FAFAPE AMA ESTA FOE & ANOR VS Z-AUTO MOBILE & ANOR (H1/01/2020) [2022] GHACA 167 (15 December 2022)

IN THE SUPERIOUR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA-GHANA CORAM: ADJEI, J.A BARTELS-KODWO, J.A BAFFOUR, J.A SUIT NO. H1/01/2020 DATE: 15th December, 2022 1. FAFAPE AMA ETSA FOE--PLAINTIFFS/RESPONDENT 2. THYWILL BUSINESS & INVESTMENT CONSUL LTD VRS. 1. Z-AUTO TRADE GH. LTD --1ST DEFENDANT/APPELLANT/RESPONDENT 2. JOSEPHINE MONNIE -- 2ND DEFENDANT J U D G M E N T -------------------------------------------------------------------------------------------- ADJEI, J.A 1 The Plaintiffs sued the Defendants in the High Court to claim, inter alia, a declaration that the Defendants have breached the warranty agreement in respect of a vehicle she bought from the Defendants; an order for replacement of the vehicle; and general and special damages emanating from the breach of the warranty. The High Court on 30th March, 2020 delivered final judgment and held that the Defendants had breached the implied warranty between the Defendants and the Plaintiffs with regards to the vehicle that the Defendants sold to the Plaintiff as a brand-new vehicle with a defective engine and further awarded general damages of GH¢20,000.00. Both parties were dissatisfied with the judgment, and each of them filed an appeal against same. The 1st Defendant/Appellant filed its notice of appeal against the judgment on 27th April, 2020. The Plaintiff/Appellant also filed her notice of appeal against the judgment on 12th June, 2020 without stating whether it is the 1st Plaintiff or the 2nd Plaintiff who is dissatisfied with the judgment and has filed an appeal against same. The brief facts of the case, as could be gathered from the evidence adduced before the trial High Court, were that the 1st Plaintiff, who is a businessman and a director of the 2nd Plaintiff Company, purchased a brand-new Toyota Land Cruiser Station Wagon from the 1st Defendant, which deals in brand new cars. From the evidence on record, the vehicle was imported to the country in the name of the 2nd Defendant, who turned out to be the one transferring ownership of it to the 2nd Plaintiff. The Plaintiffs used the vehicle for barely a week and found the engine to be defective as black, thick and heavy smoke emitted from it. The 1st Plaintiff reported the defect to one of the directors of the 1st Defendant company proposed to the Plaintiffs to service it about 2800 kilometers contrary to the usual minimum servicing interval of 5000 kilometers. The 2 Plaintiffs heeded to the advice offered by the Defendants but the change of the servicing time did not remedy the breach complained off. The Plaintiffs, who dealt directly with the 1st Defendant for the purchase of the brand- new vehicle, subsequently found that the vehicle was imported to the country by the 2nd Defendant, as a result of which he was joined to the suit as a 2nd Defendant after the original 2nd and 3rd Defendants had been disjointed. The Plaintiffs therefore sued the Defendants to enforce the implied warranty that existed under the contract of sale. The trial High Court Judge found that there was a breach of the implied warranty under the contract and ordered the Defendants to replace the engine. There are two separate appeals filed by the parties, and each of them should be dealt with independently as it is a right available to a party to a suit and dissatisfied with the judgment rendered to appeal against same to the appropriate court. There is a clear distinction between an appeal under Rule 8 of the Court of Appeal Rules, 1997 (C.I. 19) and Rule 15 of the same Rules, which is on notice by the respondent of contention that the judgment should be varied, which is popularly known as "Notice of Variation" and a cross appeal. An appeal gives a party the right to challenge the impugned judgment from all angles, but variation and cross appeal have limited application. An appeal is by way of rehearing and shall be brought when notice of appeal is filed within the time prescribed by law at the Registry of the court below. Rule 8 subrules (1) and (2) of the Court of Appeal Rules, 1997 (C.I. 19) provide as follows: "(1) An appeal to the Court shall be by way of re-hearing and shall be brought by a notice referred to in these Rules as "the notice of appeal. 3 (2) The notice of appeal shall be filed in the Registry of the court below and shall ——— (a) Set out the grounds of appeal; (b) State whether the whole or part only of the decision of the court below is complained of, and in the latter case, specify the part; (c) State the nature of the relief sought; and (d) State the names and addresses of all parties directly affected by the appeal.” An appeal enables a party dissatisfied with the decision by a court below to invite an appellate court exercising jurisdiction over that lower court to challenge the whole or part of that decision. Therefore, where both parties are dissatisfied with a decision, each of them is entitled to file an appeal to pray for a reversal of the whole or part only of came. Rule 15 which is on variation provides thus: “(1) It shall not be necessary for the respondent to give notice by way of cross- appeal, but if the respondent intends upon the hearing of the