IN THE SUPERIOR COURT OF JUDICATURE
IN THE SUPREME COURT
ACCRA – A.D. 2026
CORAM: PWAMANG JSC (PRESIDING)
ASIEDU JSC
DARKO ASARE JSC
DZAMEFE JSC
BARTELS-KODWO JSC
CIVIL APPEAL NO. J4/76/2024
18TH MARCH, 2026
HAWKRAD-JOD CONTRACTS ………. PLAINTIFF/RESPONDENT/
LIMITED APPELLANT
VRS
CAITEC DELTA LIMITED .……… DEFENDANT/APPELLANT/
RESPONDENT
JUDGMENT
BARTELS-KODWO JSC:-
On the 24th of July, 2019 the Court of Appeal delivered a judgment in favour of the Defendant/Appellant/Respondent. The Plaintiff/Respondent/Appellant the victor in the trial court naturally dissatisfied with that Judgment filed this instant Appeal. The parties will be referred to in this judgment by their original designations in the trial court as the Plaintiff and the Defendant.
FACTS/BACKGROUND
By its Writ of Summons and a Statement of claim the Plaintiff sought the reliefs below:
(a) A Declaration that the 1st Defendant is in breach of the warranty covering the ten (10) Shackman Trucks purchased by the Plaintiff from the 1st Defendant to execute a haulage contract with Adamus Resources Limited.
(b) An order for the recovery of GH¢1,341,474.75 being the total loss of income for the period February to June, 2014 as a result of the breakdown of the said Trucks.
(c) An Injunction restraining the 2nd Defendant from making any further deductions from Plaintiff’s account with her to meet the payment of the outstanding balance on the purchase price of the said trucks; and not to honour the guarantee issued in favour of the 1st Defendant until the 1st Defendant has fully discharged her obligation under the warranty agreement with Plaintiff.
(d) Cost.
The Plaintiff issued a writ of summons in the High Court together with a motion on notice to restrain Cal Bank Limited (originally the Second Defendant in this action) and its officers from honouring a bank guarantee issued by the Plaintiff in favour of the Defendant. The bank guarantee was issued for the payment of the balance of the purchase price of ten (10) Shackman Tipper Trucks that the Plaintiff had purchased from the Defendant. The second Defendant was struck out as a party by the trial High Court therefore the claim against it remained moot. It nevertheless discharged its obligations and the trucks were paid for.
By an amended Statement of Claim filed on the 23rd of December 2014 the Plaintiff averred that in November 2013, it won a Near Pit haulage contract with Adamus Resources Limited to provide haulage at its Nzema gold mines. It took a loan facility with Cal Bank Ltd for the purchase of ten (10) tipper trucks to execute the haulage contract which was for an original period of six months.
The loan facility was in two parts, a short term loan of the Ghana Cedi equivalent of Four Hundred and Twenty – Two Thousand, Five Hundred United States Dollars (US$422,500) as down payment for the trucks and the second, a bank guarantee to secure the payment of the remaining 50% balance of the price for the purchase of ten (Shackman Trucks) from the Defendant.
The Plaintiff averred that upon the delivery of the said trucks it authorized the Bank to pay the purchase price to the Defendant on its account from proceeds of the haulage contract. The trucks had a warranty of one year or 30,000km whichever came first.
Plaintiff’s case is that it informed the Defendant of the award of its contract, i.e. the haulage of gold ore and set it out as the purpose for which it sought to purchase trucks. It was only when it was given the assurance that the trucks were fit for the purpose did it proceed to place the order for the trucks by securing the necessary finance for their purchase.
However, the Defendant did not perform its side of the contract because the trucks turned out to be unfit or unsuitable for the purpose for which they were acquired. They suffered several breakdowns due to defects which could not be remedied despite several complaints to the Defendant.
Consequently, Plaintiff has incurred significant financial loss of Gh¢1,877,289.75 as a direct result of the breakdown of the vehicles supplied under warranty. These breakdowns started occurring as early as February 2014, one month after delivery, compelling the Appellant to hire alternate trucks to fulfil its obligations under the haulage contract. The reasons for these breakdowns are the subject matter of this dispute between the parties. It also eventually lost the contract with its client Adamus Resources Ltd. due to poor performance.
At the trial court the Defendant denied Plaintiff’s claim and maintained that the trucks were fit for purpose and suitable for the work for which they were purchased. It denied that the trucks had any defects. Neither was it in breach of any Warranty. It contended that the Warranty had been cancelled because the Plaintiff failed to take proper maintenance of the trucks. It also averred that the Plaintiff had inspected the trucks with its own mechanic before acquiring them and found them to be satisfactory. Besides, the trucks never had any defects, and the breakdowns were because of the poor handling of the trucks by the Plaintiff. The Defendant maintained that the breakdowns which Plaintiff complained about were due to its own negligence in handling the trucks.
The Plaintiff in its Reply contended that had the trucks been fit for purpose they would not have broken down during the Warranty period. The reasons for these breakdowns are the subject matter of this dispute between the parties.
Following trial, the High Court upheld the claim of the Plaintiff. In doing so, the High Court held that the Appellant had led sufficient evidence to establish that the trucks sold by the Respondent to the Appellant were defective, and that such defects had led the Appellant to incur costs to fulfil its obligations under its contract with its client.
The trial High Court further held that the Respondent was in breach of the warranties around the trucks’ fitness for purpose, both express in the warranty given by the Respondent and implied by law, specifically those conditions implied by Section 13 of the Sale of Goods Act (Act 137). On page 8 of his judgment in this action, the learned High Court Judge (as he then was) states “I find that per the agreement entered between the parties both as fact and law and on the express and implied terms of the contract, defendant was liable for all the defects that were reported by the plaintiff at the mining site.”
