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By its
amended Writ of Summons filed on
9th September 2009 the plaintiff
claimed against the defendant
the following reliefs: a) An
order for the delivery to
plaintiff of a brand new
Mercedes Benz (E-Class) as
replacement for the plaintiffs
damaged car or in the
alternative refund to the
plaintiff the sum of Euro 48,000
(Forty eight thousand Euros)
being the purchased price of the
said damaged car b) Compensation
for Ioss of use of plaintiffs
Mercedes Benz saloon car No
GN2266Y. C) Further and/or in
the alternative damages for
breach of condition and/or
deceit The plaintiff is a firm
of legal practitioners and
consultants whilst the defendant
is a company incorporated under
the laws of Ghana and engaged in
the sale and servicing of
Mercedes Benz cars. The
plaintiff's case is that
sometime in February 2007 it
purchased a brand new Mercedes
Benz 180 C-Class saloon from the
defendants for the use of one of
its officers. The vehicle was
covered by a two - year
unlimited warranty. Sometime in
or around July 2007 the head
gasket of the said C-Class
Mercedes Benz Saloon got cracked
and the plaintiffs duly informed
the defendants. In the events
that followed, the plaintiff
agreed to trade in the C-Class
saloon car i.e. surrender the
said car to the defendant for
another brand new car Mercedes
Benz 200 E-Class which was
registered as GN 2266Y and which
is the subject matter of the
dispute. (hereinafter referred
to as the E-Class) The new
E-Class had an invoice value of
51,142.30 Euros but the parties
eventually agreed on a price of
Euro 48,000, By reason of the
trade-in arrangement, the
plaintiff surrendered the
Mercedes Benz C¬Class lass to
the defendants and also paid the
defendants Euro 15,000
representing the difference
between the price of the
Mercedes C-180 and the new
Mercedes E-Class. The plaintiff
says it took delivery of the
E-Class on or about the 12 of
December 2007. Sometime in 2008
during rainy weather the car
then being driven by the
plaintiff's Director G.A Sarpong
Esq suddenly stopped in the
middle of the traffic at East
Legon and had to be pushed out
of water that had flooded the
Street and parked nearby. The
plaintiff notified the
defendants who took the car to
their workshop and repaired same
at a cost of GH˘7,498.77. It is
the case of the plaintiffs that
the defendant perpetrated a
gigantic fraud on them and their
insurers as the defendant did
not import any parts for the
repair of the said car contrary
to representations made by the
defendant to the plaintiffs. It
is the case of the plaintiffs
that they used the vehicle after
the repair until 1st December
2008. On that day the vehicle
was being driven by the
plaintiff's Director G. A
Sarpong Esq along the Korlebu
Mortuary Road. Suddenly there
was a loud bang underneath the
vehicle Followed by drainage of
all the engine oil and the
vehicle was rendered incapable
of self propulsion. The
plaintiffs notified the
defendants who towed same to
their workshop. It is the case
of the plaintiffs that they were
notified by the defendants
through their insurers that the
engine of the car was
irreparably damaged and had to
be replaced. It is the further
case of the plaintiffs that the
defendant is in breach of an
express or implied condition for
quality or fitness of purpose in
respect of the car under and-by
virtue of Section 13 of the Sale
of Goods Act 1963 (Act 137). It
is the further case of the
plaintiffs that the defendants
are enjoined under the 2 year
unlimited warranty under the
Purchase Agreement to provide
the plaintiff a brand new
replacement Mercedes Benz
E-Class at no cost to the
plaintiff. The defendant has
however failed and/or refused to
provide a replacement car on the
grounds amongst others that the
damage did not warrant a
replacement of the car under the
Conditions of Sale. The
plaintiff also accused the
defendant of negligence,
fraud/deceit and pleaded that in
the alternative they will rely
on the doctrine of Res ipsa
loquitur. The plaintiff says the
defendant has refused or failed
to heed its demand for a
replacement car despite repeated
demands The defendant admits
having initially sold a Mercedes
Benz 180 C - Class to the
plaintiff which was subsequently
traded- in for the Mercedes Benz
200 E-Class in or around
December 2007. The defendant's
case is that the two (2)
vehicles were sold to the
plaintiff under the
manufacturer's standard warranty
