i. Introduction:

[1] The Plaintiff, Emmanuel Haizel says he heard an advert on Citi 97.3 FM Radio with regards to a vehicle the Defendant, Premium Motors Ghana Limited was offering for sale. He made an enquiry through the website of the Company about the advert. He received a telephone call from a Sales Agent of the Company who confirmed the Company was running the advertisement campaign and was offering Renault Logan vehicles for the promotion at a price of USD$12,950.00. The Plaintiff expressed interest and further to correspondence between the Plaintiff and the agents of the Company he paid the said sum of money for the vehicle. Mr. Haizel in this suit is alleging that the Defendant breached the terms of the contract by not delivering the vehicle within the time frame agreed to and also delivered to him a vehicle different from the model he contracted for. Mr. Haizel asserts that he acted on the representation made by an agent of the Company in regards to the model and make of vehicle to part with the money. He has therefore sued for breach of contract and a refund of the money paid from the Defendant’s as well as interest.

[2] The Defendant takes the position it did not contract to sell to Mr. Haizel a 2015-2016 Renault Logan and it also did not give to Mr. Haizel a Renault Dacia as he claims. The Defendant takes the position that the Plaintiff is litigious and has acted based on his lack of knowledge of the automobile industry and how it operates. According to the Defendant the information given to the Plaintiff about the model of the vehicle by its Sales Executive was a mistake and she was in error. According to the Defendant the information that the model was a 2015-2016 Renault model was given after the contract had already been concluded and therefore the Plaintiff could not include new terms into the contract. The Defendant takes the position that the vehicle the Plaintiff contracted for is available and therefore he should be ordered to take delivery of same.

[3] The Defendant Company counterclaimed for damages for breach of contract including general damages for expenses incurred in registering two separate vehicles and the payment of customs duties and VAT among others.

[4] The issues set down at the close of pleadings are:

1. Whether or not there is a valid contract between the Plaintiff and the Defendant for the purchase of a brand new beige coloured 2015-2016 manufactured Renault Logan vehicle?

2. Whether or not the vehicle subsequently offered to the Plaintiff by the Defendant on 20th September, 2016 varied significantly from the vehicle the Plaintiff originally contracted for?

3. Whether or not the Defendant misrepresented the exact vehicle and its specifications to be sold to the Plaintiff?

4. Whether or not the vehicle was to be delivered within five (5) days upon receipt of payment with non-working days included or within five (5) working?

5. Whether or not the Defendant has breached its contract with the Plaintiff?

6.  Whether or not the Plaintiff is entitled to the reliefs sought?

7. Any other issue(s) arising from the pleadings of the parties

iv. The Court’s Evaluation & Analysis of the Evidence: I proceed to determine the issues - Issues 1

[5] Giving evidence on oath the Plaintiff testified that he heard on Citi FM, a radio station an advertisement by the Defendant Company and he followed it up by an enquiry through the Defendant’s website regarding an advertisement. He said he received a telephone call from a sales agent of the Defendant Company who confirmed to him that the company was running a campaign and was offering Renault Logan vehicle for sale at a price of USD12,950 and also that there was a credit package for payment in installments as an alternative. He said he requested a written reply to his enquiry to which the Defendant Company responded with a pro forma invoice. A copy of the Proforma Invoice was tendered as Exhibit “A”.

[6] The Plaintiff further testified that on or about August 2016, he received a call from another sales consultant from the Defendant Company who indicated that there were other models of Renault on sale for which he could consider. According to him he followed up to confirm what colours of the Logan were available and how long it took from payment till transfer of ownership. A copy of the email sent on August 8, 2016 was tendered as Exhibit “B”. Mr. Haizel further testified that “the Defendant Company responded with pro forma invoice for the Renault Logan and two other Renault models for my consideration which indicated the delivery duration at the bottom of the pro forma invoices”. A copy of the e-mail and the attachments were tendered as Exhibit “C”.