appeal to contend that the decision of the court below should be varied, he shall, within one month after service upon him of the notice of appeal, cause written notice as in Form 7 in Part 1 of the Schedule of his intention to be given to every party who may be affected by the contention.” At times, it becomes difficult to differentiate between a cross appeal, a notice of variation, and a respondent in an appeal filing a notice of appeal. Rule 15 of the Court of Appeal Rules, 1997 (C.I. 19) is in pari materia to the Supreme Court Rules of England, 1883, Order LVIII, rule 6. The English version provides as follows: 4 “It shall not, under any circumstances, be necessary for a respondent to give notice of motion by way of cross appeal, but if a respondent intends, upon the hearing of the appeal, to contend that the decision of the Court below should be varied, he shall, within the time specified in the next Rule or such other time as may be prescribed by special order, give notice of such intention to any parties who may be affected by that contention. The omission to give such notice shall not diminish the powers conferred by the Act upon the Court of Appeal, but may, in the discretion of the Court, be ground for an adjournment of the appeal or for a special order as to cost.” The English Courts have held that a notice of variation, a cross appeal, and an appeal may be filed by a respondent who is served with a notice of appeal, a notice of variation, or a cross appeal, depending on the circumstances. In the case of In Re Cavander’s Trust [1881] 16 Ch D 270 at page 272, the English Court of Appeal drew the distinction between cross appeal and variation and held that a notice of intention to vary is used as a substitute for a cross appeal, but an appeal by a respondent on a point which does not affect the original appellant cannot be a cross appeal but a variation. A clear distinction between a notice of an intention to vary a judgment and a cross appeal was determined in the case of National Society for Distribution of Electricity by Secondary Generators v. Gibbs [1900] 2 Ch 280. The appellant appealed against the dismissal of his counterclaim, and the plaintiffs, who were respondents to the appeal, filed a cross appeal against the dismissal of their claim. The Court of Appeal held that a notice of intention to vary a decision is available to the respondents in the appeal if it addressed the counterclaim to which the appeal was confined and the proper process ought to have been filed by the respondents as a cross appeal and not a notice of intention for variation, and corrected the irregularity by treating the same as a cross appeal. 5 The grounds upon which a separate appeal may be filed include where the appeal is directed at a party other than the Appellant. See the case of Cavender Trust, supra. Another ground for which a respondent may file a separate appeal is where the respondent is attacking any part of the decision beyond the part appealed against, even though the two separate appeals may give a contradictory decision. See the case of Tabtill Ply Ltd and Others v. Creswick [2011] QCA 66. A separate appeal is filed where the appeal is based on a different cause of action, even though they arise from the same transaction. A separate appeal may not be filed where the orders made by the court emanate from the same cause of action. See Tabtill Ply Ltd and Others v. Creswick, supra. I hold that a respondent who is served with an appeal may file a notice of variation, a cross appeal, or a separate appeal, depending on the circumstances of each case. It is therefore fallacious to construe Rule 15 of the Court of Appeal Rules, 1997 (C.I. 19) to exclude the filing of a cross-appeal where the conditions for notice of variation do not exist. The provision only states that it shall not be necessary to file a cross appeal where variation is the appropriate remedy. I find that the separate appeal filed by the Plaintiffs was made in accordance with law as they responded to the appeal to impinge on the judgment beyond the part appealed against by the Defendants. The right to file an appeal within time or with the leave of the Court within the prescribed time is available to a person where a party has filed an appeal and that person is of the opinion that he requires a separate appeal; he may file the same in accordance with law. In the case in point, the notice of appeal filed by the 1st Defendant/Appellant was not served on the Plaintiffs until they filed their notice, and the question of whether they 6 should have filed a notice of variation or cross appeal does not arise. We are therefore required to hear both appeals separately. The Plaintiffs' first ground of appeal sought to attack the learned trial judge for erring in law by not ordering a replacement of the vehicle with a new one but failed to give the particulars of errors either in a statement or tabulated form and therefore offends Rule 8 sub-rule (4) of the Court of Appeal Rules, which requires the particulars of errors to be clearly stated where the grounds of appeal allege misdirection or error in law. I strike out ground (a) of the appeal as incompetent. With respect to ground (b) of the appeal, the Plaintiffs allege