Antoh and Another Vrs Caitec Motors Ltd and Another [2022] GHAHC 14 (12 December 2022)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE (GENERAL JURISDICTION COURT 5) HELD IN ACCRA ON MONDAY THE 12TH DAY OF DECEMBER, 2022 BEFORE HIS LORDSHIP JUSTICE WILLIAM BOAMPONG, HIGH COURT JUDGE SUIT NO: AC/574/15 PLAINTIFFS 1. DAVID ANTOH 2. HOTNA LIMITED H/NO. 12, OHENE DOWN PILLAR 2, DOME, ACCRA VS 1. CAITEC MOTORS LIMITED DEFENDANTS 2. CAITEC DELTA LIMITED KANESHIE – WINNEBA ROAD ____________________________________________________________________ J U D G M E N T Per their Writ of Summons the Plaintiffs claim against the Defendants as follows: 1. Damages for breach of Section 11 of the Sale of Goods Act 1962 Act 137 by Defendants in the sale of FAW Truck No: GE 6334-11 to the Plaintiffs. 2. Recovery of the sum of US$63,000.00 (Sixty Three Thousand United States Dollars) or its equivalent being the price paid by the Plaintiff for the said truck under Section 49(1) and 55 of the Sale of Good Acts (Act 137). 3. Interests on the said amount at the prevailing commercial bank rate from 4th May, 2011 till date of final payment. 4. Special damages of GH¢28,297.60 (Twenty Eight Thousand, Two Hundred and Ninety Seven Ghana Cedis, Sixty Pesewas). To the Plaintiffs claim, the Defendants filed their Amended Statement of Defence and Counter Claim. The said Amended counter claim is quoted as follows: 1. Defendants say under a sale agreement entered on 7th November, 2013 between the parties Defendants sold a shack man Tipper Truck at a total of USD88,000.00 (Eighty Eight Thousand United States Dollars) plus interest of USD11,432.00 (Eleven Thousand, Four Hundred and Thirty Two United States Dollars). 2. Under the agreement Plaintiff issued 24 post-dated cheques payable over 24 months. 3. Plaintiff have defaulted in the payment on the dates agreed upon wherefore the said agreement has been abrogated and Defendants are entitled to claim. a. The sum of USD99,432.00 (Ninety Nine Thousand, Four Hundred and Thirty Two United States Dollars) or its cedi equivalent. b. Interest on the said sum from date of this Writ of Summons to date of final payment. c. Legal fees. PLAINTIFFS CASE The 1st Plaintiff who is the Managing Director of the 2nd Plaintiff filed a Witness Statement on his behalf and on behalf of the 2nd Plaintiff. Their evidence is that the Defendants do business as sellers and distributors of vehicles, truck, buses and earth moving equipment from China and elsewhere. On the 22nd March 2011, the 1st Defendant placed an advert in the Daily Graphic of a number of vehicles it was offering for sale per Exhibit ‘B’ (a pro-forma invoice). The 1st Defendant entered into a negotiation to buy a FAW Tipper Truck 10 wheeler. The Defendants sold same to the Plaintiff for USD63,000.00 (Sixty Three Thousand United States Dollars). 1st Plaintiff made a part payment of USD 50,000.00 (Fifty Thousand United States Dollars) to the 2nd Defendant and he was issued with a receipt per Exhibit ‘E’. Plaintiffs made a second payment of GH¢20,020.00 (Twenty Thousand and Twenty Ghana Cedis) which was converted as an exchange rate of $1 to GH¢1.54 bringing the total payment of USD63,000.00 (Sixty Three Thousand United States Dollars). The receipt is marked as Exhibit ‘F’. The 2nd Defendant signed a warranty agreement with the Plaintiffs per Exhibit ‘G’. The Plaintiffs then took delivery of the said truck with Registration No. GE 6334- 11 from the Defendants. According to the Plaintiffs less than a month after the said purchase, 4 of the 1100/R 20 tyres on the truck burst and Plaintiffs had to buy tyres of 13R 225 from the 2nd Defendant at a cost of GH¢7,766.00 (Seven Thousand, Seven Hundred and Sixty Six Ghana Cedis). The truck could not take off on its own whenever it was loaded and always needed to be pushed by a loader, it also had difficulty in climbing hills whenever it was loaded. The engine also cooked out and needed over hauling. The 2nd Defendant did the over hauling of which the cost was written off. The truck continued to break down even after the overhauling. The Plaintiffs continued with the repairs of the truck and kept on bringing Notice of the same to the Defendants. From the onset of the sale the Defendants made the Plaintiffs to believe that the truck is of 310 horse power but in reality it had 260 horse power. After realizing this the Plaintiffs in September, 2013 returned the truck to the Defendants. It is therefore the case of the Plaintiffs that the truck sold to them by the Defendants did not correspond exactly with the description in the pro-forma invoice. Plaintiffs states that as a result of the frequent break down of the truck they spent GH¢28,297.00 (Twenty Eight