[7] According to him, the Defendant Company also informed him that the vehicle was a 2015 – 2016 model and sent him photos of available colours in stock and he confirmed his requirement for a beige coloured 2015 – 2016 Renault Logan vehicle. The Plaintiff tendered as Exhibit “D” being three page communication log between the Plaintiff and a representative of the Defendant Company. The Plaintiff further testified that he paid to the Defendant an amount of Gh₵51,800 being the equivalent of USD12, 950.00 A copy of the official receipt issued to the Plaintiff by the Defendant was tendered as Exhibit “E”

[8] The further evidence of the Plaintiff was that “on 19th September, 2016 I visited the Defendant Company’s office to take delivery of the said vehicle but they failed and/or refused to hand over the vehicle I had fully paid for to me”. He said on that visit the Defendant Company informed him that the vehicle to be given to him had already been registered and had clocked 1000 kilometers. According to him he was further told that if he accepted the supposed new vehicle, the official could speak to his director so that the Defendant Company could give him a maintenance package to compensate for the 1000 kilometers that the vehicle had accumulated on its odometer. He said he declined to accept the vehicle. A copy of an email sent by the Plaintiff to the Defendant Company was tendered as Exhibit “F”.

[9] The Plaintiff further testified that this development was clearly contrary to the original offer from the Defendant Company to which he accepted and paid the cedi equivalent of USD 12,950 to the Defendant Company for a brand new vehicle to be delivered within five days of payment as expressly stated to the Defendant Company’s own pro forma invoice. A copy of the proforma invoice was tendered as Exhibit “G”.

[10] The further case of the Plaintiff was that on 20th September, 2017 he was invited to the Defendant Company’s office to see the exact vehicle they would give him in replacement of the vehicle that registered 1000 km on its odometer. He said when he inspected the vehicle he realized that it varied significantly from what he was led by the Defendant Company to believe he was going to receive for the payment made. He tendered Exhibits “J” and “L” to support his case.

[11] Finally, Mr. Haizel told the Court that “the Defendant Company subsequently informed me that there was another trim of the same Renault vehicle that has the features I was led to believe I was going to receive but they had a different price and that I was free to pay the difference in exchange for that variant instead”. He tendered in evidence email sent on September 23, 2016 by the Marketing Manager of the Defendant to him as Exhibit “H”.

[12] According to Mr. Haizel he and his lawyer met with the Defendant Company officials at their office on 4th October, 2016 in an attempt to resolve the issues after the Defendant Company had sent a senior officer to his lawyer’s office without his presence in an attempt to discuss the issue in his absence. He said at the meeting of 4^th October 2017, “the Defendant Company re-emphasized their stance to refuse/neglect to deliver to me the vehicle for which I had contracted for and made payment of USD 12,950 and not received. A copy of email correspondence between the parties relating to the meeting was tendered as Exhibit ‘K” at trial.

[13] Under cross examination by the Defendant’s counsel, Mr. Haizel stood by his story and again reiterated how he first contacted the Defendant Company and the conversations he had with the Defendant Company’s officers and the type of vehicle he believes he contracted for. This is what the Plaintiff under cross-examination as captured in the proceedings of Tuesday November 6, 2018.

“Q:When did you make your first contact with Defendant Company?

A: My Lord, this would be in 2016.

Q: How did you make it?

A: By phone conversation.

Q: After the phone conversation did you exchange any letters?

A: After the phone conversation I received a proforma invoice from the Defendant.

Q: How many proforma invoices did you receive?

A: My Lord I am unable to state specifically how many proforma invoices Defendant sent to me. I have however tendered in all relevant pro-forma invoices.

Q: In those Exhibits “A” series specifically pages 6 and 7 of the witness statement. In Exhibit “A” series you see the logo of the people on top, Correct?

A: No my Lord I do see the logo of the Defendant Company which is Renault further this same logo cut across each and every one of the pro forma invoices received from the Defendant.

