BARTHOLOMIEW & CO. LTD. vs. ADU-GYAMFI [1962]DLSC1394

Date	1962-07-20
Suit No.
Citation No.	[1962]DLSC1394

KORSAH JSC

C.J. JSC

SARKODEE-ADOO JSC

ADUMUA-BOSSMAN J.S.C.

E. AKUFO-ADDO FOR THE APPELLANT.

E.N. P. SOWAH FOR THE RESPONDENTS.

[1962]DLSC1394
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">BARTHOLOMIEW &amp; CO. LTD.<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">&nbsp;vs. <o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">ADU-GYAMFI <o:p></o:p>[SUPREME COURT]<o:p></o:p>[1962] 2 GLR 62<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:31.0pt 31.0pt 1.0pt 31.0pt;mso-border-shadow:yes">

DATE:<span style="font-size:10.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0"> 20TH JULY, 1962.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

E.
AKUFO-ADDO FOR THE APPELLANT.<o:p></o:p>

E.N.
P. SOWAH FOR THE RESPONDENTS.<o:p></o:p>

</div>CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

KORSAH, C.J., SARKODEE-ADOO
AND ADUMUA-BOSSMAN, JJ.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF KORSAH
C.J.<o:p></o:p>This is an appeal from the judgment of Simpson, J. in two
consolidated actions instituted by the plaintiffs against the defendant for the
total sum of £G1,710 12s. 8d. of which £G784 is for arrears of instalments due
under and by virtue of three hire-purchase agreements with respect to three
Thames Trade tipper lorries supplied by the plaintiffs to the defendant, and
£G926 12s. 8d. is for cost of work and labour done, and materials and fuel
supplied to the defendant at his request.<o:p></o:p><o:p>&nbsp;</o:p>The defendant denied liability to pay the sum claimed or any part
thereof, and contended that he was induced by a misrepresentation made by the
plaintiffs’ agent to enter into the said hire-purchase agreement; that the said
repairs for which the sum of £G926 12s. 8d. is claimed, became necessary by
reason of structural defects in the mechanism of the said lorries; that despite
repeated repairs, the plaintiffs could neither correct nor remove the defects;
that he, the defendant, therefore returned the said lorries, “and made it clear
that he was avoiding the contract ab initio for misrepresentation and total
failure of consideration.” The defendant further counterclaimed £G6,832 7s. 2d.
whereof £G4,084 17s. is the total rents paid, £G277 10s. 2d. money paid by the
defendant to the plaintiffs for repairs, and £G2,470 represents loss of profits
which the defendant alleges he would have made had the lorries been suitable
for the purpose for which he had agreed to accept them.<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>The two main grounds on which the defendant relies to rescind the
contracts of hire-purchase ab initio, and to support the counter-claim for the
return of all rents paid under the hire-purchase agreement, as well as damages
for loss of profits are, (1) alleged misrepresentation by the plaintiffs’ manager,
Mr. Clover, and (2) alleged unsuitability of the vehicles for the purpose for
which they were accepted by the defendant. On both questions the learned trial
judge has made definite findings of law and of fact which I now quote for easy
reference:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“Much as one may be inclined to sympathise with the defendant, it
cannot be said on these facts that he was induced to enter into any of these
contracts by misrepresentation by the plaintiffs. Even if he had been so
induced, the vehicles having covered at least 87,000 miles, could not be said
to be unfit for the purpose for which they were intended. He was not therefore
entitled to rescind the contracts and must be taken to have terminated them
under clause 9 of the hire-purchase agreements.”<o:p></o:p>Clause 9 reads:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“The hirer shall be at liberty at any time during the continuance
of this agreement to return the said motor vehicle to the owners. Upon the same
being duly received by the owners the hiring shall be deemed to be terminated
and the owners shall be entitled to recover from the hirer (1) any and all
arrears of rent and of monthly payments then accrued due (2) any and all sums
then accrued due to the owners hereunder and in respect of the said motor
vehicle for cost of repairs and/or accessories and/or parts, etc. and (3) the
cost of putting the said motor vehicle in good repair and condition.”<o:p></o:p><o:p>&nbsp;</o:p>The learned judge further held that the defendant, not having
alleged or proved fraudulent misrepresentation, was not entitled to rescind the
contracts and/or claim damages unless he could show that any innocent
misrepresentation made, if any, amounted to a breach of warran</main>