WIREN INTERNATIONAL GH LTD vs MECHANICAL LLYOD CO.LIMITED
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT (COMMERCIAL DIVISION)
    ACCRA - A.D 2018
WIREN INTERNATIONAL GH LTD - (Plaintiff)
MECHANICAL LLYOD CO. LTDMECHANICAL LLYOD CO. LTD - (Defendant)

DATE:  15 TH MARCH, 2018
SUIT NO:  CM/0103/2016
JUDGES:  ERIC K. BAFFOUR, ESQ. (JUSTICE OF THE HIGH COURT)
LAWYERS:  COUNSEL FOR PLAINTIFF – SAMANTHA CARBOO FOR RANDALL OBENG-SAYKI
COUNSEL FOR DEFENDANT – ALFRED ENYAAH FOR PETER ZWENNES
JUDGMENT

 

Plaintiff claims the following reliefs endorsed on its writ issued against the Defendant:

a)    Recovery of the sum of €74,793 being the value of a BMW 7 series vehicle damaged in the custody of the Defendant

b)    Interest on the said amount from 6th of November, 2014 to date of final payment General damages for negligence

c)    Damages for loss of use of the vehicle from 6th of November, 2014 until date of receipt of full value for the vehicle.

d)    Cost including lawyers’ fees (with liberty to apply)

 

In the statement of claim, Plaintiff states that it has been a long standing customer of Defendant, who is the sole agent and representative of BMW AG and Ford Motors in Ghana. Plaintiff avers that it purchased a BMW 7 series saloon vehicle with registration No GR 437-10 for the use of its Chief Executive Officer (CEO), George Wiredu. Plaintiff notes that the said vehicle for some inexplicable reason suffered a battery fire which caused the Plaintiff to tow the vehicle to the workshop of the Defendant. Plaintiff claim to rely on the doctrine of res ipsa loquitor for the exact cause of the battery fire as it subsequently came to its attention that Defendant had recalled several vehicles worldwide to rectify problems responsible for battery fires. To Plaintiff Defendant took several months before it notified Plaintiff that it had repaired its vehicle whereupon the Plaintiff notified the Defendant that it was no longer interested in taking back the vehicle due to the security concerns it had about the vehicle when the fire incident happened.

 

To Plaintiff whiles discussions was ongoing regarding the vehicle, Defendant’s shop was flooded seriously affecting the vehicle but Defendant has failed to disclose to Plaintiff the full extent of the damage caused to the vehicle and contend that Defendant had been negligent. To Plaintiff overtures made towards an amicable settlement was met with lukewarm reception by the Defendant compelling the chair of Plaintiff’s CEO, Mr. Wiredu to fall on the vehicle of his wife resulting in inconveniences to his family and occasioning great loss and damage to him. Plaintiff states the particulars of the specific damage as loss of the BMW 7 series valued by Assenta Properties to be €60,000.00 and also loss of use of that vehicle. Plaintiff concludes that this has caused him severe anxiety and distress and hence the reliefs it seeks before the court. Defendant has denied the essential averments made by the Plaintiff. Defendant claim that the cause of the fire per its investigations was a smoke from a faulty electronic connector to the battery positive terminal unit and contend that with the exact cause of the fire known the Plaintiff cannot claim to rely on the doctrine of res ipsa loquitor.

 

Defendant claim that the vehicles recalled worldwide did not include the vehicle of Plaintiff. And any delays occasioned in the repair of Plaintiff’s vehicle was due to the frequent interference during the period of the repairs by Plaintiff. It is the further claim of Defendant that as Plaintiff failed to collect the vehicle after repairs it was mildly affected by the floods of June 3rd, 2015 and the flood was as a result of unprecedented rains which incident on that day was purely an Act of God as its occurrence could not have been anticipated by any human foresight or prudence. And that its premises had always been a secured place for its vehicles except the first time it experienced that nature of the flood. Defendant notes that any attempted settlement was totally without prejudice and the failure to reach a settlement was due entirely to plaintiff’s unreasonable demands. But was still opened to settlement of the suit.