which provided that all
rectifiable defects occurring
within two (2) years of the
purchase of the vehicle and not
occurring through the negligence
or default of the plaintiff will
be rectified by the defendant at
no cost to the plaintiff. The
defendant's case further is that
the initial repairs carried out
on the Mercedes Benz E- Class
was not covered by Mercedes Benz
warranty provisions as the
vehicle stopped solely because
it had been driven into a
flooded ditch causing part of
the Engine to be submerged in
water causing the engine to stop
and also causing extensive
damage to the engine. In respect
of the second defect which
caused the vehicle to stop on
the Korlebu Mortuary Road the
defendant's case is that the
defect is attributable to the
act of the plaintiff's officer
in driving the vehicle into a
flooded ditch causing part of
the engine to be submerged in
water which caused the engine to
stop. In any case the defendant
says that it has replaced the
damaged engine with a new. one
at no cost to the plaintiff and
upon completion requested the
plaintiff to pick up the car but
it refused to do so. The
defendants denied the plaintiffs
claim, At the close of pleadings
and upon failure of the parties
to settle the case at the Pre-
Trial Settlement Conference the
following issues were set down
for determination: i) Whether or
not the C180 Mercedes Benz
saloon car was covered by a two
(2) year unlimited warranty. ii)
Whether or not the defendant per
its invoice dated 14th August
2007 provided plaintiff a two(2)
year unlimited warranty. iii)
Whether or not the total sum of
GH˘ 7,498.77 was paid to the
defendant for the repair of
plaintiffs Mercedes Benz E-Class
in May 2008. iv) Whether or not
the damage to the plaintiff's
car on or about 1st December
2008 was traceable to the damage
of May 2008. V) Whether or not
the defendant notified plaintiff
through its insurers that the
engine of the car was
irrepairably damaged and needed
a replacement engine vi) Whether
or not the defendant's conduct
with the plaintiff amounts to
negligence, fraud and/or deceit.
vii) Whether or not the
plaintiff suffered loss, damage
and inconvenience as averred.
viii) Whether or not the damage
to the Mercedes Saloon E-Class
was as a result of the initial
damage caused by the flooding as
alleged. Ix) Whether or not the
two-year Warranty on the car
sold to the plaintiff was
limited to rectifiable defects
occurring within two years of
the purchase and not through the
negligence or default of the
plaintiff X) Whether or not the
damage to the plaintiff's car in
or about May 2008 was covered by
the warranty on the vehicle. xi)
Whether or not the defendant
replaced the damaged parts on
the plaintiff's car. xii)
Whether or not the defendant is
in breach of a warranty or
condition as to quality or
fitness if any. xiii) Whether or
not the plaintiff is entitled to
its reliefs. In BISI AND OTHERS
VRS TABIRI ALIAS ASARE (1987 -
88) 1 GLR 360 it was held in
respect of the standard of proof
in a civil case in holding 2
that “the standard of proof
required of a plaintiff in a
civil action is to lead evidence
as will tilts in his favour the
balance of probability on the
particular issues" Section 11(1)
and (4) of the Evidence Act 1975
(NRCD 323) defines the burden of
producing evidence and deals
with the standard of proof in
civil cases in the following
terms; “ 11(1) For the purpose
of this Decree the burden of
producing evidence means the
obligation of a party to
introduce sufficient evidence to
avoid a ruling against him on an
issue. 11(4) In other
circumstances the burden of
producing evidence requires a
party to produce sufficient
evidence so that on all the
evidence a reasonable mind could
conclude that the existence of a
fact was more probable that its
non-existence" Indeed Section 14
of the Act which deals with the
allocation of the burden of
persuasion provides: “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" Thus
whereas the plaintiff has to
lead evidence to tilt in his
favour the balance of
probabilities, the burden of
producing evidence was not fixed
for as was stated by the Supreme
Court in Re Ashalley Botwe
Lands; Adjetey Agbosu and
OthersVrs Kotey and others (2003
- 2004) SCGLR 420 "the burden of
providing evidence was not fixed
but shifted from party to party
depending on the issues asserted
or denied in the case" The
plaintiff company led evidence
through its Director GA. Sarpong
whilst the defendants called Mr.
