GHANA LAW FINDER

                         

Self help guide to the Law

  Easy to use   Case and Subject matter index  and more tonykaddy@yahoo.co.uk
                

HOME

 

 

IN THE SUPERIOR COURT OF JUDICATURE

IN THE HIGH COURT

ACCRA

CORAM; MRS.JUSTICE GERTRUDE TORKORNOO

 

SUIT NO. SUIT NO. OCC 49/08

03 August 2010

 

NEW LUCKY ELECTRICAL LIMITED

 

PLAINTIFF

VRS

 

 

1. STARTRACK INT. GHANA LIMITED 2.ISAAC ACQUAH

 

DEFENDANT

 

The plaintiff purchased an excavator from the defendant in April 2007 after seeing an advert for the excavator in March 2007 - Exhibit A. In May 2007, he carted the excavator away from Defendant's premises on a low,-loader to a place near where its mining site was. In June 2008, the plaintiff sued the defendant for a declaration that the defendant sold a defective and unusable excavator to the plaintiff and sought an order setting aside the contract of sale made between the plaintiff and defendants and an order compelling the defendants to refund the sale price of GH¢38,000 and monies expended on the excavator for changing the seals on the excavator at the time of purchase, repairs, fluids and greases spent on the excavator, the cost of transporting the excavator to and from Prestea area and finally GH¢120,000 for loss of use of the excavator for 240 days. Plaintiff also sought general damages and the cost of this action. It later amended the action to plead that defendant employed fraud to get the plaintiff to pay for an excavator which was unserviceable and unusable and to change the cost of repairs, fluids and greases from GH¢500 to GH¢6,500. The defendant vigorously defended this action. 2nd Defendant argued that at all times; he acted in his capacity as Managing director of plaintiff and was therefore not a proper party in the action. Apart from alleging Defendants did not know plaintiff and had dealt with its representative Mr. Osei Wusu in his personal capacity, there were four main relevant grounds of defence. The first was that the plaintiff's representative Mr. Osei Wusu had obtained independent advice at the time of purchasing the equipment from three persons, a mechanic operator called Chief, Mr. Akuffo who is a mining engineer and Mr. Kwasi Ofori who introduced himself as the Managing Director of Edmark Plant Pool and Machinery. Defendants claimed that the excavator was in perfect working order at the time it was sold and this was confirmed by these agents of Mr. Osei Wusu who inspected the excavator prior to sale. These inspections were conducted on two occasions, 23rd March and 26th March respectively and were done before the first payment was made for the excavator on 30th March 2007. Secondly, they denied that the defendant had employed any fraud on the plaintiff leading to the transaction and claimed that all representations as to the type of excavator and state of the excavator made to Mr. Osei Wusu were made honestly. Thirdly, the defendants claimed that Mr. Osei Wusu knew that the equipment was being sold on an as is' basis and every opportunity was given to him to satisfy himself on the condition of the equipment. Lastly, defendants denied -any continuing representations to plaintiff to ensure the repair of the excavator and denied that plaintiff is entitled to any of its claims. Although many and diverse issues were raised in this action, there are three fundamental questions to be tried. The first is whether the plaintiff has persuaded the court by proving its case that there was fraud perpetrated on it at the time of the sale of the excavator and whether if there was fraud, the contract could be avoided as a result of such fraud. The second issue' is whether the excavator was sold on an 'as is' basis or the transaction came with an implied condition of fitness of purpose of the excavator and the defendant breached that condition and if they did, the plaintiff could avoid the transaction for that reason. The third issue is whether owing to the length of time the plaintiff kept the excavator, he lost the right to reject the excavator even if the defendant had practiced fraud in the sale or breached an implied condition of fitness of purpose as seller of the excavator. The particulars of fraud set out by plaintiff are: i. The defendant was aware at all material times that the excavator was not fit for use but failed to disclose same to plaintiff ii. the defendants knew that the assertion they made at the time they-placed the advertisement with the claim that the excavator was equivalent to a CAT 330 was false iii. defendants knew at all material times that inter alia the hydraulic system of the machine was irreparable but deceived plaintiff into thinking that only the seals were bad iv. defendants collected money from the plaintiff to, fix the seals of the excavator and refused to do same but told plaintiff he had done so V. 2nd defendant told plaintiff that he purchased the excavator from his boss in Holland and that the excavator had not been Used in Ghana when he