In reaching this finding, the learned High Court Judge further held that the nature of the defects were such that the Plaintiff could not have been expected to discover these defects upon reasonable inspection of the trucks.
The Trial High Court noted that the Appellant did not seek, as part of its reliefs, the cost of the trucks purchased from the Respondent, but rather the loss of income due to the breakdown of the trucks and the costs involved in hiring replacement trucks while the Shackman trucks were broken down. The High Court thus gave an award for damages as sought and in addition interest.
Dissatisfied with the High Court’s Judgement, the Defendant, represented by counsel, lodged an appeal by filing a Notice of Appeal on 18th July, 2016 in the Court of Appeal. The grounds of appeal reproduced verbatim are;
1. The learned trial Judge misdirected himself and thus erred in law when he held that an implied warranty governed the transaction.
2. The learned trial judge misdirected himself and thus erred in law when he did not appreciate that the Plaintiff had the burden of proof of his claims irrespective and that he can only succeed on that and not the weakness of the Defendant’s case.
3. The learned trial Judge misdirected himself by misdirection when he accepted the uncorroborated evidence of the Plaintiff on the recoverable sum on invoices raised by the Plaintiff’s Company and thus erred in law.
4. The learned trial Judge misdirected himself and thus erred in law when after holding correctly that “latent defect” in law is the defect which cannot be found by ocular examination or inspection nevertheless went on to hold on an ocular examination of a picture of a dismantled part of the vehicle and concluded that there was a “latent defect” disclosed in the vehicles sold, on the uncorroborated evidence of the Plaintiff.
5. Other grounds would be filed on receipt of the record of appeal.
At this point in this judgment, it is worth noting that the Defendant did not list the omnibus ground of appeal among its grounds of appeal to the Court of Appeal.
In the written submission filed on the Defendant’s behalf arguing the appeal in the Court of Appeal, it failed to state the grounds of appeal, let alone to set them out under headings and argue them. Instead, the Defendant argued its appeal to the Court of Appeal in one unsegmented missive. However, in concluding its written submission before the Court below, the Respondent stated “the main ground unequivocally remains that the judgment at delivered [sic] by His Lordship the trial judge does not support the weight of the evidence adduced.” and proceeded to conclude as though the entire submission had been argued under the omnibus ground.
Counsel for the Defendant in its submission to the Court of Appeal, which was substantially the same as its submission to the High Court argued that while the Defendant was informed that the trucks were intended to haul gold ore under a haulage agreement, the Plaintiff had the opportunity to examine the trucks before purchase and was not enticed by the Respondent to buy the trucks.
The Defendant also contended that the Plaintiff “had the opportunity” to examine the trucks and found no faults with them and was asked to bring 10 drivers to be trained in the use of the trucks. The Defendant argued further that the Plaintiff was asked to hire a mechanic from the Defendant to engage in daily maintenance of the trucks but declined to. The Defendant then stated that the Plaintiff failed to service the trucks after the first two services. For these reasons, the Appellant contended that there were no actual defects in the trucks at the time the parties entered into the contract of sale, and that any perceived defects in the trucks were due to the negligence of the Plaintiff to maintain the trucks.
Counsel for the Defendant also contended that there was no implied warranty as to the quality or the fitness for purpose of the trucks sold as the Plaintiff had the opportunity to inspect the trucks at the inception of their sale. Counsel for the Defendant avers that they had other customers who purchased the same trucks without complaints of defects.
Counsel for the Plaintiff brought the failure of the Respondent to set out and argue the grounds of appeal in its written submission to the Court of Appeal to the attention of the Honourable Court of Appeal by way of a preliminary submission in its written submission. Counsel for the Plaintiff began his argument as follows, “The Written Submission of the Defendant is not in conformity with Order 20 Rule 1 of C.I. 19.”
Counsel for the Plaintiff proceeded to argue that the rules of Court, specifically, the rule referenced above, mandates that appellants shall file a written submission that is based on the grounds of appeal set out in the notice of appeal or any further grounds that the appellant may file. Counsel for the Plaintiff argued that in failing to even reference the grounds of appeal and then arguing a ground which was not set out in the notice of appeal or filed, the Defendant had breached the rules governing appeals. The Plaintiff nevertheless addressed the Court of Appeal on the substance of the appeal, arguing its case under the four grounds of appeal that the Defendant set out in its notice of appeal to the Court of Appeal.
The Court of Appeal held the view that the failure of the Respondent to comply with Order 20 Rule 1 of C.I. 19 of 1997 Court of Appeal Rules was not fatal as it did not amount to a “substantial non-compliance to give rise to a fundamental procedural defect in the manner and form in which the submission was set out” and did not prejudice the Appellant in any way save the extra diligence required to appreciate the sequence of arguments put up by the Respondent.
In response to the first ground of appeal, the Plaintiff’s argued before the Court of Appeal that the trial court Judge did not misdirect himself when he held that there was an implied warranty that governed the transaction because the transaction, which was for the sale of ten brand new trucks, was governed by Section 13 of the Sale of Goods Act 1962 (Act 137). The Plaintiff argued that this section provides that there is an implied warranty as to the quality or fitness for a particular purpose of goods supplied under a contract of sale, the implied warranty being that the goods are free from defects which are not declared or made known to the buyer at the time the contract is made, where the nature of such defects is such that the defects cannot be revealed by reasonable examination of the goods if such examination has been carried out by the buyer.
