IN THE SUPERIOR COURT OF JUDICATURE
IN THE SUPREME COURT
ACCRA – A.D.2026
CORAM: AMADU JSC (PRESIDING)
PROF. MENSA-BONSU (MRS) JSC
KULENDI JSC
KWOFIE JSC
MENSAH JSC
CIVIL APPEAL
NO: J4/78/2024
4TH FEBRUARY, 2026
1. FAFAPE AMA ETSA FOE …… PLAINTIFFS/RESPONDENTS/APPELLANTS
2. THYWILL BUSINESS &
INVESTMENT CONSULT LIMITED.
VRS
1. Z-AUTO TRADE GHANA ……. 1ST DEFENDANT/APPELLANT/RESPONDENT
LIMITED.
2. JOSEPHINE MONNIE …….. 2ND RESPONDENT
JUDGMENT
MENSAH, JSC:-
My Lords, the plaintiffs/respondents/appellants herein appeal against the judgment of the Court of Appeal delivered 15/12/2022 that appears on pp 99-131 of Vol. 2 of the record of appeal [roa], pursuant to a notice of appeal filed with this court on 03/03/2023. Significantly, the Court of Appeal delivered two (2) separate judgments, first judgment authored by Adjei JA [as he then was] which appears on pp 99-108 Vol. 2 [roa] and the other, delivered by Kyei Baffour JA and concurred to by Bartels-Kodwo JA [as she then was] which judgment also appears on pp 108-131 Vol. 2 [roa]. It is against the judgment of the court below that the plaintiffs/respondents/ appellants have mounted the instant appeal on the following grounds:
1. That the judgment is against the weight of evidence.
2. That the Court below misdirected itself on the law regarding the buyer’s right to reject and return the goods when it held that there was unreasonable delay despite clear evidence on record that the seller had committed fraud on the appellants.
3. That the court below erred in law when it held that there had been a transfer of property and risk in the car to the appellants at the time the car was returned, having regard to the requirements of Regulation 17 of the Road Traffic Regulations, 2012 (LI 2180) applicable to change of ownership of vehicles, and as same was not supported by the evidence on record.
4. That further or additional grounds shall be filed upon receipt of the full records of proceedings. See: pp 133-135 Vol. 2 [roa]
Consequently, the plaintiffs/respondents/appellants pray the Supreme Court to set aside and or vary the judgment of the Court of Appeal and to make the respondents liable on the reliefs the appellants sought in the trial High Court. In this appeal, the parties shall maintain their original designations as plaintiffs and defendants, respectively.
Writ of summons:
On record, Fafafe Ama Etsa Foe initially as the plaintiff, caused to be issued in the registry of the Commercial Division of the High Court, Accra on 14/11/2016, a writ of summons against three (3) defendants namely: Jowi Enterprise Ltd, Josephine and Walid Zaghloul. Upon subsequent applications made to the trial court, some substitutions were made as regards the status of the parties to the case, as a result of which the writ was amended. Pursuant to the amendment, the title of the case was changed with the addition of ThyWill Business & Investment Consult as the 2nd plaintiff whilst the 3rd defendant, Walid Zaghloul was non-suited. The true and proper title of the case currently reads:
1. Fafape Ama Etsa Foe
2. ThyWill Business & Investment Consult
-vs-
1. Z-Auto Trade Gh Ltd
2. Josephine Monnie
Per an amended writ of summons and amended statement of claim, that appear on pp 241-248 Vol. 1 [roa], the plaintiffs claimed:
1. A declaration that defendants have breached the warranty agreement as between the parties or in the alternative, the contract as between the parties stands breached by the defendants.
2. An order directed at the defendants 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 defendants to pay the present value of the vehicle to plaintiff forthwith.
3. General damages for breach of contract.
4. 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.
5. Any other damages this honourable court deems fit as a result of the unwarranted and avoidable injury caused by the defendants against the plaintiff.
6. Cost.
Judgment of the High Court:
After trial, the High Court delivered itself, a judgment on 30/03/2020 that appears on pp 339-367 Vol. 1 [roa].
Having reviewed the facts and the evidence led in the case, the learned trial judge concluded her judgment as follows:
“From the foregoing discussion the court makes a declaration
that the defendants have breached the implied warranty as between the parties with regards to the sale of the vehicle supposed to be brand new but which turned out to have a defective engine. The court finds that there was therefore a breach of the contract between the parties for the sale and purchase of a new vehicle. Relief B however, cannot be granted. What the court orders is for the 1st defendant to replace the engine with a brand new engine and to put the car into working condition for the use of plaintiff herein. On relief C, for general damages for breach of contract, the court awards damages of Ghc20,000.