that the cost and damages awarded are below the limits of the law and actual damages. The Plaintiffs testified that they incurred hiring costs of USD9000.00 per month for nine months when the vehicle they bought was found to be defective and could not meet the purpose for which it was acquired. I endorse the position taken by the trial High Court Judge that the Plaintiffs should have mitigated their costs and been awarded four months of rental costs as special damages instead of nine months. The four months used by the trial High Court Judge is considered to be a reasonable time after which the Plaintiffs should have mitigated their costs, and the discretion exercised by the trial Judge was made in accordance with law, and an appellate court cannot intervene to vary it upwards or downwards. Furthermore, the cost of GHS10,000.00 awarded in favour of the Plaintiffs was fair and made in accordance with Order 74 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47). I have examined the record of appeal, and the Plaintiffs failed to address the trial Court on the question of cost as required by law. Order 74 rule 2 (1) & (2) of C.I. 47 on assessment of costs provides thus: 7 “(1) The amount of costs to be awarded shall be assessed by the Court. (2) Before any assessment, the parties or their lawyers may briefly address the Court on the question of cost.” The Plaintiffs failed to address the Court on a question of cost, and the trial High Court Judge exercised her discretion in accordance with Order 74, Rule 2 (3) and (4) of C.I. 47, and cannot be impeached. I dismiss ground (2) of the appeal as unmeritorious. I further find that both Plaintiffs filed the appeal against the judgment of the Court below but used the title of the case before the amendment was made to include the 2nd Plaintiff, and the title is amended to reflect the names of both Plaintiffs. Subject to the above positions expressed by me, I agree with the conclusion reached by my brother Kyei Baffour, JA, and dismiss the appeal by the Plaintiffs as well as the separate appeal by the 1st Defendant. I find both appeals to be unmeritorious and affirm the judgment of the trial High Court delivered on 30th March, 2020. (SGD.) DENNIS ADJEI JUSTICE OF THE COURT OF APPEAL BAFFOUR J.A: INTRODUCTION What we have before us for determination are two and separate independent appeals filed by the parties to this suit. The first appeal was launched by the 8 defendants/appellants in expression of their dissatisfaction with the decision of the trial High Court. The plaintiffs/appellants followed suit and also filed their appeal independent of the one filed by the defendants/appellants. As each of the parties is in one breath an appellant and in another a respondent, it would be much more convenient for the parties to simply be referred to by the designations that they bore at the court below as plaintiffs and defendants. BACKGROUND Needing a brand new vehicle for the performance and delivery of her duties as a director of the 2nd plaintiff company, 1st plaintiff engaged the 1st defendant through one Walid Zaghloul and purchased a Toyota Land Cruiser with registration No GN 1181-15 on the 22nd of May, 2015. The plaintiffs claim that the 1st defendant represented to her that the vehicle was fit for purpose and met the highest European specifications with the vehicle to be under warranty for the first three years or one hundred thousand kilometers, whatever came first. Plaintiff claims to have made payment in cedis which was then the equivalent of One Hundred and Fifteen Thousand United States dollars ($115,000.00). It was the case of the plaintiff that the 1st defendant undertook to register the vehicle for her but she received the registration documents eight months after the delivery of the vehicle. To her surprise she realized that the warranty that was promised her had not been included in the documentations delivered and she further noticed that the vehicle had previously been registered in the name of the 2nd defendant as the owner of the vehicle but not 1st defendant as the importer and dealer of a brand new vehicle. To plaintiff, her demands for answers as to how the vehicle had a first owner in the person of 2nd defendant was evaded and further demands for the warranty and some other 9 documents such as custom declaration form were all not provided. A much more serious issues, to plaintiffs was to be discovered with the vehicle after its delivery. 1st Plaintiff contended that just within the first week of using the vehicle she noticed an unusual, heavy, thick black smoke emitting from what was supposed to be a brand new vehicle. 