Tay v Zonda Tec (Ghana) Limited (CM/RPC/0147/2024) [2025] GHAHC 97 (19 June 2025)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE (COMMERCIAL DIVISION 6) HELD IN ACCRA ON THURSDAY THE 19TH DAY OF JUNE, 2025BEFOREHERLADYSHIP JUSTICESEDINA AGBEMAVA SUITNO.: CM/RPC/0147/2024 DEBORAHFAVOURKPORMEGBE TAY … PLAINTIFF VRS. ZONDA TEC(GHANA) LIMITED … DEFENDANT JUDGMENT The Plaintiff seeks the underlisted reliefs in her Writ of Summons and Statement of Claim. a. Recovery of Sinoturk Howo Truck with registration number GM 2197 21, being a truckDefendant impounded fromthe Plaintiff. b. Recovery of Five Hundred Thousand Ghana Cedis (GH¢500,000.00) being Plaintiff’s loss of earnings fromthe operation of the truck from 4thJanuary, 2023 – October2023. c. GeneraldamagesofFive Million Ghana Cedis (GH¢5,000,000.00). d. Costoflitigation, and; Page1of17SuitNo.CM/RPC/0147/24DeborahFavourKpormegbeTayVrs.ZondaTec(Ghana)Limited e. Anyotherreliefs the Honourable Courtmay deemfit. Plaintiff states in her accompanying Statement of Claim that she is in the business of renting trucks to mining Companies. In pursuance of this business, she contacted the Defendant to purchase atruck. According to the Plaintiff, she was informed that to make an outright purchase, she would have to pay Eighty Thousand US Dollars (US$8,000.00) and Eighty-Five Thousand US Dollars (US$85,000.00) on hire purchase at a fixed rate of GH¢6.2 to the dollarforayear. Plaintiff avers that Defendant demanded an initial deposit of Forty Eight Thousand, Three Hundred and Eighty Seven Dollars(US$48,387.00) equivalent to Three Hundred Thousand cedis. She was further informed that if she bought Two (2) Trucks, it would reduce her liability on the deposit to Two Hundred Thousand Ghana Cedis (GH¢200,000.00)foreach truck. Plaintiff it would seem was delighted from the windfall to be gained and so teamed up with a friend to utilise the hire purchase option on a joint account.. They duly made a joint initial down payment of Four Hundred Thousand Ghana Cedis (GH¢400,000.00), theequivalent ofSixty-Four Thousand Dollars (US$64,000.00). Plaintiff further pleads that they were required to make a monthly payment of Four Thousand, ThreeHundred and Ninety-Five United States, Sixteen Cents (US$4,395.16) which was equivalent to Twenty-Seven Thousand, Two Hundred and Forty-Nine Ghana Cedis (GH¢27,249.00) each, commencing 15th October, 2021. In addition to this Page2of17SuitNo.CM/RPC/0147/24DeborahFavourKpormegbeTayVrs.ZondaTec(Ghana)Limited they executed a contract but were informed copies of the contract would be made available tothemonthedeliveryofthe trucks. It is the Plaintiff’s case that no such contract was given them upon delivery of the trucks, neitherwas it delivered toher whenshe pursued the Defendant forit. Plaintiff avers that she made her monthly payments in advance because she was out of Accra. Her total payments to Defendant stood at Seventy-Five Thousand, Seven Hundred Dollars (US$75,700.00) at the end of the year stipulated by the contract. The outstanding balance wasNine Thousand ThreeHundred Dollars (US$9,300.00). Despite almost retiring her debt to the Defendant, Plaintiff says she was alarmed when her truck was impounded on the 4th of January, 2023 and upon enquiry from the Defendant, was informed that she owed an amount of Thirty Five Thousand Dollars (US$(35,000.00). The reason given to her by the Defendant for this enhanced sum was that the Cedi to Dollar rate had increased and with it the upward adjustment on her account. Plaintiff says that she rejected this new sum outright as it had not been discussed with herprior,neither wasshe givennotice ofDefendant’s action ofimpounding her truck. Plaintiff further pleads that due to the actions of the Defendant, she has lost earnings of Fifty Thousand Ghana Cedis (GH¢50,000.00) monthly, from January, 2023 to October, 2023. Plaintiff says that the Defendant further exacerbated the problem by selling the truck she had almost completed payment for, and informed her she had an amount of Nine