On relief D for specific damages relating to the rental of a similar vehicle from April to December at USD9000 per month of which no tax was paid in all amounting to USD81,000 for nine months. Even where there is the need to rent alternative vehicle due to the breach, there is also the need on the part of plaintiff to mitigate the situation. The court will make a finding that a rental of four months is long enough to mitigate the situation but nine months is too long as that money could have bought another vehicle albeit a lesser value. The court will order 1st defendant to pay for 4 months out of the nine months at USD9000 cedi equivalent to plaintiff. The court shall also award cost of Ghc10,000. for plaintiffs.” See: p. 363 Vol. 1 [roa]
Appeal to the Court of Appeal:
It is material to point out that both the plaintiffs and the 1st defendant expressed their dissatisfaction with the judgment of the trial court, by filing separate notices of appeal. The sole ground of appeal contained in the 1st defendant’s notice of appeal is that the judgment was against the weight of evidence. See: pp 365-367 Vol. 1 [roa].
Although, the 1st defendant indicated that additional grounds of appeal were to be filed, there is nothing on record to show that additional grounds of appeal were so filed. The plaintiffs’ notice of appeal that appears on pp 368-369 Vol. 1 [roa] had the following grounds:
1. The learned judge erred in law by not ordering a replacement of the entire vehicle with a new one.
2. The cost and damages awarded is below the limits of the law and actual damages.
3. Further grounds to be filed upon receipt of the record of proceedings.
As recounted supra, there are two (2) judgments of the Court of Appeal delivered in this case. In the first judgment that appears on pp 99-108 Vol. 2 [roa], the court dismissed both appeals the parties filed for lack of merit. Particularly on ground (a) of the plaintiffs’ notice of appeal that complained about failure of learned trial judge for ordering a replacement of the vehicle with a new one, the first judgment struck out the ground for non-compliance, on the account that it violated rule 8 sub-rule (4) of C.I 16, Court of Appeal Rules. The plaintiffs had failed to give particulars of errors of law or misdirection they complained the learned trial judge has committed, the court explained.
In the second judgment that appears on pp 108-131 Vol. 2 [roa], the court held:
“…….. 1st plaintiff having kept the vehicle sold to her for over 10 months and having used it extensively, that amounted to acceptance and that whatever risk in the vehicle was no longer that of the 1st defendant but that of the plaintiff had assumed the risk.”
In conclusion, the 2nd appellate court upheld the appeal launched by the 1st defendant, reversed the judgment of the trial court, concluding that the 1st defendant was not liable to replace any engine for the plaintiff. In the circumstance, the court proceeded to dismiss, and indeed did dismiss the plaintiff’s appeal.
Legal analysis & opinion of this court:
Before proceeding to consider in detail the instant appeal to this court, we note with satisfaction that the Court of Appeal dealt extensively with the separate notices of appeal the plaintiffs and the 1st defendant respectively, filed in the lower court.
Traditionally, where a respondent in whose favour a judgment invariably went but regardless was dissatisfied with a portion of it, by operation of law, the respondent is required to give notice of variation in accordance with rule 15(1) of the Court of Appeal rules, C.I 19 when the other party who lost the case has appealed against the decision. That provision of the rules provides:
(1) It shall not be necessary for the respondent to give notice 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 one month after service upon him of the
notice of appeal cause written notice 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.”
The rule vests in the Court of Appeal, jurisdiction to vary only the impugned part of the judgment complained of. Rule 15(1) of C.I 19 does not require the respondent to also file a separate notice of appeal like the appellant. Put differently, the respondent finding himself in that situation shall not file a cross-appeal but shall give a written notice of variation of part of the judgment complained of. The proposition that a respondent to an appeal should not file a cross-appeal but to give notice for variation of judgment finds support of the Supreme Court in the case of Duodo v Adomako [2012] 1 SCGLR 198 when the apex court held:
“The rationale behind Rule 15(1) of CI 19 was that it was in the
nature of cross-appeal and for practical purposes, served as an
alternative to a cross-appeal. Under the rule, a respondent to an
appeal, finding himself or herself not fully satisfied with a decision
of the trial court, albeit a favourable decision, would rather file a cross-appeal, exercise the option of requesting for a variation of the decision complained of. The application for variation was thus employed to correct not the assigned reasons, but the decision of the trial court. Notice of variations were therefore not intended to be deployed to procure from the appellate court exhaustive reasons to reinforce a reasoned decision which, in all aspects, was sound and correct……” [emphasis underscored]
However, it is right to uphold the law that where the parties to the case have filed separate notices of appeal independent of each other, the appellate court is duty bound to consider and make a determination on both appeals. The learned authors of Atkins Court Forms 2nd Ed Vol. 5 Lord Evershed p. 63 para. 74 have stated the general rule that where parties serve separate notices of appeal without reference to each other, each will be a substantive notice of appeal entered separately, but the appeals will be listed for hearing at the same time. As noted supra, the Court of Appeal in the instant case, considered and determined both appeals on merits.