1st Plaintiff claims to have reported this but it was explained away by the Managing Director of 1st defendant company that the smoke would clear by itself after some time. To plaintiffs this smoke emission persisted for about five months even though she made sure that the vehicle was serviced at only the designated service company recommended by the 1st defendant. Further, that after the vehicle covered a distance of about 18,000 kilometers the smoke subsided only to be followed by strange noise from the engine compartment of the vehicle. With this new development she promptly reported to 1st defendant’s Walid Zaghloul, whereupon the latter suggested that the vehicle be returned for servicing, even though the vehicle had been serviced. The noise did not stop but worsened, according to the plaintiffs until she could not bear it any longer and had to return the vehicle on the 22nd of March, 2016. It is the plaint of the plaintiffs that she was advised by Auto Zone Service, a garage company recommended by the 1st defendant, which diagnosed the problem as being a default with the engine of the vehicle due to latent manufacturing defect. And this was also later confirmed by another garage service centre who also discovered that a rod that connected the engine had not been fixed during the manufacturing process. It was the claim of the plaintiffs that the mechanics at Auto Zone recommended that the vehicle be returned for which she immediately demanded a replacement of the vehicle from 1st defendant or in the alternative a replacement of the defective engine with a brand new one. 10 In the view of the plaintiffs, the promise to replace the engine never materialized and she had to rent alternative vehicle for the performance of the business of the company at a cost of US$9,000 per month. Her persistence in demanding progress on the resolution of the issues on the vehicle were met with threats and insults from Walid Zaghloul. She accordingly sought for the reliefs of: a. A declaration that the defendants have breached the warranty agreement as between the parties or in the alternative, the contract between the parties stands breached by the defendant. b. An order directed at the defendant to replace the vehicle with a brand new one of the same specifications and make same available to plaintiff within seven working days upon making the order or in the alternative an order directed at the defendant to pay the present value of the vehicle to plaintiff forthwith. c. General damages for breach of contract. d. Specific damages relating to rental of similar vehicle from April to December, 2016 occasioned by the delay in replacing the vehicle with another one of the same specifications and standards. e. Any other damages this honourable court deems fit as a result of the unwarranted and avoidable injury caused by the defendants against the plaintiff. DEFENDANTS’ CASE Whilst 1st defendant admitted the purchase of the vehicle at the price stated, it denied most of the essential averments that grounded the claim for the reliefs plaintiffs sought in court. To 1st defendant before the vehicle was purchased, the 1st plaintiff independently assessed the vehicle and satisfied herself that the vehicle was fit for purpose. That it never provided any warranty of three years or 100,000 kilometres for the brand new vehicle. The only thing it did was to offer to assist the plaintiff to transfer the ownership of the 11 vehicle into her name and also spray the vehicle at no extra cost to the 1st plaintiff. The 1st defendant explained that the vehicle was imported into the country by the 2nd defendant and the transfer ought to have been done by the 2nd defendant to the plaintiff. 1st Defendant denies the claim that its attention was drawn to latent defects with the vehicle after it was delivered to the plaintiff. And that it did not also recommend to the plaintiff to use any particular service centre as plaintiff alleged. To 1st defendant the vehicle had never been returned to it after the conclusion of the sale purchase agreement by the plaintiff. It further emphatically denied that it authorized any centre to diagnose any defect in the vehicle as being due to manufacturing defect. And neither had defendant been part of any discussion to replace the vehicle for plaintiff. It further claimed that it was only after a year after the purchase of the vehicle that plaintiff’s Christopher Foe informed an officer of the defendant’s company that he had incurred some cost to fix some problems that the vehicle had been experiencing and wanted the defendant to contribute towards the cost. To defendant it only offered to assist after its mechanics had ascertained the nature of the problem. However, plaintiff insisted that it needed a new model of the vehicle which it turned down. 1st defendant concluded that it has not been in possession of the vehicle since the sale and is never aware of any problems with the vehicle. It accordingly contended that the plaintiff was not entitled to its claim. After trial the court below found that there was defect in the brand new vehicle that was sold and accordingly the defendant breached the implied warranty as between the parties. The court proceeded to order for a replacement of the engine of the vehicle and further ordered the 1st defendant to ensure that the vehicle was placed in a workable condition for the use of the plaintiff. On the claim for special damages of the hiring of 12 alternative vehicle of US$9,000 per month for nine months, the court deemed it fit to award four months rental of US$9,000. It further awarded GH¢20,000 as general damages and cost of Gh¢10,000 in favour of the plaintiff. The findings and conclusions contained in the judgment has elicited two independent appeals from the parties. The first was notice of appeal filed by the 1st defendant on the 