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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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