In response to the second ground of appeal to the Court of Appeal, the Plaintiff contended that the High Court did not misdirect itself when it came to who bore the burden of proof. The Plaintiff argued that the learned High Court Judge appreciated who bore the burden of proof when it came to establishing a claim in that case, the Plaintiff, and was careful to distinguish the burden of proof, from the burden of persuasion, when it came to establishing certain facts asserted by a party to set up its claim or defence (in that case, the party asserting those facts). Counsel for the Plaintiff contended that the learned High Court Judge properly made that distinction, and that the learned Judge properly reached the conclusion that the Plaintiff had led sufficient evidence to establish his case.
On the third ground of appeal, the Plaintiff ‘s argument to the Court of Appeal that the High Court made findings of fact based on evidence led before it and therefore it was wrong for the Defendant to contend that the trial Court Judge relied on uncorroborated evidence.
In arguing against the fourth ground of the Defendant’s appeal to the Court of Appeal, the Plaintiff contended that that Honourable Trial Court Judge never concluded based on an “ocular examination of a picture” of a dismantled part of the vehicle and thus, that ground of the appeal ought to fail.
Following the hearing of the appeal, the Court of Appeal, in its judgment, raised suo motu as a preliminary point that the Defendant had failed to provide sufficient particulars each time the Defendant alleged that the High Court Judge had erred in law or misdirection. Citing the cases of Zabrama vrs. Segbezi [1991] 2 GLR 221 and Dahabieh vrs. S.A. Turqui & Bros. [2001-2002] SCGLR 498, the Honourable Court of Appeal declared that such failure to set out the particulars of error or misdirection is fatal to the appeal in ordinary circumstances. However, the Court of Appeal proceeded to deal with the substance of the appeal “in order not to visit the inelegance of counsel on the party whose appeal may suffer a technical fatality … since the grounds disclose sufficient material to establish the error of law or misdirection alleged.”
The Court of Appeal then proceeded to deal with the preliminary point raised by the Plaintiff and held that while the Plaintiff had made a legitimate point, the failure of the Defendant to comply with Order 20 Rule 1 of C.I. 19 of 1997 Court of Appeal Rules was not fatal as it did not amount to a “substantial non-compliance to give rise to a fundamental procedural defect in the manner and form in which the submission was set out” and did not prejudice the Appellant in any way save the extra diligence required to appreciate the sequence of arguments put up by the Respondent.
The Court of Appeal proceeded to deal with the substance of the Appeal. The Court of Appeal upheld the appeal and found that the High Court misapplied the law to the facts of the case in finding that the Plaintiff had established its case based on the evidence before the Court.
GROUNDS OF APPEAL
Decidedly aggrieved with the findings of the Court of Appeal, the Plaintiff brings before this final appellate Court, the instant appeal for consideration. The instant appeal is anchored on the following grounds (as amended with leave.
i. The Judgment is against the weight of the evidence
ii. That the Learned Justices of the Court of Appeal erred when they admitted all the four grounds of appeal which were inadmissible as they violated rule 8(4) of the Court of Appeal Rules C.I. 19 (as amended)
iii. The Learned Justices of the Court of Appeal erred when they considered the grounds of Appeal of the Defendant/Appellant/ Respondent even though they violated the mandatory provision of Rule 8(4) of the Court of Appeal Rules 1997 (C.I. 19 as amended)
iv. The Learned Justices of the Court of Appeal erred when they ruled that the Defendant/Appellant/Respondent’s violation of Rule 20(6) of the Court of Appeal Rules C.I. 19 (as amended) had not occasioned any miscarriage of justice or prejudiced the case of the Plaintiff/Respondent/Appellant.
v. The Learned Justices of the Court of Appeal erred when they based their judgement solely on a ground not set out or argued by the Appellant without offering the Plaintiff/Respondent/Appellant an opportunity to contest the appeal on that ground.
ARGUMENTS OF THE PLAINTIFF
The Plaintiff seeking leave of this Court in its written submission abandoned the omnibus ground of appeal that is the judgment is against the weight of evidence. The Plaintiff contends that since the Defendant did not set out that ground as a ground of appeal before the Court of Appeal, the Court of Appeal was wrong to have decided the appeal on that ground without giving the Plaintiff the opportunity to make submissions to the Court of Appeal on that ground.
While that may be the case, that has nothing to do with whether the judgment of the Court of Appeal was against the weight of the evidence adduced at trial. This is a point well put by counsel for the Defendant in paragraph 79 of its Statement of Case where learned counsel puts it thus, “… Whiles [sic] we struggle to comprehend the basis for this abandonment, we cannot still hold the Appellant to the omnibus ground of Appeal, suffice [sic] to submit that, pleading the omnibus ground on a 2nd appeal to the Supreme Court is not contingent on whether the same was a ground at the 1st Appellate Court. The authorities on the subject are notorious, as it operates to protest against an improper evaluation of law and evidence in respect of a particular judgment, hence inviting the appellate court to carefully introspect the entirety of the Record of Appeal.” (emphasis supplied) and therefore this Court will refuse the invitation of the Plaintiff to abandon the first ground of appeal.
The Plaintiff combined and argued grounds 2 and 3 together and followed that with submissions on ground 4 and ground 5 of the instant appeal. On the second and third ground of appeal, the Plaintiff argued that the Court of Appeal erred when it considered and admitted the Defendant’s grounds of appeal filed in the notice of appeal before it, when the Defendant failed to particularize the alleged errors of law or misdirection leveled against the trial court.
