IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION),
ACCRA- A.D 2019
CAITEC MOTORS LTD - (Plaintiff)
TOP KINGS CO. LTD - (Defendant)
DATE: 31 ST OCTOBER, 2018
CIVIL APPEAL NO: RPC/62/2015
JUDGES: SAMUEL K. A. ASIEDU JUSTICE OF THE HIGH COURT
SHIELLA CRABBE ESQ., FOR K. BAAH ESQ., FOR THE PLAINTIFF
JOEL A. AFARI ESQ., FOR BENSON NUTSUKPUI ESQ., FOR THE DEFENDANT
By a writ of summons issued on the 11th February 2015, the plaintiff company claims against the defendant company:
1. The sum of US Dollars Five Hundred and Nineteen Thousand Eight Hundred and Eleven or its equivalent in Ghana Cedis.
3. Cost of this action.
4. Interest on the said sum till the day of final payment.
5. In the alternative an order for the Plaintiff to repossess the vehicles.
After entering appearance to the plaintiff’s writ, the defendant filed a statement of defence in which the defendant counterclaims against the plaintiff for:
i) A declaration that the Plaintiff misrepresented the state and nature of the Shacman trucks to the Defendant to induce it to agree and purchase 12 of the trucks.
ii) A declaration that the Plaintiff’s conduct of impounding and detaining the trucks was wrongful and illegal.
iii) An order of the court granting the Defendant loss of user for loss suffered as a result of the Plaintiff detaining the trucks over the detention period.
iv) An order of the court granting the Defendant all expenses incurred on the trucks as a result of mechanical and physical faults caused by the manufacturer’s defects.
v) Legal cost.
After the failure of pre-trial settlement the following issues were set down by the parties and the court for trial:
Whether or not the vehicles/trucks sold to the defendant by Plaintiff had any defects and if any whether the defects were latent.
Whether or not the Plaintiff made some representations to the Defendant regarding the performance and durability of the trucks.
Whether or not the Defendant agreed to purchase the trucks by reason of these representations.
Whether or not the impounding, detention and sale of the trucks by the Plaintiff was lawful.
Whether or not the Plaintiff is entitled to its reliefs endorsed on the writ of Summons.
Whether or not the Defendant is entitled to its counter-claim
Any other issues arising from the pleadings.
The facts of this case are that the plaintiff sold twelve (12) Shackman Tipper Trucks to the defendant. The parties agreed that the cost of the Trucks was to be paid by installments over a period of time. The defendant company defaulted in the installment payments; so the plaintiff served a notice of the default on the defendant and later repossessed seven (7) of the trucks. However, when the defendant persisted in their default, the plaintiff issued a writ claiming the reliefs endorsed thereon. The defendant’s answer to the plaintiff’s claim is that the defendant made the plaintiff aware that it was acquiring the trucks in order that the defendant could carry out a contract for the haulage of quarry products and that the plaintiff represented to the defendant that the trucks were very good, efficient, robust and capable of performing in difficult terrain. According to the defendant, it was as a result of the representation of the plaintiff that the defendant entered into the agreement to buy the trucks.
The defendant alleges that after taking delivery of the trucks, it realized that the trucks had serious defects on them and as such the defendant notified the plaintiff of the defects. The defendant alleges that the defects were known to the plaintiff who had sent a report on same to the manufacturers of the trucks in China but that the plaintiff deliberately misrepresented the trucks to the defendant as being robust and fit for the quarry haulage operations. The defendant also alleges that as a result of the misrepresentation by the plaintiff, it incurred cost and suffered serious general and special damages which it seeks to recover from the plaintiff. Defendant alleges that as a result of the defects, the trucks could not generate the necessary income to enable it service the installment payments. The defendant therefore claims against the plaintiff as per the endorsement on the counterclaim.
One of the most critical issues which the court ought to determine in this case is whether or not the plaintiff made misrepresentations to the defendant which influenced the defendant to buy the Shackman Trucks. This is so in view of the averments in paragraphs 2, 3 and 4 of the Statement of Defence and the subsequent reply thereto in paragraph 6 of the Reply and Defence to Counterclaim filed by the plaintiff. In this wise, since the allegation of misrepresentation was made by the defendant herein, the law requires the defendant to lead evidence to prove its allegation if the defendant is to succeed on his claim. The Evidence Act, 1975, NRCD 323 is very decisive on this point when it states in section 14 and 17 that:
14. Allocation of burden of persuasion
Except as otherwise provided by law, unless it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence that party is asserting.
