JUDGMENT OF FRANCOIS J.A.
The short legal issue in this appeal revolves round the right of a purchaser to repudiate a sale upon the discovery of latent defects. The appellant was the owner of a Mercedes Benz car which he sold to the respondent for ¢3,200.00. The respondent made cash payments totalling ¢2,200.00 and remitted two post-dated cheques of ¢500.00 each for the balance of the purchase price. Upon delivery, the car betrayed signs of recent involvement in an accident. There were serious defects in the clutch and starter systems and wide-spread damage to the mudguard and a head lamp. Initially the appellant disputed the extent of damage, maintaining that it was a mere graze which had occurred when the car brushed against a garage post. In an idle moment, however, he admitted to the accident; his subsequent revision of the facts, upon realising their probable impingement on his liability, is not credible and was rightly discounted by the trial court.
There is however the mitigating evidence that the appellant accepted responsibility for the defects and agreed to put them right. Messrs. R.T. Briscoe Ltd. were consequently approached to effect the repairs. Unfortunately their estimates for repairs were so staggering that the appellant was compelled to seek a less expensive repair garage. An "instant" repair shop, the local wayside fitter took in the car and completed the repairs within a day. Another repair shop, Tutunji, then undertook the spraying. The respondent thereafter took delivery. At that stage no complaints were articulated. But after using the car for some time the respondent made his bid to repudiate the bargain. He stopped the payment of his final post-dated cheque. His course of conduct received the uncritical endorsement of the learned circuit court judge who heard the matter. The substantial issue for determination in this appeal therefore, is whether the respondent in the circumstances was right in rejecting the contract.
Turning to the facts, it may truly be urged that the election to abide by the agreement of sale depended upon the damaged car being put in as near as possible the condition it was previously and the accommodation [p.119] the respondent gave to have it repaired at moderate cost could not extend to cover cheap, shoddy work. If the car retained the defects which the accident gave rise to, it could be urged that it was inferior and fundamentally different from what had been bargained for and the respondent could not