Q: But under the Renault you have a picture if a vehicle, is that not it?

A: Yes my Lord I see a picture of a vehicle and this vehicle differs from each one of the pro forma invoices forwarded to me by the Defendant to depict the specific vehicle for which the respective pro-forma invoices relates”.

[14] In further cross-examination, this is what the Plaintiff said as captured in the proceedings of Wednesday November 7, 2018.

“Q: How did you get in touch with the Defendant Company to arrange this contract?

A: My lord I stated it was by telephone conversation.

Q: With whom in particular

A: With a number of people the last of which was one Sandra Blagogie who was a sales executive of the Defendant Company.

Q: I believe this was a special promotion sale, is that not it.

A: Yes, my Lord that is what the Defendant stated.

Q: They were prepared to give you even soft terms of payment.

A: That is so my lord as per their advertisement.

Q: A copy of the advert is what you have attached as Exhibit “A” which is found in page 5.

A: Yes my lord, this is a replicate of what was announced in their media advertisement.

Q: You paid the money by cheque, is that not it.

A: Yes my lord.

Q: Normally, if you pay for something by cheque, it takes quiet a time for the cheque to go through the clearing system, is that not it?

A: That is so, my lord. Additionally, for the records. I made the cheque payment on the 2nd of September 2016 which cheque cleared on the 6th of September, 2016.

Q: How long did it take the cheque then to be cleared?

A: I stated that cheque cleared on the 6th of September, 2016.

Q: What day was that 6^th September, 2016?

A: My Lord I do not recall that I may have to refer to the calendar of 2016….

Q: Do you know that in between the time you made the payment, there was some holiday, to be specific on the 13^th of September, 2016?

A: My Lord I cannot confirm that, what I can confirm is that , when I visited the office on the 19^th of September, 2016 Defendant failed again to deliver to me the vehicle they have offered for which I had made full payment….

Q: The money was paid in Cedis, is that not it?

A: Yes, my lord. I paid the cedis equivalent of US$12,950.00 at the exchange rate stated by the Defendant on the pro-forma invoice….

Q: If what you are telling us is true, you want this court to believe that on the 30^th of December, 2013, a car of 2015-2016 model was available?

A: I cannot speak to that, what I can speak to is what the Defendant offered me which was 2015-2016 Renault Logan.

Q: I am putting it to you that if your Exhibit “J” is correct, a car delivery of which was taken in 2013 could not have been a 2015 model.

A: I cannot confirm that, what I can confirm is that the Defendant offered me a 2015 -2016 model and the vehicle which they showed me on 20^th September, 2016 with chassis number ending 084375 was not Renault Logan 2015 - 2016 I had paid for”.

[15] In my respectful opinion the essence of cross-examination is to provide an opportunity for the cross-examiner to impeach the credibility of a witness where there are sufficient grounds to do so such as discredited evidence of previous testimony or where there is an available documentary or other evidence to impeach the qualification, experience expertise or position a witness has ascribed to himself or herself while testifying. In this case, respectfully, I am of the view that Counsel for the Defendant even though did a good job, failed to impeach the testimony of the Plaintiff on the core part of his evidence being how he contacted the Defendant Company, who he spoke with, the amount paid and the mode of payment and the type of vehicle he contracted to purchase.

[16] Now, how then did the Defendant contest Plaintiff’s claim and to what extent did Defendant establish on the balance of probabilities that the Plaintiff did not contract to purchase a 2015/2016 Renault Logan Vehicle but rather a 2014/2015 Renault Logan Model vehicle? The Defendant’s witness who testified was Mr. Jihad Hijazi. He denied that the Defendant contracted with the Plaintiff for a 2015/2016 Renault Logan vehicle. He also denied that the vehicle given to the Plaintiff varied from what he contracted for.

