Essaku Sengena V. Yao Poku (1943)

LawGlobal Hub Judgment Report – West African Court of Appeal

Contract–Hire-purchase—Vendor’s right of seizure—SalePurchaser’s right to terminate agreement—N ovation– Promissory note—Conditional document—Time of payment neither fixed nor determinable.

Facts

Plaintiff hired a lorry from defendant under a hire-purchase agreement. Defendant subsequently took .possession of the lorry, purporting to act under the agreement, and plaintiff sued him for unlawful seizure.

The agreement, dated 18th January, 1940, was one for sale of the lorry ” under hiring purchase system ” for £200. £40 was deposited and the balance was payable by £20 monthly instalments before the end of August 1940. Plaintiff was to be responsible for repairs. Defendant reserved the right to seize the lorry if plaintiff made default, and upon a second default to sell or use it as his own, on notice to plaintiff, for the purpose of making good the balance then due. On 13th December, 1940, plaintiff signed a document promising to pay £31 costs of repairs and £50 balance of purchase price then due by monthly instalments of £20. No date was fixed for payment of the first instalment.

In the Divisional Court judgment was given for the plaintiff on the grounds, first, that the absence of a defeasance clause whereby plaintiff could terminate the agreement made it a sale under which the, lorry became the absolute property of plaintiff and could not be seized notwithstanding the clause allowing seizure in case of default, and secondly, that defendant’s right under the agreement of 18th January had been extinguished or suspended by the document of 13th December, which was a new agreement and left defendant no remedy but to sue thereon.

Held

That by the agreement of 18th January, plaintiff was not to acquire the property in the lorry until the instalments had been paid in full.

Held: further, that the document of 13th December was neither a new agreement nor a promissory note. It was a unilateral document made by plaintiff alone, and there had been no allegation of any oral variation of the original agreement of which it might have been taken as evidence; nor was it a promissory note, because it was conditional on the repairs having been effected in accordance with the contract to repair, and because the
times or payment were nenner nxeu nor utnermulaul..

The costs in this Court are assessed at £45 lls 9d.