Page3of17SuitNo.CM/RPC/0147/24DeborahFavourKpormegbeTayVrs.ZondaTec(Ghana)Limited Thousand and Nineteen Dollars and Two Cents (US$9,019.02) as due her after the sale of the truck. It is her case that unless this Court compels the Defendant, it has no intention of returning the truck nor refunding to her the sum she paid for it, hence her claim. The Defendant in its Statement of Defence, denied the Plaintiff’s claim. It alleged that the truck with registration number GM 2197-21 did not belong to the Plaintiff but was owned by one Billey Mohammed Abdullah. It was this Billey Mohammed Abdullah who had a valid contract with Defendant, which Plaintiff appended her signature to as a Witness. For this reason, according to the Defendant, the Plaintiff had no capacity to bring the action as she had against it and it put in a Counterclaim for the following reliefs; a. The Plaintiff lacks capacity to bring the instant suit against the Defendant and/or invoke the jurisdiction of the Court because the Plaintiff had failed to demonstratetothe Courtthatshe had any legalrelation withtheDefendant. b. That the Plaintiff, not claiming through Billey Mohammed Abdullah has no cause ofaction against theDefendant. The Defendant filed another Motion on the same day it filed its defence, asking for the Plaintiff’s action to be dismissed for want of capacity. The Motion was heard and dismissed because on the evidence, the Court found that the Plaintiff had shown that she was imbued with the capacity to mount the action. The Defendant however, did not amend its defence and fought the trial based on its defence filed on the 2nd of January, 2024,whichwhole defence was predicated onitsalleged lack ofPlaintiff’scapacity. Page4of17SuitNo.CM/RPC/0147/24DeborahFavourKpormegbeTayVrs.ZondaTec(Ghana)Limited After settlement failed at the pre-trial stage, the issues for adjudication were set down asbelow; 1. Whether or not the Defendant has the right to impound the Sinoturk Howo Truck with registration number GM 2197-21 in the possession of the Plaintiff withoutan orderofthe Court. 2. Whether or not Plaintiff is entitled to recover the Sinotruck Howo Truck with registrationnumber GM 2197-21, thetruck having become aprotectedgood. 3. Whether or not the Plaintiff is entitled to recover from the Defendant money had and received and the sums ofmoney paid by the Plaintiff. 4. Whether or not the Plaintiff is entitled to recover lost earnings from the operation ofthe truck following the impoundment (sic). 5. Whetherornot thePlaintiff is entitled to generaldamagesfromtheDefendant. 6. Whetherornot the Plaintiff has acontractin relationto theSinotruk Howo Truck withthe Defendant. The Parties each testified by aloneWitness. Since the Defendant’s sole defence of capacity was dismissed by the Court, what remained wasthe Plaintiff’s avermentsonher pleadings. Page5of17SuitNo.CM/RPC/0147/24DeborahFavourKpormegbeTayVrs.ZondaTec(Ghana)Limited As has been held in Dzaisu v Ghana Breweries Ltd [2007-2008] SCGLR 528, since it was the Plaintiffs who made the assertions in their Statement of Claim, the burden of proofwas thereforeonthe Plaintiffs…as provided under Section 14ofthe Evidence Act, 1975whichstatesthat; “Except as otherwise provided by law, unless it is shifted, a Party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim ordefence that party is asserting” In proof of her case, the Plaintiff tendered in evidence Exhibit ‘B’-Series. Exhibit ‘B’- Series is a number of official receipts issued by Zonda Sinotruk Assembly Plant Limited. This is the Defendant. These receipts are made out to the Plaintiff herein and I’ll reproduce Exhibit ‘B1’as asample. Itreads; Received from Deborah Favour K. The Sum of Two Hundred Thousand Ghana Cedis (GH¢200,000.00), being Truck repayment. Exhibit ‘B1’ is just one of the evidence of various sums of money paid by the Plaintiff for the truck she purchased from the Defendant. The Defendant has been unable to explain why the receipts were issued in the name of the Plaintiff and not in the name of Billey Mohammed Abdullai, whom it claims it entered into thesales and