[17] Mr. Hijazi testified that the Defendant Company after negotiating with the Plaintiff offered to him as per Exhibit “A” and the Plaintiff accepted and paid the Ghana Cedi equivalent of the purchase price of US$12,950. According to Mr. Hijazi the Plaintiff opted for a 2014 – 2015 model. He further stated “I must emphasize that the models of Renault Logan that the Defendant Company has is 2014 – 2015 and 2016 – 2017 models and not 2015 – 2016 models as alleged by the Plaintiff”.

[18] The Defendant’s witness further evidence was that:

“On the 19^th of September 2016 the Defendant prepared the Plaintiff’s brand new vehicle and cleared same from the Customs bonded warehouse for collection. It was at the point of collection that to the surprise of both parties they discovered the Odometer had suffered a glitch whereby for no apparent reason the odometer reading recorded 1000 km instead of the normal reading of about 50km. A glitch is a sudden unexpected increase in the electrical power which normally cause a fault in the electrical system. The odometer reading therefore did not mean that the car had actually done 1000km. As a result the Plaintiff fell into tantrums and would not listen to anything but rather shouted above his voice. When he finally cooled down the Defendant gave him two options.

a) either the Plaintiff accepted the vehicle with the odometer glitch and he given free servicing of the vehicle or

b) Plaintiff to be given another identical vehicle. The Plaintiff went for the 2^nd option.

[19] Mr. Hijazi further told the Court that the Plaintiff again raised another objection that based on a photo or logo on the header of the offer letter “the front part of the photo showed the vehicle with log lights”. According to the witness the “Plaintiff got hooked up on fog lights in a photo yet the photo shows only the front and right side of “a” vehicle”. According to him that was unreasonable because the interior set up, the rear of the vehicle, the left side of the vehicle and other components could not be displayed a photograph.

[20] Mr. Hijazi further testified that on the pro forma invoices/offer letter emailed to the Plaintiff the following was stated. “we thank you for the value inquiry and take pleasure in submitting our quotation as follows”. He further said “the pro forma invoice/offer letter did not negotiate on quotations “as above” but “as follows”. The witness then listed what he said were the component “based on which the contract was sealed and for which the Plaintiff agreed to buy and paid for”.

[21] Mr. Hajazi’s further evidence was that “the mode of sale of this vehicle is indeed the standard and reasonable practice in all international vehicle sales as in the present method adopted by the parties herein. The contract is embodied in the components listed on the pro forma invoice and not in a photograph or logo in a letter header”. He also said that “the brand of vehicle has 2014 – 2015 and 2016 -2017 model and not 2015 – 2016 models”.

[22] According to the witness “in discussions and effusions expressed by the Plaintiff in all email between Plaintiff and his then solicitor which was transmitted to the Defendant on September 30, 2016 at 9:20pm, the Plaintiff displayed lack of maturity and understanding of serious documented and contractual business dealing”. The Defendant’s witness further testified that the Plaintiff’s manner of dealings with the Defendant in the transaction caused “the Defendant collateral damages by registering two vehicles and also incur extra customs duties, VAT and NHIL expenses in addition to other expenses and taxes and also storage expenses”. Based on all of the above he prayed the Court to dismiss the Plaintiff’s claim and grant the Defendant’s counterclaim.

[21] The following evidence crucial and relevant to the issue under discussion was elicited during the cross-examination of the Defendant’s witness, Mr. Jihad Hijazi on December 11, 2018.

“Q: Can you kindly take a look at paragraph 6 of your witness statement, from paragraph 6 you agreed to deliver to the Plaintiff the brand new Renault Logan vehicle.

A: That is correct.

Q: Take a look at Exhibit “E” attached to the Plaintiff’s witness statement, you agree with me that from Exhibit “E” the Plaintiff fully paid for the vehicle he agreed to purchase from you?

A: That is correct.