17. Allocation of burden of producing evidence
Except as otherwise provided by law,
(a) the burden of producing evidence of a particular fact is on the party against whom a finding on that fact would be required in the absence of further proof;
(b) the burden of producing evidence of a particular fact is initially on the party with the burden of persuasion as to that fact.
In Bank of West Africa Ltd vs. Ackun  1 GLR 176, the above provisions of the law were explained by the court when it stated that:
“The onus of proof in civil cases depends upon the pleadings. The party who in his pleadings raises an issue essential to the success of his case assumes the burden of proof.”
Again, in Ababio vs. Akwasi III [1994-1995] GBR 774 the court pointed out that:
“A party whose pleading raised an issue essential to the success of the case assumed the burden of proving such issue. The burden only shifted to the [other party] when [such a party] had adduced evidence to establish the claim”
The evidence which the defendant has offered in proof of its allegation of misrepresentation which is contained in paragraphs 5 and 6 of the defendant’s witness statement is, in the humble opinion of the court, no more than a repetition of the averments on the allegation contained in the statement of defence, particularly paragraphs 2, 3 and 4 thereof. In view of the denial of the allegation of misrepresentation contained in paragraph 6 of the Reply and Defence to Counterclaim filed by the plaintiff herein, the court is of the opinion that the defendant requires more than a recapitulation, on oath, of the averments contained in the statement of defence if the defendant is to succeed in the proof of its allegation. Please see the celebrated case of Majolagbe vs. Larbi  GLR 190.
Indeed, the defendant has also alleged in paragraph 8 of its statement of defence that the plaintiff was aware, prior to the contract between the parties, that the Shackman Trucks had a ‘peculiar problem caused by defects with the axle which abnormally overheats and that the problem was known to the plaintiff who had sent a report on the issue to the manufacturers in China’. In proof of this allegation, the defendant, in paragraph 17 of its witness statement made reference to exhibit 2 which is exhibited to the witness statement. The court has examined the said exhibit and the court finds that the exhibit is a letter written by the defendant to the plaintiff on the 23rd April 2014 and that the said letter is not evidence or proof of the plaintiff’s knowledge of defects in the trucks sold and a subsequent report thereabout to the manufacturers of the Shackman Trucks in China.
It is the duty of the party alleging the defect, in this case the defendant, to lead evidence to prove that the latent defect which he alleges existed in the goods purchased at the time the contract was entered into by the parties. The court in Georgia Hotel Ltd. vs. Silver Star Auto Ltd  2 SCGLR 1277 held, among others, that:
“Latent defect”, means the defect is a manufacturing defect, which must exist at the time of production and delivery of the product. By being a hidden or latent defect both the seller, and most importantly, the buyer, could not detect or be aware of the defect upon reasonable examination at the time of conveyance. Reasonable inspection of the vehicle and the acceptable time period for claiming that a latent defect exists are also factors to be weighed in determining the outcome of the case. If the Car is new, it is reasonable to expect that it be free from defects…. The burden is on the plaintiff company to prove the existence of the latent defects at the time of purchase which it failed.
Under section 13(1) of the Sale of Goods Act, 1962 (Act 137), a buyer can avail himself of the implied condition that goods purchased are free from defects which are not declared or known to the buyer before or at the time when the contract is made. However, there is no such implied condition where the buyer has examined the goods in respect of defects which should have been revealed by the examination. Accordingly, section 13(1) can only avail a buyer where there are latent defects in the goods which could not be revealed by examination at the time of the contract of sale.
Under the Sale of Goods Acts, 1962 the buyer bears the burden to prove the existence of latent defects in goods bought at the time the contract was concluded. In order for there to be a breach of section 13(1) of the Sale of Goods Act, a purchaser must show that the seller of the vehicle knew or was in the first place aware of defects in the vehicle they sold to him at the time of sale or delivery, and also that the seller deliberately or negligently failed to disclose his knowledge of the defects to the purchaser.
The defendant’s allegation of representation smacks of fraudulent misrepresentation by the plaintiff.
In Derry vs. Peek (1889) 14 App. Cas 337, Lord Herschell said of misrepresentation that:
First, in order to sustain an action of deceit, there must be proof of fraud and nothing short of that will suffice. Secondly, fraud is proved when it is shewn that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false.