knew, at the time of making the assertion, not to be true. From the above, not only is the question of implying a fitness of purpose clause in this transaction an issue for trial for the purpose of determining whether there was such an obligation which was breached, but the plaintiff went on to allege that the defendant deliberately concealed the lack of fitness of the excavator as an incident of fraud. I will first look at the issue of Whether this was a transaction where the defendant warranted fitness of purpose -of the excavator as a condition of contract or the excavator was sold on an 'as is' basis before determining whether there has been fraud proved regarding the excavator not being fit for purpose. Section 13(1) (a) (i) and b of The Sale of Goods 1961, Act 137 reads 13. Subject to the provisions of this Act and any other enactment there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale except as follows a. 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: Provided that there is no such implied condition - i. Where the buyer has examined the goods, in respect of defects which should have been revealed by the examination; (b)Where the goods are of a description which are supplied by the seller in the course of his 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 Thus the statute implies a condition within any sale transaction that the goods sold are free from defects which are not declared to the buyer or the buyer could not know of at the time of sale, as long as that defect is not ascertainable through examination. The warranty of freedom from defects is lost where examination would make them evident. Of course this can be appreciated in the sense that a buyer who is well aware of defects in a product and chooses to buy: same does that with his own will and the seller should not be deemed to have a duty to protect that buyer. The doctrine of 'caveat emptor' becomes the threshold for finding a warranty by the seller to sell goods without defect. In the statute, 'where the goods are of a description which are supplied by the seller in the course of his business and 'the' buyer expressly or by implication makes known the purpose for which the goods are required', the law would imply a condition of contract warranting fitness of purpose. Although the defendant argues that the transaction was done on an 'as is' basis and therefore such a condition cannot be implied into the sale contract, it is clear from the principles of law that have been developed on the doctrine of 'fitness for purpose' that the transaction that is in dispute is one that would invite a condition of fitness of purpose. In Benjamin's Sale of Goods Sweet & Maxwell 2002, the learned author discusses the doctrine of fitness of purpose and its application within the words 'where the seller sells the goods in the course of his business' such as is found in our own law. The learned author says on page 495 'it seems clear that it covers sales which are an integral part of the business carried on, and sales which are incidental to that business but carried on with a degree of regularity, and in this context a first time seller must be covered. They also cover sales in a one-off venture In the nature of trade carried through with a view to profit.' In Ashington Piggeries v. Christopher Hill Ltd 1972 AC 441, the House of Lords made it clear that the words required only that the seller deal in goods of that kind and a seller would fit into this description if he accepts orders to supply them in the way of business, and whether or not he has previously accepted orders for goods of that description would not matter. In Stevenson v. Rogers (1999) QB 1028, a fisherman who sold his only boat to procure a new one was held to be selling in the course of a business, though he was not in the business of selling boats and had Only done so once before. Indeed, it is clear that the rationale behind these and other interpretations of the fitness of purpose doctrine to is to examine who should carry the liability for defects which are not immediately visible but which make the product unfit for the use for which it was procured, especially where that use had been made known to the seller. And to the extent of balancing the risks foe-defects, and especially where the defect prevents the reasonable user of the product, the liability for the defect should lie with the seller. In the instant case, the 'purpose' of this product was clearly defined as excavation in mining because both parties agree that Mr. Osei Wusu made known to defendant that the excavator was needed for mining. Secondly, by the defendant's own evidence, the 'nature of business of the 1st defendant is renting out heavy duty equipment, including tipper trucks, personal carrier, water tankers and excavators'. Thus, the defendant dealt with the excavators in the ordinary course of his business. Indeed, the 2nd defendant alleged that the 1st defendant had imported the particular excavator for their own contracts