Counsel for the Plaintiff contended that the Court of Appeal, once it recognized that the grounds were formulated in a manner that breached the provisions of rule 8(4) of C.I. 19, was constrained into declaring that those grounds of appeal were inadmissible.
The Plaintiff cites several cases in support of this assertion including the cases of Sandema-Nab v. Asangalisa [1996-1997] SCGLR 302, Zabrama v. Segbedzi [1991] 2 GLR, Dahabieh v. S.A. Turqui & Bros [2001-2002] SCGLR 498 and Ama Serwaa v. Gariba Hashimu & Anor. [2021] 172 GMJ wherein this Honourable Court has held that an appeal, being a creature of statute, ought to be prosecuted within the relevant procedural rules governing appeals. The Appellant contends that based on the foregoing, the offending grounds (being all the grounds of appeal to the Court of Appeal) ought to have been dismissed by the Court of Appeal.
Counsel for the Plaintiff cites the decision of his Lordship Justice Amadu Tanko JSC in the case of Empire Builders Ltd. v. Topkings Enterprises Ltd. & 4 Ors. Civ. Appeal No. J4/10/2019 wherein after noting that the grounds of appeal therein contravened the requirement of particularizing errors and misdirection, concluded about the grounds of appeal in that case in the following terms; “… the Appellant’s grounds (ii), (iii), (vii), (viii), (ix) and (xi) of appeal patently fail to meet the requirements of the law. Being non-compliant they are inadmissible and unarguable because they are incompetent. They are consequently hereby struck out.”
The Plaintiff concluded based on the foregoing that the Court of Appeal erred when it failed to strike out the offending grounds of appeal.
On the fourth ground of appeal, the Plaintiff avers that the Defendant, in arguing before the Court of Appeal, did not challenge the correctness of the judgment of the High Court, nor seek to demonstrate how the said High Court judgment was decided in error either on the facts, on the law or both.
The Appellant stated that this Court in the Empire Builders case (supra), held that appellants had the duty to “clearly, properly, and positively demonstrate to this Court in its statement of case, the lapses in the judgment appealed from which, when corrected, would result in a judgment in its favour”. The Plaintiff continued, in arguing this point, to quote this Court from the case of Sandema-Nab v. Asangalisa and Others [1996-97] SCGLR 302, wherein this Court restated the principle thus “Similarly where a right of appeal is conferred as of right or with leave or with special leave, the right is to be exercised within the four corners of that statute and the relevant procedural regulations, as a court will not have jurisdiction to grant deviations outside the parameters of that statute” and concluded on this ground that the Court of Appeal erred when it held that the Respondent’s violation of Rule 20(1) of C.I. 19 was not fatal solely because according to the learned Court of Appeal Justice, that breach occasioned no miscarriage of justice.
Finally, on the fifth ground of appeal, the Plaintiff submitted that the Defendant could not have purported to argue the omnibus ground of appeal when that ground was not set out as a ground of appeal in the notice of appeal filed by the Defendant to the Court of Appeal. Counsel for the Plaintiff also contended that the Court of Appeal based its judgment on the omnibus ground of appeal. The Plaintiff contends that not only was this wrong and not permitted by the rules, that the Court of Appeal, in considering this ground of appeal, erred because it did not give the Appellant the opportunity to argue based on that ground of appeal. The Appellant cites Rule 8(8) of the Court of Appeal Rules (C.I. 19) in support of this position.
I. ARGUMENTS OF THE DEFENDANT
The Defendant rehashed many of its arguments set out in the lower courts in its Statement of Case filed before this Court. On the second and third grounds of appeal (which were argued together due to these grounds being substantially the same), the Defendant contended that the grounds of appeal it canvassed before the Court of Appeal were not as egregious as those complained of in the Zabrama case (supra). Counsel for the Defendant submits that the grounds contained enough information for the Appellant to defend the judgment of the trial court.
Counsel for the Defendant also cited the case of Georgia Hotel Limited vs. Silver Star Auto Limited [2012] 2 SCGLR 1277 wherein this Honourable Court defined what a latent defect is and contended that unlike in that case, the defects identified by the Plaintiff were not manufacturing defects. The Defendant concluded that the Plaintiff failed at trial to prove that the defects were in existence at the time of purchase.
The Defendant also contended that the Appellant could have hired expert mechanics to fix the defects complained of and that would have been a better mitigation of costs than hiring replacement trucks to carry out its obligation under its haulage agreement with Adamus Resources.
The Defendant submitted that even if its grounds of appeal canvassed in its notice of appeal before the Court of Appeal were inelegant, they did not violate the rules of court and should not serve as the basis for a court not to consider its substantive arguments.
On the fourth ground of the instant appeal, the Defendant submitted that notwithstanding its noncompliance with the provisions of Rule 20 (6) of C.I. 19, the Court of Appeal was right not to dismiss its appeal and hear the Defendant out on the merits of its appeal. The Defendant further submitted that the non-compliance did not cause any undue surprise or miscarriage of justice on the Plaintiff and therefore should not be used to deliver a technical knockout to the Respondent’s plaints on appeal to the Court of Appeal.
On the fifth ground of appeal, the Defendant submits that the Court of Appeal did not base its entire judgment on the omnibus ground of appeal. Counsel for the Defendant submits that the Court of Appeal did in fact consider all issues brought out on appeal and dealt with them accordingly. Counsel for the Plaintiff then submits that this appeal ought to be dismissed.
