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, 2025 BEFORE HER LADYSHIP JUSTICE SEDINA AGBEMAVA SUIT NO.: CM/RPC/0147/2024 DEBORAH FAVOUR KPORMEGBE 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 truck Defendant impounded from the Plaintiff. b. Recovery of Five Hundred Thousand Ghana Cedis (GH¢500,000.00) being Plaintiff’s loss of earnings from the operation of the truck from 4th January, 2023 – October 2023. c. General damages of Five Million Ghana Cedis (GH¢5,000,000.00). d. Cost of litigation, and; Page 1 of 17 Suit No. CM/RPC/0147/24 Deborah Favour Kpormegbe Tay Vrs. Zonda Tec (Ghana) Limited e. Any other reliefs the Honourable Court may deem fit. 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 a truck. 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 dollar for a year. 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) for each 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), the equivalent of Sixty-Four Thousand Dollars (US$64,000.00). Plaintiff further pleads that they were required to make a monthly payment of Four Thousand, Three Hundred 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 Page 2 of 17 Suit No. CM/RPC/0147/24 Deborah Favour Kpormegbe Tay Vrs. Zonda Tec (Ghana) Limited they executed a contract but were informed copies of the contract would be made available to them on the delivery of the trucks. It is the Plaintiff’s case that no such contract was given them upon delivery of the trucks, neither was it delivered to her when she pursued the Defendant for it. 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 was Nine Thousand Three Hundred 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 her prior, neither was she given notice of Defendant’s action of impounding 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 Page 3 of 17 Suit No. CM/RPC/0147/24 Deborah Favour Kpormegbe Tay Vrs. Zonda Tec (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 demonstrate to the Court that she had any legal relation with the Defendant. b. That the Plaintiff, not claiming through Billey Mohammed Abdullah has no cause of action against the Defendant. 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, which whole defence was predicated on its alleged lack of Plaintiff’s capacity. Page 4 of 17 Suit No. CM/RPC/0147/24 Deborah Favour Kpormegbe Tay Vrs. Zonda Tec (Ghana) Limited After settlement failed at the pre-trial stage, the issues for adjudication were set down as below; 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 without an order of the Court. 2. Whether or not Plaintiff is entitled to recover the Sinotruck Howo Truck with registration number GM 2197-21, the truck having become a protected good. 3. Whether or not the Plaintiff is entitled to recover from the Defendant money had and received and the sums of money paid by the Plaintiff. 4. Whether or not the Plaintiff is entitled to recover lost earnings from the operation of the truck following the impoundment (sic). 5. Whether or not the Plaintiff is entitled to general damages from the Defendant. 6. Whether or not the Plaintiff has a contract in relation to the Sinotruk Howo Truck with the Defendant. The Parties each testified by a lone Witness. Since the Defendant’s sole defence of capacity was dismissed by the Court, what remained was the Plaintiff’s averments on her pleadings. Page 5 of 17 Suit No. CM/RPC/0147/24 Deborah Favour Kpormegbe Tay Vrs. Zonda Tec (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 proof was therefore on the Plaintiffs… as provided under Section 14 of the Evidence Act, 1975 which states that; “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 or defence 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 a sample. It reads; 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 the sales and purchase contract with. 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. Page 6 of 17 Suit No. CM/RPC/0147/24 Deborah Favour Kpormegbe Tay Vrs. Zonda Tec (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 whether or not there is an agreement between the parties at 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, written or done” I have stated that issuing the Plaintiff with a receipt 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 goods she had bought from the 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 Page 7 of 17 Suit No. CM/RPC/0147/24 Deborah Favour Kpormegbe Tay Vrs. Zonda Tec (Ghana) Limited they were informed she was Billey’s wife. I am of the opinion that the Defence Witness conjured this testimony out of nothing. 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 always dealt with Plaintiff 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 therefore reject its testimony as stated above. 