It is worth noticing in the present case that the grounds of appeal contained in the plaintiffs’ notice filed clearly show that they intended to appeal against the whole judgment of the lower court and not to give notice of variation of part[s] thereof. The 1st defendant presumed to have lost the case, was the first in time to file appeal before the plaintiffs did.
We now return to the grounds of appeal the plaintiffs filed.
Resolution of the appeal:
The law is certain that an appeal is by way of re-hearing the case. By law, the appellate court is enjoined to review the whole evidence led on record and to come to its own conclusion and to make a determination as to whether both on the facts and the law, the findings of the lower court were properly made and were supportable. Put differently, the appellate court is under legal obligation to examine the findings of the lower court or the trial court, and to determine on the evidence led on record, whether those findings are supportable in law.
This court has re-echoed the principle in Effisah v Ansah [2005-2006] SCGLR 943 that:
“It was a well settled that an appellate court has the right to interfere with the findings of a trial tribunal where specific findings of fact can properly be said to be wrong because the tribunal had taken into account matters which were irrelevant in law; or had excluded matters which were irrelevant in law; or had excluded matters which were crucially necessary for consideration; or had come to a conclusion which no court instructing itself in the law, would have reached; and where the findings were not inferences drawn from specific facts, such findings might be properly set aside.
As a corollary, a second appellate court had power to restore primary findings of fact and right conclusions which might have been unjustifiably set aside by a first appellate court.”
Therefore, in appropriate cases, the appellate courts do interfere with findings of fact of trial courts; make their own findings of fact in substitution for those findings founded on error by the trial courts even where the first appellate court concurred in the findings of the trial court.
To the substance of the appeal.
To begin with, we note that grounds (b) and (c) contained in the plaintiffs’ notice of appeal did not comply with the mandatory rules of this court. It is provided in rule 6(4)&(5) of the Supreme Court Rules, C.I 16 thus:
“(4) The grounds of appeal shall set out concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal, without any argument. or narrative and shall be numbered seriatim; and where a ground of appeal is one of law the appellant shall indicate the stage of the proceedings at which it was first raised.
(5) No ground of appeal which is vague or general in terms or discloses no reasonable ground of appeal shall be permitted, except the general ground that the judgment is against the weight of evidence; and any ground of appeal or any part of it which is not permitted under this rule may be struck out by the Court on its own motion or on application by the respondent.”
The jurisprudence this Court established in a plethora of cases on the consequence of non-compliance with mandatory rules of procedure and now a settled law, is that the impugned grounds are liable to be struck out as same cannot be argued. Notably, in the case FKA Co. Ltd v Nii Tackie Amoah VI & ors Civ. App. No. J4/2016 dated 13/4/2016, the Supreme Court speaking through Akamba JSC, while dealing with a similar situation of noncompliance with the provisions of Rules 6(4) and (5) of C.I.16 reiterated:
“…… It is important to stress that the adjudication process thrives upon law which defines the scope of its operation. It is trite to state for instance that, nobody has an inherent right of appeal. The appeal process is the creature of law. Any initiative within the context of the adjudication process must be guided by the appropriate relevant provision, be it substantive law or procedural law. As courts, if we fail to enforce compliance with the rules of court, we would by that lapse be enforcing the failure of the adjudication process which we have sown by our judicial oaths to uphold”.
Re-echoing the principle in the case, Dahabieh v S.A Turqui & ors [2001-2002] SCGLR 498 @ 504, which turned on the interpretation of, inter alia, rule 6(2)(f) of the Supreme Court Rules, 1996 (C.I 16), the court observed as follows:
“……… Clearly the intention behind Rule 6 is to narrow the issues on appeal and shorten the hearing by specifying the error made by the lower court or by disclosing whether or not a point in issue had earlier on been raised. By that way, both the court and Counsel for the respondents would be enabled to concentrate on the relevant parts of the evidence in the record of proceedings and not waste time on irrelevant parts of the evidence. With respect to questions of law, it is necessary that the respondent and his lawyers know well in advance what points of law are being raised so that they may prepare their case and marshall their authorities. Whilst an indication that the point of law was/or was not raised the Court below may help the court resolve the issue faster”.