but having failed to secure the contract, decided to sell it. So they were familiar with excavators, and in particular, this very equipment.In the light of these two circumstances, I do not hesitate to find that by operation of Section 13 (1) (b) of Act 137, there should be an implied condition in the sale transaction that the excavator would be reasonably fit for the purpose for which it was sold, such defect being presumed by operation of law to be in the defendant's knowledge. In such a situation, subject to the other provisions of Act 137, the plaintiff would be entitled to return the excavator if it turned out unfit for use. As cited by defendant's counsel in his addresses from the judgment read by Her Ladyship Chief Justice Wood in Continental Plastics v. IMC Industries, 2009 SCGLR 298 at page 304 by '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 discloses 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 is within the context of the proviso then that this court will continue to examine the position as between these particular parties. The evidence by both parties is that the plaintiff brought three people to examine the excavator before carting it away. The plaintiff states that they did not have the capacity to properly examine it - being a site foreman, a mining concession owner and the owner of a plant pool. Indeed, he alleges that it was the 2nd defendant who moved the excavator back and forth when he went with these people to examine the excavator. PW2, the operator called Chief, corroborated this testimony and said it was the 2nd defendant who moved the excavator when he went to move it on to a low loader for travel to Prestea, The evidence about What happened on defendant's premises when this examination was done shows that this court must look at the question of examination for defects on two levels - the defects which could be seen on the site of defendant, and defects which could not be seen until the excavator was set to excavate. I agree with plaintiff that the ground on which the excavator stood was a graded road, as exhibit 6 reveals, and in the circumstances, it could only be when the excavator was taken to site that its ability to excavate could be examined and determined. There would therefore be two moments of the examination the law speaks of. The defects that could be determined on defendant's sites would include plaintiff complaints about defects in the tracks, the lever and the hydraulic seals of the excavator. Although defendant denies these alleged defects, Section 13 (1), (a) is clear that if such defects can be revealed on examination, the seller had d1schargedhls obligation regarding warranting fitness of purpose. The buyer would be deemed to have accepted the goods with its defect, because it was made clear to them on examination and before the moment of sale. What strikes me about the evidence of plaintiff witnesses is that they identified these alleged defects in the tracks, lever and hydraulic seals while the excavator was still on defendant's site and prior to the moment of sale. PW2, Samuel Boateng is the fellow referred to as the operator by defendant and site foreman by plaintiff. He said he went to defendant's site specifically to 'inspect the machine and convey it to site'. He went to 'check' it. He claims that when he tried to move it on to a low loader, the tracks of the excavator could not move properly, and the lever did not work well. Thus, from his inspection, the excavator did not function properly. And it took the 2nd defendant personally sitting on the excavator for it to be moved. And yet, with that full knowledge of his agent, plaintiff's representative Mr. Osei Wusu chose to go ahead to buy the excavator. Mr. Akuffo's testimony was that lie noticed that the engine of the excavator was a Magirus engine and if plaintiff had listened to him, he wouldn't have purchased excavator.Mr. Osei Wusu himself stated that the 2nd defendant said he would change the hydraulic seals so that prior to the moment of contract, it was known to the plaintiff that the excavator needed its seals changed I will discuss these seals in the context of fraud later. However, for the purposes of determining the legal effect of the examination of the excavator on site, it is my evaluation that the import of the combined evidence of the plaintiff's witnesses therefore was that although the machine started alright, they did not find the machine in excellent working condition to enable their giving it a clean bill of health concerning its user from the time they examined it on the defendant's site to the time they took it away to Bogoso. Whatever faults there could have been with the tracks, the lever and the hydraulic seals were made evident to the plaintiff before the moment of sale and yet plaintiff went ahead and purchased it. To continue with the second part of the summary of the law by Her Ladyship Chief Justice Wood in Continental Plastics v. IMC Industries, 2009 SCGLR 298 at page 304 by 'Based on