JF-K COMPANY LTD vs. VOLVO TRUCK COMPANY MULTI-TECH (GH) LTD [2016]DLCA8562

Date	2016-11-17
Suit No.	CIVIL APPEAL NO. H1/13/2016
Citation No.	[2016]DLCA8562

P. K. GYAESAYOR J.A. (PRESIDING)

F.G. KORBIEH J.A

S. DZAMEFE J.A.

FOSU GYEABOUR FOR THE PLAINTIFF/APPELLANT

IRIS A. ORLEANS FOR THE RESPONDENT

[2016]DLCA8562
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													<main id="main" class="content" style="min-height: 60rem" >JF-K COMPANY LTD<o:p></o:p>(PLAINTIFF/APPELLANT/RESPONDENT)<span lang="EN-US" style="font-size:10.0pt;
line-height:115%;font-family:&quot;Book Antiqua&quot;,serif;mso-fareast-font-family:&quot;Times New Roman&quot;;
mso-bidi-font-family:&quot;Times New Roman&quot;;color:#00B0F0"><o:p></o:p><span lang="EN-GB" style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,serif;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0;mso-ansi-language:EN-GB">vs.<o:p></o:p>VOLVO TRUCK COMPANY<o:p></o:p>(1ST DEFENDANT/RESPONDENT/CROSS
APPELLANT)<o:p></o:p>MULTI-TECH (GH) LTD<o:p></o:p>(2ND DEFENDANT/RESPONDENT)<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:0cm 0cm 1.0pt 0cm">

CIVIL APPEAL NO. H1/13/2016&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; &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: 17TH NOV, 2016<o:p></o:p>

</div>COUNSEL:<o:p></o:p>FOSU GYEABOUR FOR THE PLAINTIFF/APPELLANT <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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IRIS A. ORLEANS FOR THE
RESPONDENT <o:p></o:p>

</div>CORAM:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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P. K. GYAESAYOR J.A.
(PRESIDING), F.G. KORBIEH J.A, S. DZAMEFE J.A.<o:p></o:p>

</div>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <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" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">JUDGMENT<o:p></o:p>

</div>F.G.
KORBIEH, J.A.<o:p></o:p>Let me state right from the beginning that there
are two appeals in this case both of which were filed under Order 8 of the
Court of Appeal Rules, 1997 (C.I. 19). I will explain in more detail in due course.
The genesis of the case leading up to the two appeals we are dealing with
comprise of the following summary of facts. The plaintiff was at all material
times a company incorporated under laws of Ghana. By its amended writ of
summons filed on the 14th July, 2014, the plaintiff claimed against
the two defendants jointly and severally special damages of (i) US$1,675,156.03
or its cedi equivalent and (ii) “GH¢5,000,000.00 plus 32% interest from March,
2013 till final date of payment being judgment debt from the reduction and
cessation of operation of the tracks (sic) and trailers at the instance of the
defendants” and general damages of ten million US dollars or its cedi
equivalent. The plaintiff’s case was that it ordered 15 Volvo brand tipper
trucks from the 1st defendant through the 2nd defendant
to enable it “haul manganese and limestone”; but that when the trucks were put
to use they were found to be defective hence the plaintiff was ordered by the
defendants to cease operations in order for the defects to be rectified. In the
meantime the parties (and the builder of the trailer parts of the trucks,
Katmerciler from Turkey) had met and drawn up an action plan to enable the
defendants rectify the defects on the vehicles so that the plaintiff could re-commence
operations. Due to the delay in the implementation of the action plan by the
defendants the plaintiff had “incurred huge losses and other (sic) and suffered
other hardship and injuries such as operations, loss of contracts etc.” The
plaintiff had therefore engaged the services of a valuer who had assessed the
actual loss of income incurred by the plaintiff as a result of the defects on
the trucks leading to the cessation of operations. The 1st defendant
denied that it was liable to the plaintiff for its losses. It however admitted
that it sold fifteen Volvo trucks to the plaintiff but stated that the trucks
were covered by its International Warranty Terms and Conditions which “are
applied for the 1st defendant’s sale of trucks globally.” The 1st
defendant pleaded further that the International Warranty Terms and Conditions
did not cover equipment/parts, superstructure or other installation work not assembled/installed
by it and that this was expressly noted in the pro forma invoice evidencing the
deal between the plaintiff and the 1st defendant. The 1st
defendant had also conceded that there had been a meeting in Accra during which
an action plan had been drawn up but averred that it had no contractual
obligation to attend that meeting and that it attended the meeting only because
it wanted to assist. It had also averred that the cause of the delay in implementing
the action plan was beyond the control of the 1st defendant itself
and its sub-supplier, the body-builder, Katmerciler. The 2nd
defendant also denied that it was liable to the plaintiff for the claim. It
denied that the fifteen trucks were imported from the 1st defendant
through it and denied further that it was the 1st defendant’s agent
for purposes of the importation of the trucks into Ghana. It denied that it
ever ordered the plaintiff to cease operating the vehicles, alleging that it
only acted as the mouthpiece of the 1st defendant in sending
messages across to the plaintiff. The 2nd defendant also averred
that it had attended the meeting in Accra at which the action plan was drawn up
but averred that it had done so only as an after sales service provider of the
1st defendant’s brand of vehicles. <o:p></o:p>At the close of pleadings five substantive issues
were set down for trial. At the trial, the plaintiff testified through its
Chief Executive Officer, Jeffrey Koranteng and one other witness. The witnesses
for the defendants were simply listed as DW1 and DW2. It is therefore not clear
whether they represented the two defendants respectively or were merely
witnesses for the defence. Be that as it may. I shall proceed on the assumption
that they represented the two defendants respectively since a party must be
given a hearing before judgment is pro</main>