Hassem Chalabi the Human
Resource, Administrative and
Legal Manager and four (4) other
witnesses. The evidence of
George Agyeman Sarpong was that
sometime in February 2007 the
plaintiff company bought a brand
new Mercedes Benz C180 saloon
car from the defendants at the
cost of 34,000 Euros. Barely
six(6) months later the cylinder
head of the engine developed a
crack and he informed the
defendant. The defendant advised
that the C-Class was a new
version on the road and
therefore they advised that the
plaintiff procured the E-Class
Mercedes Benz instead which
according to the defendant was
of a superior model. On the
basis of the advise the
plaintiff traded-in the C-180
for a brand new Mercedes Benz
E200. According to Mr. Sarpong
the invoice price of the E-Class
was Euros 51,142.43 but
eventually after negotiations
the parties agreed on at a price
of Euro 48,000. As a result of
the trade-in arrangement the
plaintiff delivered possession
of the C-Class vehicle to the
defendant and in addition paid
the defendants Euro 15,000 which
was the difference between the
price of the C-Class and the
E-Class and took delivery of the
E-Class. He tendered in evidence
the Pro-Forma Invoice given to
him by the defendant in respect
of the E-Class as exhibit A. He
also tendered in evidence a
Standard Chartered Bank Funds
Transfer advice as Exhibit B
showing that the sum of GH˘19,110
the cedis equivalent of Euro
15,000 was transferred to the
defendant's Account at Standard
Chartered Bank High Street. His
evidence was that he eventually
took delivery of the E-Class
around December 2007. He used
the said car from December 2007
to May 2008 when one afternoon
during rainy weather whilst he
was driving the vehicle around
East Legon the vehicle suddenly
came to a halt and was incapable
of self-propulsion and had to be
pushed off the road. The next
day the vehicle was towed to the
defendant's workshop. The
vehicle was at the defendant's
workshop for three (3) months
before it was repaired because
the defendant claimed they had
to import some parts from Europe
to repair some of the damaged
parts. The car was eventually
repaired after 3 months and the
defendant raised a total bill of
GH˘7,498 for the repairs.
According to the plaintiff his
insurers paid GH˘6,748.89 whilst
the plaintiff paid GH˘749.88
representing 10% of the cost of
repair. On 1st December 2008
whilst driving along the Korlebu
Mortuary Road he heard a loud
explosion beneath the car and he
parked off the road. He realized
that oil had drained from the
car unto the road and the
vehicle was incapable of
self-propulsion. He informed the
defendant who towed the vehicle
to their workshop the next day.
The plaintiff said that
subsequently he was informed by
the defendant that the engine of
the vehicle was damaged beyond
repair. The plaintiff said he
had used the car for barely a
year and therefore was within
the two year warranty period so
he demanded that the defendant
replace the car with a new one
in line with the two (2) years
warranty conditions but the
defendants refused to replace
the vehicle. The defendants
representative Hassen Chalabi
confirmed in his evidence that
the plaintiff company purchased
a Mercedes Benz C-Class Saloon
car which was subsequently
traded-in for the 200 E-Class
Saloon. He said that by Exhibit
A the Pro- Forma invoice the
E-Class was sold to the
plaintiff with a two (2) year
warranty clause in accordance
with Mercedes Benz warranty
condition. He said what this
means is that the vehicle could
cover an unlimited mileage for
two years and the warranty goes
with the manufacturer's defect
so that if there is an error in
the factory during production or
there is a defect with a
specific part then it will be
repaired at no cost to the
customer. He admitted that the
E-Class got damaged in May 2008
and it was subsequently
repaired. In 2008 he said the
vehicle developed another fault.
He said further that that damage
in December 2008 was
attributable to the earlier
damage in May 2008. He confirmed
that the engine of the vehicle
was damaged beyond repair but
denied that the plaintiffs are
entitled to have the vehicle
replaced. He said in line with
the warranty condition the
defendants have replaced the
damaged engine of the car with a
new one at no cost to the
plaintiff but the plaintiff had
refused to take the car which is
still in their workshop. There
is no doubt from the pleadings
and the evidence in this case
that the contract between the
plaintiff and the defendant in
connection with the 2 vehicles
was a Contract of Sate for
Section 1(1) of the Sale of
Goods Act 1962 (Act 137) defines
a Contract of Sale of Goods as
follows: “A contract by which
the seller agrees to transfer
the property in the goods to the
buyer for a consideration called
the Price consisting wholly or
partly in money" Indeed in
paragraph 8, 20 and 21 of the
amended Statement of Claim the
plaintiff pleaded as follows:
"8) As a condition for the
purchase, defendant per its
invoice dated 14th August 2007
provided a two (2) year warranty
for the use of the car. 20)
Plaintiff contends that the
defendant is in breach of a
condition express and/or implied
for quality or fitness of
purpose in respect to the car
under and by virtue of the Sale
of Goods Act 1962 (Act 137) in
particular Section 13 thereof.