27th of April, 2020 with the only ground of appeal as the judgment being against the weight of evidence. The appeal on the other hand that was filed by the plaintiff on the 12th of June, 2020 stated as the following two grounds of appeal: a. That the learned Judge erred in law by not ordering a replacement of the entire vehicle with a new one b. The cost and damages awarded is below the limits of the law and actual damages. SUBMISSION OF PLAINTIFFS In considering as a whole the submission of the plaintiffs in pursuance of their appeal and in response to the submission of the 1st defendant regarding its two grounds of appeal, it has been the contention of the plaintiff that by section 13 of the Sale of Goods Act, 1962, Act 137, and as interpreted in cases such as George Sarpong v Silver Star J4/43/2013 delivered on the 15th of January, 2014, a brand new vehicle could not break down in the manner in which the plaintiff’s vehicle broke down. To plaintiffs representations were made to the plaintiffs during the purchase of the vehicle, and the plaintiff relied on that representation upon purchase, and what was represented had rather proved to be false. Again, that all the reports that came from the various mechanical tests proved that the vehicle had a latent engine manufacturing fault that could not have been revealed upon inspection by the plaintiff. And in that respect, an 13 order ought to have been made for a replacement of the vehicle which would have restored the plaintiff to its original position. Besides, that the evidence on record show that plaintiffs led enough evidence to prove its demand for special damages for the renting of alternative vehicle. And that 1st defendant who had refurbished an old vehicle as brand new one could not claim not to have foreseen the consequences of his action. These being the expenses incurred for the renting of alternative vehicle as flowing from the conduct of the 1st defendant. She accordingly concludes that the damages and cost awarded fell below the limits set by the law for the award of damages to the plaintiff. SUBMISSION OF 1ST DEFENDANT 1st Defendant on the other hand argued that the finding that there had been a breach of an implied warranty was not borne out by the evidence on record as no such warranty was provided by the 1st defendant to the plaintiffs. Secondly that the finding that there had been a misrepresentation cannot also be correct as the 1st plaintiff used the vehicle for a long space of time before she complained that she had discovered problems with the vehicle. 1st defendant again contend that under section 13 of the Sale of Goods Act, 1962, Act 137, there was no implied warranty or condition as to the quality or fitness for a particular purpose of goods supplied under a contract of sale. That warranties are not automatic by Ghanaian law but must be expressly offered by the seller to the buyer. It was the further submission of 1st defendant that at the time of the purchase, having had the opportunity to inspect the vehicle and having found the vehicle to be in a good state when it was delivered, the plaintiffs had the burden of proving that the 1st defendant was aware of the defects on the vehicle and had failed to disclose it to plaintiff. The documents for which plaintiff relies on, according to the 1st defendant was authored more than a year 14 after the vehicle had been sold to the plaintiff. And it was not out of place with use of the vehicle for that period of time for mechanical faults to develop and 1st defendant cannot be held liable for such faults. Regarding the claim for special damages that was substantially granted, the 1st defendant argues that they were not sufficiently proved by the plaintiff in court. That an examination of Exh “1” shows that it was an agreement entered into between Sena Travel & Tours and a company by name Thywill Business Investment Ltd and had nothing at all to with the 1st plaintiff. And the fact of plaintiff being a managing director of the Thywill Business Investment is immaterial as that would not make a contract entered into by the company inure to the benefit of a different entity. Besides, that the contract of the vehicle rental agreement was done with a law suit in mind for the sole purpose of tendering it in court as evidence. Finally, that on a consideration of the evidence as a whole, there were material inconsistencies in the evidence of the plaintiff for which she ought not to have been granted the reliefs given her by the trial court. RESOLUTION As 1st plaintiff’s appeal is technically not one praying for variation of the judgment within the intendment of Rule 15 of the Court of Appeal Rules, 1997, C. I. 19 but a separate and independent appeal launched after the defendant had filed its appeal, it may be necessary to examine and deal with the two appeals separately but in a composite whole. Nonetheless, a cursory look at the grounds of appeal of the plaintiff as contained in her notice of appeal are two with the first being that the trial Judge erred in law by not ordering a replacement. And with the second being on the issue of cost and damages awarded. Having stated or alleged an error of law on the part of the trial Judge simply because she did not order a