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Contract - Sale of Goods - Sale
of vehicle -Breach of the
conditions - Whether
the vehicle that was
delivered to them was not fit
for the purpose for which it was
acquired, - Whether there was a
breach of the conditions of the
contract of sale - Whether the
contract contained a warranty
clause, which provided a one
year service of fixing defects
in the vehicle free of charge.-
Whether defects from which the
vehicle suffered were not latent
defects
HEADNOTES
The Plaintiffs, a construction
company registered under the
laws of Ghana claimed the
reliefs referred to supra
against the Defendants, who
inter alia carried on business
of selling four wheel vehicles.
According to the Plaintiffs, by
a contract executed between them
and the Defendants in or about
October 2005, the Defendants
sold a brand new Suzuki Vitara
XL-7 vehicle registered as No.
GE 2864 V for a sum of $32,000.
, According to the plaintiffs,
the contract was contained in a
standard contract form and was
completed with the details of
the transaction and duly
executed by the parties. The
Plaintiffs asseverated that, at
the time of the execution of the
contract, the Defendants were
aware of the nature of the
business of the Plaintiffs, in
that they travelled extensively
and hence needed a rugged
vehicle. They further
asseverated that, being a brand
new vehicle, there was a further
implied condition that the
vehicle would be fit for the
purpose for which it was
purchased, i.e. for the
extensive travel of the
Plaintiffs on rugged terrains
throughout the country In
fulfillment of the contract, the
defendants duly supplied and
delivered the vehicle to the
Plaintiffs. It was
however the case of the
Plaintiffs that, the vehicle
that was delivered to them was
not fit for the purpose for
which it was acquired, nor was
it of a satisfactory quality
and as such, there was a breach
of the conditions of the
contract of sale that had been
entered into between the
parties.-
HELD :-
Under the circumstances of this
case, we are therefore of the
considered opinion that, the
retention of the vehicle by the
plaintiff from November 2004
until October 2005 before
attempting to reject same
constitutes acceptance. The
legal consequences are that, the
property in the vehicle has
passed to the plaintiff, and at
the time he purported to reject
same and requested the
Defendants to sell same and
refund their monies to them, the
Defendants no longer owned the
property. The appeal therefore
fails and is accordingly
dismissed. We therefore affirm
the decision of the Court of
Appeal dated 24th November
2011.
STATUTES REFERRED TO IN JUDGMENT
Sale of Goods Act, 1962 (Act
137). sections 13, 49 and 50
CASES REFERRED TO IN JUDGMENT
Armah, Rockson v [1975] 2 GLR
116 CA
Thornett and Fehr v Beers and
Sons [1919] 1 KB 486.
Andreas Bschor
GMBH & Co. KG v Birim Wood
Complex Limited CA. No J4/9/2015
dated 22nd March 2016
Georgia Hotel Limited v Silver
Star [2012] 2 SCGLR at 1283 per
Adinyira JSC.
Yirenkyi v Tormekpey [1987-88] 1
GLR 533 CA.
Jones v Bright (1820) 130 ER
1167 at 1171
Continental Plastics Engineering
Co. Ltd. v I.M.C Industries-Technik
GMBH [2009] SCGLR 298.
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
DOTSE, JSC:-
COUNSEL.
EGBERT FAIBILLE FOR THE
PLAINTIFF/RESPONDENT/APPELLANT.
MARTIN KPEBU FOR THE
DEFENDANT/APPELLANT/RESPONDENT/RESPONDENT.
JUDGMENT
DOTSE, JSC:-
On the 12th
day of July 2017, this court
delivered judgment in this case
by which we unanimously
dismissed the appeal herein
lodged by the Plaintiffs/
Respondents/ Appellants,
hereafter referred to as the
Plaintiff. We however reserved
the reasons for our decision,
which we hereby give.
RELIEFS CLAIMED BY PLAINTIFFS
The Plaintiffs by their
amended writ of summons claimed
against the Defendants/
Appellants/ Respondents,
hereafter referred to as the
Defendants, the following
reliefs:-
a.
Specific damages from loss
of profit from inability to use
vehicle and continuing loss
since October, 2005.
b.
The difference between the
sale value and in the defective
condition, or in the alternative
(i)
$32,000
(ii)
Interest on each sum from
November 2004 till date of final
payment or
(iii)
Replacement of a brand new
vehicle of similar make
FACTS OF THE CASE
The Plaintiffs, a
construction company registered
under the laws of Ghana claimed
the reliefs referred to supra
against the Defendants, who
inter alia carried on business
of selling four wheel vehicles.
