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JUDGMENT
1. Except for the immediate circumstances
giving rise to the Plaintiff’s action, the facts of
this case are not materially in dispute in relation
to the contract of sale and purchase between the
Plaintiff and the Defendant.
2. The Plaintiff, on 7th August
2009 purchased from the Defendant a Honda CR – V 2.4
Elite 2009 model, a vehicle which he had earlier in
May 2009 seen on display at the Defendant’s Accra
office.
3. The Plaintiff alleges that as part of the
advertised features of the model he paid for, was a
security system which operated by the sounding of
horns for at least thirty seconds and the flashing
of the turn signal lights in case of any attempt to
break into the vehicle or remove the radio.
4. On the 13th day of July 2010,
Plaintiff parked the vehicle purchased from the
Defendant in front of his parents house at Labone,
Accra and as he
asserts in the Statement of Claim had at the
material time the security system fully set before
he entered his parents’ house.
5. In paragraph 11 of the Statement of Claim
the Plaintiff pleads as follows:
“Rather reprehensibly, Plaintiff came out after
about an hour to find the front window (passenger
side) and the rear wind screen smashed. Curiously
the security system of the vehicle was not
triggered”
6. It is these events which the Plaintiff
claims resulted in a loss of £500, U$800. GH˘430.00
all of which were stolen after the break in as well
as the loss of all the items set out in paragraph
13(i) to (ix) of the Statement of Claim.
7. Plaintiff asserts he took steps through
his solicitor to have the Defendant address the loss
suffered as well as a replacement of the vehicle but
Defendant did not favourably respond hence the
instant action for breach of contract in which the
Plaintiff claims reliefs as endorsed in the writ and
the Statement of Claim.
8. The Defendant has denied Plaintiff’s
claim and has per its Statement of Defence left the
Plaintiff to discharge the burden he carries in
proof of the allegation and reliefs sought.
9. In paragraph 8 of the Statement of
Defence, the Defendant avers as follows:
“The Defendant denies paragraph 17 of the Statement
of Claim and put the Plaintiff to strict proof of
the averments. The Defendant in further denial of
the said paragraph maintains that the security
system on the Plaintiff’s car was functional and the
fact that the car was broken into did not mean that
the security system was defective”.
10. In a general traverse the Defendant denies
all the allegations made by Plaintiff and thereby
denies liability for the claim.
11. ISSUES FOR DETERMINATION
The following issues were set down for
trial.
“(1). Whether or not Defendant made
representations apart from those stated in the
vehicle’s manual?
(2). Whether or not one of the advertised
features of the vehicle Plaintiff bought from
Defendant, i.e. Honda CR V 2.4 Elite 2009 model, has
a security system which was described as protecting
the vehicle from any forced entry?
(3). Whether or not the installation of the
security system was an essential feature of
Plaintiff’s vehicle and therefore a material element
of contract of sale of the vehicle?
(4). Whether or not the security system of the
vehicle triggered upon the alleged break into
Plaintiff’s vehicle?
(5). Whether or not the Plaintiff lost monies
and the items listed in paragraph 13 of his claim in
consequence of the break or forced entry into his
vehicle?
(6). Whether or not the failure of the security
system on Plaintiff’s vehicle to activate when the
very first break into the said vehicle occurred
renders Defendant liable?
12. DETERMINATION OF ISSUES BY THE COURT
The general position of the law is that each party
to the suit who alleges in his pleadings must adduce
evidence on the facts and issues to be determined by
the court to the prescribed standard set by statute.
It is provided in section 14 of the Evidence Act
NRCD 323 as follows:
“Except as otherwise provided by law, unless and
until 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 he is asserting”.
13. The burden of producing evidence in his
suit therefore lies on the Plaintiff because he has
to prove what he alleges against the Defendant. This
burden is one to be determined on the preponderance
of probabilities which has been defined in section
12(2) of the Evidence Act 1975 NRCD 323 as.
“that degree of certainty of belief in the mind of
the tribunal of fact or the court by which it is
convinced that the existence of a fact is more
probable than its non – existence”.
