underthe accruingfrom the companies left
considered as part of his cash compannes
behi
assets nd
and by
should
the
or
be
treatedlikethe gift of movable assets such as gold trinkets and
alsocovered.
will
the reasons, I hold that the plaintiffs claim that the
Forthewhich
ornaments foregoing
bequestsare voidfails and is dismissed together with the claim for an
injunction order to restrainthe executors of the will from granting
in
ofthee properties named the will. The
in respect order
vesting assents respect ofthe rents alsofails and is dismissed.
There willnbe costs of ¢200.000 but the costs should Come out of the
for accounts
estate, not the children's portion since the will surely leaves only an
estate for the children.
infinitesimal portion of the deceased's
Judgment for the defendamts.
EEA

TRANSPORT HIRE PURCHASE LTD v DEDE

HIGH COURT, ACCRA

22 July 1988

LUTTERODT J

Sale of goods-Hire-purchaseSelling price-Constitution ofSeller required to state

orally and in writing cash price and hire-purchase priceRequirement pre
of
condition to execution of agreement-Whether requirement bar to inclusion
intended or subsequent expenses in selling price-Agreement for sale of vehicle
additional
stating cash and hire-purchase prices-Whether inclusion by seller of
1974 (NRCD
expenses on repairs and insurance lawful-Hire-Purchase Decree,
292), s 2.
Sale of goods-Hire-purchaseRight of repossession-Enforcement of right-Parties
liabilities under
to hire-purchase agreement empowered to vany rights, duties and
agreemen-Agreement for sale of vehicle-Parties reserving in plaintiff right to
repossess vehicle on default by defendant to pay instalments-Whether lavwju0
-Exercise of right conditioned on prior written demand and fourteen days
nottce--Failure by plaintiff to comply with statutory provisionsPhener
[1992]2 GLR Iransport Hire Purchase v Dede 59

plaintif'ssseizure of vehicle lawful--Whether plaintiff entitled to order for return of

vehicle--NRCD 292, ss 17
and 23.
Sale of goods--Hire-purchase--""Protected goods"-Right of repossession--Right of
repossessiOn to Protected goods" exercisable only by action--Definilion of
"protected goods"-Defendant Paying nore than 50 per cenl of selling price of
vehicle--Whether repossession of vohicle by plaintiff without courl order
lawful-Defendant entitled torefund of all moneys paid plaintif and release from
ligbilities under agreement--NRCD 202. s 8(). (2) and (4).

The plaintitcompanysold aToyota truck to the defendant under ahirc-purchase

agreement. The stated purchase price, ie the cash price was ¢750,000 and the
hire-purchase price was 1.4 million,Clause 11 of the hire-purchase agreement
reserved in the plaintiff the right to seize the vehicle when the defendant
defaulted in the payment of any monthly instalment. In apurported exercise of
that right the plaintiff subsequently impounded the vehicle. He then later
brought an action for an order for the return of the vehicle. The defendant
resisted the claim and in turn counterclaimed for the refund of the sum of
¢715,000she alleged she had paid to the plaintiff in respect of the vehicle and
other moneys she had expended on repairing and in insuring the vehicle; and an
order for a lien on the vehicle untit the plaintiff had paid those sums. In support
of the claim for refund of expenses on repairs and insurance, the defendant
contended that the plaintiff was not entitled under the Hire-Purchase Decree,
1974 (NRCD 292) to have added expenses not made at the time of the sale to the
purchase price. The court found that (i) it was the plaintiff who authorised the
defendant to make those expenses; (ii) at the time the plaintiff impounded the
vehicle the defendant had made total payments of ¢721,400 in respect of the
vehicle; and (iii) the defendant had not terminated the agreement at the time the
plaintiff seized the vehicle.
Held: (1) section 2 of the Hire-Purchase Decree, 1974 (NRCD 292)
required that before a hire-purchase agreement was executed the seller
should state both the cash price and the hire-purchase price orally and in
writing to the buyer or hirer. No provision however made it unlawful to
add intended expenses or expenses not made at the time of the sale to
either the cash price or the hire-purchase price. Accordingly, in the instant
case, even though the hire-purchase agreement, exhibit A, provided that
the cash price was ¢750,000 and the hire-purchase price ¢l.4 million the
inclusion by the plaintiff of additional expenses for insurance and repairs
in the selling price was lawful.
(2) Section 23 of NRCD 292 clearly permitted the parties to a hire
purchase agreement to vary their rights, duties and liabilities by express
agreement or by the course of dealing between the parties or by a custom
which the parties might be taken to have agreed to be applicable to their
agreement. Accordingly, clause 11 of the hire-purchase agreement which
reserved in the plaintiff the right of seizure on default by the defendant to
60 Ghana Law Reports [1992] 2GLR
pay any monthlyinstalment was lawful. However, the power of variation
was subjcct to other provisions of NRCD 292. Section 17 of NRCD 292
mandatorily demanded that before the right of, inter alia. forfeiture
repossession could be exercised by the plaintiff it should have (a) made a
written demand to the defendant to pay he arrears of the instalments: and
(b) given the defendant fourteen days trom the service of the demand
before taking steps to repossess the vehicle should the defendant Fail to
comply with the written demand. Since the plaintiff failed to comply with
those statutory provisions, the seizure was unlawful. Accordingly, the
plaintiff was not entitled to an order that the vehicle be returned to it.
(3) The plaintiff 's right of repossession was also subject to section
8(1) of NRCD 292 which prohibited any seller or hirer from enforcing
any right to recover possession oT protected goods" from the hirer or
buyer otherwise than by action. Section 8(4) defined protected goods as
)goods acquired under ahire-purchase or conditional sale agreement; (i)
one-half of the total purchase price of which had been paid or tendered on
behalf of the buyer-or guarantor; and (ii) the agreement between the
parties had not been terminated by the seller. Section 8(2) provided very
grave sanctions against a seller who violated the provisions of section 8(1)
of NRCD 292. On the evidence the defendant had paid more than 50 per
cent of the total purchase price and consequently the vehicle was a
protected good. Accordingly, its seizure or impoundage by the plaintiff
without resort to court action clearly violated section 8(1) of NRCD 292.
Accordingly, the defendant was entitled under section 8(2) of NRCD292
to a refund of all themoneys she had paid to the plaintiff and a release
from all her liabilities under the agreement.

AcrioN by the plaintiff against the defendant for the return of a motor
vehicle let under a hire-purchase agreement. The facts are sufficiently
set out in the judgment.
PK Twumasi for theplaintiff.
SAX Tsegahfor the defendant.

Lutterodt J. The plaintiff, who is a limited liability company, on 9

August 1985 caused this writ to be issued against the defendant claiming:
"1)areturn of one Toyota/Albion 8tonner vehicle No AZ 5567,
the reason being that although this vehicle was let under a hire
purchase agreement the defendant had breached the terms of the
agreement."
Although on 19 June 1987 and 27 October 1987 the plaintiff was