AGATHA ADJABENG DAWKINGS vs. WINSTEP COMPANY LIMITED [2010]DLCA6223

Date	2010-07-29
Suit No.	H1/53/2010
Citation No.	[2010]DLCA6223

J. B. AKAMBA J.A [PRESIDING]

ISAAC DUOSE JA

IRIS MAY BROWN JA

MR. OSEI OWUSU AFRIYIE FOR DEFENDANT/APPELLANT

MR. MOHAMED ATTA FOR PLAINTIFF/RESPONDENT

[2010]DLCA6223
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													<main id="main" class="content" style="min-height: 60rem" >AGATHA
ADJABENG DAWKINGS<o:p></o:p>&nbsp;(PLAINTIFF/ RESPONDENT)<o:p></o:p>vs.<o:p></o:p>WINSTEP
COMPANY LIMITED <o:p></o:p>(DEFENDANT/
APPELLANT)<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height:
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[PRESIDING], ISAAC DUOSE JA, IRIS MAY BROWN JA<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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</div>DUOSE,
JA <o:p></o:p>This
is an appeal against the judgment of the High Court (Commercial Division) Accra
delivered on 23rd January 2009. Aggrieved by the judgment, the
Defendant/Appellant filed the following grounds of appeal:— <o:p></o:p>a)
The learned trial judge erred when she ordered that the Plaintiff/Respondent
recover the whole purchase price of the Tiama Pick Up, subject matter of the
suit from the Defendant/Appellant in spite of the clear evidence on record that
the vehicle is in good condition. <o:p></o:p>b)
The trial judge erred when she held that the warranty on the Tiama Pick Up, the
subject matter of the suit was one (1) year without any corresponding mileage
or proviso. <o:p></o:p>c)
The trial judge is wrong in holding that the Tiama Pick Up, the subject matter
of the suit suffered a serious engine defect during the warranty period. <o:p></o:p>d)
The learned trial judge is wrong when she held that it was the Defendant who
referred the Tiama Pick Up to Sneda, the workshop which the Plaintiff sent the
vehicle for repairs. <o:p></o:p>e)
The judgment is against the weight of evidence led before the Honourable Court.
<o:p></o:p>f)
The trial judge was wrong in awarding interest on the purchase price of the
vehicle which she ordered the Defendant to refund to the Plaintiff. <o:p></o:p>g)
That further grounds if any would be filed upon receipt of the record of
proceedings. No additional grounds have been filed to date. <o:p></o:p>The
following relief was sought "that the whole judgment of the court dated
the 23rd January 2009 be reversed". <o:p></o:p>After
reviewing KPEGLO V SCOA MOTORS (1962) 2
GLR 82, a judgment of the Supreme Court which appears to be on all fours
with the facts of this suit except for the following I drew a conclusion which
I shall quote presently. The difference between the Kpeglo case and this
instant case is that, the major conflict in the Kpeglo case is a
misrepresentation that the vehicle was brand new. In this instant case the
evidence discloses a manufacturer's defect. The end result is that both
vehicles were eventually not fit for the purpose for which they were bought.
Whereas the vendor in the Kpeglo case was dishonest, the vendor herein is not
dishonest. Both vehicles had been used by the purchasers for one year on one
hand and eleven months respectively in the other before the commencement of
legal hostilities. <o:p></o:p>The
conclusion drawn by the learned counsel for the Defendant/Appellants is that
its major grievance and is significant for the purpose of resolving this
appeal. It reads "the foregoing establishes that the learned trial judge
erred accordingly, it is respectfully submitted that the appeal be allowed. The
judgment of the trial court and the orders therein contained dated 23rd January
2009 should be overruled and judgment entered for Defendant/Appellant together
with cost. Or in the alternative, judgment be affirmed in part upon restitution
in integrum thereby two-thirds (or Gh¢11,266) of the payments for the vehicle
be applied to offset Plaintiff/Respondent’s use of the vehicle and the orders
as to interest and costs be overturned" (emphasis mine) <o:p></o:p>