replacement, the Rule 8(4) (5) (6) of C. I 19 are all to the effect 15 that when a ground of appeal is alleged as regards an error of law, the particulars of that error ought to be provided to give a fair and reasonable information to the nature of that error of law. Similarly, a ground is not supposed to be vague, or stated in a narrative or argumentative nature. One cannot claim that the first ground of appeal of the plaintiff is narrative or argumentative but certainly it is contrary to Rule 8(4) in so far as it failed woefully to set out the particulars of that error. See cases such as Dahabieh v S. A. Turqui & Brothers [2001-2002] SCGLR 498 @ 504. Faustina Tetteh v T. Chandiram & Others J4/52/2018 dated 24th July, 2019. We would accordingly strike out the first ground of appeal of the plaintiff as inadmissible a ground of appeal for consideration or determination. Plaintiff’s second ground of appeal remonstrates only as to cost and damages. As damages and cost is dependent on the success of her appeal, that determination may be suspended for now for the court to concentrate on the sole ground of appeal of the defendant which is grounded on the omnibus ground of appeal that the judgment of the trial court was against the weight of evidence. A ground of appeal alleging a judgment as being against the weight of evidence adduced at trial is a well beaten and trodden path that has received innumerable legal exposition such that much ink need not be spilt. Suffice to state that such a sole ground is an invitation to the court to review the entire evidence on record on matters of findings of fact and the application of the law to determine whether the court came to the right conclusion. In the words of Benin JSC in the case of Owusu-Domena v. Amoah [2015-2016]1 SC GLR 790 explained the need for factual and legal issues that are at stake as follows: 16 “The sole ground of appeal throws up the case for a fresh consideration of all the facts and law by the appellate court… Sometimes a decision on facts depends on what the law is on the point or issue. And even the process of finding out whether a party has discharged the burden of persuasion or producing evidence is a matter of law. Thus when the appeal is based on the omnibus ground that the judgment is against the weight of evidence, both factual and legal arguments could be made where the legal arguments would help advance or facilitate a determination of the factual matters”. See also Effisah v Ansah [2005-2006] SCGLR 943; Akufo-Addo v Catheline [1992] 1 GLR 377; Koglex Ltd (No 2) v Field [2000] SCGLR 175. An essential part of the plaint of the 1st defendant in this appeal rested on section 13 of the Sale of Goods Act, 1962, Act 137 wherein he set out that under the Ghanaian law, there is no implied warranty or condition as to the quality or fitness for a particular purpose of goods supplied under a contract of sale. He further argues “that the position of the Ghanaian law is that concerning the quality or fitness of goods, warranties are not automatic but must be expressly offered by one party to another”. See page 2 paragraph 1:2 of the written submission filed on the 16th of March, 2022. Perhaps, this might have been in defence of the position canvassed by the learned trial Judge at page 346 of the record of appeal and as part of the judgment wherein the trial court noted that: “Under section 13 of the Sale of Goods Act, 1962, Act 137 there is no implied warranty or condition as to the quality or fitness for particular purpose of goods supplied under a contract of sale with exceptions. Thus the position of the law in Ghana is that with respect to quality or fitness of goods, warranties are not automatic”. 17 That provision of section 13 together with other relevant provisions must be placed in their proper context. For section 13 states as follows: 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”.[emphasis mine] 18 What the above provision means is that Ghana’s Sale of Goods Act, has moved away from the common law position of caveat emptor where the buyer must beware to one of caveat glovoson, where the seller must beware of the goods he is selling. The Act places onerous responsibility on the shoulders of sellers of both brand new and second goods as being liable for defects in them. The exceptions are, one, where the seller has declared the defects in the goods and nonetheless the buyer proceed to go ahead with the transaction, second where the buyer has examined the goods to satisfy himself and has been aware of defects that are manifest on the face of the goods. From this it further means that whether the parties expressly agreed or failed to agree to some express terms and warranties the law would impute some warranties into the contract as to the quality and fitness for purpose of the goods sold. And the only exceptions are when there were defects that were visible to the eye upon reasonable inspection or when the defects were disclosed and yet the buyer ignored and proceeded to conclude the purchase and take possession of the goods. It is therefore not correct and far from the position of the law for the learned trial Judge to have claimed and for same to have been repeated by learned counsel for the defendant that