what ( we believe) is pure common sense, the seller is however not liable for defects which he fully discloses or declares to the buyer at the time of' the contract of sale. When the buyer has examined the goods, the seller Cannot held liable for defects which ought to have been discovered on examination, as for example, patent defects I do not hesitate to dismiss all allegations on lack of fitness of purpose when it comes to the tracks of the excavator, its levers and hydraulic seals in the light of Section 13 (1) (a) of Act 137. The plaintiff has alleged that defendart also practiced fraud when it came to these alleged defects. To prove fraud, a pIaintiff necessarily carries a burden to provide sufficient evidence that the fraud was perpetrated through the making of a false statement 'knowingly, or without belief in its truth, or recklessly, careless whether it be true or false.' This is the time tested definition of fraud distilled in Derry v. Peek 1889 14 App Cas 337. To quote Cheshire, Fifoot & Furmston's Law of Contract 15th Edition by Michael Furmston, Oxford University, page 341, 'a dishonest honest belief is essential to constitute fraud. If a representor honestly believes his statement to be true, he cannot be liable in deceit, no matter how ill-advised, stupid, credulous or even negligent he may have been'. As cited from Lord Esher's judgment in. Le Lievre v. Gould (1893) 1 QB 491 at 498, 'a charge of fraud is such a terrible thing to bring against a man that it cannot be maintained in any court unless it is shown that he had a wicked mind' By Section 12 of the Evidence Act NRCD 323 1975, a party who makes a civil case in a court carries a burden to persuade the court with sufficient evidence from which the court can arrive at a conclusion that the facts averred necessary to prove their case are more probable than not. Thus in order to prove the particulars of fraud that 'the defendant was aware at all material times that the excavator was not fit for use but failed to disclose same to plaintiff, and defendants knew at all material times that inter alia the hydraulic system of the machine was irreparable but deceived plaintiff into thinking that only the seals were bad', the plaintiff carried a burden to prove this knowledge in defendant and a dishonest concealing of it from the plaintiff. The plaintiff carried a burden to provide evidence to this court that the defendant knew that the excavator could not excavate at all but deliberately concealed this from him. He failed to call any evidence of such knowledge in this trial. On the contrary, the evidence led was to the effect that the plaintiff was given all opportunity to examine the mobility of the excavator on defendant's site and with the assistance of those he brought to inspect it and there was no effort to conceal that examinable part of the excavator from plaintiff. When it comes to the scooping ability of the excavator, after the plaintiff took the excavator to his site, he immediately received the information that the excavator could not scoop earth. When this was brought to the defendant's notice, 2nd defendant recommended persons who could assist in repairing any fault that had been identified after the excavator was taken from his premises and gave information on how these people could be reached. This is not the act of a person who wished to conceal defects from a buyer and I fail to find proof of fraud about this first allegation. Regarding the allegation that the hydraulic system of the excavator was irreparable and deliberately concealed. from the plaintiff, the allegation that plaintiff lied about changing the seals was refuted by DW1 Atta, who testified that he personally purchased those hoses and changed the seals for the plaintiff and on the instructions of defendant. Apart from this, according to Mr. Osei Wusu, his own expert Mr. Ofori 'advised that the machine started alright but he cannot give comment on its hydraulics until it does excavation'. The only understanding from this is that anyone who had not tried to excavate with the machine could not know the state of its hydraulics until it had been engaged in excavation. Also regarding the alleged deception about the use of the excavator, Mr. Osei Wusu claimed that the 2nd defendant had represented that he had personally used the excavator in Holland and he purchased it from his boss. There was no corroboration for this testimony. Defendant refuted this testimony and tendered exhibits 9 and 10 to support where he purchased the equipment from. Mr. Osei Wusu Was supposed to have inspected these documents before purchasing the excavator and so should be deemed to have known where 2nd defendant purchased the equipment from before the sale. Thus if there was any particular name for this boss which related to the documents before the court, the plaintiff should have been able to put more flesh on its arguments about deception regarding 2nd defendant using the excavator while it was in the custody of his boss