Henriques and Henriques v United Dominions Corporation
| Jurisdiction | Jamaica |
| Judge | Luckhoo, J.A. |
| Judgment Date | 10 February 1970 |
| Neutral Citation | JM 1970 CA 2 |
| Docket Number | Civil Appeal No. 6 of 1964 |
| Court | Court of Appeal (Jamaica) |
| Date | 10 February 1970 |
Court of Appeal
Henriques, P.; Moody J.A.; Luckhoo, J.A.
Civil Appeal No. 6 of 1964
Mr. V.O. Blake Q.C. and Mr. R.A. Mahfood for the appellants.
Mr. Robinson Q.C. and Mr. R.H. Williams for the first, second and third respondents.
Contract - Hire Purchase Agreement — Right of entry to recover goods.
On the 20th August, 1961, a Chevrolet motor car bearing registration n+umber R.3903 was in the possession of the second named appellant A.H. Henriques at premises occupied by his father A.L.G. Henriques, the first named appellant at Red Hills, Montego Bay, in the parish of St. James, when the first named respondents United Dominions Corporation (Ja.) Ltd., (hereinafter referred to as U.D.C.), claiming to be the owners of the car and to be entitled to possession of it, by their servants and/or agents the second and third named respondents Charles Murray and Herman McMorris entered upon those premises (hereinafter referred to as “the premises”) and removed the car therefrom. The fourth named respondent Inspector of Police Eddie Thomas who had accompanied Murray and McMorris to the premises claimed to have done so in obedience to the orders of a superior officer and in the execution of his duty in order to prevent a breach of the peace but the appellants claimed that he entered the premises for the purpose of assisting Murray and McMorris in the removal of the car and did so assist them acting thereby maliciously and/or without reasonable and probable cause. Subsequent to its removal from the premises U.D.C. sold the car to one Frater.
A.L.G. Henriques brought an action against the respondents claiming damages for trespass to land and to his goods, the latter claim being in relation to the removal of the lock of the door of the garage on the premises and the removal of the appellant's motor car in the course of the removal of the car R. 3903. A.H. Henriques claimed damages in trespass against each of the respondents, and as against U.D.C., Murray and McMorris an order for the return of the car or payment of its value 800 Pounds Sterling and damages for its detention, further, or alternatively damages for conversion. It was subsequently ordered that those actions be consolidated and proceed as one action and upon an order of a judge in chambers at the instance of U.D.C., a third party notice was served upon one Lascelles Simpson from whom U.D.C. claimed they had purchased the car. Simpson did not enter an appearance in the action and did not testify at the hearing. The claims of both appellants were dismissed. The appellants now appeal against the decision of the learned trial judge upon several grounds which involve a consideration of a number of difficult and interesting points.
The car a 1960 Impala Chevrolet had been imported into the Island on the 9 th September 1960 by a Mr. Nation through his agent a Mr. Gallimore. Three days later the car was sold by Gallimore on Nation's instructions to one Alfred Hugh Sam also known as Johnson L. Hugh and on the 15th September, 1960, it was first registered at the Kingston Tax Office in the name of Johnson L. Hugh with registration No. R. 622. On the 8 th December, 1960, a substitute licence disc was issued in respect of the car to Hugh. On the 31 st January, 1961, a transfer of the licence was registered from Hugh to Lascelles Simpson and on 17 th May, 1961, the registration number of the car was changed to R.3903 on the application of Simpson who represented to the Collector of Taxes that he had lost one of the licence plates. On the 19 th May, 1961, a transfer of the licence was registered from Simpson to K. Patterson of Montego Bay. On the 6th June, 1961, Patterson approached A.H. Henriques for a loan in the sum of 400 Pounds Sterling repayable in two weeks and offered the car as security therefor. A.H. Henriques inspected the car, its licence disc registered in the name of Patterson and a certificate of insurance in Patterson's name in relation to the car and being satisfied that the car was Patterson's property and was a sufficient security for the loan requested, on the 6th June, 1961, loaned Patterson the amount of 400 Pounds Sterling repayable in two weeks and took the car in security for the loan. At the end of the period of two weeks Patterson did not repay the loan and it was agreed between them that the car should be sold for about 800 Pounds Sterling. In pursuance of that agreement Patterson Gave A.H. Henriques two transfers — one transferring the licence to him and the other signed in blank. A.H. Henriques made several unsuccessful attempts to sell the car which was kept at the premises of his father A.L.G. Henriques at Red Hills, Montego Bay where H.H. Henriques resided at that time.