purchase contractwith. The Exhibit ‘B’-Series tendered by the Plaintiff goes to prove her assertion that she entered into a hire purchase agreement with the Defendant, even though she was not given a contract. I am satisfied on the evidence that the Plaintiff had an Agreement (even though unwritten) with the Defendant for the purchase of a truck on a hire purchase basis. Page6of17SuitNo.CM/RPC/0147/24DeborahFavourKpormegbeTayVrs.ZondaTec(Ghana)Limited In her book Law of Contract in Ghana, 2016 the learned author Christina Dowuona- Hammond states that “The concept of Agreement is the basis or essence of every contract. A contract is essentially the outward manifestation of agreement between the parties with regard to a common objective. This manifestation of Agreement may be made wholly or partly in writing, orally, by conduct or by a combination of all three. Thus one of the first inquiries in dealing with any contractual dispute is to determine whetheror notthereis anagreement betweenthe partiesat all” “In determining whether or not the parties have come to an Agreement, the Courts lay particular emphasis on external appearance rather than the actual intent or state of mind of the Parties. The courts operate on the basic principle that Agreement is not a mental state but rather an act and therefore a matter of inference from conduct. In ascertaining the existence of Agreement, therefore, the Parties are to be judged, not by what they had in mind but by what can be objectively inferred from what they have said, writtenordone” I have stated that issuing the Plaintiff with areceipt in her name for payments she made is an acknowledgement by the Defendant that there was an Agreement between the Parties. If indeed the Plaintiff truly had no contract with the Defendant, even if she had made payments on the truck, the receipts would not have been issued in her name but in the name of the person on whose account she was making the payment. The receipts as evidence in Exhibit ‘B’ were issued in her name because she was making payment for goodsshe had boughtfromthe Defendant. The Defence Witness had testified and admitted in cross examination that when the truck was sold, they called the Plaintiff to pick up money which was due her after the repossession and sale of the truck. She stated that Defendant called the Plaintiff because Page7of17SuitNo.CM/RPC/0147/24DeborahFavourKpormegbeTayVrs.ZondaTec(Ghana)Limited they were informed she was Billey’s wife. I am of the opinion that the Defence Witness conjuredthis testimony outofnothing. There was no indication whatsoever that there was any such relationship existing between the said Billey and the Plaintiff. In actual fact, from the evidence, the Defendant had alwaysdealt withPlaintiff and Billey individually. In Exhibits ‘B’- series, ‘C1’, Plaintiff was given an individual Statement of Account and receipt. It was in her name and no one else. In any event, the Defendant could not have purported to be dealing with the Plaintiff as the wife of said Billey, because they would not have had any contract with her by reason only of her purported marriage to Billey. The Defendant was aware it was dealing with the Plaintiff in her own right as a purchaser. I thereforereject itstestimony as statedabove. It has been submitted on behalf of the Defendant that since the Plaintiff was unable to produce a contract in writing between she and the Defendant, it meant that there was no Agreement between the Parties. With all due deference, from the authorities, an agreement need not be in writing. It canbe inferred fromconduct and it can be enforced ifit hadbeenpartly performed orcarried into effect. This is exactly what pertained between the Parties in this instance. Even though the Agreement between the Parties had not been reduced into writing, equity may be prayed in aid of the Plaintiff as from the evidence, she had clearly part performed the Agreementby making paymentsonthe truck. The Interpretation Section of the Hire Purchase Act, 1974 NRCD 292 Section 24 defines ahire purchase agreement