ATTA v.

ADEVOR
[1976] 2 GLR 343

Division: COURT OF APPEAL, ACCRA

Date: 18 MAY 1976
Before: SOWAH, ANIN AND KINGSLEY-NYINAH JJ.A.

Practice and procedure—Writ—Amendment—Leave to amend writ to include claim founded on Act 137,
s. 57—Failure to amend endorsement within time limit contrary to Order 28, r. 7—Case tried to
conclusion—Defendant also entitled to certain rights under Act 137—Whether proper for Court of
Appeal to grant extension of time to amend writ under Order 28, r. 7—Proper order in the
circumstances—Sale of Goods Act, 1962 (Act 137), s. 57—High Court (Civil Procedure) Rules, 1954
(L.N. 140A), Order 28, r. 7.

HEADNOTES
The appellant, under a hire-purchase agreement, purchased a vehicle from the respondent. Subsequently,
the respondent seized the vehicle after the appellant had defaulted in the monthly instalment payments.
The appellant sued for, inter alia, damages for wrongful seizure. However, before trial of the action, the
appellant applied and obtained leave of the court to amend his writ to include an alternative claim for
recovery of all moneys paid under the sale in accordance with the Sale of Goods Act, 1962 (Act 137), s.
57, but he failed to amend the endorsement within the time limit under Order 28, r. 7 of the High Court
(Civil Procedure) Rules. The trial court dismissed the claim without considering the proposed
amendment. On appeal, counsel for the appellant urged that the Court of Appeal had power to grant the
necessary extension of time for the amendment of the endorsement to enable the appellant prosecute the
appeal. The court having found that the respondent also had certain rights under Act 137 which he could
agitate,
Held, allowing the appeal: in the circumstances of the case, it would result in injustice to the respondent if
the Court of Appeal were to extend the time limit for the appellant to amend the endorsement on his writ
to include the recovery of all sums paid under section 57 of Act 137 because under the Act, the
respondent being the vendor had also certain rights to agitate. In order that Act 137, s. 57 might be
judicially interpreted the Court of Appeal should remit the case to the trial court for the grant of the
necessary extension of time, for trial de novo and for the respondent to plead to the amendment or avail
himself of the provisions of Act 137 if he so desired. Dictum of Adumua-Bossman J.S.C. in Ayiwa v.
Badu [19631] 1 G.L.R. 86 at p. 89, S.C. considered. Abaka v. Ansah [1965] G.L.R. 688 cited.

CASES REFERRED TO
(1) Ababio IV v. Quartey (1916) P.C. ‘74–’28, 40.
(2) England v. Palmer (1955) 14 W.A.C.A. 659.
(3) Ayiwah v. Badu [1963] 1 G.L.R. 86, S.C.
(4) Abaka v. Ansah [1965] G.L.R. 688.
NATURE OF PROCEEDINGS
APPEAL against dismissal of the appellant’s claim for, inter alia, damages for wrongful seizure of a
vehicle. The facts are sufficiently stated

[p.344] of [1976] 2 GLR 343

in the judgment of Sowah J.A.

COUNSEL
Gikunoo for the appellant.
No appearance for or by the respondent.

JUDGMENT OF SOWAH J.A.

The facts in this appeal are not much in dispute and they are briefly that on 8 February 1967 the appellant
bought on credit a vehicle No. AG 7982 from the respondent at the price of ¢1,800. In accordance with
the agreement he made part payment of ¢800 leaving the balance to be paid by stipulated instalments
which were embodied in a note described as a “deed of promise” and which reads:
“DEED OF PROMISE
Whereas I, the undersigned, Joseph Kofi Atta of Kpandu Aloi, Kpandu District, Volta Region of Ghana, am
indebted to E. K Adevor of Aveme Drah, Kpandu District, Volta Region of Ghana in the sum of £G500
(¢1,200) being balance of that three-ton Austin track No. AG 7982, I did buy from him.
This serves as my deed of promise, promising to pay to the said E. K. Adevor the balance of the said amount
of £G500 (¢1,200) by a monthly instalment of £G70 (¢168) pending full payment.
Failure on my part to make good payment of the said amount on the instalment basis above-stated, the owner
of the said vehicle, E. K. Adevor, shall have right to seize, and dispose of on sale to any other person or
persons the said vehicle after a month’s grace for the recovery of his balance that may be due and owing by
me.
Dated at Kpandu, 8 February 1967.
(Sgd.) Joseph Kofi Atta
(J. K. Atta)
DEBTOR.”

