RAPHAEL RHULE (PLAINTIFF) vs. MOSES MENSAH (DEFENDANT) [2019]DLHC7048

Date	2019-06-20
Suit No.	SUIT NO. E2/1/18
Citation No.	[2019]DLHC7048

HIS LORDSHIP JUSTICE RICHARD ADJEI – FRIMPONG J.

EMMANUEL ARTHUR ESQ. FOR THE PLAINTIFF.

NANA KONDUAH ESQ. FOR DEFENDANT

[2019]DLHC7048
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													<main id="main" class="content" style="min-height: 60rem" >RAPHAEL RHULE<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>MOSES MENSAH<o:p></o:p>(DEFENDANT)<o:p></o:p>[HIGH
COURT, SEKONDI]<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. E2/1/18&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:
20TH JUNE, 2019<o:p></o:p>

</div>COUNSEL:<o:p></o:p>EMMANUEL
ARTHUR ESQ. FOR THE PLAINTIFF.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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NANA KONDUAH ESQ. FOR DEFENDANT.<o:p></o:p>

</div>CORAM:<o:p></o:p>HIS
LORDSHIP JUSTICE RICHARD ADJEI – FRIMPONG J.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
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solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>The quest of this trial is somewhat
straightforward. It remains the fundamental obligation of a buyer in a contract
of sale to pay the price and accept delivery of the goods. This is in terms of
section 21 of the Sale of Goods Act 1962, Act 137. Against the defendant, the
plaintiff is before this court to enforce the obligation to pay the price of
goods delivered to him. In brief, the plaintiff pleads his case as follows.<o:p></o:p>Sometime in late 2015 he imported
assorted used items from Belgium and Holland into the country. The defendant
expressed interest in buying some of the items for sale. In the process several
items including used TV sets of various sizes were supplied to him. The
defendant made a paltry part-payment leaving an outstanding amount of GHc
67,440.00 to be paid. On demanding payment, the defendant informed him he had
challenges with some of the items supplied.&nbsp;
Being someone he knew, pleads the plaintiff, he requested that stock be
taken to know the items sold and those left unsold, returned with the proceeds
of what had been sold to the plaintiff. The stock was taken some time in 2016
but the defendant failed to return the unsold items and the proceeds of the
sold ones as directed. The plaintiff through his lawyers wrote to demand
payment of the outstanding sum of GHc67, 440.00. When payment was not made, the
instant writ was filed to recover the said amount with interest.<o:p></o:p>To state it bluntly, the story line of
the defence did not sound entirely coherent as it went shifting point to point.
The averment in defence was that the plaintiff rather gave the goods to him to
sell and pay the proceeds to him and not that he purchased the items himself from
the plaintiff to sell. Of course that could scarcely be the case. The defendant
himself trades in those goods and there is absolutely no reason why he would
accept the supply of the goods and sell for the plaintiff for nothing in
return.<o:p></o:p>As if to now accept that he actually
bought the goods from the plaintiff, the defendant pleads that he was unable to
pay for them because some of the goods were defective and buyers from him were
demanding that same be replaced before they paid for them. He proceeds from
there to say that part of the items worth GHc 16,000.00 were returned to the
plaintiff and the latter sold them himself. He attempted returning the remaining
stock worth GHc 43,700.00 but the plaintiff refused to accept them. He still
had them in stock. Then, before trial would begin on the couple of issues
joined on the pleadings, the defendant admitted liability to the tune of GHc
18,790.00. This court on that basis decreed judgment for the plaintiff for the
said sum in order to take evidence to determine the difference. The issue of
interest and costs on the sum adjudged was deferred till the end of trial.<o:p></o:p>From the above little is left to
determine in this case. <o:p></o:p>No doubt remains about the fact that
the defendant purchased the goods on credit from the plaintiff in order to sell
and pay back. The defendant sought to change the story perhaps because he had
difficulty paying back. Evidence was adduced to show that the total cost of the
items sold was GHc88,490.00. The defendant made some payment to reduce the cost
to GHc67,440.00 the sum endorsed on the plaintiff’s writ of summons. Both sides
agreed on this position at the stock-taking as evidenced by Exhibit B and C. The
plaintiff by this, discharges the initial burden of proof of the supply of the
items and the defendant’s liability to pay for them thus shifting the burden
onto the defendant to rebut the claim.<o:p></o:p>The only material defence to
consider is the claim that some of items were faulty and those who bought them
refused to pay unless they were replaced. Strangely, the defendant does not
call any of the supposed buyers who failed to pay for them by reason of the
defect to come and testify. The nature of the supposed defects is not
described. Whether the defects patent or latent, this court is not told.<o:p></o:p>Be that as it may, the general rule
in Ghana is that a seller of goods whether new or second hand is liable for all
defects in them. That is an implied condition of contracts of sale and section
13 of the Sale of Goods Act gives that prescription. It has been held that the
implied condition as to fitness for purpose implied by the section applies to
second-hand goods. See ANDREAS BSCHO GMBH &amp; CO KG VRS BRIM WOODE COMPLEX,
Civil Appeal No. J4/9/2015.The seller however is not liable for those defects
which he declares or makes known to the buyer before or at the time of the
contract. Besides where the buyer has examined the goods, the seller is not
liable for defects which should have been revealed by the examination. In
CONTINENTAL PLACTICES ENGINEERING CO LTD VRS IMC INDUSTRIED-TECHIK GMBH (2009)
SCGLR 298 Wood CJ noted:<o:p></o:p>“The legal position can therefore be
summed up as follows: a seller of either first or second hand goods is by an
implied condition liable for defects in them. Based on what we believe is pure
common sense the seller is however not liable for defects which he fully
discloses or declares to the buyer at the time of the contract of sale. When
the buyer has examined the goods, the seller cannot be held liable for defects
which ought to have been on examination as for example patent defects…”<o:p></o:p>See G.A SARPONG VRS SILVER STAR AUTO
LTD, Civil Appeal No. J4/43/2013, judgment dated 15th January 2014. <o:p></o:p>This p</main>