DAVID ANTOH & ANOR VRS CAITEC MOTORS LIMIT & ANOR

In this judgment the plaintiffs/respondents shall be referred to as plaintiffs and the defendants/appellants shall be referred to as defendants.

An advertisement was placed in the Daily Graphic newspaper of 22nd March 2011 to the effect that several vehicles were being offered for sale by the 1st defendant. The 1st plaintiff pursued the advertisement and went to the office of 1st defendant where he was given a pro-forma invoice in which 1st defendant offered a FAW Tipper Truck 10-wheeler (hereafter to be referred to as the truck) plus a Donfeng 2 x 4 double cabin pickup truck for a total price of USD 76,000.00

The 1st plaintiff acting as the Managing Director for the 2nd plaintiff negotiated with the 1st defendant to purchase the truck alone without the Pickup. The 1st defendant agreed to sell the truck alone to the plaintiffs at a price of USD63,000.00.

Consequently, the 1st defendant issued another pro-forma invoice dated 21st April 2011 for the truck. After the agreement to purchase the truck, the 1st plaintiff took delivery of the truck in May 2011. It is the claim of the 1st defendant that barely three months after taking delivery of the truck he discovered some defects. The 1st plaintiff claimed he made enquiries from FAW dealers in China, and they gave him the information that the inscriptions on the truck meant the engine was a 260 horsepower and not a 310 horsepower as stated on the pro-forma invoice submitted by the defendants. The plaintiffs therefore after realizing the inconsistency of the horsepower as between the pro-forma invoice and what was actually the case, returned the truck to the defendants in the year 2013 and thereafter instituted the action at the court below for the recovery price of the USD63,000.00, among other reliefs.

The defendants contested the claim of plaintiffs. Their protest is on the basis that the plaintiffs, having detected the so-called inconsistency as far back as the year 2011, that is three months after the purchase, the 1st plaintiff was duty bound to have returned the truck within reasonable time. And therefore, after using the truck for close to three years after the detection the 1st plaintiff could not be heard to have rejected and returned the truck.

In other words, it was the contention of defendants that the plaintiffs’ failure to timeously bring to the attention the supposed inconsistency in the horsepower after noticing same, the plaintiffs are not entitled to their claims before the