LAW AND ANALYSIS
It is trite that an appeal shall be by way of rehearing. This principle is codified in the rules of court, specifically Rule 8(1) of C.I. 19 (Court of Appeal Rules), which states:
“Any appeal to the Court shall be by way of rehearing.”
This principle is substantiated by judgments of this Court, such as Gameli Vinetor & Ors. v. The Republic [2015] 90 GMJ 43. An appeal being by way of rehearing means that the appellate Court is mandated to review all the evidence adduced at trial and ascertain whether the decision rendered by the trial Court is adequately supported by that evidence.
Appellate courts should be hesitant to reverse a lower court’s decision. In the case of Nyame v. Tarzan Transport & Anor. [1973] GLR 8, the Apex court (at the time) held that:
“An appellate Court is loath to disturb a finding of fact by a trial judge who has had the advantage of observing the demeanour of the witnesses, their candour or their partisanship and all the incidental elements which make up the atmosphere of an actual trial.”
See also the case of Crentsil v. Crentsil [1962] 2 GLR 171
The circumstances under which an appellate court may justifiably interfere with the findings of the trial Court were set out in the case of Koglex Ltd v. Field (no 2) [2000] SCGLR 175, and include the following: –
a. Where the findings of the trial court are clearly unsupported by evidence on record or the reasons in support of the findings are unsatisfactory.
b. Where there has been improper application of a principle of evidence or where the trial court has failed to draw an irresistible conclusion from the evidence.
c. Where the findings are based on wrong propositions of law and, if that proposition is corrected, the finding disappears and
d. Where the finding is inconsistent with crucial documentary evidence on record.
This Honourable Court, in the case of Djin v Musah Baako [2007-2008] SCGLR 686 held as follows:
“Where an appellant complains that judgement is against the weight of evidence, then he is implying that there were certain pieces of evidence on the record which if applied in his favour could have changed the decision in his favour, or certain pieces of evidence have been wrongly applied against him. The onus is on such an appellant to clearly and properly demonstrate to the appellate court the lapses in the judgement being appealed against.”
This Court spoke through Aryeetey JSC in the case of Agyenim-Boateng Vrs. Ofori &Yeboah (2010) SCGLR 861 at page 867 and held that:
“…The appellate Court can only interfere with the findings of the trial Court where the trial court : (a) has taken into account matters which were irrelevant in law; (b) has excluded matters which were critically necessary for consideration; (c) has come to a conclusion which no court properly instructing itself would have reached ; and (d) the court’s findings were not proper inferences drawn from the facts…However, just as the trial court is competent to make inferences from its specific findings of fact and arrive at its conclusion, the appellate court is also entitled to draw inferences from findings of fact by the trial court and to come to its own conclusions”.
An Appellant therefore has an obligation to unambiguously demonstrate by resort to the evidence on record, and to set out the lapses complained about in the findings made by the trial court. These lapses could be wrongful inferences drawn from evidence on record; erroneous applications of principles of law to the facts and evidence on record; findings of the lower court inconsistent with evidence adduced at trial.
The Court must, therefore, ask whether the Appellant has satisfied the requirements established by the relevant authorities. Having carefully considered the evidence presented and the arguments advanced by counsel for both parties, the hard questions that remain to be asked are whether indeed the Plaintiff was able to prove satisfactorily that the trucks were defective and whether the Defendant was in breach of any warranty.
In as much as the Defendant failed to abide by the rules of court requiring him to prosecute his appeal in the Court of Appeal in the manner prescribed by law (for which the Plaintiff has taken him on here praying this court dismisses the appeal because the Defendant has offended the provisions of Rule 20(6) of C.I. 19, the Court of Appeal), we are of the view that the Court of Appeal was right in not dismissing the appeal and proceeding to hear the Defendant on the merits of its appeal. This is because the non-compliance did not cause any undue surprise or miscarriage of justice on the Plaintiff and should therefore not be used to deliver a technical knockout.
The Court of Appeal held the position that even with the inelegant formulation of the grounds of appeal it could still distill legal issues from them which deserved its attention in solving the dispute between the parties. Courts in general would want to get to the bottom of a matter and deal with the justice of it and as a result are quick to shy away from technicalities that do not sound an ultimate doomsday bell to the matter at hand and will rather deal with the merits of a case on the legal issues that bedevil it.
In any case this court has the jurisdiction to deal with an appeal on grounds that are not put forth at all by the Appellant how much more then should it not have the jurisdiction to deal with grounds that are put forth but not set down sequentially or elegantly as observed by the Court of Appeal in its judgment. This Judgment will therefore rest on its oars as far as the technical issues of law raised in both appeals are concerned and pay attention to the legal merits of the appeal.
This judgment proceeds to address the substance of the appeal. As an appeal is by way of rehearing, this Appellate court has the obligation to consider the entirety of the evidence, processes, and proceedings in this case in order to ascertain whether the decision rendered by the trial Court below was adequately supported by that evidence at the trial, or whether the intervention by the Court of Appeal was justified.
In coming to its conclusions, the Court of Appeal, after considering the arguments of the parties, recounted the law of evidence on the burden of proof and then stated thus “In the instant appeal, the Appellant [sic] had a duty to place before the Trial Court the contract of sale, as well as any after sales contract between it and the Appellant. From an examination of the record, I have not found any such contract nor any after sales contract.” (emphasis supplied). This notwithstanding there is no gain saying that though indeed they did not need have a physical written contract or agreement the parties find themselves where they are and while it is true that there needs to be a contract of sale for a dispute to be one that falls within the remit of the Sale of Goods Act, there is no requirement that such a contract ought to be a written agreement and from the facts, the parties entered a contract for the sale of the trucks which is not in dispute. Present in the agreement between the parties are all the elements of a valid contract of sale. There was an offer with terms of payment, the offer was accepted, consideration was exchanged between the parties, and both parties were compos mentis. None of this is in dispute. On the face of the facts and evidence it is clear enough that there existed a valid contract of sale between the parties.