Thus, clearly, a statement is fraudulent if it is made with the knowledge that it is false or without belief in its truth or that the statement is made recklessly. It must be pointed out in no uncertain terms that the fact that a vehicle purchased develops various degrees of faults few months after the date of purchase is not, by itself, evidence or proof of misrepresentation as to the state of the vehicle before the contract for the purchase of the vehicle was entered into. In the instant matter, as already stated, it is the duty of the defendant to lead cogent evidence that the plaintiff is guilty of fraudulent misrepresentation which induced the defendant to enter into the contract to purchase the twelve Shackman Trucks. In the candid opinion of the court, the defendant has not delivered any convincing evidence to the court in proof of its allegation of misrepresentation and for that matter the court holds that the said allegation has not been proved.
Assuming, nonetheless, that the evidence adduced by the defendant shows that the defendant was induced, fraudulently, by any statement or representation made by the plaintiff to enter into the contract, then it remains to be examined whether the conduct of the defendant after discovering the misrepresentation is in consonance with that of a party who has been misled into entering into a contract which he would otherwise not have entered into. The remedies for fraudulently misrepresentation opened to a party who had been misled into entering into a contract which he otherwise would not have entered is succinctly summarized by the learned author of The Law of Contract in Ghana (2011), Frontiers Printing & Publishing Company, Accra, Ghana. At page 228, the learned author C. D. Hammond, writes that:
Where fraud is proved the maker of the Statement is guilty of fraudulent misrepresentation, which generally entitles the party misled to rescind the contract. Apart from being a ground for rescission of the contract, fraudulent misrepresentation also gives rise to an action for damages for deceit. A party who has been induced to enter into a contract by a fraudulent misrepresentation is entitled to any of the following remedies:
(a) He may rescind the contract i.e. Have it set aside and also to recover damages in respect of any loss which he may have suffered by reason of the fraud.
(b) If the contract has not yet been performed, the party misled may repudiate the contract (i.e. refuse to perform his obligations under the contract) and sue to recover any moneys paid under it.
(c) Where the innocent party repudiates the contract and is sued by the representor, he may set up the fraud as a defence against any action brought against him for breach of contract or specific performance of the contract; and also counterclaim for damages for deceit.
Where the action is founded on deceit, the court would normally award the Plaintiff such damages as would put him in the position he would have been in if the tort had not been committed- i.e. if the representation had not been made. Therefore, if the Plaintiff would not have entered into the contract but for the misrepresentation, the Court will compensate him for all the losses he has incurred as a result of entering into the contract.
The evidence on record is that the contract for the sale and purchase of the trucks was entered into by the parties and that the defendant took delivery of the twelve (12) trucks in September 2013. The defendant has testified on oath in paragraph 9 of its witness statement that:
9. As early as 25th October, 2013 the Defendant realized that all the trucks had one defect or another. Some of the defects were with the brakes, the shafts, the clutches, defective tipping and chainsaw locker, faulty head cleaner, faulty air cleaner housing, defective tipping bucket chain, defective fuel and water gauges, tail lights and gear selector ends, among others.
In the opinion of the court, if it is true that the plaintiff made representation about the trucks to the defendant which induced the defendant to enter into the contract to purchase the trucks, it would not be unreasonable to expect the defendant to take an action to either rescind the contract or for damages for deceit as soon as the defendant found the representation, allegedly made to it, to be false. However, the within named defendant failed to take any action against the plaintiff since October 2013 when the alleged misrepresentation was uncovered till the plaintiff sued it to recover the unpaid cost of the trucks before it filed a counterclaim alleging misrepresentation. It is on record, as shown by exhibit 3 tendered by the defendant, that even after the plaintiff had re-possessed about seven (7) of the trucks for non-payment of the agreed monthly installment, the defendant wrote pleading with the plaintiff to accept the payment of an amount of GH₵150,000.00 in order to release the seven trucks which the plaintiff had re-possessed. In the same exhibit, the defendant promised to pay a minimum amount of GH₵200,000.00 per month to the plaintiff to fulfill the defendant’s obligations to the plaintiff under the said contract. In the candid opinion of the court, a defendant who had been truly misled to enter into a contract, as alleged, will not put up this conduct and pray for the release of trucks which are, allegedly, non-serviceable.
In the opinion of the court, the conduct of the defendant after detecting the alleged defects in the trucks is not consistent with that of a person who alleges misrepresentation. On the contrary, even if there was misrepresentation, the court is of the view that, the conduct of the defendant after unearthing the alleged fraud is rather consistent with an affirmation of the contract. It therefore does not lie within the rights of the defendant to complain of misrepresentation. See Long vs. Lloyd  2 All ER 402. The court will therefore dismiss the first relief endorsed on the defendant’s counterclaim.