14. There have been judicial opinions on the
nature of such burden as a Plaintiff carries. The
most recent of which confirms the earlier decisions
in ZABRAMA VRS. SEGBEDZI [1991] 2GLR 221 and ABABIO
VRS. AKWASI III [1994 – 95] GBR 774 is the case of
ACKAH VRS. PERGAH TRANSPORT LTD. & ORS [2010] SCGLR
728 where the Supreme Court unanimously dismissing
the appeal before it held inter alia as follows:
“It is a basic principle of the law on evidence that
a party who bears the burden of proof is to produce
the required evidence of the facts in issue that has
the quality of credibility short of which his claim
may fail. The method of producing evidence is varied
and it includes testimonies of the party and
material witnesses admissible hearsay, documentary
and things (often described as real evidence)
without which the party might not succeed to
establish the requisite degree of credibility
concerning a fact in the mind of the court or
tribunal of fact such as a jury. It is trite law
that matters that are capable of proof must be
proved by producing evidence so that on all the
evidence a reasonable mind would conclude that the
existence of the fact is more probable than its non
– existence. This is a requirement of the law on
evidence under sections 10(1) and (2) and 11(1) and
(4) of the Evidence Act 1975 (NRCD 323)”.
15. Given the degree and standard of proof as
set out by statute and applied by case law required
of the Plaintiff herein, how did he discharge same?
16. PLAINTIFF’S EVIDENCE
(i). It is not in dispute as I had stated
earlier that Plaintiff in August 2009 purchased a
brand new vehicle of the Honda CR V. 2009 Elite
model from the Defendant which is a dealer in the
product. Plaintiff’s evidence is that he was given a
brief on the features of the product by the customer
service officer which included a security system
which was to protect the vehicle against any break
or forcible entry.
(ii). Plaintiff’s evidence with respect to the
process of sale and delivery has not been disputed
by the Defendant in its pleading.
(iii). On 13th July 2010, however,
Plaintiff’s car was broken into and several items
including various sums of money stolen from the
vehicle. These lost items have been set out in
Plaintiff’s statement of claim and they form the
basis of Plaintiff’s claim including an order for
replacement of the vehicle purchased from the
Defendant or alternatively an order for refund of
the purchase price of U$39,000.00 with interest and
other consequential reliefs arising
from the loss allegedly suffered by the Plaintiff.
In essence therefore, Plaintiff’s principal claims
amount to a rejection of the property sold.
(iv). In further testimony Plaintiff said he
referred the matter to his lawyer after contacting
an agent of the Defendant company to take delivery
and assess the situation. Plaintiff’s lawyer then
wrote to the Defendant but as no response was
forthcoming, Plaintiff commenced this action.
(v). In the course of his evidence Plaintiff
testified that after he had delivered the vehicle to
the Defendant he had subsequently on or about 22nd
December 2010 gone for the vehicle because of the
rising cost of alternative means of transport which
he resorted to by renting a car for his use.
(vi). Plaintiff testified that he rented a car
for U$100.00 per day excluding weekends and tendered
Exhibits C, C1 – C5 which are receipts issued by
Blue Cab Rental a car and coach services
organisation. The total cost of rent of the car
Plaintiff used from the evidence is U$13,800.00 and
this included car use during the weekends in
subsequent months.
(vii). In further testimony Plaintiff tendered
Exhibit ‘B’ the vehicle’s operating manual and
referred in particular to page 226 where it has been
expressly stated by the manufacturer as follows:
“The security system helps to protect your
vehicle and valuables from theft. The horn sounds
and the turn signal lights flash if someone attempts
to break into your vehicle. This alarm continues for
30 seconds, then the system resets. On some types,
the horn sounds and a combination of headlights,
position lights, side marker lights and tail lights
flashes for two minutes.
To reset an alarming system before 30 seconds/120
seconds have elapsed, unlock the driver’s door with
the key or the remote transmitter”.
17. What this means is that the resetting of
the alarming system before the 30/120 seconds will
elapse the user of the car has to unlock the
driver’s door with the key on remote transmitter.
(i). Plaintiff further testified that his
parents residence where he had parked the vehicle
earlier before the breakin was fenced and the
parking distance to the front wall of the house is
about 2 – 3 metres.