According to the Plaintiffs, by
a contract executed between them
and the Defendants in or about
October 2005, the Defendants
sold a brand new Suzuki Vitara
XL-7 vehicle registered as No.
GE 2864 V for a sum of $32,000.
According to the
plaintiffs, the contract was
contained in a standard contract
form and was completed with the
details of the transaction and
duly executed by the parties.
The Plaintiffs asseverated that,
at the time of the execution of
the contract, the Defendants
were aware of the nature of the
business of the Plaintiffs, in
that they travelled extensively
and hence needed a rugged
vehicle. They further
asseverated that, being a brand
new vehicle, there was a further
implied condition that the
vehicle would be fit for the
purpose for which it was
purchased, i.e. for the
extensive travel of the
Plaintiffs on rugged terrains
throughout the country.
In fulfillment of the
contract, the defendants duly
supplied and delivered the
vehicle to the Plaintiffs.
It was however the case of
the Plaintiffs that, the vehicle
that was delivered to them was
not fit for the purpose for
which it was acquired, nor was
it of a satisfactory quality
and as such, there was a breach
of the conditions of the
contract of sale that had been
entered into between the
parties.
DEFECTS COMPLAINED OF BY THE
PLAINTIFFS ON THE VEHICLE
Some of the defects the
plaintiffs complained about
included the following:-
1.
Vibrations in the body and
front panel of the vehicle as a
result of a structural defect.
2.
The 4-wheel drive system
was malfunctioning and its
compact disc system was
defective.
The Plaintiffs considered
the said defects as breach of
the conditions of sale of the
vehicle and therefore returned
the vehicle to the Defendants by
letter dated 11th
October 2005. This letter has
been tendered in these
proceedings as exhibit A. Out of
abundance of caution, it is
considered worthwhile to quote
verbatim, the opening and
concluding paragraphs of the
said letter.
“GRAND SUZUKI
VITALA XL REG. NO. GE 2864V
I refer to the above vehicle
which was purchased by the above
company and was delivered to
us on 22nd November
2004. Unfortunately I do not
wish to accept a relatively new
vehicle that is bedeviled with
so many problems as stated below.”
Emphasis supplied
After recounting the
defects that have already been
referred to supra, coupled with
some of the Plaintiff’s
experiences with the Defendants
personnel, the letter was
concluded thus:-
“Following from the above, I
return the vehicle to African
Motors for a replacement as I
cannot accept a new vehicle with
so many problems.
Yours faithfully
V. Naane Esi Pyne
Managing Director” emphasis
The Defendants on their
part, whilst admitting the
contract of sale between them
and the Plaintiff’s in respect
of the vehicle, contended that
the contract contained a
warranty clause, which provided
a one year service of fixing
defects in the vehicle free of
charge. According to the
Defendants, the only problems
the Plaintiffs brought to their
attention were the following:-
1.
Noise in the dash board
2.
Scratchy Cd-player
3.
Inability to use the
four-wheel drive (4WD)
The Defendants therefore
contended that, pursuant to the
warranty on the sale of the
vehicle, all the above
complaints were repaired free of
charge as and when requested.
It was also the case of
the Defendants that, after using
the vehicle for about 6 months,
i.e. in or about June 2005, the
Plaintiffs complained about the
four wheel drive not functioning
properly, but as usual same was
repaired satisfactorily at no
cost to the plaintiffs.
It was subsequent to the
above defects and or complaints
that the Plaintiffs yet again
brought the vehicle to the
Defendants for repairs,
complaining about noise in the
vehicle. After the repairs of
the vehicle, the Defendants
invited the Plaintiffs for a
test drive, but there was stoic
silence from them. It was after
this that the Plaintiffs wrote
to the Defendants giving
indications that they were
rejecting the vehicle.
At this stage, it may be
useful to take note of the
following timelines of material
events in this case.
1.
Vehicle was delivered to
Plaintiffs on 22nd
November 2004
2.
Plaintiff discovered
vibrations in the vehicle almost
immediately
3.
First servicing of vehicle
took place on 2nd
December 2004
4.
3rd June 2005 –
Plaintiff’s requested the
Defendants to transfer ownership
of the vehicle to them, see
Exhibit B.
