FAFAPE AMA ETSA FOE AND THYWILL BUSINESS & INVESTMENT CONSUL LTD v. Z-AUTO TRADE GH. LTD AND JOSEPHINE MONNIE
2022
COURT OF APPEAL
GHANA
CORAM
- ADJEI, J.A
- BARTELS-KODWO, J.A
- BAFFOUR, J.A
Areas of Law
- Contract Law
- Civil Procedure
2022
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
Two independent appeals arose from a High Court judgment involving the purchase of a Toyota Land Cruiser by the first plaintiff, a director of the second plaintiff company, from the first defendant, with the second defendant as importer. Shortly after delivery, heavy black smoke and later engine noise were observed; Auto Zone and another service centre diagnosed latent manufacturing defects. The plaintiffs demanded replacement of the vehicle or its engine and rented an alternative vehicle at US$9,000 per month. The High Court found breach of implied warranty and ordered engine replacement with damages and costs. On appeal, Justice Eric Kyei Baffour, joined by Justice Janapare Bartels‑Kodwo, held that while Act 137 implies conditions of quality and fitness, the plaintiffs’ ten‑month retention and 18,000 km use constituted acceptance, extinguishing the right to reject and shifting risk to the buyer. The court upheld the defendants’ appeal, reversed the trial court’s liability, dismissed the plaintiffs’ appeal, and made no order as to costs. Justice Dennis Adjei dissented and would have affirmed the High Court.
J U D G M E N T
ADJEI, J.A
The Plaintiffs sued the Defendants in the High Court to claim, inter alia, a declaration
that the Defendants have breached the warranty agreement in respect of a vehicle she
bought from the Defendants; an order for replacement of the vehicle; and general and
special damages emanating from the breach of the warranty. The High Court on 30th
March, 2020 delivered final judgment and held that the Defendants had breached the
implied warranty between the Defendants and the Plaintiffs with regards to the vehicle
that the Defendants sold to the Plaintiff as a brand-new vehicle with a defective engine
and further awarded general damages of
GH¢20,000.00.
Both parties were dissatisfied with the judgment, and each of them filed an appeal
against same. The 1st Defendant/Appellant filed its notice of appeal against the
judgment on 27th April, 2020. The Plaintiff/Appellant also filed her notice of appeal
against the judgment on 12th June, 2020 without stating whether it is the 1st Plaintiff or
the 2nd Plaintiff who is dissatisfied with the judgment and has filed an appeal against
same.
The brief facts of the case, as could be gathered from the evidence adduced before the
trial High Court, were that the 1st Plaintiff, who is a businessman and a director of the
2nd Plaintiff Company, purchased a brand-new Toyota Land Cruiser Station Wagon
from the 1st Defendant, which deals in brand new cars. From the evidence on record,
the vehicle was imported to the country in the name of the 2nd Defendant, who turned
out to be the one transferring ownership of it to the 2nd Plaintiff.
The Plaintiffs used the vehicle for barely a week and found the engine to be defective as
black, thick and heavy smoke emi\ed from it. The 1st Plaintiff reported the defect to one
of the directors of the 1st Defendant company proposed to the Plaintiffs to service it
about 2800 kilometers contrary to the usual minimum servicing interval of 5000
kilometers. The Plaintiffs heeded to the advice offered by the Defendants but the change
of the servicing time did not remedy the breach complained off.
The Plaintiffs, who dealt directly with the 1st Defendant for the purchase of the brandnew vehicle, subsequently found that the vehicle was imported to the country by the 2nd
Defendant, as a result of which he was joined to the suit as a 2nd Defendant after the
original 2nd and 3rd Defendants had been disjointed.
The Plaintiffs therefore sued the Defendants