By reliefs (ii) and (iii) of its counterclaim, the defendant seeks:
ii) A declaration that the Plaintiff’s conduct of impounding and detaining the trucks was wrongful and illegal.
iii) and an order of the court granting the Defendant loss of user for loss suffered as a result of the Plaintiff detaining the trucks over the detention period.
The averments leading to this counterclaim of the defendant can be found at paragraphs 13, 14, 15, 16, 18, 20 and 23 of the statement of defence. The plaintiff company filed a Reply and Defence to Counterclaim to the statement of defence on the 8th of April 2015. By the statement of defence, what the defendant says is that the plaintiff’s act of re-possessing the seven trucks was unlawful, wrongful and illegal. It is very important to point out that the plaintiff company did not deny any of the defendant’s allegation on the re-possession of seven (7) of the Shackman Tipper Trucks. It is provided in Order 11 rule 8 sub rule 1 that:
8. Matters to be specifically pleaded
(1) A party shall, in any pleading subsequent to a statement of claim, plead specifically any matter, for example, performance, release, any limitation provision, fraud or any fact showing illegality
(a) which the party alleges makes any claim or defence of the opposite party not maintainable; or
(b) which, if not specifically pleaded, might take the opposite party by surprise; or
(c) which raises issues of fact not arising out of the preceding pleading.
A Reply is a pleading subsequent to a statement of claim. Thus, by the above rule, the plaintiff is mandatorily enjoined to plead any matter of fact which, in its view, makes the defendant’s claim that the re-possession of the seven trucks was wrongful and illegal not maintainable. Again, by the above rule, the plaintiff company is mandatorily enjoined to plead matters of fact in denial of the defendant’s allegation of the wrongfulness and unlawfulness of the re-possession in order that the defendant might not be taken by surprise. Further, in so far as the plaintiff’s statement of claim is silent about the lawfulness or otherwise of the re-possession of the seven trucks from the defendant, the plaintiff is mandatorily enjoined to plead and raise issues of fact, in its reply, concerning the lawfulness of the re-possession of the seven trucks from the defendant.
Sub rule 1, 2, 3 and 4 of rule 13 of Order11 provides in no uncertain terms that
13. Admissions and denials
(1) Subject to sub rule (4) of this rule, any allegation of fact made by a party in the party’s pleading shall be deemed to be admitted by the opposite party unless it is traversed by that party in pleading or a joinder of issue under rule 14 operates as a denial of it.
(2) A traverse may be made either by a denial or by a statement of non-admission and either expressly or by necessary implication.
(3) Subject to sub rule (4), every allegation of fact made in a statement of claim or counterclaim which the party on whom it is served does not intend to admit shall be specifically traversed by the party in the party’s defence or defence to counterclaim and a general statement of non-admission shall not be a sufficient traverse of them.
(4) Any allegation that a party has suffered damage and any allegation as to the extent of damage or the amount of damages shall be deemed to be traversed unless specifically admitted.
The effect of the plaintiff’s failure to specifically deny, in its Reply, the defendant’s allegation, in the Statement of Defence, that the re-possession of the seven Shackman Trucks was unlawful, wrongful and illegal is beautifully summarized in Order 11 rule 13 which has been quoted above. In the instant matter, the plaintiff is deemed to have admitted the defendant’s allegation under consideration by virtue of the plaintiff’s failure to specifically deny that allegation. The point was made in Fori vs. Ayirebi  GLR 627 that:
When a party had made an averment and that averment was not denied, no issue was joined and no evidence need be led on that averment. Similarly, when a party had given evidence of a material fact and was not cross-examined upon, he need not call further evidence of that fact.
Again, in Kusi & Kusi vs. Bonsu  SCGLR 60, the court stated clearly that:
It is an elementary principle of law that in civil litigation, where no issue was joined as between parties on a specific question, issue or fact, no duty was cast on the party asserting it to lead evidence in proof of that fact or issue.
Rule 14 which is referred to under rule 13 simply states at sub rule 1 thereof that
14. Denial by joinder of issue
(1) If there is no reply to a defence, there shall be a joinder of issue on that defence.