The Supreme Court Rules, Rules 6(4) and (5) of C.I.16 are in pari mateia with the Court of Appeal Rules, that is to say Rules 8(4) and (5) of C.I.19 that stipulate:
(4) Where the grounds of an appeal allege misdirection or
error in law, particulars of the misdirection or error shall be
clearly stated.
(5) The grounds of appeal shall set out concisely and
under distinct heads the grounds upon which the appellant
intends to rely at the hearing of the appeal without any
argument or narrative and shall be numbered consecutively.
The Court of Appeal emphasizing the importance of Rules 8(4) and (5) of C.I 19 in the case of Lawrencia Adams v Cofey International, Civ. App. No. HI/171/16 dated 23/2/2017, adopted and applied the dictum of Kpegah JA [as he then was] in Zabrama v Segbedzi [1991] of GLR 221 @ 226 where Kpegah JA stated the law as follows:-
“The implication of these rules is that a plaintiff, after specifying part of the judgment or order complained of, must state what he alleged to have been found by the trial judge, or what error he had made in a point of law. I do not think it meets the requirements of these rules to simply allege misdirection on the part of the Trial Judge. The requirement is that the grounds stated in the notice of appeal must clearly and concisely indicate in what manner the Trial Judge misdirected himself either on the law or on the facts. To state in a notice of appeal that: ‘The Trial Judge misdirected himself and gave an erroneous decision’ without specifying how he misdirected himself is against the rules and renders such a ground of appeal inadmissible. The rationale is that a person who is brought to an appellate forum to maintain or defend a verdict or decision which he has got in his favour, shall understand on what ground it is impugned”. [emphasis added]
It is worth noticing that the plaintiffs in the instant appeal never gave specifics, as regards the errors and or misdirection the lower court is accused of, to have committed. This is another way of stating that plaintiffs’ Counsel gave no specifics as regards the errors or mis-directions the lower court is accused of committing. That is in violation of the Supreme Court Rules, 1997 [C.I 16], rule 6(4)&(5). This court has a duty to ensure that an appeal is not determined on any ground which is contrary to its own ground rules of procedure, especially if the rules are in mandatory terms. We do, therefore, roundly agree with submissions of learned Counsel for the 1st defendant that plaintiffs’ grounds (b) and (c) were not properly fashioned in accordance with the mandatory rules of this court and must be struck out.
Guided by the rules and case law, we do hereby strike out the impugned grounds of appeal for non-compliance. However, to do substantial justice in the matter and in order that the plaintiffs’ case shall not be thrown out or dismissed on technical grounds due largely to negligence or ineptitude of their lawyers, we shall adopt and consider the appeal on the omnibus ground [1st ground of appeal] that the judgment is against the weight of evidence. The omnibus ground of appeal throws up the case for a fresh consideration of all the facts and the law applicable to the case. In that respect, the appellate court just like the trial court, has the duty to evaluate and assess the evidence led at the trial in order to determine in whole, in whose favour the balance of probabilities tilts.
The omnibus ground: the appeal is against the weight of evidence.
Traditionally, where a party complains that a judgment cannot be supported having regard to the evidence led at the trial, it was incumbent on the party to so demonstrate it. Thus, to say that a judgment is against the weight of evidence, implies that there are on the face of the judgment, some errors of law or on the facts or both that the lower court committed. In either case, the presumption is that the trial court applied wrong principles of law to the case under consideration. It could also be implied that the findings of the court could not be supported having regard to the evidence led on record. It must be noted, however, that making primary findings of fact is the prerogative of the trial court and where on the evidence the findings are supportable the findings shall not be disturbed on appeal. The converse is equally true where the findings cannot be supported.
In summary, therefore, to say that a judgment is against the weight of evidence implies invariably that the learned trial judge took into consideration, extraneous matters that were not relevant in law; excluded matters that were pivotal to be considered and that the lower court also failed to draw the proper inferences from the evidence led on record. See: Agyenim Boateng v Ofori & Yeboah [2010] SCGLR 861. The principle was reiterated by Marful Sau JSC in Martin Atuahene v Ghana Cocoa Marketing Board, Civ. App. No. J4/23/2018.
We now return to discussing the merit or otherwise of the appeal.