Q: Take a look at Exhibit “C” attached to the Plaintiff’s Witness Statement which is a pro-forma invoice, you state in this pro-forma invoice that you shall deliver to the Plaintiff his vehicle 5 days after payment, is that correct?

A: That is what is stated on the pro-form invoice.

Q: And this pro-forma invoice came from you.

A: That is correct.

Q: Did you deliver the vehicle to the Plaintiff 5 days after he had made payment?

A: That did not happen under the circumstance it was not going to be possible to adhere to the time line or 5 business days because of holidays that coincided with the stipulated date. Additionally, it is not unusual that we will face difficulties in getting through the clearing and preparation phase.

Q: From your own pro-forma invoice you did not qualify the 5 days within which you were to deliver the vehicle to the Plaintiff, is that not so?

A: That is correct….

Q: Take a look at Exhibit “C” attached to the Plaintiff Witness Statement the name of the sales consultant as appeared on this pro-form invoice is Sandra Blagogie?

A: At the time she was.

Q: Kindly take a look at Exhibit “D” attached to the Plaintiff’s witness statement which is a whatsApp conversation between Sandra Blagogie the Sales Executive and the Plaintiff. (Counsel reads conversation of 11^th August 2016) then the conversation again goes to the next page which is (counsel reads) this is your Sales Executive telling the Plaintiff that the vehicle he was purchasing was indeed 2015/16 model, I am suggesting to you that from the conversation I just read out your own Sales Executive confirm that the vehicle the Plaintiff was purchasing was 2015/16

A: That is not it. I would like to clarify, in the automobile industry when you refer to the year of the vehicle you may be referring to one type of year. Firstly it could be the make or the serial year then the model year and finally the year of manufacture. And those may be different all together. However, I would wish to clarify that there seems to be some discrepancy in what is written by the Sales Executive.

Q: From your explanation your Sales Executive through her representation to the Plaintiff misled him to believe that he was indeed purchasing 2015/16 Renault Logan vehicle.

A: That is incorrect and if I may clarity once again, the Sale Executive mentioned in her message to  the Plaintiff on the 6^th of September and on the next line, she mentioned another variant of that model as 2016/17. Model cannot coincide in this different years. That shows that her intent was not to mislead but it was a genuine mistake on her part”.

[23] On December 13, 2018 when the cross-examination continued the following crucial further evidence was elicited.

“Q: You did tell this court at the last sitting that the offer made by your authorised Sales Agent of the 2015/2016 Renault vehicle was a mistake, am I correct?

A: That was an error on the part of the Sales Executive.

Q: You would agree with me that it was based on this mistake communicated to the Plaintiff that he specifically ordered the 2015/2016 Renault vehicle.

A: I would not be able to agree. At the time there was a running promotion on that particular 2014/2015 Renault Logan and it was further reinforced subsequent to the refusal of the Plaintiff to pick the vehicle but the vehicle was indeed a 2014/2015 and it could not have been a 2016 model.

Q: But you agree that nowhere in the communication between the Sales Executive and the Plaintiff did she state what you are telling this court now?

A: I would not know whether there was a communication between the Sales Executive and the customer but what I do know is that this was communicated to the customer and the customer but what I do know is that this was communicated to the customer by the marketing manager prior to the final delivery of the vehicle.

Q: So from your own testimony if even indeed the marketing manager had brought this to the attention of the Plaintiff, it was after the Plaintiff had accepted the offer of the 2015/2016 model made to him by your own Sales Executive, you would agree with me.

A: My Lord I would neither be able to agree not disagree. I was not privy for what the Sales Executive had said to the customer aside those text message. As the Sales Executive had currently been employed by the company and was under training we lamented the importance of ratifying that anomaly and she was informed to inform the customer accordingly.

Q: Aside all these lamentations you talked about, you agree that it was your Sales Agent who communicated the offer of the availability of the 2015/2016 Renault vehicle to which he accepted.