inthe following terms; Page8of17SuitNo.CM/RPC/0147/24DeborahFavourKpormegbeTayVrs.ZondaTec(Ghana)Limited “Hire Purchase Agreement means an Agreement for the bailment ofgoods under which the bailee may buy the goods or under which the property in the goods will or may pass to the bailee and where by virtue oftwo (2) or more Agreements, none of which by itself constitutes a hire purchase agreement there is a bailment of goods and either the bailee may buy the goods or the property in them will or may pass to the bailee, the agreements shall be treated for the purposes of this Act as a single hire-purchase Agreementmade atthe time when thelast ofthe Agreementswas made.” Fromthe evidence, the truck was handed over to the Plaintiff and she made repayments on her account. This is evidenced by the Plaintiff’s Exhibit ‘B’ and Exhibit ‘C’ series which are Statements of Account made out in the name of the Plaintiff, Deborah Favour Tay and subsequently in the joint names of Deborah Favour Tay and Billey and Khill U Consult. I therefore find that there was a hire-purchase agreement between the Parties herein. The Defendant admitted in evidence that it repossessed the Plaintiff’s truck. On the evidence the Defendant did this withoutan orderofthe Court. Under Section 8 of the Hire-purchase Act, 1974, the Defendant could not have enforced any right torepossess the truck thanby anaction. Section8(1) stipulatesasfollows; “The owner or seller shall not enforce a right to recover possession of protected goods fromthe hirerorbuyer otherwise thanby anaction. Page9of17SuitNo.CM/RPC/0147/24DeborahFavourKpormegbeTayVrs.ZondaTec(Ghana)Limited Section 8(4) defines protected goods as goods which have been let under a hire purchase agreement or sold under a conditional Sale Agreement. The Defendant ought tohave known thathaving paid. One-half of the price or total purchase price of which has been paid, whether in pursuance of a Judgment or otherwise, or tendered by or on behalf of the hirer or buyer or a guarantor, and in relation to which the hirer or buyer has not terminated the Hire- purchase Agreement or conditional Sale Agreement, or, in the case of a Hire-purchase Agreement,the bailment, by virtue ofaright vested inthe hirer. There is no dearth of authorities which lays down the principle that once a substantial amount of the hire purchase price has been paid, the right to seize the goods is not forfeited. Plaintiff Counsel helpfully supplied the Court with a list of authorities which state this principle. In order not to overwhelm this Judgment with copious citations of authorities laying down the same principle I will rely on only Two (2) of these cases in support ofthe principle. In the case of Taylor v S.Y Sasu & Sons [1973] 1 GLR 176 Amissah J.A (as he then was) inthe lead opinion held as follows: “From the date and the terms of the receipt and from the owners' own pleadings it could not be accepted that the N¢610 was referable to any other Agreement than the original Agreement made on 4th August 1966. On the receipt of that sum the total payments made under the Agreement became N¢6,710, more than half the hire- purchase price. Whatever rights the respondents had to determine the Agreement withoutthe intervention oftheCourt,theywaived by this acceptance.” Page10of17SuitNo.CM/RPC/0147/24DeborahFavourKpormegbeTayVrs.ZondaTec(Ghana)Limited Inhis supporting opinion ApalooJA (as he thenwas) opined thus “Whatevermay be the true position in this country, the statagem by which the statutory injunction against seizure without recourse to the Courts may be evaded by successive Hire-purchase Agreements, of the same article, was foreseen and legislated against in the English Hire-Purchase Act, 1938 (1 & 2 Geo. 6, c. 53). By Section 11 (1) of the 1938 Act, where a third of the hire-purchase price has been paid, the right to repossess the goods other than by legal proceedings was forbidden. To obviate what the respondents assert happened inthis case, Section 15ofthatAct provides that: "Where goods have been let under a Hire-purchase Agreement