We need to say from the outset that there is some challenge here. At the risk of sounding repetitive, there were two (2) judgments of the Court of Appeal in this case. In the judgment of Adjei JA [as he then was], whilst agreeing with Kyei Baffour JA’s conclusion in the other judgment, Adjei JA [as he then was] nevertheless went ahead to dismiss both appeals by the plaintiffs and the 1st defendant, as unmeritorious. Kyei Baffour JA [Bartels-Kodwo concurring], on the other hand, dismissed the plaintiffs’ appeal but upheld the 1st defendant’s appeal.
Having regard to the fact that Kyei Baffour JA discussed in detail both appeals and dismissed the plaintiffs’ appeal but allowed the 1st defendant’s appeal in part, our discussion of the instant appeal shall be focused on that judgment, as the judgment of the Court of Appeal.
Is the judgment of the lower court complained of in the present case, really not supported by the evidence led on record? In other words, is the judgment against the weight of evidence? In answering this fundamental question, two (2) critical key issues emerge. These are:
1. Whether the disputed vehicle met the specification and
or the purpose for which the plaintiffs purchased it.
2. Whether there was an inordinate delay on the part of the plaintiffs to return the vehicle that amounted to acceptance.
From the available evidence led on record, it cannot be put to any serious dispute that the vehicle the plaintiffs contracted to purchase from the defendants and what the defendant contracted to sell and delivered to the plaintiff did not meet the specification and or the purpose for which it was acquired. The learned trial judge having reviewed the evidence led on record, made a finding of fact that we find it relevant to produce it here below:
“…………………there is in the opinion of the court, a case of misrepresentation on the part of the 1st defendant from plaintiff as a new car and ordinarily, a new car ought not to give its user problems. The said exhibits from the mechanic of the choice of 1st defendant and the state entity that carries out assessment shows that the engine was a refurbished one ……………………………………..and the defendant is liable in damages for the breach of implied warranties.” See: pp 35455 Vol. 1 [roa]
Although there is the lack of an express condition specified in the contract of the purchase and sale of the disputed vehicle, we think that by the custom and trade of the defendants’ business, there was an implied condition that they would sell a brand new Toyota land cruiser station wagon vehicle to the plaintiffs. Nothing short of that was not and cannot be said to be a vehicle that qualified to be what the plaintiffs contracted for. In any event, in absence of an express term of the contract, Section 13 of the Sale of Goods Act [137] implied a condition that the goods are free from defects unknown to the buyer and a further implied term that in certain circumstances, the goods are reasonably fit for the purpose for which they are required. The Court of Appeal acknowledged as proper, the trial court’s finding of fact that the defendants were in breach of their contractual obligation to supply a proper and fit vehicle. The Court of Appeal in explaining the meaning of Section 13 of Act 137, stated unequivocally that Ghana by that provision of the law, has moved away from the common law position of caveat emptor where the buyer must beware, to one of caveat glovoson that is to say, the seller must be aware of the goods he is selling.
A condition as a term of contract
A condition is an essential term of a contract, the breach of which entitles the injured party to rescind the contract and sue for damages. Not only does the breach entitles the injured party to rescind the contract and sue for damages, it equally entitles the innocent party to treat the contract as terminated and consider himself discharged from the obligation of further performance of the contract. See: The Law of Contract in Ghana, 2016, 8th ed. @ p. 142, Christine Dowuona Hammond. See also: Wallis & Wells v Pratt & Havnes [1911] AC 394.
A warranty of a contract
Contrariwise, warranties are subsidiary terms of the contract, the breach of which does not go to the root of the contract and thus only entitles the injured party to sue for damages. The learned author of The Law of Contract in Ghana, 2016 makes the point that breach of a warranty does not entitle the innocent party to repudiate the contract or treat himself as discharged from the obligation to perform the contract.
Sutton and Shannon on Contract (6th ed) @ p. 86 defines warranty in these terms:
“is a term of the contract which is collateral to the main purpose of the contract, ie which is not so vital as to effect a discharge of the contract, if the circumstances are, or become inconsistent with it.”
Under common law, the courts have always considered the status of a term of the contract by its significance to the contract at the time that the parties executed it. They usually determine the intention of the parties by looking at the language parties employed; the context in which the term arose; the usual way in which terms of that nature are considered in the particular trade or business; past decisions. In so doing, the courts are able to determine whether the term should be treated as a condition or warranty. Lord Greene MR in Finnegan v Allen [1943] KB @ 403 C/A defined warranty as: “……………something collateral or incidental to some contract.” The court in that case refused to enforce the contract on account that no contract existed of which warranty formed part.