and knowing that it didn't work at all. Or, if exhibits 9 and 10 were different from the documents he examined before the purchase, plaintiff counsel should have been able to refute the defendant's evidence about where he purchased the excavator from plaintiff failed to -----------any of this evidence. But more importantly, the plaintiff had the opportunity to use the excavator after 27th May and any false representation on the hydraulics or usefulness of the machine would have become evident when an attempt at excavation was done. PW4, a mechanic called Akwasi Wusu testified that after the excavator had been conveyed to the plaintiff's site, he was sent to work on the tracks of the machine and the lever because they were not were not working properly. He further found that the engine of the excavator was not working because it couldn't scoop from the ground as expected of an excavator. From these testimonies, even if the defendant alleged that apart from the changing of hoses, there was no other work left to be done on the excavator, whatever defect affected the operation of the tracks, the lever and the engine very quickly came to the attention of the plaintiff's representative, almost immediately after he took it to his site in Prestea in May 2007. And yet, after this opportunity, the plaintiff went ahead and concluded the payment for the seals and thus the entire sale in June 2007. I find that no evidence has been placed before me to prove that defendant deliberately attempted to conceal any particular knowledge about the excavator from the plaintiff before the entire transaction was concluded in June 2007. I also do not hesitate to find allegations of fraud regarding the hydraulic seals and any aspect of the excavator that could have been found by examination on and off the site of the defendant as unsupported, Unsustainable, and I dismiss same. Under Section 52 of the Sale of Goods Act 1961 Act 137, a party who has accepted goods after purchase may not reject them. The plaintiff kept the excavator between May 2007 and June 2008 - a period of one year and one month - following his purchase of the excavator. It is his argument that he never accepted the excavator notwithstanding the length of time he kept it but was prevented by the defendant from returning the excavator. But acceptance is not the simple function of direct words but always a matter of law, being determined from conduct and circumstances. Acceptance is determined in three sets of circumstances under Section 52 of Act 137.If the buyer intimates to the seller that accepts the goods, or he does not, within a reasonable time after delivery of the goods, inform the seller that he rejects them; or lie wrongfully refuses or neglects to place the goods at the disposal of the seller after notifying the seller that he rejects them, he is deemed oo have accepted them. Although plaintiff's witnesses testify, that the excavator did not work well on examination, on 23rd May May 2007, the plaintiff registered the excavator in his name and became recognized as the owner of the machine. He claimed that it was for the purpose of transporting the excavator to Bogoso. To my mind, even if this was the reason for doing so, it was a clear intimation that he had accepted the machine and in the light of his subsequent conduct, there is no indication that this was not his reason for registering the excavator in his name. He had bought the excavator after satisfying himself that it was in a shape that he could try it for excavation although he claimed he had become aware that all was not well with its tracks, lever and seals, he happily transported it to Bogoso, choosing to identify himself as the owner of the excavator. Secondly, although he alleges that the excavator never worked, there is not a single communication he tendered to prove that within a reasonable time after delivery of the excavator and finding that it couldn't excavate the earth, he informed the defendant that he rejected the excavator. Thirdly, he kept the machine for the extremely unreasonable period exceeding one year in the Western Region, out of the reach of defendant, before sending it to the defendant's office premises a day after issuing this writ - all this while, without sending a single written complaint to defendants that he rejected the -excavator. In my judgments in the cases of Christie Korangten v. African motors(17th December 2008) and Charles Frimpong v. Godwin Akumah (20th July 2010) where the plaintiff and defendants respectively sought to take the positions that they were rejecting vehicles after they had kept them in their custody for more than one year, I was guided by the direction of Francois JA in Rockson v. Armah 1975 2 GLR 116 in determining whether or not those positions were sustainable in law. In Rockson v. Armah, the buyer of a car sought to reject it after keeping it for just two months on the grounds that it was defective. , Francois JA said on page 119, '..the right to reject is lost by any