PYNE AND ASSOCIATES (GH) LTD. vs. AFRICA MOTORS DIVISION OF TRACTOR& EQUIPMENT (GH) LTD ACCRA [2011]DLCA5706

PYNE AND ASSOCIATES (GH) LTD. vs. AFRICA MOTORS DIVISION OF TRACTOR& EQUIPMENT... [2011]DLCA5706

Date	2011-11-24
Suit No.	SUIT NO.H1/54/2011
Citation No.	[2011]DLCA5706

A.ASARE-KORANG JA –PRESIDING

F.KUSI-APPIAH JA

DENNIS D. ADJEI JA

MR. MARTIN KPEBU FOR DEFENDANT/APPELLANT

MR. EGBER FAIBILLE (JNR.) FOR PLAINTIFF/RESPONDENT

[2011]DLCA5706
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													<main id="main" class="content" style="min-height: 60rem" >PYNE AND ASSOCIATES (GH)
LTD.<o:p></o:p>[PLAINTIFF/RESPONDENT]<o:p></o:p>vs.<o:p></o:p>AFRICA MOTORS DIVISION
OF TRACTOR&amp; EQUIPMENT (GH) LTD ACCRA<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;
padding:0in 0in 1.0pt 0in">

SUIT NO.H1/54/2011&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 24TH NOVEMBER, 2011<o:p></o:p>

MR.
EGBER FAIBILLE (JNR.) FOR PLAINTIFF/RESPONDENT<o:p></o:p>

</div>DENNIS ADJEI, J.A.<o:p></o:p>This
appeal is against the judgment of the High Court (Commercial Division) Accra which
was delivered on 12 th December, 2008. The brief facts of the case are that
Defendant/Appellant herein (who shall be referred to in the instant appeal as
the Defendant) sold Suzuki Vitara XL Nos. GE 2864V to the Plaintiff/Respondent
(who shall be referred to as the Plaintiff) for US$ 32,000.00. It was a brand
new Suzuki Vitara. The Plaintiff bought the Suzuki from the Defendant through
the Plaintiff’s bankers, prudential Bank.<o:p></o:p>The
vehicle was delivered to the Plaintiff by the Defendant on 22nd November, 2004.
On 11th October, 2005, the Plaintiff wrote to the Defendant to complain about
the defects it had noticed in the vehicle. The Plaintiff was of the opinion
that it was unusual for a new vehicle to have the said faults during its first
year of manufacture and was therefore returning it to the Defendant for
replacement. The Plaintiff sent the vehicle to the Defendant’s garage and when
the Plaintiff refused to go for it, the Defendant’s lawyers wrote to the Plaintiff
that it is neither their policy to replace the vehicle nor buy it under such
circumstances.<o:p></o:p>The
Defendant gave the Plaintiff up to the month to come for the vehicle from its
yard else it cannot be held responsible for its safety or any damage to it. The
Plaintiff therefore instituted this action at the High Court (Commercial
Division), Accra per its amended writ of summons claiming against the defendant
for:<o:p></o:p>“a. Specific damages from loss of profit
for inability to use vehicle and continuing loss since October, 2005.<o:p></o:p>b. The difference between the sale
value and in the defective condition or in the alternative <o:p></o:p>i. $32,000.00<o:p></o:p>ii. Interest on such sum
from November, 2004 till date of final payment OR<o:p></o:p>iii. Replacement with a
brand new vehicle of similar make”.<o:p></o:p>At
the pre-trial conference, the pre-trial Judge set down the following issues for
trial:<o:p></o:p>1.
Whether or not Plaintiff is entitled to loss of profit from inability to use
vehicle and continuing loss since October, 2005.<o:p></o:p>2.
Whether or not Plaintiff is entitled to refund of $32,000.00 with interest from
November, 2004 till date of payment.<o:p></o:p>OR IN THE ALTERNATIVE<o:p></o:p>3.
Replacement of a brand new vehicle of similar make.<o:p></o:p>At
the end of the trial, the trial High Court Judge found that the Defendant kept
repairing the faults on the vehicle unsuccessfully as the vehicle went in and
out of the Plaintiff’s workshop for several periods. The trial High Court Judge
further found that the Plaintiff sent the vehicle to the Plaintiff’s showroom
in October, 2005 and it was in evidence that the Plaintiff rejected the vehicle
at that time and the Defendant should have taken steps to mitigate its loss by
disposing of the vehicle and refunding the Plaintiff’s money to it. The trial
High Court Judge grounded her judgment on the above findings and held that the
Defendant should refund the cost of the vehicle, that is, USD32, 000.00 or its
cedis equivalent less 15% depreciation. The Defendant was to pay interest on
the above sum with effect from October, 2005 to the date of final payment.<o:p></o:p>The
Defendant being dissatisfied with the judgment filed an appeal against it on 15th
December, 2008. The two grounds of appeal set forth by the Defendant are:<o:p></o:p>1.
That the learned trial Judge, erred in law in deciding the Plaintiff legally
rejected the vehicle the subject of dispute, and was entitled to a refund of
US$32,000.00 less fifteen (15%) depreciation.<o:p></o:p>