Thus, in the instant matter, where the plaintiff filed a Reply to the defendant’s Defence, the provision in rule 14 above does not apply. In other words, since the plaintiff filed a Reply, there is no automatic joinder of issues in respect of allegations of facts made in the statement of defence and that the plaintiff ought to have, specifically, denied any such allegation in the statement of defence which the plaintiff does not admit otherwise, the plaintiff will be deemed to have admitted those facts. It implies therefore and the court holds that the re-possession by the plaintiff of the seven Shackman Trucks from the defendant was done without any basis in law and was thus, wrongful, unlawful and illegal. Under cross examination, on the 31st October 2017, the following questions were, among others, put to the representative of the plaintiff company:
Q. You did not take a court order when you want to seize the trucks. Did you?
A. No we did not take a court order. But as per the agreement with them if they default payment it was agreed we will repossess the vehicle.
Q. You have not attached the agreement that gave you the power to repossess the vehicles. Have you?
A. I have not attached them because on one of the occasions when we went there to repossess and the drivers haven’t gotten instructions from the boss, so we were about to go to police station when we left the police station somebody broken into our cars and took all our cheques and documents.
Q. I am putting it to you that you don’t have any agreement to repossess the vehicles.
A. What I know is that we had.
Although the plaintiff failed to deny the defendant’s allegation of the unlawfulness of the re-possession of the seven trucks by the plaintiff, nevertheless, at the trial, the plaintiff sought to justify their act of re-possession of the trucks by asserting that the contract of sale between the parties gave them the right to re-possess in situations where the defendant defaulted in the re-payment of the monthly installment. Yet, when they were challenged to produce the said agreement, the plaintiff failed to do so, contrary to section 14 and 17 of the Evidence Act, 1975, NRCD 323 and the decision in the case of Okudzeto Ablakwa (No. 2) vs. Attorney General & Another  2 SCGLR 845, among others, under the pretext that the agreement had been stolen on an occasion when they went to re-possess some of the trucks. The court finds this explanation completely unacceptable given that the plaintiff is a limited liability company and it is expected to keep records of original and duplicate copies of documents, in particular; a document as important as a contract which evidences the sale of trucks whose cost runs into thousands of dollars.
During cross examination it was suggested to the defendant’s representative that the defendant company had, per its exhibit 3, acknowledged the rightfulness of the seizure of the trucks. The court has critically examined the said exhibit 3 tendered by the defendant and the court finds and holds that, there is nothing in exhibit 3 to show that the defendant had acknowledged that the repossession of their trucks by the plaintiff company was right and lawful. As already pointed out, the court holds that the plaintiff has not provided any legal basis for impounding the seven trucks. Consequently, the defendant is entitled to recover damages for the unlawful re-possession of the trucks by the plaintiff. In respect of the seven trucks which were repossessed, the evidence of the plaintiff is that the repossession happened in early 2014 at Esiama in the Western Region. The plaintiff’s representative could however not state the exact date that the vehicles were seized by the plaintiff.
The plaintiff also testified to the effect that after the seizure of the seven trucks, the plaintiff, at a later date, went and re-possessed two more trucks making a total of nine (9) trucks. The defendant’s representative admitted during cross examination on the 6th December 2017, that in all nine (9) trucks were repossessed by the plaintiff. There is evidence on record that the plaintiff company released four (4) of the trucks to the defendant after the defendant had paid the cost of the repossession to the plaintiff and also after the defendant had promised to make good their indebtedness to the plaintiff. The defendant’s representative made admissions to this effect in his answers under cross examination. The defendant has testified at paragraph 36 and 37 of its witness statement that it would have earned a net income of GH₵700 per truck per day and that the truck would have worked for 25 days in a month and that for the seven trucks that were first impounded, the defendant expected to earn GH₵1,225,000 for the 10 months that the trucks were detained. On the 6th December 2017, the defendant admitted under cross examination that the amounts mentioned as loss of income in the witness statement were all projections or estimates.
It must be pointed out that the defendant has not produced any concrete evidence to support these projections or estimated income. The defendant could have tendered its cash book to show the daily or monthly returns on the use of the trucks. The defendant could have tendered evidence of the payment of taxes on the income made by the trucks to serve as a sound basis for the claim it is making on the plaintiff for the seizure of the trucks. Unfortunately, no such evidence has been produced by the defendant. In such circumstances, the defendant would be entitled to only nominal damages. See Norgbey and Another v. Asante and Another  1 GLR 506. In Adjei v Oteng alias Ama [1997-98] 1 GLR 725 the court held that:
Although the plaintiff would be presumed to have suffered a loss, since he led no evidence on the real estate market or the rates of exchange of the foreign currency or the depreciation of the cedi during the period, he failed to give the necessary evidence as to the amount of the loss. In the absence of such evidence, nominal damages of ¢5 million—about one-tenth of the cost of the house would be awarded him as reasonable damages.