21) Plaintiff shall contend that
in the light of the foregoing
and the unlimited two (2) year
warranty under the purchase
agreement for the car defendant
is enjoined to provide plaintiff
a brand new replacement Mercedes
Benz E200 car at no cost to
plaintiff Section 13 of the sale
of Goods Act 1962 (Act 137)
dealing with quality and fitness
of goods provides as follows:
"13(1) Subject to this Act and
to any other enactment, there is
no implied warranty or condition
as to the quality or fitness for
a particular purpose of goods
supplied under a contract of
sale except a) That there is an
implied condition that the goods
are free from defects which are
not declared or known to the
buyer before or at the time when
the contract is made but that
condition is not an implied
condition. i) where the buyer
has examined the goods, in
respect of defects, which should
have been revealed by the
examination; ii) in the case of
a Sale by Sample, in respect of
defects which could have been
discovered by a reasonable
examination of the sample; iii)
where the goods are not sold by
the seller in the ordinary
course of the seller's business,
in respect of defects of which
the seller was not, and could
not reasonably have been aware;
b) That where the goods are of a
description which are supplied
by the seller in the course of
the seller's business and the
buyer expressly or by
implication makes known the
purpose for which the goods are
required, there is an implied
condition that the goods are
reasonably fit for that purpose"
In the case of CONTINENTAL
PLASTICS ENGINEERING CO LTD VRS
IMC INDUSTRIES - TECHNIK GMBH
(2009) SCGLR the Supreme Court
discussed at length Section 13
of Act 137 and concluded that
Section 13(1) of the Act can
only be prayed in aid of buyers
who succeed in establishing the
existence of defects in goods
bought at the time the contract
is concluded. The Court further
held that the applicability of
Section 13(1) hinges on whether
or not at the time of the Sale
Contract, there were defects,
latent or otherwise in the goods
complained of. It follows that
if there are no defects at the
time a party cannot take
advantage of it. With regard to
the seller's liability for
defects in goods sold, this is
what the Supreme Court said in
the Continental Plastic
Engineering Case (Supra) per Her
Ladyship the Chief Justice
Georgina Wood at page 304 of the
Report. The legal position can
therefore be summed up as
follows: A seller of either
first or second hand goods is by
an implied condition, liable for
all defects in them. Based on
what we believe is pure common
sense the seller is however not
liable for defects which he
fully disclose or declares to
the buyer at the time of the
Contract of Sale . When the
buyer has examined the goods the
seller cannot be held liable for
defects which ought to have been
discovered on examination, as
for example, patent defects. It
does follows that if there were
defects particularly latent
defects which are not
discoverable on examination ,
and which are not disclosed to
the buyer before the conclusion
of the contract, the seller
cannot escape liability for the
breach of an essential condition
of the contract Put another way
there is an implied condition
that goods sold are free from
defects except in a situation
where the defects are
specifically drawn to the
buyer's attention by the seller
before the contract or where the
buyer examines the goods before
the contract is made as regards
defects which that examination
ought to reveal as for example
patent defects The Sale of Goods
Act is silent on what a defect
is. Black's Law Dictionary (8th
Edition) defines a defect as" an
imperfection or shortcoming
especially in a part that is
essential to the operation or
safety of a product" It is also
necessary to refer briefly to
the terms "condition" and
"warranty" used in the Sale of
Goods Act 1962 (Act 137) A
"condition" was defined in Photo
Production Ltd vrs Securicor
Transport Ltd (1980) AC 826 at
849 as; A promise in respect of
which the parties have agreed
whether by express words or by
implication that failure of
performance by one party
irrespective of the gravity of
the event that has infact
resulted from the breach shall
entitle the other party to treat
the contract as discharged"
Chitty on Contract vol 2 (28th
edition) paragraph 43-051 page
1115 dealing with the effect of
a breach of condition states, “
Where the term broken is a
condition, upon breach the buyer
may treat the contract as
discharged ie refuse to perform
his own obligation and refuse to
accept the goods or further
performance. He may also sue for
damages or he may instead elect
to recover money he has paid in
restitution if there is total
failure of consideration" A"
warranty" on the other hand is a
stipulation in a contract the
breach of which may give rise to
a claim for damages but not to a
right to reject the goods and
treat the contract as
repudiated. The evidence of the
plaintiff Shows that he took
delivery of the brand new
Mercedes Benz E-Class sometime
in December 2007. His evidence
shows that in May 2008 while
driving the car at East Legon
during a rainy weather the car
suddenly stopped and had to be
towed to the defendant's
workshop for repairs. This fact
is admitted by the defendants.
The evidence shows that when the
vehicle got damaged in May 2008
it was at the defendants
workshop for about three (3)
months before being repaired. It
seems to me that the vehicle was
in the defendant's workshop for
over three months because some
parts had to be imported by the
defendants from Europe. This is
borne out by the e-mails of
Thursday May 29 2008 Exhibit M
from G.A. Sarpong to Nouhad
Kalmoni a representative of the
defendant. The e-mail was in the
following terms: “ Subject: Re:
Damaged Mercedes Benz car
GN2266Y Thanks for the note, Mr,
Kalmoni, I can also confirm that
I was a bit disturbed when I saw
the dismantled engine with the
damaged parts. I do however
trust that your workshop will do
an excellent job and return the
vehicle to the wonderful shape
it was in prior to the accident.