 

With the closure of pleadings and the parties referred for pretrial conference and same unable to amicably resolve the dispute the following issues were set down for determination:

Whether or not the vehicle was damaged as a result of the Defendant’s negligence.

Whether or not the Plaintiff’s vehicle was part of the vehicles that were recalled by the manufacturer.

Whether or not the undue delay in the rectification of the Plaintiff’s Chief Executive officer’s vehicle was caused by the Defendant.

Whether or not the defect found on the vehicle was a manufacturer’s defect/product liability.

Whether or not the vehicle was roadworthy after being damaged by the June 3rd flooding.

Whether or not the Plaintiff can rely on the doctrine of res ipsa.

Whether or not the Plaintiff is entitled to the claim.

 

THE EVIDENCE

Plaintiff testified through its authorized representative, George Kofi Wiredu and tendered among others the following documents in support of the claim of Plaintiff:

      i.        A transfer of the vehicle BMW 7 series into the name of George Wiredu as Exhibit ‘A’.

     ii.        Series of letters exchanged between the lawyers for Plaintiff and the Defendant after the vehicle was towed to the garage of the Defendant and the presumed delay in the undertaking of the repair works in the workshop of Defendant as Exhibit ‘B’ series.

    iii.        Documents from Plaintiff to show the recall of some vehicles by the principal of Defendant as Exhibit ‘C’.

   iv.        Letters exchanged between the parties as Exhibit ‘D’ series.

    v.        Extracts from internet websites and newspapers coverage of the June, 2015 flooding in Accra as Exhibit ‘E’ series.

   vi.        A valuation report of the salvaged vehicle after the June, 2015 flood by Intercity STC Coaches Ltd as Exhibit ‘F’.

  vii.        Another valuation report on the same vehicle done by Assenta Property Consulting commissioned by Plaintiff as Exhibit ‘G’

 viii.        Invoices and rates of rental of vehicles from three companies as Ex ‘H’ series.

   ix.        A letter from Ghana Revenue Authority as Exhibit ‘J’.

 

The Defendant testified through its representative, Eugene Sangmortey and its first defence witness,

Joe Hyde Jnr. The following documents were also tendered on behalf of the Defendant:

A letter from Defendant to Plaintiff’s solicitors informing them of the cause of the fire at the battery terminal as Exhibit ‘1’

Report by Defendant on the vehicle as Exhibit ‘2’

A job card from Defendant as Exhibit ‘3’

Public notices put up by Defendant after the flood in Accra that it will not be accepting vehicles at its service center as Exhibit ‘4’ series’

Whilst Exhibits ‘5’ and ‘6’ consist of the valuation report from STC and technical data on the vehicle.

 

EVALUATION OF THE EVIDENCE

I begin the evaluation with the first issue raised in the issues set down for determination which is, whether or not the vehicle was damaged as a result of the Defendant’s negligence. I combine this with the fourth issue regarding whether or not the defect found on the vehicle was a manufacturer’s defect. It must be clarified that looking at the pleadings and the evidence during trial I glean two disparate allegations of negligence levelled by plaintiff which he is under a duty to prove them. The first leg of negligence I see is the claim by Plaintiff that Defendant failed in ensuring that the vehicle purchased did not have any latent or manufacturers defect and the second allegation of negligence is in relation to the flooding Accra in June 2015 that affected the vehicle of Plaintiff.

 

The first leg of claim of negligence situate it more within the sale of goods and whether the vehicle sold to Plaintiff’s Chief Executive Officer was fit for purpose and free from defects which were not declared and known to the buyer. By Ex ‘D1’ which is the warranty covering the vehicle provided, Defendant undertook to repair or replace parts of the vehicle found to be defective in materials or workmanship for a period of 24 months with unlimited mileage warranty. It must be noted that beside the warranty provided, as far as contracts are concerned, there are terms that even if not expressed, they are implied by common law or statute law. In Ghana, there are implied terms in respect of the sale of goods for both the seller and the buyer; and this contract was a contract for the sale of goods within section 1 of the Sale of Goods Act, Act 137.