A: My Lord I do. However, the offer which was sent to the customer and which current an exhibit does the stipulate the model year…”

[24] That sums up the evidence of the Defendant’s evidence in defence of the Plaintiffs’ case. Now given the fact that Defendant witness admits that the Company agreed with the Plaintiff for the purchase of a “vehicle”, I have no hesitation to conclude that there was a valid contract between the parties. To that extent, even though there was no formal written agreement signed, the parties are “ad idem” that the Plaintiff acted on the advertisement and subsequently paid the Defendant the Ghana Cedis equivalent of US$12,950 which was the agreed purchase price. I also find as a fact that there was a contractual nexus between the Plaintiff and the Defendant based on the evidence. I am satisfied based on the evidence that the nature of the legal relations between the Plaintiff and Defendant was contractual and therefore their rights are also sustainable under the law of contract.

[25] It is trite that some contracts can be inferred from the conduct of the parties. The Supreme Court confirmed this position in the case of NTHC LTD v. ANTWI (2009) SCGLR 117 when it stated that “an offer as an indication in words or by conduct by an offeror that he or she is prepared to be bound by a contract in the terms expressed in the offer, if the offeree communicates to the offeror his or her acceptance of those terms. The court stated further that the offer has to be definite and final and must not leave significant terms open for further negotiation. By significant, we mean terms that are essential to the contemplated bargain. It is important to emphasize the proposition that the mere acceptance of an offer is sufficient to turn the offer into a contract, if there is consideration for it, together with an intention to create legal relations.”

26] Also, as stated in her work, the learned author of “The Law of Contract in Ghana[1]” Christina Dowuona – Hammond stated on ‘Ascertaining the Fact of Agreement’ at page 4 paragraph 1.3 as follows:

“The concept of agreement is the basis or essence of every contract. A contract is essentially the outward manifestation of agreement between the parties with regard to a common objective. This manifestation of agreement may be made wholly or partly in writing, orally, by conduct or by a combination of all three. Thus one of the first inquiries in dealing with any contractual dispute is to determine whether or not there is an agreement between the parties at all”

[27] In this case the real issue is whether or not the Plaintiff and the Defendant agreed for the purchase of a brand new beige coloured 2015-2016 Renault Logan vehicle? The Plaintiff maintained that he contracted to purchase the 2015-2016 model and nothing else. According to the Defendant there is no model as 2015-2016 but rather the Plaintiff contracted to purchase a 2014-2015 Renault Logan. I note that both parties have referred to the ‘pro forma invoices’ and indeed tendered copies of them at trial as Exhibits “A” to “C” by the Plaintiff and “1” by the Defendant. A review of the pro-forma invoices however does not confirm the model year of the vehicle the Plaintiff contracted to purchase. The pro-forma invoice only provides the components of the vehicle and also the price. To that extent it is my holding that Exhibits “A” to “C” and “1” do not assist the Court in resolving the most crucial issue between the parties.

[28] In this case I am of the respectful opinion Exhibit “D” tendered by the Plaintiff is rather helpful. Exhibit “D” is a “WhatsApp” correspondence between the Plaintiff and one Sandra Blagogee, the Sales Executive of the Defendant Company. A thorough review of it shows that the Plaintiff was in agreement with Ms. Blagogee as an officer/agent of the Defendant Company as to the terms of the contract. There was no ambiguity in my respectful opinion at all. The Defendant Company made an offer to the Plaintiff by way of a pro-forma invoice, which included all the specifications of the Renault Logan. The Sales Executive further sent pictures of all the colours of the Logan they had in stock, being: white, blue, stone beige, silver and black. Out of which the Plaintiff chose beige. Even though the pro forma invoice did not contain the year of manufacture, the Sales Executive confirmed the year of manufacture as “2015” when the Plaintiff asked categorically on 11th August 2016 “which year make are the Logans”.