I have been sent a copy of the
Pro-Forma Invoice by Enoch and
given the go ahead for the
importation of the parts. Once
more many thanks for your
support. Have a good evening" By
11th July 2008 the vehicle had
still not been repaired and Mr.
G.A Sarpong again sent an e-mail
to the defendants complaining
about the delay. The e-mail
dated 11th July 2008 Exhibit IL
was in the following terms-
Subject: Re Damaged Mercedes
Benz Car GN 2266Y, Dear Mr.
Kalmoni, Good day to you. I
trust that all is well with you.
I am getting disturbed about the
delay in getting the . car
repaired More than two (2)
months have elapsed since the
vehicle was sent to the workshop
and I pray that action shall be
taken to expedite work on the
car. Kind Regards George Sarpong"
The next day Saturday 12th July
2008 Mr. Husein Noubani who had
been copied exhibit 1 L
responded to Mr. Sarpong's
e-mail of the previous day per
an e-mail Exhibit 1 K as
follows: If Subject: Re Damaged
Mercedes Benz car No. G N2266Y,
Dear Mr. Sarpong, We regret to
inform you that the delay is not
due to ignorance or our interest
to delay the completion of your
vehicle. Unfortunately some of
the parts such as the connecting
rod bearings reported as short
landed items arrived July 07 and
the timing case cover oil seal
is back ordered by the factory
and expected to arrive next
week. Upon the arrival of the
back ordered item, the engine
will be completed within three
working days. With best regards
Hussein Noubani Silver Star Auto
G.M. After Sales “ The evidence
shows that the vehicle was
eventually repaired in early
August 2008. This is borne out
by a letter from Enterprise
Insurance Co. Ltd the
plaintiff's insurer's to the
defendants. The letter dated 8th
August 2008 and tendered by the
plaintiff as Exhibit D stated in
part: MOTOR VEHICLE REPAIR
MERCEDES BENZ NO GN 2266Y G.A.
SARPONG & CO. We confirm receipt
of your final repair invoice of
GH˘7498.77 and the subsequent
phone discussions between your
Enoch and our Doris Doe in
respect of the above claim and
would request that you release
the vehicle to our insured.
Please be advised that the
insured is responsible for GH˘749.88
of the final invoice being the
excess on the policy. The
details are as follows: Final
estimate: GH˘7498. 77 Less 10%
excess 749.88 Our Net outlay GH˘6748
Yours faithfully Mercy N.K.
Lamptey “ On 15th August 2008
Enterprise Insurance Ltd
plaintiffs insurers paid the sum
of GH˘6748.89 to the defendant
on behalf of the plaintiff as
borne out by a cheque which was
tendered by the plaintiff as
Exhibit F. The plaintiffs paid
the difference of GH˘749.88 and
thereafter the vehicle was
released to them. I find
therefore that the defendant
fully repaired the plaintiffs
vehicle after the incident of
May 2008. I have taken the
trouble to deal at length with
the events that occurred after
the incident of May 2008 because
the plaintiffs have accused the
defendants of not having carried
out the said repairs and
perpetrating a gigantic fraud on
them. But first to the events in
December 2008. The plaintiff led
evidence to show that on 1st
December 2008 whilst he was
driving the said vehicle in very
clear weather on the Korle-bu
Mortuary Road there was a loud
explosion underneath the car. He
stopped and thereafter realized
that oil was leaking from the
vehicle. He informed the
defendants who towed the vehicle
to their workshop the next day.
On examination the defendant
informed the plaintiff through
his insurers that the engine was
damaged beyond repair. It is
this damage that has provoked
the present litigation. I have
already set out paragraphs 20
and 21 of the plaintiff's
amended statement of claim by
which the plaintiff contended
that the defendant is in breach
of a condition express or
implied for quality or fitness
of purpose particularly Section
13 thereof. The defendant deny
that they are in breach of any
such condition and have pleaded
in paragraph 20 of the amended
statement of defence as follows:
it 20. Paragraph 20 and 21 of
the statement of claim are
denied. In answer to the said
paragraph the defendant say that
the defect is attributable to
the act of the plaintiff's
officer in driving the vehicle
into a flooded ditch causing
part of the engine to be
submerged in water which caused
the engine to stop It is the
defendant averment in paragraph
20 that the defect is
attributable to the plaintiff's
officer driving the vehicle into
a flooded ditch causing part of
the engine to be submerged that
provoked the plaintiffs to
accuse the defendant of not
repairing the vehicle, after the
2008 incident and also accusing
them of perpetrating a fraud.
