Posted on: www.dailyguideghana.com
By
William Yaw Owusu
Friday, July 29, 2014
The Supreme Court has ordered Silver Star Auto
Limited to deliver a brand new Mercedes Ben (E Class) to G.A. Sarpong & Co,
a firm of legal practitioners and consulted headed by former Law School boss
George A. Sarpong.
The five-member panel presided over by Justice
Julius Ansah held that G.A. Sarpong & Co had been able to discharge the
burden of proof that the vehicle it bought from Silver Star Auto Limited has
latent defects and deserved to be replaced.
The case which started in 2009 at an Accra
Commercial Court was filed by the law firm after a brand new Mercedes Benz
(C-Class 180) it bought from the car dealer in 2007 had broken down suddenly in
May 2008 and was replaced with another E-Class with registration GN 2266 Y at
the cost of 15,000 Euros which again broke down in December that same year.
The plaintiff therefore claimed among others things,
a brand new E-Class as replacement or a refund of the purchase price of the
vehicle as well as compensation for loss of use of the vehicles and damages for
breach of condition/deceit.
Silver Star Auto Limited in its amended statement of
defence filed on October 19, 2009, the respondent had denied the plaintiff’s
claims and insisted that the cause of the accident was attributable to the May
20098 incident.
They argued that G.A. Sarpong & Co was not
entitled to any claim as endorsed in the Writ of Summons and had urged the
court to dismiss the plaintiff’s suit.
However, after full trial, the Commercial Court held
that G.A. Sarpong & Co was entitled to a delivery of a brand new E-Class as
replacement for the damaged car but refused to grant the claim for compensation
for loss of use of the vehicles and damages for breach of condition/deceit.
Not satisfied, Silver Star Auto Limited appealed
against the decision at the Court of Appeal and succeeded in getting the
appellate court to review the High Court’s decision by ordering the car dealer
to only replace the damaged engine for G.A. Sarpong & Co and not the whole
car.
G.A. Sarpong & Co got incensed and petitioned
the Supreme Court on the grounds that the Court of Appeal had erred in holding
that they were not entitled to a brand-new E-Class.
The panel which included Justices Rose Owusu, K.
Anin Yeboah, P. Baffoe Bonnie and J.B. Akamba, took their time to review the
matter by going into the latent manufacturer’s defect, whether there was latent
defects in the vehicle as well as whether there was a breach of the Sale of
Goods Act, 1962.
The panel also considered the fundamental obligation
of the seller and the issue of quality and fitness of goods.
The highest court held that both the trial and
appellate courts had agreed on the type of breach of contract as a condition between
the parties after G.A. Sarpong & Co was able to discharge its burden of
proof.
“It is settled law that an appellate court ought not
to disturb concurrent findings of fact by two lower courts unless the findings
were perverse.
Where the Court of Appeal agreed with the lower court that the
breach was not of a trivial nature, it could only vary the award of damages
where it was manifestly perverse,” the court said, adding “where they have not
found any legal basis for altering the damages awarded by the court of first
instance, it was not open to the Court of Appeal to vary the damages awarded.”
The court disagreed with the Court of Appeal’s
posture changing the award had resulted “invariably in finding that the non-propulsion
of the car did not go to the root of the contract.”
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