A critical look at the evidence at trial and the Court of Appeal’s birdseye view of it as required by law puts the dispute between the parties down to whether the goods, that is the trucks, in this case were fit for purpose and whether the seller, the Defendant, is in breach of any Warranty Agreement.
It is the contention of the Plaintiff that having performed its side of the bargain with the payment of the purchase price for the ten brand new trucks the Defendant failed its obligation to supply it with trucks that were fit for purpose. The trucks were supplied in January 2014 under a one year Warranty or 30,000 km, whichever was earlier. The Defendant had assured it they were fit for the purpose after it had also informed it of the purposes for which the trucks were needed and for which they were acquired. It however turned out not to be so because as early as February 2014 all through to March 2014, barely a month onwards into the contract and after the purchase of the trucks, these brand-new trucks started breaking down necessitating the Plaintiff to hire alternative trucks to carry on with the contract. Two of the vehicles also had accidents due to break failures. This came at a cost. Eventually, Plaintiff could also not renew its contract with its client after the initial 6-month period due to poor performance of the trucks in issue. It is the Plaintiff’s case that the trucks had defects, that is why they were breaking down. Even though he complained and reported the issues with the trucks to the Defendant nothing was done about them.
The Defendant on the other hand denied that the trucks had any defects and neither was it in breach of any Warranty. It attributed the breakdowns of the trucks to the mishandling of the trucks by the Appellants agents. It maintained it was a result of the Plaintiff’s negligence in the maintenance of the trucks according to the terms of their use and wrong processes Plaintiff’s new set of drivers (who were not the original ones orientated to handle the vehicles) subjected the vehicles to. It particularized these grounds of negligence. The Defendant contends that the Plaintiff did not observe the Warranty provided. The Defendant prays this Appeal be dismissed and the Judgement of the Court of Appeal affirmed.
Exhibit ‘B’, the so-called Warranty Agreement, in the view of this Court forms a part of the contract of sale between the parties. Its existence is dependent on the contract of sale entered into between the parties. It does not stand on its own as a contract.
Also worth addressing is the assertion by the Court of Appeal at page 31 of its judgment which can be found on page 434 of the record that “What Exhibit ‘B’ sought to do was to introduce the requirement for periodic servicing of the trucks with the Appellant as a condition for the warranty. In my view, an after sales contract would have defined the scope and obligations of the Appellant. In its absence therefore, any finding of an implied warranty will be a speculative exercise.”
Contrary to this assertion, there is no requirement in law, in the Sale of Goods Act, or elsewhere, that this Court can find that there must be an after-sales contract for the conditions implied by law to apply in any contract for the sale of goods. The Sale of Goods Act, 1962 (Act 137) (and other specialized legislation as the case may be) govern the addition of implied terms into a contract for the sale of goods.
Section 13 of the Act which governed the crux of this dispute for most of the time it has been in the Courts is reproduced in full below for ease of reference;
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.
(iv) Where the goods are of a description which are supplied by the seller in the course of his business and the buyer expressly or by implication makes known the purpose for which the goods are required there is an implied condition that the goods are reasonably fit for that purpose.
(2) The condition implied by paragraph (a) of subsection (1) is not affected by any provision to the contrary in the agreement where the goods are of a description which are supplied by the seller in the ordinary course of his business and the condition implied by paragraph (b) of subsection (1) is not affected by any provision to the contrary in the agreement unless the seller proves that before the contract was made the provision was brought to the notice of the buyer and its effect made clear to him.
(3) An implied warranty or condition as to quality or fitness for a particular purpose may be annexed by the usage of trade.
(4) An express warranty or condition does not negative a warranty or condition implied by this Act unless inconsistent therewith.
(5) The provisions of this section apply to all goods delivered in purported pursuance of the contract and extend to all boxes, tins, bottles or other containers in which the goods are contained.
Most relevant to the instant case are the provisions of Act 137 at Section 13(1) (a) & (b) wherein the statute provides that there is an implied condition that a) goods that are sold are free from defects when sold, and b) that where goods are supplied under a contract of sale by sellers who supply the goods in the ordinary course of their business, if the buyer explicitly or by implication informs the seller of the purpose for purchasing the goods, then there is an implied condition in that contract of sale that the goods are fit for the purpose for purchase which the buyer has informed the seller of.
Thus Sections 13(1) (a) & (b) of Act 137 contain two different implied conditions of sale: 1) that the goods are free from defects that the seller does not inform the buyer of or that the buyer did not know of and 2) that where the buyer informs the seller of the purpose for the purchase, the goods are fit for that purpose.
There are of course statutory exceptions to these provisions under Sections 13 (1) (a) of Act 137. Section 13 (1) (a) (i), (ii) & (iii) provide that there is no implied condition that goods sold are free from defect if i) the buyer has examined the goods sold specifically in respect of the defect which should have been revealed by the examination, ii) the goods are sold by sample, the goods have been examined by the buyer and such an examination of a sample should have revealed the defects or iii) the goods are not goods sold in the ordinary course of business of the seller and the defects are of the nature that such a seller who ordinarily does not sell those goods, could not reasonably have been aware of those defects.