[29] Also, on 6th September 2016 the Plaintiff again asked if the vehicle was a 2015 model and the sales executive answered in the affirmative that the vehicle is a 2015-2016 model. As the evidence above establish though the Plaintiff issued the cheque on September 2, 2016 it was cleared on September 6, 2016. For the avoidance of doubt, I state here below the said conversations on August 11, 2016, September 5, 2016 and September 6, 2016. – “EH is the Plaintiff and Sandra is the Sales Executive

“11/08/2016, 07:14;40: EH: Which year make are the Logan’s?

11/08/2016, 07:14:50: EH: Do these have ABS?

11/08/2016, 10:29:14 Sandra (Premium motors) 050 952 7731: Sorry for the delay

11/08/2016, 10:29: 15: Sandra (Premium motors) 050 952 7731: It’s a 2015 logan

11/08/2016, 10:29:26: Sandra (Premium motors) 050 952 7731: It has no ABS

11/08/2016, 11:09:59: Sandra (Premium motors) 050 952 7731: But you can get it in the Sandero”

“05/09/2016, 08:07:28: EH: Hi Sandra, I would like to see actual photos of the stone beige, black and white Logan’s to make a final choice. Let me know when this can be sent to my phone. 05/09/2016, 08:09:42: Sandra (Premium motors) 050 952 7731: ok

The Chat shows that the Plaintiff followed up on 06/09/2016 with regards to the photos and same were sent by Sandra on 06/09/2016 at 15:01:38

06/09/2016, 18:17:00: EH: I was made aware that the Logan was 2015. Is that correct? Can you update me on progress.

06/09/2016, 18:21:08: Sandra (Premium motors) 050 952 7731: Please should I carry on with the stone beige?

06/09/2016, 18:21:43: Sandra (Premium motors) 050 952 7731: Yes. This is the 2015-2016 model

06/09/2016, 18:22:36: EH: Yes – Stone beige

06/09/2016, 18:27:16: Sandra (Premium motors) 050 952 7731: we just took delivery of the 2016-2017 model

06/09/2016, 18:34:14: EH: Is the beige car in your whatsapp message 2014 0r 2016?

06/09/2016, 18:40:39: Sandra (Premium motors) 050 952 7731: 2015-2016

06/09/2016, 18:41:21: Sandra (Premium motors) 050 952 7731: The 2016-2017 model is automatic transmission”

[30] From the above conversation I am of the respectful view that the Sales Executive was very clear and emphatic as to what model of vehicle the Plaintiff contracted to purchase. To my mind, applying the objective test, the question I ask myself is would a reasonable objective bystander sitting on the Accra New Town to Pig Farm trotro impute from the intention of the parties that they contracted for a beige coloured 2015-2016 Renault Logan? To my mind the answer ought to be in the affirmative despite all of the lamentations of the Defendant’s witness, Mr. Hijazi. This is because from the evidence, it is evident that the parties at the time of negotiation were clear on the terms and there was finality with regards to the subject matter. Thus a logical inference can be drawn based on the pro forma invoice and the conversation above between the Plaintiff and the Defendant’s Sales Executive that the parties intended to contract for a 2015-2016 model of the Renault Logan.

[31] While at it, I also wish to state that learned Counsel for the Defendant’s submission that the Plaintiff included new terms into the contract with respect is without any legal basis. In my respectful opinion because the pro forma invoice did not include the year of the model vehicle it was within the Plaintiff’s right to seek clarification and that cannot constitute new terms to the contract. In any case, this suit would not have arisen if the Defendant had clearly stated the model year of the vehicle it was offering in the promotion. Counsel’s submission in my view is just an attempt to explain away the Defendant’s inexcusable conduct.