In the meanwhile Simpson had on the 8 th October, 1960, as a dealer in motor cars by letter bearing that date offered to sell the car to U.D.C., a finance company, representing to U.D.C. that he had a customer one George Palmer of 60 Barnett Street, Montego Bay who desired to purchase the car and was willing to enter into an agreement of hire purchase with U.D.C. on the terms and conditions contained in the agreement enclosed with the letter and had paid him a deposit of 483 Pounds Sterling. 6. 8. The agreement purported to be signed by Palmer with the relevant particulars filled in was on one of the printed forms supplied by U.D.C. to Simpson under an existing arrangement between Simpson as dealer and U.D.C. as finance company whereby if someone desired to buy a motor car and was willing to enter into an agreement of hire purchase with U.D.C. in that regard Simpson would submit to U.D.C. for their consideration a hire purchase agreement signed by the prospective hirer containing the relevant particulars. Simpson as dealer would in the meanwhile accept a deposit from the prospective hirer. If U.D.C. decided to accept the hire purchase agreement they would buy the motor car from Simpson paying Simpson the difference between the cash price and the deposit, the deposit being retained by Simpson as part of the cash price. The hirer would then take possession of the car under the hire purchase agreement. There was a recourse agreement between Simpson and U.D.C. in the following terms:–
“In consideration of you, United Dominions Corporation (Jamaica) Ltd., from time to time entering into Hire Purchase Agreements covering merchandise sold by me to you, I, Lascelles Simpson, hereby undertake and agree that if any such Hire Purchase Agreement shall be terminated for any reason whatsoever before you have received payment thereunder of all sums for which the Hirer is liable to you, I will upon receipt from you of notice of such termination or breach, repurchase the merchandise the subject of such Agreement by paying to you an amount equal to the full amount which would have been payable thereunder if the Agreement had not been terminated (less the rentals then paid) together with any expenses reasonably incurred by you in recovering possession of the said merchandise. I agree that this undertaking shall not be prejudiced or affected in any way by any time or indulgence shown to the Hirer.”
After receipt of Simpson's letter of the 8 th October, 1960, with the enclosed hire purchase agreement U.D.C. decided to accept the agreement and to buy the car from Simpson. At the bottom of the hire purchase agreement sent by Simpson there appeared what purported to be the signature of Palmer acknowledging delivery of the car from U.D.C. On the 11 th October, 1960, U.D.C. sent Simpson a cheque in the sum of £966. 13s.4d which, with the sum of £483. 6s.8d Simpson represented in his letter had been paid to him by Palmer as a deposit, made up the cash price for the car. Thereafter, in the months of January and February, 1961, Simpson sent U.D.C. two sums of money purporting to have been paid to him by Palmer in respect of instalments due under the hire purchase agreement. Not having received any further amounts in respect of instalments due under the hire purchase agreement U.D.C. purporting to act under the provisions of the hire purchase agreement decided to terminate the agreement and to re-possess the car. On the 24 th July, 1961, Murray and McMorris who had discovered that the car was stored at the premises of A.L.G. Henriques went there for the purpose of repossessing the car on behalf of U.D.C. They were there informed by A.H. Henriques that he had taken the car as security for a loan of £400 made to Patterson. Murray told A.H. Henriques that the car was repossessed and would be removed on the following day. A.L.G. Henriques, who at that time was the Resident Magistrate holding a preliminary inquiry into charges laid by the police against Simpson for fraud committed on U.D.C. in relation to other motor cars - A.H. Henriques being engaged thereat as Simpson's legal representative - then intervened and said that he could not allow Murray to remove the car from his premises because it would create a bad impression of him but would have his son give him an undertaking to deliver the car to U.D.C. in Kingston on production of the hire purchase agreement relating to the car. At the request of A.H. Henriques, Murray and McMorris accompanied him to Patterson where A.H. Henriques informed Patterson that Murray and McMorris ware claiming that the car was the subject of a hire purchase agreement with U.D.C. Patterson said that he knew of no hire purchase agreement in respect of the car which he claimed to have bought from Simpson. He promised that he would try to repay A.H. Henriques the loan of £400 on the following day. A.H. Henriques told Murray and McMorris that he would hold the car until the loan was repaid. A.L.G. Henriques then persuaded his son to give a written undertaking which he helped to frame by which A.H. Henriques undertook to deliver...
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