5.
22nd July 2005
– detection of the
malfunctioning of the 4WD and a
report to the Defendants.
6.
11th October
2005 – Plaintiffs rejected the
vehicle and asked for
replacement.
DECISION BY THE HIGH COURT,
ACCRA
After trial during which
representatives of both parties
testified and were
cross-examined the learned High
Court Judge delivered judgment
in which she upheld the claims
of the Plaintiffs.
The learned trial Judge
referred extensively to sections
13, 49 and 50 of the Sale of
Goods Act, 1962 (Act 137) in the
judgment at the High Court. It
is therefore considered
worthwhile to quote in extenso
the following sections of the
Sale of Goods Act, 1962 (Act
137).
The reference to the said
Sections of Act 137 is the only
way by which the decisions of
the trial and the 1st
Appellate court will be properly
understood and put in context.
Section 13 - Quality and Fitness
of Goods
(1) “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;
(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 his business,
in respect of defects of which
the seller was not, and could
not reasonably have been aware.
(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.
(2) The condition implied
by paragraph (a) of subsection
(1) is not affected by any
provision to the contrary in the
agreement where the goods are of
a description which are supplied
by the seller in the ordinary
course of his business and the
condition implied by paragraph
(b) of subsection (1) is not
affected by any provision to the
contrary in the agreement unless
the seller proves that before
the contract was made the
provision was brought to the
notice of the buyer and its
effect made clear to him.
(3) An implied warranty or
condition as to quality or
fitness for a particular purpose
may be annexed by the usage of
trade.
(4) An express warranty or
condition does not negative a
warranty or condition implied by
this Act unless inconsistent
therewith.
(5) The provisions of this
section apply to all goods
delivered in purported pursuance
of the contract and extend to
all boxes, tins, bottles or
other containers in which the
goods are contained.
Section 49—When Buyer has Right
to Reject.
(1) Subject to the
provisions of this Act the buyer
is entitled to reject the goods
and to refuse to pay, or as the
case may be, to recover, the
price where
(a) the seller is guilty
of a breach of a fundamental
obligation; or
(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
subsection (2), of part only; or
(c) the buyer has entered
into the contract as a result of
fraudulent or innocent
misrepresentation on the part of
the seller.
(2) Where there is a
contract for the sale of goods
which are to be delivered by
instalments, then—
(a) if each installment is
to be separately paid for,
subsection (1) shall apply to
each instalment separately:
Provided that where there are
persistent and grave breaches by
the seller in respect of two or
more instalments the buyer may
treat the whole contract as
repudiated.
Provided further that nothing in
this paragraph shall affect the
buyer's rights under paragraph
(c) of subsection (1);
(b) in any other case, such a
breach as is referred to in
subsection (1) in respect of one
or more instalments shall be
treated for the purpose of that
subsection as though it were a
breach in respect of the whole
contract.
Section 50 - Effect of Rejection
(1) Where goods are
delivered to the buyer and he
rejects them, having the right
so to do, he is not bound to
return them to the seller, but
it is sufficient if he intimates
to the seller that he rejects
them.
(2) After the buyer has
intimated to the seller that he
rejects the goods the seller is
entitled to have the goods
placed at his disposal:
Provided that where the buyer
has paid the price or any part
thereof he may retain the
possession of the goods until
the seller repays or tenders the
amounts he has received from the
buyer.”
HIGH COURT DECISION
Basing herself on the
above provisions, the learned
trial Judge in the High Court
delivered herself thus:-
“The Plaintiff bought the
vehicle from the defendants
believing in all honesty that
she was buying a vehicle that
fit the description and that
would meet her needs. She knew
that she was getting a vehicle
that was free from defects.
She was perfectly within her
rights to reject the goods under
the Sale of Goods Act as quoted
above.
The defendants attempted to
rectify the faults on several
occasions, but by their own
showing as testified by their
own witnesses, the fault still
persisted, was she not then
entitled to reject the vehicle
and ask for a refund? It is
on record that the Defendants
replaced the CD player; they
also corrected the four-wheel
drive mechanism. It was the
“rattling” notice or the
vibration that she still
complained that they the
defendants could not rectify.