18. Under cross examination by Defendant’s
counsel, Plaintiff testified that there was no
demonstration on the use of the vehicle including
the operation of the alarm system at the time of
purchase for which reason the Plaintiff had to go
back to see the workshop manager of the Defendant
company who demonstrated it by rolling down the
glass for
the alarm to sound though no glass was broken at the
time of the demonstration.
19. During further cross examination of the
Plaintiff the following evidence was elicited.
“Q. On the day of the incident it was late in
the evening is that not so?
A. Yes it was around 6.45pm.
Q. When you parked in front of your parents’
house you went indoors?
A. Yes I went into the house.
Q. I am suggesting to you that if the alarm
went off you would not have known.
A. I found (sic) that difficult to accept
because as per by indication the alarm will work by
the sounding of the horn any car that has entered
the house stands at the same place and blow the horn
once or twice and the gates are opened.
Q. I am suggesting to you that you were
indoors and you were not paying attention and so
when you came your car was broken into and you did
not know whether the alarm triggered or not.
A. No that one, I am sure I will have
actually heard even where I was in the house so that
is not the case. (sic)”.
20. Further questions under cross examination
were asked and answered as follows:
“Q. In addition to the demonstration to you,
you went through the user manual that was why it was
given to you?
A. Yes.
Q. And so you read and understood all the
features that the car has before you took it away?
A. Yes, the manual is delivered with the car
when you buy it, so the manual came with the car”?
21. What is the effect of cross examination of
the Plaintiff on his testimony? In his book Practice
and Procedure in the Trial Courts and Tribunals of
Ghana 2nd Edition paragraph 1293 page
586. Brobbey JSC stated on objects of cross –
examination as follows:
“The objects of cross examination are twofold:
First, it is to weaken or nullify the opponent’s
case, and secondly, it is to establish facts which
are favourable to the cross examiner. In effect,
cross examination aims at testing the accuracy of
the witness’s evidence and at giving the witness the
chance to deal with the case of the cross –
examiner”
To that extent, while the Defendant’s counsel did
not in anyway succeed in getting the Plaintiff to
contradict his testimony during cross – examination
nor did he infact succeed in damaging the
credibility of the Plaintiff and his testimony, I
think the Defendant’s counsel succeeded by and large
through cross examination to put the Defendant’s
case across. Plaintiff however in my view did not
sufficiently deal with the Defendant’s case which is
to the effect that, if the alarm had triggered
neither the Plaintiff nor anybody in the household
would have heard the alarm.
22. The undisputed evidence before this court
from the Plaintiff’s testimony and from the contents
of Exhibit ‘B’ is that the alarm would sound upon
any unusual intrusion into the car, such as forcible
entry or any break in for only 30 seconds before it
resets.
23. In paragraph 11 of the Plaintiff’s
Statement of Claim, the Plaintiff pleaded that he
reprehensibly came out after about an hour to find
that the front window (passenger side) and rear wind
screen had been smashed. He added that the security
system had not triggered. One may ask why was the
Plaintiff apprehensive after about one hour after he
had parked outside when the alarm system from the
contents of Exhibit ‘B’ would sound for only 30
seconds unless reset. If I appreciate Plaintiff’s
pleading thereof which Defendant has denied thereby
throwing the burden on the Plaintiff to prove what
he asserts, there must be reason for the
apprehension which the Plaintiff has conveniently
situated to a failure by the alarm system to
“curiously trigger.”
24. The Defendant having denied the averment,
the Plaintiff has a duty to discharge in order to
succeed on the balance of all the probabilities
since the Defendant’s case as I understand it, is
that, the alarm system did trigger but then neither
the Plaintiff nor anybody could have heard the alarm
sound while they were in Plaintiff’s parents’ house.
25. THE EVIDENCE OF PW1
Mr. Michael Mensah who testified as PW1 is a
houseboy to Plaintiff’s father whose testimony is
that on the day the Plaintiff’s car was broken into,
he was on duty at the Plaintiff’s father’s house
when the Plaintiff visited the house. His evidence
was that while inside Plaintiff’s father’s house he
heard knocks on the gate and upon opening, a group
of people informed him that someone had broken the
windows to Plaintiff’s vehicle. PW1 further
testified that he informed the Plaintiff who came to
the scene, and upon seeing what happened moved the
car into the yard.