unreasonable delay in doing so: Where a buyer elects to keep a defective car for an inordinately long time, it is not open to him thereafter to avoid the transaction… 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 .... Any undue delay in rejection amounts to a positive assumption that the property in the goods has passed... A long period of retention must be equated with acceptance, the transfer of the property in the goods and assumption of all risks. What is a reasonable time is a question of fact and may vary with the circumstances of a case; but retention for a month has been condemned as unreasonable in relation to a secondhand car.' It is my firm opinion that the plaintiff's arguments regarding the reason why he failed to return the excavator within days and weeks of finding the so called irreparable faults cannot be appreciated by the state of the law. He claimed that when he complained about the non functioning of the excavator, the defendant directed him to mechanics to repair the excavator for him. And yet, this was supposed to be at a time when the excavator was supposed to have proved to be totally unusable for the purpose that it was purchased. By accepting to admit these mechanics to repair the machine the plaintiff gave an indication of acceptance of the machine after full knowledge of its alleged mal functions. Then also, this court finds that Mr. Osei Wusu was not altogether candid to the court. After the initial repair which Mr. Osei Wusu claimed was not successful, he also testified that defendant travelled out of Ghana and continued to convince him to keep the machine with the promise that he would swap the excavator for a new one, and later lied to Mr. Osei Wusu that this new machine fell into the sea. Osei Wusu then tendered exhibit E as a communication 2nd defendant sent to him to pay extra money into his account for the intended swap 2nd defendant denied this allegation and proved that the communication in exhibit E was sent solely for payment of a cheque from Leasafric to 2nd defendant which plaintiff had sourced to cover the payment price of the excavator in dispute here. That cheque was tendered as exhibit 5 and 1st defendant's bank statement proved the crediting and subsequent debiting of 1st defendant's account with the money - when 1st defendant returned it to Mr. Osei Wusu less the cost of the hydraulic seals. Thus to assert that exhibit E was related to a proposed swap of the excavator as proof that the defendant delayed the return of the excavator with deceiving promises to swap the original excavator for a different one which he later lied about as having fallen into the sea is to unfortunately attempt to deliberately mislead this court. The plaintiff failed to prove to this court that its continued custody of the excavator arose from any effort of the defendant and this court finds acceptance of the excavator from the acts of ownership of the plaintiff regarding the excavator, as well as the length of time the plaintiff kept the excavator after carting it from the defendant's premises in May 2007. Such acceptance operates as estoppel against any alleged subsequent rejection of the excavator by operation of Section 52 of Act 137. I must review the other particulars of fraud enumerated by plaintiff. The plaintiff averred that the defendant perpetrated fraud on it in that the defendants knew that the assertion they made at the time they placed the advertisement with the claim that the excavator was equivalent to a CAT 330 was false. The advert that plaintiff responded to was for excavator for sale; (1) Type 0 & KRH 12 Equivalent to Cat 330 This is what defendant advertised and this is what plaintiff responded to. There is no case made before this court that the excavator was not 0 & K RH 12, or that there is no similarity between the excavator they purchased and the Cat 330. Indeed, on the issue of the relationship between the 0 & K RH12 excavator and a CAT 330, the 2nd defendant tendered exhibit 18, which showed that on a particular web site on machinery, a Caterpillar 330CL had a weight of 30 tonnes and an 0&K RG12 had a weight of 30 tonnes. According to 2nd defendant, this is his basis for equating the 0&K to the CAT 330. The plaintiff countered this argument by tendering exhibits M and N. This showed that a CAT 330 could be a 22 ton, 28 ton, 33 ton, 30 ton, 35 ton machine and the O&K excavator could be a 32 ton machine. What is significant about these exhibits, when viewed together, is that the 0 & K RH12 could have a range of tonnage weight in the same way that the CAT 330 couId have a range of weight. It did not exclude the ability to compare an O& K RH 12 with a weight of 30 ton with a CAT 330 with a weight of 30 ton which would render the advert a falsehood. The necessary question is whether the particular O&K RH12 sold in this transaction in contention had a 30 ton weight or it did not? Plaintiff does not prove that it did not have a 30 ton weight which would have made the description a total