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 can be inferred from conduct and it can be enforced if it had been partly performed or carried 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 Agreement by making payments on the truck. The Interpretation Section of the Hire Purchase Act, 1974 NRCD 292 Section 24 defines a hire purchase agreement in the following terms; Page 8 of 17 Suit No. CM/RPC/0147/24 Deborah Favour Kpormegbe Tay Vrs. Zonda Tec (Ghana) Limited “Hire Purchase Agreement means an Agreement for the bailment of goods 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 of two (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 Agreement made at the time when the last of the Agreements was made.” From the 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 without an order of the Court. Under Section 8 of the Hire-purchase Act, 1974, the Defendant could not have enforced any right to repossess the truck than by an action. Section 8(1) stipulates as follows; “The owner or seller shall not enforce a right to recover possession of protected goods from the hirer or buyer otherwise than by an action. Page 9 of 17 Suit No. CM/RPC/0147/24 Deborah Favour Kpormegbe Tay Vrs. Zonda Tec (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 to have known that having 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 of a right vested in the 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 of the principle. In the case of Taylor v S. Y Sasu & Sons [1973] 1 GLR 176 Amissah J. A (as he then was) in the 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 without the intervention of the Court, they waived by this acceptance.” Page 10 of 17 Suit No. CM/RPC/0147/24 Deborah Favour Kpormegbe Tay Vrs. Zonda Tec (Ghana) Limited In his supporting opinion Apaloo JA (as he then was) opined thus “Whatever may 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 in this case, Section 15 of that Act 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 as from the 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 the Courts 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 a substantial amount has been paid. 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 with the provisions under the present Act. Page 11 of 17 Suit No. CM/RPC/0147/24 Deborah Favour Kpormegbe Tay Vrs. Zonda Tec (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 stated that she could not recall. 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 without a court order or recourse to them. Having made a finding that the Defendant wrongfully repossessed the truck, the Defendant is liable to the Plaintiff under NRCD 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 Page 12 of 17 Suit No. CM/RPC/0147/24 Deborah Favour Kpormegbe Tay Vrs. Zonda Tec (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 complexity in interpretation. 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 an action for special damages, it ought to 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 the Defendant’s conduct” Page 13 of 17 Suit No. CM/RPC/0147/24 Deborah Favour Kpormegbe Tay Vrs. Zonda Tec (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 damages under that head. 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] GHASC 5 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 general damage. The Plaintiff having succeeded in her claim is entitled to general damages as the natural and probable consequence of the Defendant’s act. I have found that the Plaintiff succeeds on her claim on the balance of probabilities. 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 a Plaintiff in an action and ought to prove its claims if it is denied. This is how Kpegah J. (as he then was) couched the principle in the case of Dikyi v Ameen Sangari [1992] 1 GLR 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 Page 14 of 17 Suit No. CM/RPC/0147/24 Deborah Favour Kpormegbe Tay Vrs. Zonda Tec (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 its Counterclaim. It is hereby dismissed as unproven. 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 the Plaintiff in the sum of Two 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 JUSTICE OF THE HIGH COURT COUNSEL 1. MONICA ADOKAI ADDO BEING LED BY ALHAJI ISHAQ ALHASSAN FOR THE PLAINTIFF PRESENT 2. NO LEGAL REPRESENTATION FOR DEFENDANT PRESENT Page 15 of 17 Suit No. CM/RPC/0147/24 Deborah Favour Kpormegbe Tay Vrs. Zonda Tec (Ghana) Limited LIST OF CASES 1. 2. 3. 1139. 4. 5. DZAISU VRS. GHANA BREWERIES LIMITED [2007-2008] SCGLR 528. DANSO VRS. TAYLOR (1969) CC 152. KLAH VRS. PHOENIX INSURANCE COMPANY LIMITED [2012] 2 SCGLR BOWEN LJ IN RADCLIFFE VRS. EVANS [1892] 2 QB 524 AT 528. EASTERN ALLOYS COMPANY LIMITED VRS. CHIRANO GOLD MINES (J4/48/2016[2017] GHASC 5. 6. DIKYI VRS. AMEEN SANGARI [1992] 1 GLR 6. STATED LAW 1. 2. 3. 4. 5. 6. 7. 8. 8. SECTION 14 OF THE EVIDENCE ACT, 1975. HIRE PURCHASE ACT, 1974 NRCD 292. ACT, 1938 (1 & 2 GEO. 6, C. 53). SECTION 11 (1) OF THE 1938 ACT. SECTION 15. SECTION 11 AND 12 OF THIS ACT. HIRE-PURCHASE ACT OF 1958. SECTION 8 (2) (A) OF THE HIRE-PURCHASE ACT, 1974. SECTION 8 (3). BOOK 1. LAW OF CONTRACT IN GHANA 2016, CHRISTINA DOWUONA- HAMMOND. Page 16 of 17 Suit No. CM/RPC/0147/24 Deborah Favour Kpormegbe Tay Vrs. Zonda Tec (Ghana) Limited Page 17 of 17 Suit No. CM/RPC/0147/24 Deborah Favour Kpormegbe Tay Vrs. Zonda Tec (Ghana) Limited