WIREN INTERNATIONAL GH LTD vs. MECHANICAL LLYOD CO. LTD [2018]DLHC3501

Date	2018-03-15
Suit No.	SUIT NO.CM/103/16
Citation No.	[2018]DLHC3501

HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE OF THE HIGH COURT

[2018]DLHC3501
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													<main id="main" class="content" style="min-height: 60rem" ><a name="OLE_LINK1">WIREN
INTERNATIONAL GH LTD<o:p></o:p></a>vs.<o:p></o:p>MECHANICAL LLYOD CO. LTD<o:p></o:p>&nbsp;[HIGH COURT
(COMMERCIAL DIVISION), 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.CM/103/16&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: 15TH MARCH, 2018<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;
padding:0in 0in 1.0pt 0in">

HIS LORDSHIP ERIC KYEI BAFFOUR 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;
padding:0in 0in 1.0pt 0in">

JUDGEMENT<o:p></o:p>

</div>Plaintiff
claims the following reliefs endorsed on its writ issued against the Defendant:<o:p></o:p><ol style="margin-top:0in" start="1" type="a">
 <li class="MsoNormal" style="text-align: justify; line-height: 115%;">Recovery of
 the sum of €74,793 being the value of a BMW 7 series vehicle damaged in
 the custody of the Defendant <o:p></o:p></li>
 <li class="MsoNormal" style="text-align: justify; line-height: 115%;">Interest on
 the said amount from 6th of November, 2014 to date of final
 payment<o:p></o:p></li>
 <li class="MsoNormal" style="text-align: justify; line-height: 115%;">General
 damages for negligence<o:p></o:p></li>
 <li class="MsoNormal" style="text-align: justify; line-height: 115%;">Damages for
 loss of use of the vehicle from 6th of November, 2014 until
 date of receipt of full value for the vehicle.<o:p></o:p></li>
 <li class="MsoNormal" style="text-align: justify; line-height: 115%;">Cost including
 lawyers’ fees (with liberty to apply)<o:p></o:p></li>
</ol>In the statement of claim Plaintiff states
that it has been a long standing customer of Defendant, who is the sole agent
and representative of BMW AG and Ford Motors in Ghana. Plaintiff avers that it
purchased a BMW 7 series saloon vehicle with registration No GR 437-10 for the
use of its Chief Executive Officer (CEO), George Wiredu. Plaintiff notes that
the said vehicle for some inexplicable reason suffered a battery fire which
caused the Plaintiff to tow the vehicle to the workshop of the Defendant.
Plaintiff claim to rely on the doctrine of res
ipsa loquitor for the exact cause of the battery fire as it subsequently
came to its attention that Defendant had recalled several vehicles worldwide to
rectify problems responsible for battery fires. To Plaintiff Defendant took several
months before it notified Plaintiff that it had repaired its vehicle whereupon
the Plaintiff notified the Defendant that it was no longer interested in taking
back the vehicle due to the security concerns it had about the vehicle when the
fire incident happened. <o:p></o:p><o:p>&nbsp;</o:p>To Plaintiff whiles discussions was
ongoing regarding the vehicle, Defendant’s shop was flooded seriously affecting
the vehicle but Defendant has failed to disclose to Plaintiff the full extent
of the damage caused to the vehicle and contend that Defendant had been
negligent. To Plaintiff overtures made towards an amicable settlement was met
with lukewarm reception by the Defendant compelling the chair of Plaintiff’s
CEO, Mr. Wiredu to fall on the vehicle of his wife resulting in inconveniences
to his family and occasioning great loss and damage to him. Plaintiff states
the particulars of the specific damage as loss of the BMW 7 series valued by
Assenta Properties to be €60,000.00 and also loss of use of that vehicle.
Plaintiff concludes that this has caused him severe anxiety and distress and
hence the reliefs it seeks before the court. <o:p></o:p><o:p>&nbsp;</o:p>Defendant has denied the essential
averments made by the Plaintiff. Defendant claim that the cause of the fire per
its investigations was a smoke from a faulty electronic connector to the
battery positive terminal unit and contend that with the exact cause of the
fire known the Plaintiff cannot claim to rely on the doctrine of res ipsa loquitor. Defendant claim that
the vehicles recalled worldwide did not include the vehicle of Plaintiff. And
any delays occasioned in the repair of Plaintiff’s vehicle was due to the
frequent interference during the period of the repairs by Plaintiff. <o:p></o:p><o:p>&nbsp;</o:p>It is the further claim of Defendant that
as Plaintiff failed to collect the vehicle after repairs it was mildly affected
by the floods of June 3rd, 2015 and the flood was as a result of
unprecedented rains which incident on that day was purely an Act of God as its occurrence
could not have been anticipated by any human foresight or prudence. And that
its premises had always been a secured place for its vehicles except the first
time it experienced that nature of the flood. Defendant notes that any
attempted settlement was totally without prejudice and the failure to reach a
settlement was due entirely to plaintiff’s unreasonable demands. But was still
opened to settlement of the suit.<o:p></o:p><o:p>&nbsp;</o:p>With the closure of pleadings and the
parties referred for pretrial conference and same unable to amicably resolve
the dispute the following issues were set down for determination:<o:p></o:p><ol style="margin-top:0in" start="1" type="1">
 <li class="MsoNormal" style="text-align: justify; line-height: 115%;">Whether or not
 the vehicle was damaged as a result of the Defendant’s negligence.<o:p></o:p></li>
 <li class="MsoNormal" style="text-align: justify; line-h</main>