26. In the course of further examination in
chief the Plaintiff’s counsel asked PW1.
“Q. Did you hear anything?
A. No My Lord.
Q. What did the Plaintiff specifically do on
ascertaining that the vehicle had been broken into?
A. My Lord initially, he was worried and
moved the car into the yard.
Q. Can you tell the court specifically
initially where the car was parked?
A. My Lord it will be between 2 or 3 meters
from the main building”.
27. Under cross examination PW1 testified that
Plaintiff’s parent’s house has a high walled fence
adding that the incident happened between 6.30pm and
7pm. In further testimony PW1 stated that at the
material time he was at the side of the house
fetching water.
28. It is important to note that like the
Plaintiff, PW1 by the nature of his position is not
a disinterested witness. That is not to suggest that
given the relationship between PW1 and the Plaintiff
he PW1 cannot be credible. He has testified upon a
direct question whether he heard anything and he has
answered in the negative. He is only one of the
other persons in the Plaintiff’s father’s household
or at the very least he and the Plaintiff were
there.
29. In all probability if the alarm system had
triggered it is possible that neither the Plaintiff
nor the PW1 might have heard, though it is also
possible that as alleged by the Plaintiff the system
failed to sound and alert him or any other person of
the breaking. This situation cannot be resolved on
the strength of the evidence of the Plaintiff and
PW1 alone. At least from the evidence, for a period
of about one hour the vehicle had been parked
outside until the Plaintiff reprehensibly went out.
The Plaintiff in his own testimony did not state
that it was PW1 who alerted him of the breaking
which was first announced by some people who
wanted to know whose car was parked outside the
gate. The onus of proof that the alarm system did
not trigger rested on the Plaintiff and his
witnesses and this ought to be discharged on a
balance of all the probabilities.
30. The undisputed evidence is that the alarm
system will sound for only 30 seconds. It took
nearly one hour for the Plaintiff to first get to
know of the breakin and concludes on his own that
the alarm system failed. It seems to me that the
proper and relevant witnesses who would have
assisted the Plaintiff’s case and the court were one
or more of the persons who first informed PW1 about
what had happened to Plaintiff’s vehicle. They were
not called and no explanation had been provided. The
situation weakens Plaintiff’s case and since he has
a duty to discharge, I donot think on the evidence
that onus has been creditably discharged on the
preponderance of all the probabilities. The law as
stated by Aikins JSC in the case of ABABIO VRS.
AKWASI IV [1994 – 1995] GBR 774 is that:
“The general principle of law is that it is the duty
of a Plaintiff to prove his case as he must prove
what he alleges. In other words, it is the party who
raises in his pleadings an issue essential to the
success of his case who assumes the burden of
proving it. The burden only shifts to the defence to
lead sufficient evidence to tip the scales in his
favour when on a particular issue, the Plaintiff
leads
some evidence to prove his claim. If the Defendant
succeeds in doing this, he wins, if not he loses on
that particular issue”.
31. Upon the conclusion of the testimony of
PW1 the Plaintiff closed his case. Before I examine
the Defendant’s testimony, it is important to
critically examine the circumstances under which
Exhibits ‘C – C1 – 5’ came to be. According to the
Plaintiff after the break in and loss of his monies
and other items from the car he surrendered the car
to the Defendants and left it there though he later
took possession of same sometime on 22nd
December 2010. In between the period, Plaintiff
claims he resorted to a rented car and had done so
for a period of 5 months at a total cost of
U$13,800, the equivalent of a third percentage of
the total purchase price of the vehicle which
according to Plaintiff’s testimony per Exhibit ‘A’
was U$39,00.00.
32. The incident which gave rise to this suit
occurred on 13th July 2010 and Exhibit
‘C’ evidencing car rentage for 12 days was issued on
15/07/2010. At that time no liability has been
established as it is the case till date. Indeed
there is yet no evidence that the break in and
consequential loss was reported to police. Within
two days however, the Plaintiff decided to abandon
the vehicle at the Defendant’s work place and
resorted to the use of rented cars for a $100.00 per
day totaling U$13.800.