Mr. George Sarpong's evidence
shows that the weather was very
clear, on the day the December
1st 2008 incident happened. It
had not rained at all. This is
what Mr. Sarpong said in his
evidence-in-chief in respect of
the incident it Q. So you paid
for the repairs and took
delivery of your car. Did
anything happen to the car
again? A. Yes, I parked the car
throughout the month of November
and I was on an international
assignment in East Africa and
came back at the end of
November. On 1st December 2008
from Court I visited a friend at
the Korle-bu Hospital and on my
way back, I stopped at the
traffic light at the Korle-bu
junction and I turned left along
the Mortuary Road in the
direction of Obetsebi . Lamptey
Circle. Barely a minute after
turning I heard a loud explosion
underneath the car and I parked
off the road and what I saw was
that all the oil underneath the
car had drained on the road and
the car was rendered incapable
of being driven. I called the
defendants who promised that
they will come and see to what
had happened. I waited there
from between 1 pm to 5pm no help
came so I abandoned the car and
called for help from the office
and left the car for them. Q. So
do you know what happened to the
car eventually? A. Eventually
they towed the car to their
workshop in Tema. Further on in
his evidence in chief he said
when led in evidence by his
counsel; Q. Now the defendants
are saying in paragraph 20 of
the amended statement of defence
(read out to witness) so you
read Exhibit E and I have read
to you paragraph 20 of the
amended statement of defence.
Their reaction to your claim
that the vehicle got damaged
subsequently and that you have a
report that it was not
attributable to the rain that
caused the earlier damage. They
are saying in paragraph 20 that
the defect is attributable to
the act of the plaintiff's
officer in driving the vehicle
into a flooded place causing
part of the engine to be
submerged in water which caused
the car to stop. Now you headed
a law firm, were you the one who
was using the vehicle? A. At all
material times I was driving the
car. What they have said is
incorrect. The accident happened
during a clear weather. It was
not raining. It was not a
flooded area, in fact the
Korle-bu mortuary Road at that
time was not flooded If they are
saying that it is because of the
May incident then it is a
perpetration of a gigantic fraud
on us. We say that because they
had represented to us that they
have imported parts to repair
the car which had remained in
the workshop for three (3)
months, assured us and our
insurers that the car was
trouble free, free from all
defects. When this incident
happened as Exhibit E will show
they assured the agents that
that was not due to the flood
incident’,so how did they turn
round now to say that it was
caused by flooding and that
leads us to believe that they
did not import the parts at all.
They merely might have parked
the car for the water to drain
off and parcel it to us as
having been repaired The
plaintiffs evidence that on 1st
December 2008 when the incident
happened there was no flooding
and the weather was clear was
not challenged by the
defendants. Neither did the
defendant lead any evidence to
show that on 1st December 2008
the vehicle was driven into a
flooded ditch. I reject as
untrue the defendant's assertion
that the engine of the car got
damaged on 1st December 2008
because the plaintiff's officer
drove it into a flooded ditch
causing part of the engine to be
submerged in water. I find that
on the contrary the vehicle was
not driven into a flooded ditch
by the plaintiff's officer on
1st December 2008. In any event
after the May 2008 incident the
defendants had kept the
plaintiff's car at their
workshop for over three (3)
months to have same repaired.
They had to import some parts
from Europe and the plaintiff
and their insurers paid the
colossal amount of GH˘7948.77
for the repairs For the
defendants to use the said
incident of May 2008 as the
basis for the defect of the car
in December 2008 is clearly
untenable. The evidence of both
parties show that when the
vehicle stopped in December 2008
whilst being driven by Mr.
Sarpong, it was towed to the
defendants workshop. On
examination it was found that
the engine had been damaged
beyond repair. That the said
engine was damaged beyond repair
is not in dispute. I find
therefore that the engine of the
vehicle was damaged beyond
repairs because it was
defective. In my view where the
engine of a brand new Mercedes
Benz vehicle breaks down
completely beyond repair within
a year such a defect can be
described as real or
substantial. The plaintiff have
contended that the damage to the
engine of the vehicle beyond
repair within one year is
evidence that the defendant had
sold a defective vehicle and
have accordingly rejected same
and have demanded a replacement.