Indeed, Mr. Addison of the DVLA
confirmed that he heard a
“rattling” noise, but in his
opinion it could be fixed with
grease. It is also on record
that the vehicle was used by the
Plaintiff for about one year,
from 22nd November
2004 to 11th October
2005. However, I have taken into
consideration the fact that the
Plaintiff kept drawing the
defendant’s attention to the
faults on the vehicle and in
all fairness the defendants
tried to rectify and indeed did
rectify some of the complaints.
The vehicle went in and out of
the plaintiff’s workshop for
several periods. It has not
been denied that the vehicle has
been in the defendant’s show
room since October 2005.
Clearly, the plaintiff had
rejected the vehicle and the
defendants had possession all
this time, it is my view that
they ought to have taken steps
to mitigate this obvious anomaly
by disposing of the vehicle and
refunding the plaintiffs money
to her.
I therefore find that the
Plaintiff is entitled to a
refund of the amount she paid to
the defendant company less
fifteen percent (15)
depreciation for the period that
the vehicle was with her.
Additionally, it is evident that
the vehicle was involved in an
accident, although not major,
still depreciated the value of
the vehicle.
I therefore order that the
defendant refunds the cost of
the vehicle purchased to the
Plaintiff the sum of thirty two
thousand dollars ($32, 000.00)
or its cedi equivalent less 15%
depreciation.
Interest on the said sum with
effect from October 2005 awarded
on the sum in accordance with C.
I. 52.
I decline to award the specific
damages claimed for reasons
ascribed above.
Cost of GH¢2,500.00 awarded.”
Emphasis supplied
Aggrieved and grossly
dissatisfied with the decision
of the trial High Court, the
Defendants successfully appealed
against the decision of the High
Court to the Court of Appeal.
JUDGMENT OF THE COURT OF APPEAL
On the 24th of
November, 2011, the Court of
Appeal in a unanimous decision
set aside the judgment of the
High Court dated 12th
December 2008.
Some of the salient points
that influenced the decision of
the Court of Appeal can be
gleaned from their reasoning as
stated as follows:-
“From exhibits “A and C” it is
categorically clear that the
Defendant delivered the vehicle
to the Plaintiff on 22nd
November, 2004 and it was on 10th
October, 2005 when the Plaintiff
returned it. I have found as a
fact that at the time the
Plaintiff returned the car, the
warranty had elapsed. The issue
of warranty is therefore not
relevant to the determination of
the instant appeal. The part
of the ground 1 of the appeal
which is germane to the
determination of this appeal is
whether or not the trial High
Court Judge erred in law when
she held that the Plaintiff
legally rejected the vehicle,
the subject matter of the
instant appeal when it returned
it to the Defendant’s showroom
in October 2005.
The Plaintiff bought the vehicle
on 22nd November 2004
per way bill No. 0006769. On 3rd
June, 2005 the Plaintiff wrote
Exhibit ‘B’ to the Defendant to
transfer ownership of the
vehicle to it with immediate
effect. The Plaintiff wrote for
the transfer of the vehicle to
be made after it had used same
for 6 months, 13 days and by the
said letter, it did not complain
about any defect in the vehicle.
For emphasis, I will reproduce
the content of Exhibit ‘B’ which
was written by the Plaintiff to
the Defendant.
“PYNE & ASSOCIATES (GH) LTD.
Ref: PAI/VEH/AM/09
3rd June 2005
The Sales Manager
Africa Motors
Accra
Dear Sir,
TRANSFER OF OWNERSHIP
Suzuki XL7
CHASIS NO. JSAHT X 92 VOO 205262
Engine No. H27 A-134642
Ref No. GE 2894V
The above described station
wagon was purchased, paid for
and delivered to us on 22
November 2004 vide way-bill AM
No. 0006769.
We would be grateful if you
could transfer ownership to us
Payne and Associates Ghana
Limited with immediate effect.
Yours faithfully
V.N.E.PYNE
For: Managing Director”
The Plaintiff wrote to complain
about the non-functioning of the
four wheel drive mechanism on 11th
October 2005 and according to
it, it detected the fault in
July 2005. From Exhibit ‘A’, the
Plaintiff stated that it
discovered the fault in the four
wheel driver mechanism barely
three months before writing the
letter on 11th
October 2005. In the same
letter, the Plaintiff further
complained that it noticed that
there was so much vibration in
the body of the vehicle soon
after delivery.