and at any time after one-third of the hire-purchase price has been paid or tendered the owner makes a further hire-purchase Agreement with the hirer comprising those goods, the provisions of Section eleven and twelve of this Act shall have effect in relation to that further agreement asfromthe commencement thereof." The intention of this provision appears to be that once a third has been paid under the first agreement, a third shall be deemed to have been paid under the successive Agreements and accordingly, the section which prohibits seizure without recourse to theCourts becomes applicable.” It can be seen from the opinions of the judges in the above-mentioned cases that an owner(s) cannot proceed to take charge of goods without pursuing an action, especially where asubstantial amount hasbeenpaid. Even though these cases were determined under the then existing law being the Hire- purchase Act of 1958, the principles applied are unexceptionable and are consistent withthe provisions under the presentAct. Page11of17SuitNo.CM/RPC/0147/24DeborahFavourKpormegbeTayVrs.ZondaTec(Ghana)Limited In Danso v Taylor (1969) CC 152, it has been held that where the Respondent made a seizure without an order of the Court, the action was wrongful and the fact that the appellant had breached a clause in the agreement relating to the repair of the vehicle did not justify the seizure by the Respondent. In the present case, the Defendant has alleged that Mr. Billy had failed to complete payment under the contract and so the truck was repossessed. When further pressed under cross examination how much the said Billy had paid, the Defendant witness statedthat she could notrecall. I do not think she was being truthful to the Court when she stated that she could not remember. She could have supplied the information to the Court if she was so minded because the information was readily available from her Sales and Finance team. The reason why she was reluctant to supply the information was because it was deleterious to the Defendant’s case. From the judicial decisions, even if the Plaintiff or the said Mr. Billey had failed to make the payment under the contract, having made a substantial payment, it was wrong for the Defendant to have repossessed the truck and sold it withoutacourt orderorrecourse tothem. Having made a finding that the Defendant wrongfully repossessed the truck, the Defendant is liable tothe Plaintiff underNRCD 292. It is provided under Section 8 (2) (a) of the Hire-purchase Act, 1974 that where the owner or seller, recovers possession of protected goods in contravention of Subsection (1), the Agreement, if not previously terminated, is terminated and a. The hirer or buyer is released from liability under the Agreement, and is entitled to recover from the owner or seller, in an action for money had and received, the Page12of17SuitNo.CM/RPC/0147/24DeborahFavourKpormegbeTayVrs.ZondaTec(Ghana)Limited sums of money paid by the hirer or buyer and the security given in respect of the Agreement. The statutory provisions under the NRCD 292 is clearly stated and admits of no complexityininterpretation. Having been breached by the Defendant herein, the Plaintiff is released from any liability. She is also entitled to recover all sums of money she has paid under the agreement. The Plaintiff seeks the recovery of the truck as she is entitled to under Section 8(3) and but for the fact that the Defendant admitted that the truck had been sold, she would have succeeded. The Courts will however not make orders incapable of enforcement. The Plaintiff is then entitled to recover from the Defendant under Section 8(2)(a) The Plaintiff also seeks loss of earnings in the sum of Five Hundred Thousand Ghana Cedis (GHS 500,000.00). This is special damages she is asking for and it is trite that in anactionforspecial damages, it oughtto be proved specifically. In the case of Klah v Phoenix Insurance Company Ltd [2012] 2 SCGLR 1139, the Court held that there is a distinction between general and special damages; for whereas general damages would arise