33. Plaintiff’s conduct in my view does not
stand the test of reasonableness for were it not
imprudent, it would have meant that a party who has
exercised the right or taken the risk of rejecting
property purchased for his livelihood, can exercise
poor judgment in renting the same property even at
an unreasonable cost not caring about the duty to
mitigate. Granted therefore, the causation of
Plaintiff’s loss is established as falling on the
door step of the Defendant, in all reasonableness
Plaintiff in my view will invariably not be entitled
to recover the entire expense he claims to have so
unreasonably incurred.
34. As stated in her work, the learned author
of “The Law of Contract in Ghana”
Christina Dowuona – Hammond stated on Mitigation of
Damages at page 315 paragraph 13.3 as follows:
“Generally, a Plaintiff is entitled to only such
damages as would have suffered by a person acting
reasonably after the breach. This means that where
the party not in default is in a position to take
any action which would reduce or avoid the losses
resulting from the breach of the contract he is
required to do so. Generally the common law imposes
a duty to take all reasonable steps to mitigate the
losses consequent on the breach and prevents him
from claiming any part of the damage or loss which
would have been avoided by mitigation”
See the case of PAYZU VRS. SAUNDERS [1919] 2KB 581.
This principle was also applied in the case of
ATTITSOGBE VRS. POST TELECOMMUNICATIONS CORPORATION
[1995 – 96] 1GLR 58.
35. In all the circumstances of this case, I
am of the view that the total sum of money claimed
to have been spent by the Plaintiff in renting a car
for his use compared with the price of the vehicle
and the repair of the broken windows and security
system whichever would have been ordered by any
court of law stands comparatively unreasonable and
does not appear to me even if Defendant were to be
found liable, to be the conduct of a prudent and
reasonable person as the instant Plaintiff claims to
have incurred.
36. As I have earlier found since the
determination of the issue whether or not the
security system of the vehicle triggered upon the
alleged break into the Plaintiff’s vehicle being a
crucial issue and the Plaintiff not having
satisfactorily in my view discharged that burden
what then ought the Defendant prove or disprove in
its defence.
37. The nature and degree of the Defendant’s
burden has been more appropriately stated by Brobbey
JSC in the case of ADJETEY AGBOSU & ORS. VRS. KOTEY
& ORS also referred to as IN RE ASHALLEY BOTWE LANDS
[2003 – 2004] SCGLR 420 where the learned jurist
said as follows:
“The effect of sections 11(1) and 14 and similar
sections in the Evidence Decree 1975 may be
described as follows: A litigant who is a Defendant
in a civil suit does not need to prove anything. The
Plaintiff who took the Defendant to court has to
prove what he claims he is entitled to from the
Defendant. At the same time, if the court has to
make a determination of a fact or of an issue, and
that determination depends on the evaluation of
facts and evidence, the Defendant must realize that
the determination cannot be made on nothing. If the
Defendant desires a determination to be made in its
favour, then he has a duty to help his own cause or
case by adducing before the court such facts or
evidence that will induce the determination to be
made in his favour………..”
38. Before I proceed to examine and evaluate
Defendant’s evidence, let me add that in finding on
the weakness of the Plaintiff’s case, I have been
mindful of the principle in the case of WIAFE VRS.
KOM [1973] 1GLR 240 at 245 where the court held
that:
“In the assessing of evidence and the weight to be
given to it, the correct principle is as stated by
Lord Mansfield that “all evidence is to be weighed
according to the proof, which it was in the power of
the one side to produce and the power of the other
to have contradicted”.
39. In the instant case, I have not been
impressed with the evidence adduced by the Plaintiff
as it did not in my opinion satisfy the evidentiary
standard on the balance of the probabilities to
enable the Plaintiff
succeed; yet still it is necessary for the court to
evaluate the nature of the Defendant’s evidence
before concluding this judgment.