The question to pose is if the
plaintiff noticed the vibration
in the body of the vehicle soon
after delivery and did not
complain but demanded for
transfer to be effected in its
name after keeping the vehicle
for over 6 months can he turn
round to complain and say that
as a result of one defect, it
was returning it? I think
time is a material element for
consideration where a party
seeks to repudiate a contract
where the property in the goods
had passed.
In this case, there was no
different intentions in the
contract that the property in
the goods will not pass to the
Plaintiff after delivery.
Section 26 (2) of the Sale of
Goods Act, 1962 (Act 137) which
deals with transfer of title
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.”
In the case of Rockson v
Armah (supra), this Court
speaking through Francois J. A
held thus:-
“A long period of
retention must be equated with
acceptance, the transfer of the
property in the goods and the
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 second hand car”.
Emphasis
After that lucid and clear
exposition of the law, Dennis
Adjei J.A speaking on behalf of
the Court of Appeal then
explained what could be deemed
reasonable or unreasonable time
for the purposes of computing
whether a buyer has acted
reasonably in retaining
ownership in the goods delivered
after becoming aware of defects
in same. This is how the Court
of Appeal answered that problem.
“I am of the considered opinion
that keeping the vehicle for
almost 11 months that is from
November, 2004 to October 2008
is a long period of retention
and must be equated with
acceptance, the transfer of the
property in the goods and the
assumption of all risk. The
purported repudiation of the
contract by the Plaintiff is
therefore defeated by the long
retention of the vehicle.”
Emphasis
Basing themselves on the
above statements inter alia, the
Court of Appeal concluded the
judgment in the following
words:-
“I am of the considered opinion
that the Plaintiff becoming
aware of the defect in the
vehicle but keeping same for
almost 11 months had exercised
his own judgment in the matter
and elected to continue with the
purchase. It was a risk that it
took and it is bound by it’s
elections. See the case of
Thornett and Fehr v Beers and
Sons [1919] 1 KB 486.”
However, the Plaintiffs
also felt aggrieved and
dissatisfied with the decision
of the Court of Appeal, and
accordingly appealed against
same.
GROUNDS OF APPEAL TO THE SUPREME
COURT
i. ”That the Court of
Appeal misled itself when it
failed to consider the provision
of Section 49 of the Sale of
Goods Act, 1962, Act 137 which
permits a buyer to reject goods
and recover the price.
ii. That the Court of
Appeal misled itself when it
failed to consider the
provisions of Section 13 of the
Sale of Goods Act, 1962, Act
137.
iii. That the Court of
Appeal misled itself when it
held that the Plaintiff returned
the vehicle as a result of one
defect.
iv. That the Court of
Appeal misled itself when it
held that because Plaintiff had
retained the vehicle for six
months, 13 days before demanding
for a formal transfer of title
in its name and at the time of
writing a letter to the
Defendant had seen the fault;
that is the vibration in the
body of the vehicle but did not
avoid the transaction, plaintiff
would not be allowed to
repudiate the contract.
v. That the judgment is
against the weight of evidence
adduced at the trial.
xi. Additional grounds of
appeal will be filed upon
receipt of the record of appeal.
We have carefully analysed
all the grounds of appeal
referred to supra, and are of
the considered opinion that
these could have been subsumed
under one broad ground, to wit
“The Court of Appeal erred in
its interpretation of the
relevant sections of the Sale of
Goods Act that are germane to
this case.”
We have also considered in
detail the statements of case
filed by learned Counsel for the
parties herein. In our
determination of the appeal
herein, we are of the considered
opinion that learned Counsel for
the Plaintiffs has not
appreciated the legal principles
involved in the determination of
the rights of the Plaintiffs as
regards their rights of
rejection of goods and recovery
of the purchase price as well as
lack of appreciation of the
basic ingredients of section 13
of the Sale of Goods Act which
deals with Quality and Fitness
of Goods. Sections 49 (1) (a)
(b) and (c) refers.
The Plaintiffs, it must be
understood knew why they
purchased this type of four
wheel vehicle. According to
them, it was to enable them
travel on rugged terrain and
long distances. Thus, they had
the responsibility and
opportunity if they were really
conscious of that, to have
inspected and examined the
vehicle before accepting same.
This is because, the nature of
the four wheel drive mechanism
was crucial to their choice of
that type of vehicle to
purchase.
See the unreported Supreme
Court decision in the case of
Andreas Bschor GMBH & Co.