by inference of law and therefore unnecessary to be proved by evidence, special damages representing a loss which the law would not presume to be the consequence of the Defendant’s act but would depend in part, on the special circumstances, must therefore be claimed on the pleadings and particularised to show the nature and extent of the damages claimed. Plaintiff must go further to prove by evidence that the loss alleged had been incurred and that it was the direct result of theDefendant’sconduct” Page13of17SuitNo.CM/RPC/0147/24DeborahFavourKpormegbeTayVrs.ZondaTec(Ghana)Limited In this instance, Plaintiff led no evidence the loss she had allegedly incurred flowing from the Defendant’s unlawful repossession of her truck. I am therefore unable to award her damagesunder thathead. However, Gbadegbe JSC quoting with approval Bowen LJ in Radcliffe v Evans [1892] 2 QB 524 at 528 has held in Eastern Alloys Company Ltd v Chirano Gold Mines (J4/48/2016[2017]GHASC5 that; General damage is that which the law presumes in every breach of contract and every infringement of an absolute right. In all such cases, the law presumes that some damage will flow from the ordinary course of things from the mere invasion of the Plaintiff’s rights, and calls it generaldamage. The Plaintiff having succeeded in her claim is entitled to general damages as the natural and probable consequence ofthe Defendant’s act. Ihave found thatthe Plaintiff succeeds onher claim onthebalance ofprobabilities. The Defendant put in a counterclaim. I have had no moment of apprehension in dismissing that claim. It is trite law that a counterclaimant is put it the same position as aPlaintiff inanactionand oughttoprove its claims ifit is denied. This is how Kpegah J. (as he then was) couched the principle in the case of Dikyi v AmeenSangari[1992] 1GLR 61 “Needless for me to say, the law is clear and can be stated without any compelling need to cite an authority, to be that a counterclaim is intrinsically or Page14of17SuitNo.CM/RPC/0147/24DeborahFavourKpormegbeTayVrs.ZondaTec(Ghana)Limited basically an action and the defendant assumes the same burden of proof in relation to the counterclaim which a plaintiff assumes in the main action. This will mean that a defendant who counterclaims and this is denied, must prove his claim.” The Defendant’s Counterclaim was basically for a declaration that the Plaintiff had no capacity to bring the action. I have determined otherwise hence the Defendant fails on itsCounterclaim. Itis herebydismissed asunproven. The Plaintiff is entitled to recover from the Defendant the cedi equivalent of Seventy- Five Thousand, Seven Hundred US Dollars (US$75,700.00), the payment she had made to the Defendant before the truck was repossessed. I award general damages to thePlaintiff in the sum ofTwo Hundred Thousand Ghana Cedis (GH¢200,000.00). Cost is assessed at Seventy-Five Thousand Ghana Cedis (GH¢75,000.00) awarded to Plaintiff. (SGD) SEDINA AGBEMAVA J JUSTICEOF THE HIGH COURT COUNSEL 1. MONICA ADOKAI ADDO BEING LED BY ALHAJI ISHAQ ALHASSAN FOR THE PLAINTIFFPRESENT 2. NO LEGAL REPRESENTATIONFORDEFENDANT PRESENT Page15of17SuitNo.CM/RPC/0147/24DeborahFavourKpormegbeTayVrs.ZondaTec(Ghana)Limited LISTOF CASES 1. DZAISUVRS.GHANA BREWERIES LIMITED[2007-2008] SCGLR 528. 2. DANSOVRS. TAYLOR(1969) CC152. 3. KLAH VRS. PHOENIX INSURANCE COMPANY LIMITED [2012] 2 SCGLR 1139. 4. BOWENLJINRADCLIFFE VRS.EVANS [1892] 2QB524AT528. 5. EASTERN ALLOYS COMPANY LIMITED VRS. CHIRANO GOLD MINES (J4/48/2016[2017] GHASC 5. 6. DIKYIVRS.AMEENSANGARI[1992]1GLR 6. STATEDLAW 1. SECTION14OFTHE EVIDENCE ACT, 1975. 2. HIRE PURCHASE ACT, 1974NRCD292. 3. ACT, 1938(1& 2GEO. 6,C.53). 4. SECTION11(1)OF THE 1938ACT. 5. SECTION15. 6. SECTION11AND12OFTHIS ACT. 7. HIRE-PURCHASEACTOF1958. 8. SECTION8(2)(A) OFTHE HIRE-PURCHASEACT, 1974. 8. SECTION8(3). BOOK 1. LAW OF CONTRACT IN GHANA 2016, CHRISTINA DOWUONA- HAMMOND. Page16of17SuitNo.CM/RPC/0147/24DeborahFavourKpormegbeTayVrs.ZondaTec(Ghana)Limited Page17of17SuitNo.CM/RPC/0147/24DeborahFavourKpormegbeTayVrs.ZondaTec(Ghana)Limited