there is no implied warranty as to the quality and fitness of the goods sold. A cursory reading of the case of George Sarpong v Silver Star supra cited by the learned Judge should have clearly provided the correct answer. In the said case their Lordships stated as follows that: “Ghana law imposes a heavier responsibility on sellers of goods than is the case under English law. Moreover, the duty imposed by the Ghana law is the same for sellers of both new goods and second-hand goods. In short, the Ghana law approaches the topic of Sale of 19 Goods with a Caveat Venditor gloveson rather than the Caveat Emptor approach of the English common law”. The Supreme Court had earlier made the same point in the case of Continental Plastics Engineering Co. Ltd v Imc Industries – Technik GMBH [2009] SCGLR 298 where the court speaking through Wood, CJ, noted the following: The legal position can therefore be summed up as follows: a seller of either first or second hand goods is by an implied condition, liable for all defects in them. Based on what we believe is pure common sense the seller is however not liable for defects which he fully disclose or declares to the buyer at the time of the contract of sale. When the buyer has examined the goods the seller cannot be held liable for defects which ought to have been discovered on examination, as for example, patent defects. It does follows that if there were defects particularly latent defects which are not discoverable on examination, and which are not disclosed to the buyer before the conclusion of the contract, the seller cannot escape liability for the breach of an essential condition of the contract” The contention of the defendant that he did not give any warranties to the plaintiff in response to the position of the latter that upon purchase of the vehicle defendant gave warranty that it was fit for purpose is therefore of no moment. This means whether the defendant expressly gave such a warranty or not of the quality and fitness of the vehicle, the position of law imputes such into a contract of sale unless the buyer had the opportunity upon inspection of the goods seen the defect which was patent or that the seller disclosed the defect but same was purchased. The finding of the trial Judge therefore that the Ghanaian law does not impute any implied warranty of quality and 20 fitness for purpose of goods purchased was a veritable trip on the law and same is reversed. To the second and main weightier matter of whether there were latent defects with the engine and if so whether the period of the return of the vehicle could be deemed to be reasonable. In her further amended statement of claim and the witness statement of Christopher Foe the plaintiff appear to claim that the very day it took delivery of the vehicle to convey her children from school she observed an unusual thick smoke oozing out of the exhaust pipe of the vehicle. That the smoke persisted till the following morning for which Walid Zaghloul was contacted on phone. To plaintiff the defendant managed to convince the plaintiff that the noise and the smoke will go away with time but that never happened. Plaintiff further noted that the problem persisted for weeks, months and only returned it for the first time after 5000 km. This claim of return was for servicing of the vehicle but not a return of the vehicle for replacement or a refund of the money paid for the purchase of the vehicle. It is instructive to note that 1st plaintiff appears to have eventually rejected and returned the vehicle when it had travelled 18,000. Better still the plaintiff claims to have returned the vehicle that was delivered on the 28th of May, 2015 on the 22nd of March, 2016. That is a period of ten (10) whole months that she kept and used the vehicle even though she claimed to have discovered or seen visible signs of engine problems just a day after purchase. I have taken a critical examination of Exh “J” being the mechanical assessment of the Toyota vehicle by Road Runner. The reported is dated 24th October, 2016 in which an engine problem was detected and recommendation made that the vehicle was to be returned to the owner. This examination was done one and half years or eighteen months 21 after the plaintiff had taken delivery of the vehicle. The question is with plaintiff claiming to have noticed a problem with the engine right after the delivery of the vehicle but kept using the vehicle until 18000 km or better still until after ten months, whether the defendant should be saddled with any liability or responsibility for any claim of a manufacturing defect as found by Road Runner Company or the State Transport Company? To answer this question would involve a consideration of the section 13 already quoted together with sections 49 and 50 of the Sale of Goods Act, Act 137 and the relevant legal authorities to put matters to rest. Section 49 of the Act on the right of a buyer of goods to reject it states as follows: “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. 