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
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