There is no debate here as to whether the seller, in this case, the Defendant sold these goods in the ordinary course of business.
The questions that therefore must be asked in order to conclusively deal with the merits of this case are; i) was there an implied warranty or condition that the trucks sold by the Defendant are free from defects that the Defendant did not inform the Plaintiff of, or that the Plaintiff was not aware of, ii) if the Plaintiff informed the Defendant of the purpose for the purchase of the Trucks, was there an implied warranty or condition that the trucks were fit for the purpose for which they were purchased?
In answering the first question, the trial court had to determine whether the goods were defective at the time of the sale, and if the Defendant informed the Plaintiff of these defects. The trial court, based on the evidence adduced before it, concluded that on the preponderance of the evidence the trucks were defective at the time they were sold to the Appellant. The High Court based this finding on a few things, including how soon the trucks developed faults after they were purchased and operationalized. The High Court, on page 4 & 5 of its judgment, stated thus, “Though the trucks started work on the 22nd of January, 2014, there seems to be reports of defects as early as February, 2014, less than a month after the start of the work by the trucks. … But going through the evidence, especially Exhibit ‘D’ series, ‘E’ Series, ‘F’ etc it shows that as at March, 2014, the Plaintiff was complaining of breakdown of the trucks with the hiring of alternative trucks. … I find as a fact that cogent evidence was lead [sic] going through the documents tendered by plaintiff as proof of the defects that plaintiff was experiencing.” (emphasis supplied)
The High Court thus found, based on the evidence, that there were defects in the trucks at the time they were purchased. The Court of Appeal on the other hand, stated that it was of the view that the Appellant had not led sufficient evidence to establish that the trucks had suffered defects. On page 53 of the judgement of the Court of Appeal the learned Judge stated, “Save for information on days for which the trucks allegedly could not work, the Respondent did not put before the Trial Court any technical report attesting to the functionality of the trucks. The allegation of brake system function ability, air generation systems, alternator and clutch malfunction etc., not attributable to a particular truck, but several or most of them was not proven.” in support of the view that the Plaintiff failed to lead sufficient evidence to establish that the trucks were defective.
Indeed, the Defendant sent a mechanic to the Plaintiff’s mining site, who confirmed that the trucks were facing issues, and had been rendered unusable as the Plaintiff had stated. The only dispute between the parties was whether those defects were latent and existed at the time of the contract of sale or whether they developed after the trucks were sold to the Plaintiff.
The trucks did break down from the evidence at trial same being the reason why this Appeal is underway. There is copious evidence on record from the trial court per all the Plaintiff’s exhibits as well as some exhibits tendered by the Defendant in reference to the breakdown of the trucks. However, the mother of all questions to ask is whether the breakdowns were necessarily because the trucks were defective? If it was the case that they were defective, then were they present at the time of sale? Were these defects latent as Plaintiff would want us believe?
This then means that the burden of prove lay on the Plaintiff to discharge this assertion positively. What evidence has the Plaintiff offered to discharge this burden? Its case was that various parts of the trucks from tyres, brakes, tipping bucket hydraulic systems, air conditioning systems, clutch through to several other parts of the trucks had broken down barely a short while within the warranty period after they had been purchased therefore, they must have been defective at the time of purchase. How has the Plaintiff shown that the defects were in existence? In other words, the defects were latent and could not have been discovered by the Plaintiff upon inspection at the time of purchase. Plaintiff blames the Defendant for its failure to meet her obligation under the terms of the Warranty. Plaintiff denied that the breakdowns were because of its own negligence in handling and maintaining the trucks properly.
A close examination of the evidence at trial and that of the court of Appeal does not throw up the slightest information or lead that the Plaintiff was able to show a nexus between its contention that the trucks suffered a myriad of breakdowns because they were defective. Plaintiff’s witness Mr. Augustine Kwabena Kessie, the Finanace Controller and Operations Manager told the trial court he received reports of breakdowns though they had a warranty agreement in place and the trucks were being serviced regularly. Yet he failed to give any evidence of what caused the breakdowns or what servicing was in place.
The Defendant has consistently maintained that the Plaintiff was negligent in the handling of the trucks. It contends also that the Plaintiff inspected the trucks with its own mechanic before purchase and did not find any defects therefore is not entitled to any protection of an implied warranty as found under s.13 (1) of the Sale of Goods Act 1962 (Act 137). For a purchaser to be covered under this section a purchaser or buyer should have established at the time of sale that the goods were defective. See the case of CONTINENTAL PLASTICS ENGINEERING CO LTD VRS. INDUSTRIES TECHNIC GMBH [2009] SCGLR 298. Again, Defendant contends the Plaintiff was not entitled to the warranty which had been cancelled on the basis that the Plaintiff had failed to undertake proper maintenance of the trucks.
This court finds from the evidence led at trial and from the finding of the Court of Appeal that the Plaintiff could not prove its allegations of latent defects. Latent Defects has been defined in a few cases such as in the case of GEORGIA HOTEL LTD V. SILVER STAR AUTO LTD [2012] 2 SCGLR 1277 as a manufacturing defect which must exist at the time of production and delivery of the product. This has to do with design failures and system failures. Nowhere in the record has the Plaintiff led concrete, verifiable evidence to show that at the time of sale or purchase the latent defects it alleges existed. We will agree with the Court of Appeal and hold that the Plaintiff failed to discharge this burden of prove. As stated by the Court of Appeal at page 451 of the Record “Besides the Respondent did not tender any report from any recognizable entity like the Ghana Standard Authority or any recognized vehicle inspection entity private or public to testify on the quality of the trucks or tyres.