Thousand, Two Hundred and Ninety Seven Ghana Cedis) in trying to fix the truck. After the return of the truck to the Defendants, the Defendant decided to sell a Shackman Tipper Truck to the 1st Plaintiff and his wife. That sale agreement was entered into between the 2nd Defendant and the 1st Plaintiff and 1st Plaintiff’s wife, one Paulina Antoh. The Defendant sold the Shackman Truck to the 1st Plaintiff and his wife at a price of USD 88,000.00 (Eighty Eight Thousand United States Dollars) plus interest of USD 11,432.00 (Eleven Thousand Four Hundred and Thirty Two United States Dollars). The 1st Plaintiff issued 24 post-dated cheques payable over 24 months. In addition to the cheques the 1st Plaintiff and his wife provided security, a building situate at Dome. However, it turned out the truck was not good and broke down on several occasions which was brought to the notice of the Managing Director of the 2nd Defendant. The truck started work in December, 2013 but in February, 2014 it nearly caught fire due to a damage electrical cable. After two months, all the new tyres of the truck started peeling off but the 2nd Defendant refused to replace them after request. From September 2014, the truck started to develop many mechanical problems, such as pressure plate, wheel drums, brakes, fuel pump, turbo charger, fuel tank, oil bath and the engine. Due to that the 1st Plaintiff and his wife were not able to keep pace with the instalment payment and this factors were brought to the notice of the Defendants. While the truck was under repairs in Amasaman, same was repossessed by the Defendants on the 27th January, 2015. At the time the 2nd Defendant came for the vehicle the 1st Plaintiff and his wife had paid 5 of the instalments amounting to USD 20,715.00 (Twenty Thousand, Seven Hundred and Fifteen Ghana Cedis). According to the 1st Plaintiff at the time the vehicle was repossessed by the Defendants, he had spent over GH¢10,000.00 (Ten Thousand Ghana Cedis) on spare parts alone which had already been fitted to the vehicle. The vehicle continues to be in the custody of the Defendants. The 1st Plaintiff therefore denies the Defendant’s counter-claim. One Patrick Baidoo filed a Witness Statement for the Defendants. He states that in February 2011, the 1st Plaintiff, Mr. David Antoh entered into agreement with the Defendants to purchase a FAW Tipper Truck and transfer of ownership effected into his name after his final payment. Also in 2013, the 1st Plaintiff came to the Defendants’ Company to ask if he could have a new 20M3 Shackman Tipper Truck. He proposed that he would not want to advance any deposit per Exhibit ‘1’. The 1st Plaintiff proposed instalments of the new truck to be spread for more months. The 1st Plaintiff provided a house at Dome Pillar 2 as Security per Exhibit 2. 1st Plaintiff could not however make the monthly instalments payments as agreed, so the Defendants proceeded to repossess the truck. Before the said repossession of the truck, the Defendants noticed that the 1st Plaintiff had deliberately neglected to undertake a routine maintenance of the truck. The 1st Plaintiff attributed the default payment mostly to the poor proceeds from the said winning sales. It is the case of the Defendants that Plaintiff did not complain nor raise any issue with the FAW Tipper Truck after its purchase. Further the FAW Truck was in a very good condition with a warranty and all services performed on the FAW Truck was for routine maintenance which is customary in automobile business. ISSUES: At the close of the pleadings, the following issues were set down for trial. a) Whether or not the sale of the FAW Tipper Truck by the Defendants was a sale by description. b) Whether or not the FAW Truck sold to the Plaintiff by the Defendants corresponded exactly with the description in the pro-forma invoice. c) Whether or not the sale agreement dated 7th November 2013 was a hire purchase agreement separate and distinct from the transaction involving the FAW Truck. d) Whether or not the sale Agreement dated 7th November 2013 violated section 2 to 4 of the Hire Purchase Act 1974 NRCD 292. e) Whether the Defendants arbitrary abrogation of the Agreement dated 7th November, 2013 is lawful. f) Whether or not the 2nd Defendant breached clause 8 of the sale Agreement and Section 17 of the Hire Purchase Act 1974 NRCD 292 when it repossessed the Shackman Truck without Notice to 1st Plaintiff. g) Whether the Plaintiffs are entitled to their claims h) Whether the Defendants are entitled to their Counter-Claim. i) Any issues arising from the pleadings. Determination of the issues: Before I determine the issues at stake, I will like to refer to the last paragraph of the addresses