THE BOARD OF GOVERNORS vs. P H C MOTORS LIMITED [2013]DLHC3898

Date	2013-04-12
Suit No.	SUIT NO.RPC/106/12
Citation No.	[2013]DLHC3898

ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT

MR. ASANTE KROBEA FOR THE PLAINTIFF.

MR. KUDJAWU FOR THE DEFENDANT.

[2013]DLHC3898
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													<main id="main" class="content" style="min-height: 60rem" >THE BOARD OF GOVERNORS<o:p></o:p>vs.<o:p></o:p>P H C MOTORS LIMITED<o:p></o:p>&nbsp;[HIGH COURT (COMMERCIAL
DIVISION), KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT NO.RPC/106/12&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 12TH APRIL, 2013<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>MR. ASANTE KROBEA FOR THE
PLAINTIFF.<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">

ANGELINA
MENSAH-HOMIAH (MRS.) JUSTICE
OF THE HIGH COURT<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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</div>The Plaintiffs brought an action
against the Defendants claiming a refund of an amount of GH¢ 68,510.00 together
with interest or in the alternative an order for the replacement of Tata LP
709E 33-seater bus paid for by the Plaintiffs.<o:p></o:p><o:p>&nbsp;</o:p>Having entered appearance through
their lawyers, the Defendants failed to file a defence within the period fixed
by Order 11 rule 2(1) of C.I. 47. Consequently, the Plaintiffs gave notice to
the Defendants and obtained an interlocutory judgment in default of defence
under Order 13 of C.I. 47. Thereafter, there were attempts at settlement which
could not materialize. The Plaintiff again caused a hearing notice to be served
on the Defendant. Thus, on 18th March, 2013, notice was duly served
on the Defendants through their Branch Manager at Kumasi for the consequential
matters to be gone into on 23/03/2013.&nbsp;
The Defendants failed to come to court on that day. Their lawyer was
also absent.<o:p></o:p><o:p>&nbsp;</o:p>The Chairman of the Plaintiffs Board
of Directors gave evidence on their behalf to establish the following facts:
The parties negotiated for the sale of a 33-seater Tata Bus from the Defendants
on or about 17/10/2011 and agreed on the price of USD 44, 200 with the option
to pay in the local currency in two instalments. An invoice issued by the
Defendants on 17/10/2011 in support of this was tendered as exhibit A. The
Plaintiffs opted to pay in Cedis. Thus, at the exchange rate of GH¢1.55 to 1
USD, an amount of GH¢68, 510.00 was paid to the Defendants on 25/07/2011 and
06/12/2011 respectively. The vehicle was not delivered until December,
2011.&nbsp; Upon delivery, the Plaintiffs
realized that the bus was not up to their specification. Instead of a 33-seater
brand new Tata bus, a 30-seater used Tata bus was delivered. According to him,
the original colour of the bus on the Form C was blue and white but what was
delivered to them was yellow and white. The spare tyre was a used one and there
was no owner’s manual. These were brought to the notice of the Defendants
(exhibit B) and the Plaintiffs rejected the bus. After a series of meetings and
exchange of correspondence, the Defendants gave two options to the Plaintiffs:
i) replacement of the bus and ii) a refund of their money. These are contained
in exhibit C. The Plaintiffs never touched the bus and the same has since been
driven to the Defendants’ by their own driver.<o:p></o:p><o:p>&nbsp;</o:p>From the evidence adduced on behalf
of the Plaintiffs, particularly exhibits B and C, I find that the Defendants
reneged on their commitment to deliver a brand new 33-Seater Tata bus to the
Plaintiffs. By so doing, the Defendants were in breach of their obligations
under section 11 of the Sale of Goods Act, 1962, Act 137 which reads:<o:p></o:p>“In a contract for the sale of goods
by description, whether or not the sale is by sample as well as by description,
there is an implied condition that the goods shall correspond exactly with the
description.”<o:p></o:p>Under such circumstances, the buyer is
also protected by the law. By section 49 of Act 137, the buyer is entitled to
reject the goods and refuse to pay, or to recover the price where:<o:p></o:p>(a)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
the
seller is guilty of a breach of a fundamental obligation; or<o:p></o:p>(b)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
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 the goods or part only of
the goods.<o:p></o:p>In the instance action, the breach
complained of is a fundamenta</main>