 

Specifically section 13 on implied condition of fitness and quality of the goods sold, which both counsel referred to, states as follows:

“Quality and Fitness of Goods.

Subject to the provisions of this Act and any other enactment there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale except as follows—

(a). There is an implied condition that the goods are free from defects which are not declared or known to the buyer before or at the time when the contract is made: Provided that there is no such implied condition—

(i) where the buyer has examined the goods, in respect of defects which should have been revealed by the examination;

(ii) in the case of a sale by sample, in respect of defects which could have been discovered by a reasonable examination of the sample;

(iii) where the goods are not sold by the seller in the ordinary course of his business, in respect of defects of which the seller was not, and could not reasonably have been aware.

(b). Where the goods are of a description which are supplied by the seller in the course of his business and the buyer expressly or by implication makes known the purpose for which the goods are required there is an implied condition that the goods are reasonably fit for that purpose”.

 

What the provision means is that Ghana’s Sale of Goods Act, has moved away from the common law position of caveat emptor where the buyer must beware to one of caveat glovoson, where the seller must beware of the goods he is selling. The Act places onerous responsibility on the shoulders of sellers of both brand new and second goods as being liable for defects in them. The exceptions are, one, where the seller has declared the defects in the goods and nonetheless the buyer proceed to go ahead with the transaction, second where the buyer has examined the goods to satisfy himself and has been aware of defects that are manifest on the face of the goods.

 

The cause of the fault that led the vehicle to the workshop of Defendant has been provided by the Plaintiff as an inexplicable battery fire. And that when this happened on the 6th of November, 2014, more than four years after the purchase of the vehicle, the vehicle’s mileage was a little over 10,000km and for that reason, relies on the doctrine of res ipsa loquitur. Defendant on the other hand gives the cause of the fault upon examination by its technicians as a ‘faulty electronic connector to the battery positive terminal unit’ which it communicated to the Plaintiff through its lawyers on the 14th of April, 2015.

 

The principle of res ipsa that Plaintiff seeks to rely on simply mean that ‘the thing speaks for itself’. This principle when relied on allows a Plaintiff to succeed in an action for negligence even though such a Plaintiff may be unable to produce concrete evidence as to what caused the accident. By relying on this principle Plaintiff seems to be saying that the accident should not have occurred had it not been due to a manufacturing defect. But can the faulty electronic connector to the battery terminal unit be deemed to be a latent defect or manufacturer’s defect as that was the diagnosis identified by the Defendant, almost five years after the purchase of the vehicle?

 

A look at Ex ‘D’ series which is the warranty provided the Plaintiff it covered a period of two years or twenty four months after the purchase of the vehicle. For in terms of the number of years, it must be noted that the vehicle had been with the Plaintiff’s representative for well over four years after purchase which is beyond the 24 months warranty provided by the Defendant in Ex ‘D’. However, the Plaintiff contend that the mileage of the vehicle was a little over 10,000km as the vehicle was used occasionally. Does it matter in computing how fairly new a vehicle is if it has been in the hands of the owner for a considerable number of years even though it is sparingly used? Defendant concede that the vehicle had done just over 10,000 km and yet having been in the hands of Plaintiff’s director for almost five years, it should not be seen only in terms of mileage as brand new.