filed by Counsel for the Defendant. The said paragraph of the Defendants’ Counsel Addresses, in fact the conclusion of his addresses in this suit. It is quoted as follows:- “We pray that this Honourable Court finds in favour of the Plaintiff and grant the Plaintiff all the issues endorsed on the Plaintiffs’ Writ of Summons and issue of Cost, we respectfully urge this Honourable Court to take cognizance of the provision of Order 74 of the High Court (Civil Procedure) Rules 2004, C. I. 47 respectfully submitted. Thus the conclusion of the Defendants’ Counsel Address is a prayer that the Court finds in favour of Plaintiff and grant the Plaintiffs’ reliefs”. The issues endorsed in the Plaintiff’s issues a, b, c, relates to the transaction in the sale of the FAW Truck. The issues was contained therein overlaps and same can be sum up to the issue as to whether or not the Defendant breached Section 11 of the sale of Goods Act 1962 Act 137 in the transaction of the sale of the FAW Truck No. GE 6334-11. Section 11 of the Sale of Goods Act 1962 Act 137 provides:- “In a contract for the Sale of Goods by description, whether or not the sale is by sample as well as by description, there is an implied condition that the goods shall correspond exactly with the description”. In respect of the sale of the FAW Tipper Truck, the 1st Defendant agreed to sell same to the Plaintiff at a price of USD63,000.00 (Sixty Three Thousand United States Dollars). The 1st Defendant issued a pro-forma invoice on the FAW Tipper Truck. In the said pro-forma invoice, the FAW Tipper Truck was described as:- “FAW TIPPER TRUCK 10 Wheeler 6 Cylinder Steyer Diessel Engine 7 8it, 18CL/100 km, Horse power 310, 16 cubic metres, Air brake, 1-point seat belt 10 speed transmission 8 forward and 2 back)” Double axel, Sleeper buak Radio & Cassette player, Strengthen Steel body & bumper, Tires size 1100/R20, 2 Front and 8 back spare tyre”. The 2nd Defendant then issued the 1st Plaintiff with a Conditional Sale Agreement dated 4th May 2011 with the 2nd Defendant as the seller of the truck. The 1st Plaintiff as the purchaser of the truck paid US$63,000.00 (Sixty Three Thousand United States Dollars) to the 2nd Defendant and the 2nd Defendant issued a receipt to the Plaintiff. Plaintiff then took delivery of the truck. As the 1st Plaintiff took delivery of the truck, the truck kept on breaking down. The 1st Plaintiff then made enquiries about the truck from FAW Truck dealers in China. The description embossed on the engine in the truck, CA6DF226, meant that the engine was 260 horse power engine and not the 310 horse power as stated in the pro-forma invoice issued by the 1st Defendant. 1st Plaintiff after coming into this realization returned the truck to the Defendants in September 2013 and informed the Managing Director that he had sold a 260 horse power truck to them as a 310 horse power truck. 1st Plaintiff informed the Defendants that they are no more interested in the truck. The fact of the horse power of the FAW Truck in question was confirmed by the Court expert appointed by the Court Order dated 27th March 2019 to examine the FAW Truck sold to the Plaintiffs with Registration No. GE 6334-11. In the experts’ report dated 9th July 2019 by Intercity S. T. C Coaches Ltd, the expert made the following findings:- a) Engine Model No. CA6DF2-26 b) Engine Number: 01820504 c) Production date – 12th November, 2011. The expert then concluded that the Horse Power (HP) of the engine in question is 260 Horse power diesel powered engine. When the Plaintiffs returned the FAW Truck to the Defendant on the grounds that the Defendants had sold a truck of 260 Horse power to the Plaintiff and not 310 horse power as stated on the pro-forma invoice. The Defendants readily accepted the truck and did not object to taking delivery of it. From then the vehicle had been in possession of the Defendant from 2013 to date i.e. 2022 for 9 solid years. I therefore hold that the Defendants sold 260 Horse power engine to the Plaintiffs but described same to be 310 Horse power on the pro-forma invoice. I further hold that the FAW Truck that was sold to the Plaintiffs by the Defendants did not correspond exactly with the description in the pro-forma invoice as in Exhibit ‘C’. Section 11 of the Sale of Goods Act 1962 Act 137 requires that in a contract for sale of goods by description, there is an implied condition that the goods shall correspond exactly with the description. Since the FAW Truck Sold by the Defendants to the Plaintiffs do not correspond to the 310 horse power as described on the pro-forma invoice but in actual sense a 260 horse power engine, I hold that the Defendants are in total breach of Section 11 of the Sales