40. DEFENDANT’S EVIDENCE
The Defendant testified through Mr. Vinayak
Venugopal its workshop manager. His testimony is
that after the break in of the Plaintiff’s vehicle
sometime in July 2010 Plaintiff called one of the
staff of Defendant’s company requesting for an
estimate towards the repair of the damage caused.
Defendant’s witness testified that upon the
Plaintiff’s request a staff of the Defendant’s
company went to Plaintiff and picked the vehicle for
the estimate to be done. According to Defendant’s
witness the vehicle had to remain in the custody of
the Defendant at the request of the Plaintiff who
told the Customer Service Advisor to hold on for
sometime. A couple of weeks after they received
summons from the court described by the witness as
“legal order from customer side”.
41. In further testimony the witness referred
to page 226 of Exhibit ‘B’ and demonstrated the
operation of the security system. The witness
testified further that Plaintiff was taken through a
demonstration of the operation of the security
system adding that Plaintiff was given the terms of
warranty on the vehicle. The witness tendered
Exhibit ‘1’ the service manual of the Plaintiff’s
vehicle model which also contains the terms of
warranty.
42. To a question under examination in chief
as follows:
“Q. The Plaintiff is saying that Honda is
liable for the break into his car because the alarm
did not work what do you say to that?
Defendant’s witness answered.
A. Honda is not liable for this incidence
because one is an event of theft something beyond
our control as per page 226 which I described is
very clear”.
43. I cannot agree more with the Defendant’s
witness. Any security system which operates on alarm
and/or flash lights cannot be full proof antitheft
device. It’s description as antitheft is not without
a human element which includes vigilance and quick
response. It only sends a signal of an intrusion.
Then the rest depends on the vigilance and time
responsiveness to the alarm. To suggest that because
a vehicle has an alarm system as in the instant case
valuable possessions can be left therein unattended
for a period of about one hour for an alarm system
that will sound for only 30 seconds or a little
more, will in my view be an absurd proposition. It
cannot therefore operate as an antitheft device per
se for a bold thief who is determined to take
advantage of the owner’s aloofness or the nature of
the parking place in relation to attitude of
passersby and on lookers. Any loss suffered under
such circumstances may well fall under a cause of
action in insurance if the user is minded to
undertake one, and certainly will not result into a
breach of contract on the part of the seller of the
vehicle.
44. During cross examination of Defendant’s
witness Plaintiff’s counsel elicited evidence as
follows:
“Q. Did your company had (sic) the occasion at
anytime to determine whether the security system on
the Plaintiff’s car had been properly set or not
after he himself had taken possession.
A. These things are done on the pre-delivery
inspection. When the car is delivered, they check
everything and the car is given to the customer in
that condition. They check it but once they found
there is nothing wrong is like if everything is
normal. I donot think so unless the customer ask
(sic).
Q. Mr. Vinayak Venupoogal, the question I am
asking you is whether the Plaintiff had taken
possession of the car you had the occasion of
determining whether there was anything wrong with
the alarm system?
A. Since there was no complain from the
customer, we did not check at the customer complex”.
45. In my view, the position of Defendant’s
witness is more consistent with the provisions of
the Sections 26 and 27 of the Sale of Goods Act 1962
(Act 137)
There it is provided. Section 26
When Property Passes
(1). Subject to section 25 the property in the
goods passes under a contract of sale when the
parties intend it to pass.
(2). Unless a different intention is
apparent, the property in the goods passes under a
contract of sale when they are delivered to the
buyer.
Section 27 provides.
Transfer of Risk
“27. (1). The risk in the goods in a
contract of sale is transferred to the buyer when
the parties intend it to be transferred.
(2). Unless a different intention is apparent,
the goods are at the seller’s risk until the
property in them passes to the buyer after which the
goods are at the risk of the buyer”.
46. In his very detailed and well set out
closing submissions, learned counsel for the
Plaintiff has referred to various sections of the
Sale of Goods Act, Act 137 in particular sections 13
and 37 and 49. He has also referred me to the
decision of the Supreme Court in the case of
CONTINENTAL PLASTICS ENGINEERING CO. LTD. VRS. IMC
INDUSTRIES TECKNIK GMBH [2009] SCGLR 298 where Wood
CJ held inter alia that the buyer in the
circumstances had the right to reject the goods
where there are defects not discoverable upon
examination and which the seller had not disclosed
at the time of the conclusion of the contract.
