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D. C. ASANTE AKUFFO AND KWADADE AKUFFO
V.
L. D. ASANTE
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
10TH DAY OF MARCH, 1953
2PLR/1952/34 (WACA)
OTHER CITATION(S)
2PLR/1952/34 (WACA)
(1953) XIV WACA PP. 275 – 276
LEX (1953) – XIV WACA 275 – 276
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BFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
COUSSEY, J.A.
WINDSOR-AUBREY, J.
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BETWEEN:
D. C. ASANTE AKUFFO AND KWADADE AKUFFO – Appellants
AND
L. D. ASANTE – Respondent
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REPRESENTATION:
K. Opoh Akyeampong — for Appellants
Koi Larbi — for Respondent
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CASE SUMMARY
Appeal by the plaintiffs: No. 43/52.
The plaintiffs bad given a memorandum with this term: “If we fail to undergo the above agreement of paying the said sum of £300 he has right to cease (meaning seize) the lorry and sell to cover the balance due.” They sued contending that nevertheless the memorandum did not give the defendant power to seize the lorry. The trial Judge held that in view of that term between creditor and debtor; the defendant bad the right to seize the lorry. The plaintiff appealed.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the Appeal) that:
The appellant had conferred on the respondent the right to seize the lorry and the licence was properly exercised; consequently no action lay in trespass.
Cases cited:-
(1) Osei Kofi v. Mensah, 1 W.A.C.A. 76.
(2) Djietror, v. S.C.O.A., W.A.C.A. on 25th March. 1952.
(3) Reuben Delor v. Norli Foli, W.A.C.A. 9th April, 1952.
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MAIN JUDGMENT
The following Judgment was delivered:
COUSSEY, J. A.
In this action the plaintiffs-appellants claimed the return of an Austin Lorry No. AR.6154 which they alleged bad been unlawfully seized by the defendant and, alternatively, the sum of £700 as the value of the lorry, and £200 damages for wrongful seizure.
The defendant justified the seizure by virtue of an agreement between the plaintiffs and himself for a loan of £300 to purchase the lorry, the memorandum relating to which concludes:-
“If we fail to undergo the above agreement of paying the said sum of £300 (Three hundred pounds) he has right to cease (sic) the lorry and sell to cover the balance due.”
The Court below held that there had been no trespass in respect of the lorry. It was contended on behalf of the plaintiffs in the Court below that the memorandum referred to did not give the defendant power to seize the lorry notwithstanding the express terms of the memorandum.
In support of this contention, the judgment Osei Kofi v. Mensah (1) was cited. The learned Judge on a consideration of that case and reviewing the other decision cited in the judgment held that those cases related to transactions between a vendor and purchaser to which section 9 of the Factors Act applied, and which protected an innocent third party to whom goods bad been transferred by the intended purchaser while the purchase price bad not been fully paid. The learned Judge proceeded to hold that the transaction between the plaintiffs and the defendant in this suit was one of debtor and creditor, and that the defendant bad rightly exercised an authority expressly given to him by the plaintiffs to seize the lorry.
The plaintiffs have on this appeal addressed the same argument to this Court, namely, that on the authority of Osei Kofi v. Mensah (1) there was n6 right in the defendant to re-take the lorry.
There are two cases directly in point and decided in this Court which are against the appellants’ contention. The first was on the 25th March, 1952 – Djietror v. S.C.O.A, and the other, on the 9th April, 1952, is Reuben Delor v. Norli Foli, In the latter judgment, the case of Osei Kofi v. Mensah (1) as well as Thompson v. Veale, which is therein referred to, were reviewed and it was held that where, as in this case, a person confers the right upon another to seize a chattel in certain circumstances and the licence is properly exercised by that person no action lies in trespass.
There being, therefore, direct authority on the point in the two judgments of this Court referred to above, I am of opinion that this appeal should be dismissed.
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FOSTER-SUTTON, P.
I concur.
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WINDSOR-AUBREY, J.
I concur.
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Appeal dismissed.