The defendant on the other have
contended that the vehicle was
sold under a two (2) year
warranty in line with the
Mercedes Benz warranty condition
and therefore are only bound to
replace the engine which they
claim to have done at no cost to
the plaintiff. The evidence
shows that the defendant's
Pro-Forma Invoice Exhibit A
given to the plaintiff in
respect of the E-Class had a
warranty Clause. It states:
"warranty: Two years unlimited
warranty and in accordance with
Mercedes Benz warranty
conditions” The plaintiff
evidence was that at the time
they were trading-in the vehicle
he was assured that the warranty
was for two (2) years and if
there was any major defect they
will replace the vehicle. The
defendants on the other hand
denied given any such assurance
and said that the warranty
provision is that if there was
any defect within two (2) years
the defect will be rectified at
no cost to the plaintiff if
there was no negligence on the
part of the plaintiff. Indeed in
his written address counsel for
the defendant had submitted in
respect of the warranty
provision at page 13 paragraph
47 and 48 of his written address
as follows: "47 The explanation
of the terms of the warranty by
DW1 is supportable by the facts
and evidence on record. In May
2008 when the plaintiffs car
broke down at East Legon and was
towed to the defendant's garage
the defendant upon examination
informed the plaintiff that the
cause of the damage was because
the plaintiff's officer had
driven the car in a manner that
water had entered the engine
causing damage thereof. The
plaintiff was informed that the
cause of the damage was not
covered by the warranty in that
it was caused by the plaintiff's
officer's own act 48 The
plaintiff did not dispute the
fact and accepted responsibility
by paying for the cost of the
repair to the engine through his
insurers. My lord, if as
contended in this case the
plaintiff was entitled to a
replacement car in the event of
any damage no matter how it
arose, one wonders why the
plaintiff did not dispute the
demand by the defendants that
the damage was not covered under
the terms of the warranty. The
payment by the plaintiff for the
damage it caused to its engine
in May 2008 is consistent with
the terms of the warranty as
explained by DW1" This
submission by counsel for the
defendant may well be true but
in my view whatever
interpretation one gives to the
terms of the warranty clause,
the question of whether or not
the plaintiff or any customer
for that matter will be entitled
to a replacement of a vehicle in
the event of a defect will
ultimately depend on the gravity
of the defect complained of. For
example if the clutch or
accelerator pedal or cable of a
brand new car is found to be
defective will that defect be
grave or real enough to entitle
the customer to a new vehicle?
Obviously the answer will be in
the negative Counsel for the
plaintiff had submitted in his
address at page 6 thereof as
follows: “ For a brand new car
to suffer two major breakdowns
and in the second instance where
there was no external factor
such as flood or a crash of the
vehicle all within a little over
a year of its acquisition
clearly means that the vehicle
is not fit for . the purpose for
which it is acquired and the
plaintiff entitled to reject
same “ In response counsel for
the defendant had submitted at
page 13 of his address paragraph
53 as follow; it It must first
be corrected that as
demonstrated elsewhere this
written submission the engine
breakdowns were not as a result
of a defect. Indeed there is no
evidence before this Court that
the engine on the Benz E-Class
has any defect. The damage to
the engine is attributable to
the fact of the plaintiff's
officer in driving the car in
such a manner that water entered
the engine resulting in this
damage...” Counsel for the
defendant had also stated in
paragraph 54 as follows;
“…………………………………………………………………… From
the above, the onus of proof
that the vehicle had a latent
defect at the time of purchase
lay on the plaintiff. And
whether or not the car has a
latent defect must be decided as
a question of fact and the
plaintiff who alleges that the
Benz E-Class has a latent defect
has a duty to adduce evidence in
support of that allegation “ I
have already indicated that in
my view there is no connection
between the damage to the engine
on December 2008 and the
incident on May 2008. It is
strange that counsel for the
defendant says there is no
defect in the engine of the
E-Class. If the engine of a
brand new Mercedes Benz which is
about a year old suddenly breaks
down and is incapable of being
repaired and has to be replaced
there is no better way of
describing it than to say that
it is defective, And if a latent
defect is a hidden defect then
it follows that such a defect is
latent and incapable of being
discovered by reasonable
inspection. In any event I have
already held that the engine of
the E-Class was defective;
indeed the defect in my view was
latent. I have also already held
that there is no relationship or
connection between the defect in
December and the incident in May
2008. The plaintiff has
submitted that the defect in the
car constituted a breach of
Section 13 of the Sale of Goods
Act and this breached the
condition as to the quality or
fitness of the vehicle for the
purpose for which it was
acquired. In deciding whether
the vehicle was fit for the
purpose for which it was
acquired the case of Rogers and
Another Vrs Parish (Scarborough)
Ltd (1987) QB933 cited by
counsel for the defendant is
relevant. In that case a New
Range Rover vehicle was held by
the English Court of Appeal not
of merchantable quality when it
was found to have substantial
defects and these defects had
not been satisfactorily
rectified after six months. The
trial judge held that the
vehicle was of merchantable
quality because the defects did
not render it unroadworthy,
unusable or unfit for the usual
purpose for which such a car
might be used and had also
placed reliance on the fact that
the supplier and manufacturer
had attempted and were
attempting repairs. The Court of
Appeal took the view that the
fact that there was a
manufacturer's warranty did not
diminish what the buyer was
entitled to expect initially,
but rather to increase his
rights. Mustill L.J stated was
follows; if Starting with the
purpose for which goods of that
kind are commonly bought, one
would include in respect of any
passenger vehicle not merely the
buyer's purpose of driving the
car from one place to another
but of doing so with the
appropriate degree of comfort,
ease of handling and
reliability, and one may add, of
pride in the vehicles outward
and interior appearance. What is
the appropriate degree and what
relative weight is to be
attached to one characteristic
of the car rather than another
will depend on the market at
which the car is aimed" The
vehicle in issue is a Mercedes
Benz E200 saloon. The Pro-Forma
Invoice gives the full
description of the car as
Mercedes Benz E200 Kompressor
Elegance. I take judicial notice
of the fact that generally in
Ghana a brand new Mercedes Benz
car is generally beyond the
means of the average Ghanaian.