In our domestic jurisdiction, Bennin JA [as he then was] in adopting and applying the ratio in Finnegan v Allen [supra] to the case of Neoplan (Gh) Ltd v Harmony Construction Co. Ltd [1995-96] 1 GLR 662, held that a warranty was a term of a contract which was collateral to the main purpose of the contract. His Lordship held further in that case that accordingly, where no contract existed at all, there cannot be a warranty.
Terms implied by statute.
In Ghana, for policy reasons, some statutes mandatorily imply certain terms into certain contracts notably, the Sale of Goods Act, 1962 (Act 137). Unless there is a contrary express term in a contract for sale, Act 137 implies certain standard term into every contract for the sale of goods. Sections 9 – 14 of Act 137 are implied into every contract for the sale of goods in Ghana. In brevity, they are summarized as follows:
1. Section 9 – an implied condition that the goods are in existence in the case of specific goods;
2. Section 10 – an implied warranty on the part of the seller that that he has the right that he has the right to sell the goods at a time when the property is to pass.
3. Section 11 – in a contract for sale of goods by description, an implied condition that the goods shall correspond exactly with the description.
4. Section 12 – in a contract for the sale of goods by sample, an implied condition that the goods shall correspond exactly with the sample.
5. Section 13 – an implied condition that the goods are from defects unknown to the buyer and a further implied term that in certain circumstances, the goods are reasonably fit for the purpose for which they are required.
It is common ground in the instant case that the plaintiffs contracted with the defendants to purchase a brand new Toyota land cruiser and the defendants agreed to sell it to the plaintiffs. It is not in dispute that the 1st plaintiff purchased from the defendants a Toyota land cruiser station wagon with chassis number JTMHVO5J604161659 and registered as number GN 1181-15. It is alleged that it was represented to the 1st plaintiff that the vehicle was fit and good whatever purpose it was needed for and that it was to be under a warranty for the first three (3) years or the first hundred thousand kilometers (100,000km), whichever came first. The plaintiffs issued a cheque for the sum of Ghc465,750. being the cedi equivalent sum of US$15,000 and duly acknowledged by the defendants per the Director, Walid Zaghloud. It is alleged it took five days after the purchase for the said Walid Zaghloud to invite the plaintiffs to collect the vehicle although the documentation was yet to be completed. However, it took the 1st defendant further eight (8) months before the said documents were delivered to the plaintiffs. It then came to light that the said vehicle had previously been registered in 2nd defendant’s name. It is the case of the plaintiffs upon delivery of the vehicle, some other vital documents were not given to them.
According to the plaintiffs, after using the vehicle for a week, they noticed an unusual thick, heavy, black smoke emitting from the vehicle and that was reported to the defendants. Although the defendants gave an assurance that the smoke will clear up after some time, it did not until about 5 months later when the vehicle had covered 18000km. Eventually, plaintiffs returned the vehicle to the defendants on 22/03/2016 when, according to the plaintiffs, the unusual noise worsened. It was when the plaintiffs’ demands and or expectation were never met that they sued in the trial High Court for the judicial reliefs endorsed on their writ of summons.
In its amended statement of defence that appears on pp 150-154 Vol 1 [roa] the 1st defendant averred that the plaintiffs never returned the vehicle upon the conclusion of the sale and purchase agreement until about a year later. In paragraph 28 thereof, defendants averred that they offered to assist the plaintiffs financially only after their mechanic had ascertained the nature and cause of the problems the plaintiffs were complaining about.
It is the case of the plaintiffs that Section 13 uses both warranty and condition in subsection 1 disjunctively but omitting warranty in the proviso. Thus, the lawmaker intended to give the same meaning to both words in order to remove the niceties of categorization at common law that creates problems with the use of representations, conditions, warranties and inordinate terms, and the remedies they provide for breach thereof.
There is that lame argument by the defendants that they gave no warranties to the plaintiff. Whether the defendants did or not, is inconsequential because it is implied that the vehicle being sold off to the plaintiffs met the specification for which it was acquired. There is that unchallenged evidence that the vehicle was first registered in the 2nd defendant’s name. The plaintiffs had averred in their amended statement of claim paragraph 13 appearing on p. 244 Vol. 1 [roa] that 5 days after its purchase and the director of the 1st defendant company, Walid Zaghloul had informed them that the vehicle was ready for collection, it took the defendants about 8 months thereafter to deliver the documents covering the vehicle to the plaintiffs. This is a material averment that was no seriously disputed.