As it is often the experience in this kind of transaction, the delivery of the vehicle was subsequent to the
signing of the agreement. More often than not the purchasers are so anxious to obtain possession that they
fail to exercise caution by taking expert advice or adequate steps to check the road worthiness of the
vehicle before sale or delivery to them. The victims are almost invariably drivers who want to own their
own vehicles.
Be that as it may, soon after delivery the vehicle broke down and had to undergo extensive repairs. In the
result the appellant was unable to meet his obligations under the agreement and the respondent exercised
his right of forfeiture. The appellant pleaded with the respondent who restored the vehicle. The appellant
raised a loan of ¢600 to effect the necessary repairs. Thus he had to repay both the loan and the
instalment, a task he was unequal to. After a few months’ default to pay the instalments the respondent
seized the vehicle for the second time on 31 July 1968 but was again persuaded not only to release the
vehicle but to reduce the instalments. Even with these concessions, the appellant defaulted
[p.345] of [1976] 2 GLR 343

in the payments as they fell due, and the vehicle was finally seized on 18 December 1968.
The appellant promptly issued a writ claiming:
“(1) A declaration that the Austin truck No. AG 7982 wrongfully seized by the defendant on 18 December
1968 is the property of the plaintiff.
(2) An order for the return of the said vehicle or its value to the plaintiff.
(3) Damages for unlawful detention of same in respect of loss of earnings of the said vehicle at a rate of
¢20.00 per working day up to the date of delivery.”

There followed a statement of claim setting out the alleged grounds for the wrongful seizure. The
respondent denied that the seizure was wrongful and relied squarely on “the deed of promise.”
However, before the trial of the action, the appellant applied for and was granted leave to amend his writ
by the inclusion of an alternative claim, namely, “an order that the defendant repays to the plaintiff all
moneys paid by the plaintiff to the defendant under the Sale of Goods Act, 1962 (Act 137), s. 57.”
It appears that the appellant took no steps to amend his endorsement on the writ in conformity with Order
28, r. 7 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A), until six months after, when the
trial had begun and was almost at a close and he did so without obtaining an extension of time. The action
however proceeded on the issue as to whether or not the defendant had the power of seizure under the
agreement.
The addresses of counsel at the close of the hearing however touched extensively on the meaning and
effect of section 57 of the Sale of Goods Act, 1962 (Act 137), and invited the learned judge to pronounce
upon it. In his judgment, the learned judge recited the endorsement in the writ including the proposed
amendment; thereafter he appeared to have completely lost sight of it and dealt with the claim as if the
amendment did not exist. Technically the learned judge would be right as there was no amendment before
him, it having become void ipso facto for failure to amend within the prescribed time and there had been
no extension of time. But it appears from his judgment that his failure to advert to it was due more to
inadvertence than to any conscious exercise of discretion.
Having held that the transaction was one of credit sale the learned judge proceeded:
“The defendant came into possession of the vehicle rightfully and as such I am of the opinion that he can
exercise the right of a lien over the vehicle until the plaintiff makes full payment of the balance. Delor v. Foli
(1952) 14 W.A.C.A. 54 confirms that a debtor, by a document, may confer the right upon a creditor to seize
a chattel should the debtor default in the payment of instalments. When such a right is exercised it cannot
amount to trespass. Though

[p.346] of [1976] 2 GLR 343

Delor’s case dealt with a loan transaction I think that the ratio decidendi there can be applied to this case. In
all the circumstances of the case I think that the plaintiff’s case must fail and I accordingly non-suit him.”