It is a vehicle generally
associated with the affluent or
well to do and those in the
higher echelons of society who
are the people the car is aimed
at. Obviously therefore when a
brand new Mercedes is purchased
by a customer he should expect
the appropriate degree of
comfort, reliability and
elegance associated with
Mercedes Benz vehicles.. The
evidence shows that in February
2007 the plaintiff company
bought a Mercedes Benz C180 ie a
C-Class from the defendant at a
cost of 34,000 Euros. Barely six
(6) months later the car
developed a crack in the
cylinder head and this was
bought to the attention of the
defendants. Upon their advice
the plaintiff traded-in the
C-Class for the E-Class in issue
which was of a superior model at
a cost of Euro 48,000. It is
this E-Class which is the
subject of this case. I have in
coming to a conclusion in this
case considered the effect of
Section 49 and 51(1) of the Sale
of Good Act 1962 (Act 137)
Section 49(1) provides "49(1)
Subject to this Act the buyer is
entitled to reject the goods and
refuse to pay or to recover the
price where: a) the seller is
guilty of a fundamental
obligation. b) the seller is
guilty of a breach not being of
a trivial nature of a condition
of the contract whether the
breach is in respect of all of
the goods or subject to
sub-section (2) part only of the
goods or c) the buyer has
entered into the contract as a
result of fraudulent or innocent
misrepresentation on the part of
the seller. 51(1) The buyer may
not reject goods which the buyer
has accepted" As to what
constitute acceptance Section 52
of the Act provides; “ 52 The
buyer accepts the goods when the
buyer. a) intimates to the
seller that the buyer accepts
the goods or b) does not within
a reasonable time after delivery
of the goods informs the seller
that the buyer rejects the goods
or c) wrongly refuses or
neglects to place the goods at
the disposal of the seller after
notifying the seller that the
buyer rejects the goods It seems
to me that Section 49 does no
confer an automatic right on the
buyer to reject goods simply
because they are defective. The
defect complained of must not be
trivial. In effect the defect
which entitles the buyer to
reject the goods must be of a
serious, substantial or of a
fundamental nature. Also when
the buyer accepts the goods then
he may not exercise his right to
reject the goods. Obviously
where the seller is in breach of
a fundamental obligation then
the acceptance of the goods will
not deprive the buyer of his
right to reject the goods. I
find that the defect is this
case was real and substantial.
Of course the right to reject
must be exercised within a
reasonable time. I am mindful
that time is a material element
for consideration where
repudiation of a Contract of
Sale is sought since it is an
element in the determination of
the question whether property in
the goods has passed for Section
26(2) of the Sale of Goods Act
provides that “ Unless a
different intention appears the
property in the goods passes
under a Contract of Sale when
they are delivered to the buyer
Also by Section 27(2) of the Act
risk passes with the passing of
property. However in my view
each case must be decided on its
own peculiar facts. I have
considered whether having
retained possession of the
vehicle for 12 months it was
reasonable for the plaintiff to
exercise its right to reject the
vehicle. It is this fact which
has exercised my mind and given
me considerable anxiety. On the
facts of this case, I will hold
that the period of 12 months was
not unreasonable and that the
plaintiff is entitled to a
delivery to it of a brand new
Mercedes Benz car (E-Class) as
replacement for the damaged car.
I will therefore enter judgement
in favour of the plaintiff in
terms of relief (a) as endorsed
in the amended writ of summons.
I will refuse reliefs (b) and
(c). Cost of GH˘4,000 against
the defendant. COUNSEL J. OPOKU
BOATENG FOR THE PLAINTIFF KIZITO
BEYUO FOR THE DEFENDANT.
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