The findings of fact by the trial court that the vehicle was not fit for the purpose for which it was acquired is amply supported by the evidence led on record. The finding finds support of the Court of Appeal. In consequence, we affirm the judgment of the trial court that the engine in the so-called brand new Toyota land cruiser station wagon was a refurbished one and not a brand new vehicle, after all. There is ample evidence on record to show that there was a breach of condition of the contract. That is to say, the defendants sold to the plaintiffs a defective product, a used or refurbished car camouflaged as a brand new car.
In Farah v Robin Hood Flour Mills Ltd & anr [1962] 1 GLR 377 the court had to consider whether the implied term in the Sale of Goods Act that the goods are reasonably fit for the purpose for which they were required was breached or not. The court held that from the nature of the contract and the circumstances of the parties, there was an implied condition that the flour sold to the plaintiff would be fit for human consumption. However, as all the 10 bags of flour were infested with weevils and eventually destroyed as unfit for human consumption, the defendants were guilty of a breach of this implied condition.
In the present case, it is common knowledge that the defendants deal in the sale of brand new vehicles. The learned authors of Cheshire, Fifoot, Furmston’s Law of Contract, 13th ed @ p. 136 makes the point that in ordinary scheme of things, some contracts are made incidental to the business the parties are engaged. Therefore, in most cases, the contract is fashioned against the backdrop of customary practice well known to those engaged in that particular trade, commercial setup or business. In that respect, there is that presumption that such customs or usages are intended to govern that particular contract.
It is trite knowledge that the defendants in the instant case deal in the business of selling brand new vehicles. By customs and usages governing the defendants’ business, they could not have sold any vehicle that has a defective engine to the plaintiffs representing it as a brand new vehicle. In the final analysis, we hold that the disputed vehicle did not meet the specification and the purpose for which the plaintiffs acquired it. Undoubtedly, that was a breach of fundamental term of the contract.
That leads us to considering and determining whether regardless of the defects, the plaintiffs accepted the vehicle as it was.
Both the trial High Court and the Court of Appeal in addressing the issue, dwelt extensively on the time-tested principle of law discussed in Pyne & Associates v African Motors J4/38/2013 dated 17/07/2017. The Court of Appeal in particular held that the retention of the vehicle for about 8 months or so by the plaintiffs before returning it to the defendants amounted to acceptance. To the lower court, it was unreasonable for the plaintiffs to have retained the vehicle for that long when they detected the smoke emitting from the engine.
That the plaintiffs never returned the vehicle to the defendants immediately after its purchase upon after detecting there was some smoke emitting from the engine is not in any serious dispute. However, the established evidence is that when the plaintiffs brought the issue to the attention of the defendants, the defendants made some attempts to have the vehicle refurbished. The Court of Appeal took the position simply that about 10 months’ retention of the vehicle after the detecting the problem with the vehicle was unreasonable and amounted to acceptance.
By law, there cannot be a rejection after acceptance. See: Section 51 of Act 137. However, the chief question that needs to be addressed in the instant case is whether the plaintiffs having retained the disputed vehicle for 10 months or so amounted to acceptance. In discussing this thorny issue, Sections 49 and 50 are key. When can the buyer exercise the right to reject? Section 49 provides:
(1) Subject to this Act, the buyer is entitled to reject the goods and to refuse to pay, or 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 of the goods; 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 instalment is to be separately paid for, subsection (1) shall apply to each instalment separately, but 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 this paragraph shall not affect the buyer’s rights under paragraph (c) of subsection (1);
(b) in any other case, 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 inrespect of the whole contract.
Section 50 on effect of rejection also stipulates:
(1) Where goods are delivered to the buyer and the buyer rejects the goods having the right to do so, the buyer is not bound to return them to the seller, but it is sufficient if the buyer intimates to the seller that the buyer rejects the goods.
(2) After the buyer has intimated to the seller that the buyer rejects the goods, the seller is entitled to have the goods placed at the buyer’s disposal.
(3) Where the buyer has paid the price or a part of the price, the buyer may retain the possession of the goods until the seller repays or tenders the amounts the seller has received from the buyer.
The Court of Appeal relied heavily on the dictum of Dotse JSC in Pyne & Associates v African Motors J4/38/2013 dated 17/07/2017 and the ratio decidendi in Rockson v Armah [1975] 2 GLR 116 to hold that the period of time the plaintiffs kept the vehicle before returning it amounted to acceptance and not a rejection. We are of the considered opinion that although the dicta in both cases herein referred to are good law, the circumstances of both cases are not on all fours with the instant suit and therefore, distinguishable from the instant case.