[32] I note that throughout the trial, the Defendant maintained that there is no 2015-2016 model of Renault Logan but rather 2014-2015 and 2016-2017 etc. The witness Mr. Hijazi specifically accused the Plaintiff of lacking of maturity and understanding of international vehicle sales transactions. Despite the Defendant’s position it did not provide the Court with any compelling corroboratory evidence to support its position which clearly contradict what its Sales Executive told the Plaintiff. Indeed, the Defendant did not find it necessary to call at least one person with the requisite knowledge of the subject matter who has no interest in the issue at stake to testify on its behalf. Further, the Defendant’s own staff did not disabuse the Plaintiff on the existence of a 2015-2016 model when he made mention of this. If the Defendant argues that the Plaintiff is ignorant in matters of international vehicle sales and transactions, that makes it even more imperative for the company which is more knowledgeable and thus in a position of power to clarify any erroneous assumptions that the Plaintiff might have expressed.

[33] In any event the Defendant’s failure to lead any evidence corroborating its assertion on the non-existence of a 2015-2016 model is fatal and it created a vacuum on the quality of evidence Defendant needed to adduce in defence of the Plaintiff’s claim on the issue of the model vehicle the Plaintiff contracted to purchase. In my view therefore, the failure by the Defendant to call any such witness did not assist the Defendant in its defence. See OWUSU V. TABIRI [1987-88] 1 GLR 287. Given the nature of the defence set up by the Defendant, it had a duty to adduce evidence to prove that its Sale Executive was in error and wrong because what she told the Plaintiff does not exist at all.

[34] After my examination of the evidence adduced at the close of the Plaintiff’s case, and taking into consideration my opinion of the Defendant defence on the issue under discussion, I have come to no other conclusion than that, Plaintiff’s testimony is credible and sufficiently discharges the onus on him based on the prescribed statutory standard and established judicial authorities. The summary of my findings is that Plaintiff’s testimony on the issue has not been contradicted, impeached, nor controverted by the Defendant at the close of cross-examination. I therefore resolves the first issue in favour of the Plaintiff.

[35] I now proceed to address the other germane issue in this litigation which is ‘whether or not the vehicle subsequently offered to the Plaintiff by the Defendant on 20th September, 2016 varied significantly from the vehicle the Plaintiff originally contracted for. On this issue in the Court’s opinion the salient evidence is as captured from the proceedings of November 7, 2016. The following evidence was elicited from the Plaintiff.

“Q: When you made the payment, did you go to the showroom to see the type of vehicles that they have?

A: Yes, my Lord I went to the showroom not to see the vehicle but to take delivery of the vehicle I have been offered which the Defendant had failed to deliver to me in five (5) days of payment….

Q: But, on the 20th of September, 2016 you went to the company’s office and you were given a vehicle, is that not it?

A: Yes, my Lord on the 20th of September, 2016 I went to the Defendant’s office and no, I was not given the vehicle I had contracted to purchase for which I had made full payment.

Q: I am putting it to you that on the 20th of September, 2016 you were given a vehicle.

A: No, my lord I disagree with that. I was rather shown a vehicle that varied from what was offered by the Defendant for which I had made full payment.

Q: I am further putting it to you that the vehicle that was given to you the problem that came on it was that, there was a glitch.

A:  My lord that was what the Defendant stated.

Q: In fact, you yourself saw the odometer was reading 1000km when in fact the vehicle had not been run.

A: No, my lord, I did not see the said vehicle that had clocked a 1000km as stated by the Defendant. When I visited the Defendant’s office to take delivery of the brand new vehicle that I had paid for on the 19th of September, 2016 the Defendant indicated to me that the vehicle they intend to give to me had clocked a 1000km and that they were going to give me a call back which call brought me back to their office on the 20th of September, 2016. It was on the 20th of September, 2016 that I saw for the very first time the vehicle which the Defendant sought to give to me which varied from what they had offered and for which I had made full payment of the equivalent of US$12,950.00.

Q: I am putting it to you that on the 20th of September, 2016 the manager explained to you that the vehicle even though it had not clocked 1000km because of electrical problem the odometer was reading 1000km.