KG v Birim Wood Complex Limited
CA. No J4/9/2015 dated 22nd
March 2016 per Pwamang JSC and
Georgia Hotel Limited v Silver
Star [2012] 2 SCGLR at 1283 per
Adinyira JSC.
In our considered view,
the defects from which the
vehicle suffered were not latent
defects, and could have been
easily detected if the
Plaintiffs had taken advantage
of their rights to inspection
and examination as is granted
under the law. From our
examination of the appeal
record, it is clear that even
though the vehicle appeared to
have been riddled with some
defects, these cannot
legitimately be deemed as
latent, or hidden which an
inspection or examination would
not have exposed or revealed.
The Plaintiff’s own
representative stated that “the
four wheel drive was working but
the other problems were still
there so I wrote to them”.
When we consider the
chronology of events and their
sequence, it seems clear that
the Plaintiffs waived their
rights under the sale of Goods
Act by their conduct in
continuing to use the vehicle
after becoming aware of the
defects. Perhaps they must have
been satisfied that the defects
have been repaired
satisfactorily, hence their
continued use and even request
to have it transferred into
their name.
Indeed, after critically
examining the salient principles
of Section 13 of the Sales of
Goods Act, we cannot but agree
with our very respected brother
Pwamang JSC in the Andreas
Bschor GMBH & Co. KG V Birim
Wood Complex supra, when he
stated thus:-
“The grounds for the condition
as to fitness for purpose to be
applicable are that the seller
should sell the goods in normal
course of his business and the
buyer should have made the
seller aware of the purpose for
what he requires the goods.”
See also Yirenkyi v
Tormekpey [1987-88] 1 GLR 533
CA.
Indeed, we cannot rest our
judgment without reference to
the locus classicus on
merchantability and fitness for
purpose as was laid down by Best
C.J. in the case of Jones v
Bright (1820) 130 ER 1167 at
1171 where he stated thus:-
“It is the duty of the court in
administering the law to lay
down rules calculated to prevent
fraud, to protect persons
necessarily ignorant of the
qualities of a commodity they
purchase, and to make it the
interest of manufacturers and
those who sell, to furnish the
best article that can be
supplied…. I wish to put the
case on a broad principle. If
a man sells an article he
thereby warrants that it is
merchantable – that is fit for
some purpose - if he sells
it for some particular purpose,
he thereby warrants it fit for
that purpose.” Emphasis
The facts and
circumstances of this case show
clearly that the Defendants have
been well known in the business
of selling four wheel drive
vehicles of the type in
contention.
Based upon the said
principle as espoused in the
Jones v Bright case, supra,
the Supreme Court in the
Andreas Bschor case supra,
broadly construed Section 13 (1)
(b) of Act 137 and gave effect
to the provisions by including
any sale where there is an
element of irregularity by
showing that the seller has been
selling goods of that
description as part of his
business, whether it is his main
business or not.
See also the dictum of
Wood C.J. in the case of
Continental Plastics Engineering
Co. Ltd. v I.M.C
Industries-Technik GMBH [2009]
SCGLR 298.
Under the circumstances of
this case, we are therefore of
the considered opinion that, the
retention of the vehicle by the
plaintiff from November 2004
until October 2005 before
attempting to reject same
constitutes acceptance. The
legal consequences are that, the
property in the vehicle has
passed to the plaintiff, and at
the time he purported to reject
same and requested the
Defendants to sell same and
refund their monies to them, the
Defendants no longer owned the
property.
CONCLUSION
The appeal therefore fails
and is accordingly dismissed. We
therefore affirm the decision of
the Court of Appeal dated 24th
November 2011.
It was for the above
reasons that we dismissed the
appeal herein on the 12th
day of July 2017.
V. J. M. DOTSE
(JUSTICE OF
THE SUPREME COURT)
W. A. ATUGUBA
(JUSTICE OF
THE SUPREME COURT)
ANIN YEBOAH
(JUSTICE OF
THE SUPREME COURT)
N. S. GBADEGBE
(JUSTICE OF
THE SUPREME COURT)
A.
A. BENIN
(JUSTICE OF
THE SUPREME COURT)
COUNSEL
EGBERT FAIBILLE FOR THE
PLAINTIFF/RESPONDENT/APPELLANT.
MARTIN KPEBU FOR THE
DEFENDANT/APPELLANT/RESPONDENT.
RESPONDENT. |