47. The facts and circumstances of the instant
suit are distinguishable and a slavish application
of the Continental Plastics case supra ought to be
avoided. The more relevant provision if I had found
the Defendant in breach of a condition or warranty
would have been sections 55 and 56 of Act 137 which
provide:
“Where the seller is guilty of a breach of the
seller’s fundamental obligation or of a condition or
warranty of the contract, the buyer,
“(a). May maintain an action against the seller
for damages for breach of the condition complained
of or,
(b). May set up a claim to the damages in
diminution or extinction of the price.
56. The measure of damages in an action under
section 55 is the loss which could reasonably have
been foreseen by the seller at the time when the
contract was made as likely to result from the
breach of contract”.
Not having found the Defendant liable for breach of
warranty or the contract itself, these statutory
provisions which would have been applicable in the
assessment of the quantum of damages recoverable by
the Plaintiff from the Defendant will also not apply
in the instant case.
48. In the instant case, I have found and held
that Plaintiff failed to establish on the balance
that indeed the security alarm system failed to
sound so as to alert him of the break into his
vehicle. The Plaintiff cannot therefore
exercise the right to reject the vehicle on the
ground of non discoverable or undisclosed material
defect.
49. I will therefore rather adopt and apply
the other principle in the case of KWEI TEK CHAO
VRS. BRITISH TRAPPERS SHIPPERS LTD. [1954] 2PB 459
in determining the rights of the parties in this
suit. There it was held that even:
“Where goods are defective but the defects are not
apparent property in them does not pass to the buyer
until he has had the opportunity of examining them
to ascertain whether they conform to the contract.
Alternatively, property passes to the buyer on
delivery, subject to a condition that it reverts in
the seller if upon examination the buyer finds that
the goods donot conform to the contract and rejects
them within a reasonable time. The buyer merely
acquires the conditional property while the seller
retains a reversionary interest. The buyer must not
deal with the property in such a way as to prejudice
the seller’s reversionary interest, otherwise he
will be deemed to have accepted the goods
unconditionally”.
Having failed to establish on the evidence that at
the time property in the vehicle passed to him the
security alarm system had been dysfunctional and had
infact remained so until 13th July 2010
when the vehicle was broken into the Plaintiff
thereby failed to establish a case for rejection of
the vehicle and that is why the Plaintiff’s case for
replacement or refund of purchase price must fail.
50. I would have in this judgment considered
the question of remoteness of the damage or the loss
Plaintiff claims to have suffered as a result of the
break in on the 13th July 2010. However,
a consideration of the question will be merely
academic having found that Plaintiff failed prove
his case against the Defendant.
51. Indeed all but two of the issues set down
would have been sufficient to resolve the key issues
arising from the pleadings. There is no doubt in my
mind whatsoever that issues 1 to 3 are directly
deducible from the contract and are apparent from
the vehicle’s manual and the purpose for which the
security system is an essential feature on the car.
The 5th issue is consequential and while
I donot think Defendant proffered any evidence to
rebut the evidence of loss which is a matter in the
peculiar knowledge of the Plaintiff, yet still the
Defendant cannot be held liable for the loss.
52. Therefore the most crucial issues material
to the events of the evening of 13th July
2010 when the Plaintiff’s vehicle was broken into
are issues 4 and 6 set down for determination. On
the strength of the evidence before me, and the law
as applied in this judgment, having found that there
was no evidence to substantiate the crucial
allegation that the security system of the vehicle
did not trigger upon the alleged breakin, the
determination of issue 6 logically follows that the
Defendant is not liable for any loss suffered
therefrom.
53. In the premises, the entire action by the
Plaintiff fails and is accordingly dismissed.
54. There shall be costs of GH˘1000.00 in
favour of the Defendant.
(SGD.)
JUSTICE I. O.
TANKO AMADU
JUSTICE OF THE HIGH COURT
Counsel:
Godfred Dame Esq.
(For Plaintiff)
Justin Amenuvor Esq.
(For Defendant)
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