22 (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. And section 50 also states as follows: “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.” The above provisions have been the subject of judicial interpretation and pronouncement by our apex court. The plaintiff claims to have discovered thick and dark smoke just the very day or so after purchase on the way to pick her children from school only contacted the defendant who assured him that it would go away after sometime and never did. The plaintiff used the vehicle despite the vehicle being in and out of Auto Zone Services. By paragraph 17 of the witness statement of Christopher Foe, he admits that he eventually 23 rejected the vehicle on the 22nd of March, 2016, took video of the state of the vehicle. Having discovered the problems with the vehicle the very day she took charge of the vehicle and yet kept using the vehicle for well over ten months and returned the vehicle from its own showing on 24th of March, 2016 and when the vehicle had travelled 18000, I think that is quite an unreasonable period of time to have retained the vehicle and turn round to complain or demand for a replacement of the vehicle. In my view it was not enough for the plaintiff to have only remonstrated to the defendant on regular basis only for the vehicle to be worked on at the garage for plaintiff to take the vehicle back. In that respect section 26 of the Sale of Goods, Act 137 becomes applicable. That is to the effect that “unless a different intention appears the property in the goods passes, under a contract of sale when they are delivered to the buyer.” Having allowed itself to be convinced that she should keep the goods, that is the vehicle, there had been a transfer of risk with the retention of the vehicle and acceptance of the vehicle she purchased as plaintiff. Retention of goods purchased for a month has even been held to be unreasonable period of time for a buyer to have retained the goods before returning it. In the case of Rockson v Armah [1975] 2 GLR 116 where a Mercedes Benz purchased was discovered to be faulty with a week of use but instead of being returned as evidence of rejection it was not so until after four months. The court held that the period of retention was unreasonable and noted as follows: “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”. 24 I am of the considered opinion that with the plaintiff having kept and retained the use of the vehicle from 28th of May, 2015 to 22 to 22nd March, 2016, that is a period of ten (10) months, despite claims of assurances by defendant that matters would normalise, which is denied anyway, I think the period is unreasonable more so when the vehicle was used to travel 18000 km. There had been a transfer and acceptance of the property as well as assumption of risk. In any way the problems with the thick smoke and dark emissions that plaintiff claim occurred just on the first day of driving the vehicle, cannot also technically be deemed as latent defect. For it was quite clear on examination and test driving it would have shown that there was a problem with the vehicle and yet with the discovery on the first day, plaintiff still kept the vehicle. Dotse JSC writing for the apex court in the case of Pyne & Associates v African Motors J4/38/2013 dated the 17th of July, 2017, the court noted as follows: “[W]e 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 finding therefore of the learned trial Judge in relying on the various examination reports such as Exh “S” series being the report from Intercity STC Coaches as the conclusion that the 1st defendant engaged in misrepresentation misses the point. The trial Judge further claimed at page 354 of the record of appeal that the car was sold to plaintiff as brand new car and ordinarily a new car ought not to give problems misses the point canvassed supra. Whatever revelations made in the examination reports regarding manufacturing defects all came after the plaintiff had retained the vehicle for over ten 25 months and used it extensively. That constitutes acceptance and whatever risk in the vehicle was no longer that of the 1st defendant but that of the plaintiff that had assumed the risk. CONCLUSION That being so the engagement in assessment of damages for the plaintiff for the engine to be replaced and how plaintiff had recourse to alternative vehicles becomes a non sequitor. Being a matter that cannot lend itself for determination with the ground upon which it stood having been swept away. As of course, damages flow after finding of liability against a tortfeasor or a party that has breached a contract. See Boateng Asante v Scanship Ghana Ltd. J4/15/2013 dated 15th January, 2014 @ page 11 of the unedited judgment. And that is not so in this case as no liability has been found or imputed by the court to the 1st defendants. On a review of the evidence on record we uphold the appeal launched by the 1st defendant, reverse the trial Judge and find the 1st defendant not liable to replace any engine for the plaintiff. The independent appeal filed by the plaintiff is dismissed in its entirety. We would exercise our discretion and make no order as to cost. Each party to bear its cost. (SGD.) ERIC KYEI BAFFOUR JUSTICE OF THE COURT OF APPEAL (SGD.) KODWO, J.A I agree JANAPARE BARTELS-KODWO 26 JUSTICE OF THE COURT OF APPEAL COUNSEL • BOBBY BANSON WITH ALICE NIMAKO DEBRAH ABLORMETI(MRS) FOR 1ST DEFENDANT/APPELLANT • EMILY ATSU AGBAKPE FOR PLAINTIFF/APPELLANT 27