In Pyne & Associates v African Motors [supra], this court speaking through Dotse JSC considered the retention of the disputed vehicle from November, 2004 till October, 2005 as unreasonable and amounted to acceptance, property and risk having passed.
In the instant case, there is that unchallenged evidence that after the defendants sold the disputed vehicle to the plaintiffs, it took the 1st defendant eight (8) months or so to deliver the documents covering the vehicle to the plaintiffs. It then came to light that the said vehicle had previously been registered in 2nd defendant’s name. The material fact that the vehicle has earlier been registered in a 3rd party’s name was not disclosed to the plaintiffs though they owed it a duty to disclose it when the plaintiff expressed intention to purchase it.
Additionally, there was that concealed fraud upon the defendants’ representation to the plaintiffs that the vehicle was a brand new vehicle when it was a vehicle with a refurbished engine and smoke emitting therefrom. Fraud vitiates everything and vitiated the contract of sale and purchase in the instant case. This court speaking through that legal luminary, Acquah JSC (as he then was) stated the principle in Frimpong v Nyarko [1998-99] 734 @ 743 that fraud vitiates everything and that when a court of law in the course of the proceedings has cause to believe that fraud has been committed, it is duty-bound to quash whatever that has been done in the strength of that.
Furthermore, as stated supra, there is that overwhelming evidence that in the very first week upon the purchase of the vehicle the plaintiffs detected smoke emitting from the engine. That was immediately brought to the attention of the defendants. Following that, further evidence established that the defendants made some attempts to fix the problem. At a stage the defendants directed that the vehicle be sent to their mechanic to repair it. There was that thug of war between the parties which issue ended up in the Police station. It is, therefore, not far-fetched to say that the plaintiffs out of frustration, had to report the matter to the Police. But the matter remained unresolved, pushing the plaintiffs to resort to the court as the last resort.
Against this backdrop, we reiterate and do hold that the period the vehicle remained with the plaintiffs did not constitute acceptance. In our candid opinion, and so do we find, that the plaintiffs never “accepted” the state of the vehicle. In these circumstances, we emphasize that title in the property did not pass. Title would have passed if the vehicle met the specification and purpose for which plaintiffs acquired it. Put differently, title in the property did not pass until the defendants had fulfilled their part of the bargain and delivered a brand new vehicle they contracted to sell to the plaintiffs. The plaintiffs set out to purchase a brand new Toyota Landcruiser station wagon vehicle and not an empty shell. Ordinarily, a person who has purchased a brand new vehicle would not expect thick smoke emitting from the vehicle. The Court of Appeal, therefore, erred in law in holding that there was an acceptance by the plaintiffs of that defective vehicle.
In the final analysis, we resolve in favour of the plaintiffs, the omnibus ground of appeal that the judgment of the lower court was against the weight of evidence. On the preponderance of probabilities, the plaintiffs were entitled to judgment in terms of the judicial reliefs they claimed. Consequently, we allow the appeal and hereby set aside the judgment of the lower court, Court of Appeal delivered 15/12/2022. We make the following consequential orders:
1. The defendants/respondents shall replace the engine of the subject matter vehicle with a brand new one or in the alternative, shall pay to the appellants the replacement monetary value of a new engine within three (3) months from today.
2. We award n favour of the appellants against the respondents, special damages assessed at USD3,000.00 per month or its Ghana Cedi equivalent for four (4) months period for cost of use and hire within 7 days from today. The same shall attract interest at simple interest rate if it shall remain unpaid after a period of seven (7) days from today.
3. We award general damages in the sum of Ghc75,000.00 in favour of the plaintiffs/appellants against the defendants/respondents.
4. There shall be costs of Ghc50,000.00 in favour of the plaintiffs/appellants against the defendants/respondents.
(SGD.) P. B. MENSAH
(JUSTICE OF THE SUPREME COURT)
(SGD.) I. O. TANKO AMADU
(JUSTICE OF THE SUPREME COURT)
(SGD.) PROF. H.J.A.N. MENSA-BONSU (MRS)
(JUSTICE OF THE SUPREME COURT)
(SGD.) E. YONNY KULENDI
(JUSTICE OF THE SUPREME COURT)
(SGD.) H. KWFOIE
(JUSTICE OF THE SUPREME COURT)
COUNSEL
DAVID K AMETEFE ESQ. FOR THE PLAINTIFFS/RESPONDENTS/APPELLANTS
BOBBY BANSON ESQ. FOR THE 1ST DEFENDANT/APPELLANT/RESPONDENT ABIGAIL BOATEMAA BOATENG ESQ. WITH HIM WILLIAM ANSA-OTOO ESQ.