falsehood.Thus, if 2nd defendant had been narrow in his knowledge and failed to know that there were other ranges of CAT-330's whose tonnage was less or more than 30 tons, it would not make that ignorant statement a false or fraudulent one. And 2nd defendant in his evidence and cross examination showed that until he was confronted with exhibits M and N, he had honestly believed that the description of a Caterpillar machinery as CAT 330 meant that it had a 30 ton weight. He backed his honest ignorance of the information given on exhibits M and N with exhibit 18. This court does not find at all a dishonest assertion on that advert by reason of the fact that as shown by the exhibits tendered by both parties, an O&K RH12 can have the same tonnage as a Cat 330 and there was no evidence that this particular O&K RH12 was not the type which had the same tonnage as a CAT 330. Indeed, even if any assertion that the defendant made was false, which is not at all my finding, it is also an established position in the law on fraud that fraud does not automatically avoid any transaction. A party seeking to rely on fraud to set aside a transaction must not only prove the fraud, but must prove that the misrepresentation went to a fundamental term, being a condition of the contract, such as to avoid the possibility of intention in arriving at agreement. Further, after the fraud came to its notice, the party should have taken steps to timeously avoid the contract and in no way affirmed same - thereby indicating an agreement to contract after the misrepresentation came to its notice. In JAPAN MOTORS V. RANDOLPH MOTORS 1982 -3 1 GLR 543, the law is stated in this way 'the principle is that a contract induced by fraud is not void but only voidable at the election of the party defrauded'. In that case, the court held that the person alleging the fraud 'was not induced or influenced in any way by any false or fraudulent misrepresentation to enter into the said contract '. Thus the court would not set aside the contract on grounds of the concealed information. It is clear from the evidence led that whether an O&K RH12 is equivalent to a CAT 330 is information that is a matter of fact and is easily verifiable as shown by the tendering of exhibits M and N, such that informing the plaintiff that the tractor was equivalent to Cat 330 would not amount to a deception even if the assertion was not true - a position I have already determined that l do not agree with. I will also not dwell on the evidence that defendant was supposed to have avoided Mr. Osei Wusu after the purchase of the excavator. I fail to see how such behavior is symptomatic of fraud which should visit the liability argued by the plaintiff on the defendant. These acts of avoidance were supposed to have been committed after the purchase. Fraud that can affect a transaction ought to have occurred before or during the transaction and so if even the defendant avoided Mr. Osei Wusu after the sale of the tractor, it cannot serve to create any grounds for a finding in law. It does not establish that the defendants were concealing any vital information on the excavator from the plaintiff or that it was not purchased from a particular source - especially when these allegations are supposed to be particulars of fraud. These particulars have to be established with cogent, direct and clear evidence and not through presumptions regarding certain behavior. I fail to see how refusing to see a product you once sold must be interpreted to mean that you lied about its usability or reparability. I dismiss all the allegations of fraud and consequently find the plaintiff's case as untenable, unproved and unsustainable in the light of the evidence before the court. The 2nd defendant argued that it only dealt with Mr. Osei Wusu and thus did not know of the plaintiff. Exhibit 8 shows that even if defendants did not know of the plaintiff at the commencement of the transaction, prior to completion of the transaction and in May 2007, the name of the plaintiff as the beneficiary of the financing for the excavator was brought to the attention of the defendants. This court will thus not uphold their contention that there is no privity of contract between the plaintiff and defendants. defendant has also argued that he is not a proper person to this action. Of course, if fraud had been proved, he would have carried liability for perpetrating fraud in the name of his company. For this reason, he was properly sued to defend the allegation of fraud and he is also properly acquitted. The plaintiff's action and claims to set aside the contract of sale and order a reimbursement of the sale price as well as other costs and damages are dismissed as having no basis in the facts of this case and the law on fraud and sale of goods. Costs of GH¢8,000.00 COUNSEL: MR. ALEX ABBAN FOR PLAINTIFF PRESENT MR. YAW ADUBOFFOUR HOLDING MR. JOSEPH SAM’S BRIEF FOR DEFENDANT PRESENT

 

 

Legal Library Services        Copyright - 2003 All Rights Reserved.