There was not a word as to whether or not section 57 of Act 137 applied.
In this court counsel for the appellant has conceded that without the amendment his appeal would
founder, but urges that this court has power to grant the necessary extension of time. Counsel did not
draw the court’s attention to any case where this court has in such circumstances granted leave to amend.
There are of course a long line of cases in which either a trial court or the Court of Appeal has on its own
motion amended a claim or the endorsement on a statement of claim “for the purpose of enabling the use
of the evidence that had been obtained for the purpose of settling the real controversy between the
parties.” See Ababio IV v. Quartey (1916) P.C. ‘74–’28, 40; adopted in England v. Palmer (1955) 14
W.A.C.A. 659 at p. 661. However in a situation similar to the one before us Adumua-Bossman J.S.C.
delivering judgment in the then Supreme Court in Ayiwah v. Badu [1963] 1 G.L.R. 86 at p. 89 said:
“The provisions of rule 7 undoubtedly contemplate and prescribe the taking of implementary steps by a party
who has obtained leave to amend. Rule 7, together with rules 8,9 and 10 contain the necessary directions as
to the steps to be taken to implement the grant of leave to amend; and as in the instant case, after the grant of
leave to amend, the plaintiffs did not have the proposed amendment written into the original writ and
statement of claim on the court’s file, nor had a newly amended writ and statement of claim filed with copies
for service, in substitution for those originally filed, nor paid any amendment fee, it seems clear that
plaintiffs’ counsel’s submission was well-founded and unanswerable.”

Having given due consideration as to whether or not this court should grant the extension sought so that
the provisions of section 57 of the Sale of Goods Act, 1962 (Act 137), should be the subject-matter of
judicial interpretation and pronouncement, I have come to the conclusion that to extend time in this court
will result in injustice to the defendant as under the provision he also has certain rights which he can
agitate.
Section 57 of the Sale of Goods Act, 1962 (Act 137), under the “Personal Rights of a Buyer” reads:
“57. (1) Where under a contract of sale the buyer has paid a part or all of the price to the seller and the
seller refuses or neglects to deliver the goods to the buyer, having the right so to do, or, after
delivering the goods, recovers the possession thereof having the right so to do, the buyer is
entitled (without prejudice to any other-rights, but subject to any counterclaim for damages by
the seller) to recover from the seller the amounts which he has paid.

[p.347] of [1976] 2 GLR 343

(2) This section applies whether the amounts paid by the buyer were expressed to be by way of
part payment or deposit or otherwise, and notwithstanding any agreement to the contrary.
(3) Nothing in this section affects any case where the seller’s refusal or neglect to deliver the
goods, or his recovery of the possession thereof is wrongful.”

(The emphasis is mine.) The section may well be contrasted with section 44 of the same Act under
“Recovery of Possession from Buyer”:
“Subject to the provisions of this Act, and subject to any contrary intention an unpaid seller may recover
possession of the goods from the buyer after they have been delivered to him if—
(a) the property has not passed to the buyer; or
(b) the property has passed to the buyer but the contract nevertheless expressly confers a right on the
seller to recover possession;
and the buyer fails to pay the price in accordance with the terms of the contract, but not otherwise.”

These provisions of our Act, namely, sections 44 and 57 of the Sale of Goods Act, 1962, have no
equivalent in the English Sale of Goods Act, 1893 (56 & 57 Vict., c.71), and there appears to be no
authoritative pronouncement on them. It will of course be recalled that in Abaka v. Ansah [1965] G.L.R.
688, Archer J. (as he then was) declined to apply section 57 as it had not been raised in the pleadings. I
think it is therefore most desirable that this court remits the case for trial de novo, for the court to grant
the necessary extension of time and the defendant to plead to it or avail himself of the provisions of the
Act if he so desires. Accordingly I will allow the appeal, set aside the judgment, but the order for costs
shall remain, remit the case for hearing de novo after granting the extension of time and allowing all
necessary amendments.
There will be no order as to costs in this court.

JUDGMENT OF ANIN J.A.

I agree.

JUDGMENT OF KINSLEY-NYINAH J.A.

I also agree.

DECISION
Case remitted for trial de novo.
Order accordingly.
K. S. N.-D.