Neither was any expert commissioned to examine or undertake testing of the vehicles complained of technicality certify its fitness for purpose.” Simply put there was no technical back up to the mere or bare allegations of latent defects. Proof of such defects must entail evidence which exposes which mechanical parts of the trucks were not functioning. What was the diagnostic revelation on them and whether they were by an expert on the type of trucks in issue.
On the issue of Warranty a look at Exhibit B titled WARRANTY AGREEMENT ON NEW VEHICLE(S) PURCHASED provided warranty terms of the vehicle for one year or 30,000km, whichever came first but with a caveat that this was subject to proof of services record being done at CAITEC. Air filters being checked and blown regularly to enhance vehicle performance. A list of guaranteed parts of the vehicle was also attached with different parts bearing different warranty terms. This was in respect of one vehicle GW-1627-14 with its chassis number. This therefore imposed an obligation on the Plaintiff to ensure good use and regular maintenance and not misuse or abuse the trucks if the warranty agreement should apply.
It is the case of the Defendant that after servicing the trucks with the Defendant for a couple of times, the Plaintiff was called upon to discharge its financial obligations towards that which it failed to do and discontinued the servicing. This meant that the Plaintiff by its own acts discharged itself from the terms of whatever warranty that may have existed between it and the Defendant. It is therefore obvious that the Defendant did not breach any Warranty as contended by the Plaintiff. The evidence is replete with instances where Plaintiff failed to abide by the cues given it by the Defendant for the best output of the trucks. For instance Plaintiff was advised to hire a mechanic preferably one versed in Shackman from Caitec vehicles to be on site to help in the daily maintenance of the trucks which they did not heed.
With regard to the recovery of Gh¢1,877,289.75 as total loss of income for the period February to July 2014 as a result of breakdown of the trucks this court comes to the conclusion that with the failure of the Plaintiff to link the alleged defects in the trucks to the Defendants breach of Warranty, negligence etc resulting in the breakdown of the trucks this court cannot award any damages to the Plaintiff.
CONCLUSION
Overall, from the evidence Defendant is not found to be in breach of an implied warranty as imposed by law in the Sales of Goods Act as discussed in this judgment. This honourable court finds that the Plaintiff inspected the trucks before the purchase therefore it cannot find solace under s.13 of Act 137 where there is no implied warranty when a buyer examines goods before purchase.
It was also no secret between the parties, the purpose for which the trucks were to be put. This is ascertainable from paragraph 5 of Plaintiff’s Witness Statement @ROA 158 and also at paragraph 11 of the Defendant’s witness statement. The Court of Appeal, however, found that the Plaintiff did not put before the trial court the quality and durability of a Shackman Truck, the absence of which would not support the charge of selling a product which could not perform the task for which it was acquired. The effect being that the Defendant could not have known the whole purpose for which the trucks were acquired as provided under s.13 (1) (b).
The trial court found that the complaints of the Plaintiff could not have been detected by ocular examination. The fact that the trucks were brand new meant that the Defendant could assume they were devoid of defects. It relied on the cases of GA SARPONG V. SILVER STAR LTD and the CONTINENTAL PLASTICS supra. In the latter case the Apex court held that s.13 (1) of Act 137 was beneficial to buyers who could establish that defects existed in goods at the time the contract was concluded. In that case the Court of Appeal found that the Appellant could not establish any defects at the time the contract was executed and therefore the section did not apply. The trial court was wrong in concluding that the trucks had defects because it failed to appreciate the position of the law that these alleged defects ought to have been established at the time of the execution of the contract. The Plaintiff has not shown that the trucks suffered some design imperfection or defects. In short, the Plaintiff did not mount any technical proof that the trucks fell below their required standard as per the standards of their manufacture.
See Section 13—Quality and Fitness of Goods. Support the charge of selling a product which
(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:
Following decided cases where an Appellate Court may reverse findings of a trial court based on a wrong proposition of the law or the rules of evidence or findings which are inconsistent with documentary evidence on record, (see OKINE (DECD) RE: DODOO V SOKINE [2003-2004] SCGLR 582, KOGLEX (NO.2) VS FIELD [2000] SCGLR 175) as well as having carefully considered the arguments of Counsel and the entire Record of Appeal, this Honourable Court concludes as follows:
We do not find the need to reverse any of the findings of the Court of Appeal. We have already put the grounds raised on technicalities to bed. We affirm the Judgment of the Court of Appeal after combing through the entire evidence and conclude that the Court of Appeal was right in setting aside the judgment of the trial court as the Plaintiff had not discharged the burden imposed upon it in alleging a breach of warranty due to alleged defects in the trucks it had purchased from the Defendant which occasioned it a loss.
(SGD.) J. BARTELS-KODWO
(JUSTICE OF THE SUPREME COURT)
(SGD.) G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
(SGD.) S. K. A. ASIEDU
(JUSTICE OF THE SUPREME COURT)
(SGD.) Y. DARKO ASARE
(JUSTICE OF THE SUPREME COURT)
(SGD.) S. DZAMEFE
(JUSTICE OF THE SUPREME COURT)
COUNSEL
JOSEPH OPOKU BOATENG ESQ. FOR THE PLAINTIFF/RESPONDENT/ APPELLANT.
OHENEBA ADUSI-POKU ESQ. FOR THE DEFENDANT/APPELLANT/ RESPONDENT.