of Goods Act 1962 Act 137. The Defendants having breached the implied condition of sale, the Plaintiffs are entitled to the remedy provided under Section 49(1)(b) of the Sale of Goods Act 1992 Act 137 which provides as follows:- “Subject to this Act, the buyer is entitled to reject the goods and refuse to pay or to recover the price where the seller is guilty of a breach not being a trivial nature of a condition of the contract, whether the breach is in respect of all the goods or, subject to sub section (2), of part only of the goods”. I therefore hold also that the Plaintiff is by virtue of S. 49(1)(b) of the Sale of Goods Act 1992 Act 137 entitled to reject the truck and recover the price of the truck or money they paid for the truck. Consequently, I enter judgment in favour of the Plaintiffs against the Defendants on Plaintiffs’ reliefs 1, 2, 3. In respect of the Plaintiffs relief (4) on a claim for special damages in the sum of GH¢28,297.60 (Twenty Eight Thousand, Two Hundred and Ninety Seven Ghana Cedis, Sixty Pesewas the Plaintiffs averred in paragraph 27 and 28 of their Witness Statement as follows:- 27. As a result of the frequent break down of the truck, we spent a lot of money (Sum of GH¢28,297.60) trying to fix the truck which money we are claiming from the Defendants. 28. This is made up as follows:- GH¢ Insurance (from May 2013 – 3rd Party) - 120.00 1. 2. 3. 4. 5. Tyres (Set of 11 from Caitec Tyres brought from other sources Servicing of pump (Several times) Servicing of Engine - - 6. Transport cost of moving around Attending break down of truck Total - - - 7,766.00 3,141.60 7,240.00 4,610.00 5,420.00 - 28,297.60 ======= For each of the expenses enumerated above, the Plaintiff could not attach any receipt to cover any of the expenses. Without the receipts the Court would find it difficult to accept the expenses the Plaintiff incurred on the said damages. Besides this, the Plaintiff must also be fair to the Defendant by informing the Court about the proceeds that accrued from the use of the vehicle for the 2 years he worked with the vehicle. The Plaintiff is silent about the profits he made from the vehicle but is rather loud to mention the losses. Since I have recovered for the money the Plaintiffs purchase the truck from the Defendant, the Plaintiff ought to have made the Court to know how much profit he accrued from the truck. I suspect the Plaintiff would have stated on the records if he incurred loss in operating the vehicle since he had tried to convince the Court about expenses he incurred in repairing the trucks. These expenses on the records are not covered by receipts and the Plaintiff had also been silent about the profits he made out of use of the truck. On that note the Plaintiff loses his claim for Special Damages. Plaintiff’s relief 4 on Special Damages is dismissed. The Defendant had also Counter-Claimed for the sum of USD99,432.00 (Ninety Nine Thousand, Four Hundred and Thirty Two United States Dollars) or its cedi equivalent for the Shackman Truck and interest on the said sum from the date of the Writ to date of final payment. For a better understanding of the Defendants’ counter-claim, it noteworthy to mention at this juncture that the sale agreement for the sale of the FAW Truck dated 4th May, 2011 is separate and distinct from the later transaction for the sale of the Shackman Tipper Truck also dated 7th November, 2013. The Defendants’ counter-claim relates to the sale of the Shackman Tipper Truck. Evidence led in respect of the Schackman Tipper Truck is that on the 7th November 2013, the 1st Plaintiff and his wife, Mrs. Paulina Anto entered into a Conditional Sales Agreement to buy a Shackman Tipper Truck from the defendant at a price of USD88,000.00 (Eighty Eight Thousand United States Dollars) plus interest of USD11,432.00 (Eleven Thousand, Four Hundred and Thirty Two United States Dollars) to pay for it by instalments over a period of 24 months. The 1st Plaintiff’s wife Paulina Anto did not sign the agreement. The agreement was signed by one Patrick on behalf of the 2nd Defendant and the 1st Plaintiff. This second sale of the Schackman Tipper Truck made no reference to the earlier sale of the FAW Truck. The agreement in the Shackman Tipper Truck stated that the 2nd Defendant shall be the owner of the Shackman Tipper Truck during the credit period. The 2nd Defendant therefore continued to have interest in the goods after delivery. Clause 7 of the Sale Agreement Exhibit ‘1’ also states that transfer of ownership of the vehicle will be effected when payment is completed. Exhibit ‘1’ therefore is a hire purchase agreement in accordance with the meaning of the High-purchase Act 1974, NRCD 292 Sections 24(1). It