In line with the authorities therefore and taking into consideration the length of time that the trucks have been in the custody of the plaintiff and the fact that the seizure was done as a result of the default of the defendant to pay the monthly installment on the cost of the trucks, the court will award the sum of GH₵300,000.00 as general damages to the defendant for the unlawful seizure of the trucks. The court will consequently order the plaintiff to release to the defendant the trucks which the plaintiff repossessed from the defendant.
DAMAGES FOR DEFECTS:
Finally, the defendant has asked for:
iv) An order of the Court granting the Defendant all expenses incurred on the trucks as a result of mechanical and physical faults caused by the manufacturer’s defects.
The defendant has pleaded that it noticed various kinds of defects in the trucks after taking delivery of them and notified the plaintiff accordingly. Evidence has been given at paragraph 35 of the defendant’s witness statement regarding the costs incurred in replacing various parts of the trucks including tyres, batteries, and fuel pumps, among others, all amounting to GH₵204,100. The plaintiff has denied that the trucks had the defects which the defendant alleges at the time of the sale and delivery of the trucks to the defendant. For that reason, in order for the defendant to succeed on its claim, it ought to do more than repeating on oath its allegations in the statement of defence.
In the opinion of the court, the defendant has not produced any concrete and convincing evidence to show that the vehicles in question had the defects attributable to them at the time when they were sold and delivered to the defendant. At any rate, the defendant has agreed under cross examination that the vehicles were covered by a warranty agreement which was tendered by the defendant and received as exhibit 1. Under the warranty various parts of the vehicles have been guaranteed by the plaintiff for either a certain number of kilometers done by the vehicles or for a certain period of time. It is not the case of the defendant that their rights have accrued under the warranty agreement and that the plaintiff had reneged on its obligations under the warranty agreement. A warranty was a term of a contract which was collateral to the main purpose of the contract. See Neoplan (Ghana) Ltd v Harmony Construction Co Ltd [1995-96] 1 GLR 662. In the opinion of the court, the defendant can claim for the costs of replacing the various parts, as it seeks, to do if the defendant can show that the parts replaced were guaranteed under the warranty agreement and that the plaintiff company herein had breached or failed to perform its obligations under the warranty agreement.
However, as pointed out earlier, the defendant’s claim for the cost of or the expenses on the trucks is not premised on a breach, by the plaintiff, of any warranty obligation. It must be pointed out that the fact that repair works have had to be done on new vehicles which have been purchased and used is not in itself evidence of manufacturer’s defects or of misrepresentation and that there ought to be cogent evidence in proof of that allegation. The court will, thus, dismiss the defendant’s claim for cost of replacing certain parts of the trucks for the reason that the defendant has failed to lead evidence to prove that those parts suffered from manufacturer’s defect. Now the plaintiff’s claim against the defendant is for the recovery of the sum of $519,811 being the outstanding balance of the cost of Shackman Tipper Trucks sold to the defendant. The plaintiff also seeks damages against the defendant as well as interest on the sum outstanding till the date of final payment. The plaintiff seeks, in the alternative, an order to repossess the vehicles.
The defendant has admitted under cross examination that the defendant company purchased twelve trucks from the plaintiff at a cost of $85,000 per truck making a total of $1,020,000. The defendant says that so far, it has paid a total of $424,189 to the plaintiff. This leaves a balance outstanding of $595,811. The evidence on record shows that the contract was entered into in September 2013 and the vehicles were delivered to the defendant in that very month against post-dated cheques issued by the defendant to the plaintiff for the payment of the cost of the vehicles over a period of twelve months. This implies that latest by the end of October 2014; the defendant was expected to finish paying for the total cost of the vehicles. The court will hold, therefore, that the defendant is indebted to the plaintiff to the unpaid balance of the cost of the trucks.
The court will therefore amend the endorsement on the plaintiff’s claim from the sum of $519,811 to the sum of $595,811 which is the sum admitted to be owing by the defendant. Judgment will therefore be entered for the plaintiff against the defendant in the sum of $595,811 or its equivalent in Ghana Cedis. The court will award the plaintiff interest on the said amount at the prevailing bank rate from 1st November 2014 to the date of final payment. The court will dismiss the plaintiff’s claim for damages since that has been taken care of by the claim and award of interest. The court will make an order that each party bears its own cost of the proceedings since each of the party has succeeded on some of its claims before the court.