provides that:- “an agreement for the bailment of goods under which the bailee may buy the goods under which the property in goods will or may pass to the bailee…”. The Defendants’ counter-claim: The Defendant’s counter-claim stemmed from the fact that the 1st Plaintiff and his wife have defaulted in the payment of the instalments to defray the cost of the Shackman Truck. As said earlier the 1st Plaintiffs’ wife did not sign the agreement for the purchase of Shackman Tipper Truck. She cannot therefore be sued by the Defendant in any counter-claim. At any cost the 1st Plaintiff’s wife is not a party in this suit to enable the Defendant to sue her in any counter-claim even if she had signed the agreement for the sale of Shackman Tipper Truck. The undisputed evidence on the records is that when the 1st Plaintiff sent the Schackman Tipper Truck for repairs in a garage in Amasaman the Defendants’ sale staff went to the said garage and re-possessed the Truck notwithstanding the strong protest by the 1st Plaintiff. From that time up to this date of delivery of this judgment, the truck still remains in possession of the Defendants. Section 17 of the Hire Purchase Act 1974 NRCD 292 provides that an owner or a seller is not entitled to enforce a provision in the agreement for repossession unless the owner or seller has made written demand to the buyer to carry out that obligation within a specified period of not less than 14 days beginning with the date of service of the demand. The Defendants could not however lead or tender any document of a written demand to the 1st Plaintiff to carry out any obligation within 14 days but the Defendant went ahead to repossess the Shackman Tipper Truck. The Defendants therefore breached the clear provisions of Section 17 of the Hire purchase Act 1974 NRCD 292 when the Defendants repossessed the Shackman Tipper Truck without any written demand served on the 1st Plaintiff. Clause 9 of Exhibit ‘1’, the Sales Agreement also provides that upon repossession of the vehicle by the 2nd Defendant the “Credit Sale Agreement shall be abrogated”. I hold therefore that per the provision of S. 17 of Hire Purchase Act 1974 NRCD 292 the repossession of the Shakman Tipper Truck by the Defendants without complying to this said provision is unlawful. In the Cross-Examination of the Defendants’ representative, he disclosed to the Court that the Shackman truck which was repossessed from the 1st Plaintiff had been sold. The Defendant did not tell the Court how much the truck was sold for. Meanwhile the 1st Plaintiff gave evidence that at the time the truck was repossessed, he had paid the US$20,715.00 (Twenty Thousand, Seven Hundred and Fifteen United States Dollars) to the 2nd Defendant and had also spend GH¢10,000.00 (Ten Thousand Ghana Cedis) on spare parts fitted to the vehicle which was taken for free by the defendant. Clause 10 of the Exhibit ‘1’ (the Sale Agreement) however provides:- In the event, where the customer is unable to pay off his debts the company shall sell the vehicle by public auction to offset the amount owned and any balance left will be paid to the customer, otherwise the customer shall be responsible for any outstanding after the auction sale of the said vehicle”. The Defendants had sold the Shackman Tipper Truck without complying with the laid down procedure of an auction sale. This would have enable transpiracy of the sale and amount released to be known. The Defendants had instead kept the proceeds of the sale of the Shackman Tipper Truck. They had still in this action counter-claimed for the value of the very Shackman Truck the Defendants had sold. The Defendants have also kept the US$20,715.00 (Twenty Thousand, Seven Hundred and Fifteen United States Dollars) which the 1st Plaintiff had paid to them. The Defendants had also not refunded the GH¢10,000.00 (Ten Thousand Ghana Cedis) worth of spare parts the 1st Plaintiff had fitted into the truck. By the Defendants’ counter-claim, the Defendants want to be paid again for the truck they have sold. They had not also accounted for the part payment of the truck paid to them by the 1st Plaintiff. To allow the Defendants counter-claim would therefore amount to unjust enrichment of the Defendants. In the circumstance I dismiss the reliefs as endorsed on the Defendants counter-claim. As earlier said, I grant all the reliefs as endorsed on the Plaintiffs’ Writ of Summons. On the Plaintiffs’ relief 1, I grant the Plaintiffs damages of GH¢20,000.00. Cost in this suit is assessed at 40,000.00 in favour of Plaintiffs against Defendants. (SGD) WILLIAM BOAMPONG (JUSTICE OF THE HIGH COURT) COUNSEL: SAMUEL NARTEY KODJOE ESQ, FOR THE PLAINTIFFS FELIX NANA OSEI ESQ, FOR THE DEFENDANTS 17