 

This is what transpired when Counsel for Plaintiff cross-examined Defendant’s representative, Eugene Sangmortey:

“Q: You will agree with me that the battery connector is not a part that typically requires replacement over the life of the vehicle

A. My Lord, I disagree with him because as much as any component on the vehicle can fail, this particular unit could also fail anytime

Q. At the time you took possession of Mr. Wiredu’s vehicle, the vehicle has done just about 10,000km

A. My Lord, it has done a little over

Q. You will agree with me that typically in a year, a car will do 20,000 in normal use

A. My Lord I agree

Q. You will also agree with me that in technical terms the vehicle was virtually brand new

A. My Lord, I disagree because at the time it was a five year old vehicle irrespective of the mileage”.

 

The claim that the vehicle had done just a little over 10,000km and was therefore fairly brand new and still within the period covered under the warranty or any fault or defect discovered should be seen as a manufacturer’s or latent defect cannot be correct, I so hold and find. I agree with the Defendant and find as a fact, that the vehicle at the time it caught fire could not be deemed to be virtually brand new vehicle because it had low mileage. The age that it had spent in the hands of Plaintiff is also a factor. And under that circumstances, Plaintiff’s director was not right to have rejected the vehicle and demanded for a replacement after the repairs undertaken by Defendant free of charge to restore the vehicle to normalcy.

 

A party is entitled to a claim if a latent defect was to be discovered within a reasonable time after

purchase. What is latent defect has been defined in Stroud’s Judicial Dictionary (5th ed, Vol 2, page 663) as:

“A latent defect is not simply any defect not discoverable through ordinary use and maintenance, but a defect or a flaw, generally in the metal or material itself, which could not be discovered by known and customary test.”

 

No wonder that on average, a two year warranty is provided the buyer, by which time it is conceivable that any hidden defect would have been discovered, but such a warranty was not meant to subsist ad infinitum during the entire lifetime of the use of the vehicle. The warranty will not cover a vehicle used for almost five years despite its low mileage as what may cause a defect may not just be the constant use of the vehicle but even how it is handled or kept which may not be shown by the mileage on the vehicle. I intend to deal with the other limp of the allegation of negligence regarding the flooding as the last issue.

 

ALLEGATION THAT THE VEHICLE SHOULD HAVE BEEN RECALLED

As part of the claim of Plaintiff that the vehicle had a latent defect it alleged that the principal company of Defendant in Germany BMW AG recalled BMW vehicles worldwide to repair battery connectors as they were susceptible to fires and that Defendant in Ghana failed to recall his vehicle for the necessary action. Plaintiff provides Exhibit ‘C’ series in support of his claim. Exhibit ‘C’ series are internet write-ups of recalls made by BMW. Defendant has denied that the particular brand of vehicle of the Plaintiff should have been recalled. Indeed Ex ‘1’ which is a letter to the lawyers for the Plaintiff, the Defendant intimated the recalls did not affect the vehicle of Plaintiff. The basis of the claim of Plaintiff is Ex ‘C’ which are internet sites that claim there were recalls. Those reports are not the official website reports from the Defendant or its principal in Germany neither are those reports the official reports put out by the Defendant. This was forcefully made when George Wiredu was under cross examination on the 10th of October, 2017 in the following:

“Q: Mr. Wiredu, one of your grievances in this case is that even though there was a worldwide recall of BMW vehicles, Mechanical Lloyd failed to notify you of that

A. Yes My Lord. The recall was with vehicles with the same problem, especially battery, because the battery controls all the gadgets in a car.

Q. I am suggesting to you that there is absolutely no basis for the position that you have taken, the recall position.

A; I disagree

Q. Exhibit ‘C’ which you have based your position on is entitled ‘BMW 7 series recall Information, not so?

A: Yes My Lord

Q. Exhibit ‘C’ does not emanate from the manufacturers of BMW themselves, is that not so?

A. From the information here, it is.

Q. I am suggesting to you that, that is not correct

A. My Lord I disagree because the thing states categorically all the types of model that were recalled.

Q. BMW, the manufacturers of the vehicle are not the authors of this document that you have exhibited.

A. Yes My Lord

Q. Do you know the authors of this document

A. I don’t know My Lord, this can be found on the internet.

Q. So you cannot vouch for its authenticity

A. No My Lord. Nowadays with technology this information could be verified ...”

 

I think the Defendant raised a genuine question regarding the authenticity of Exhibit ‘C’ series, being information gathered from the internet. The information was not gathered from the official web page of the principal of the Defendant and if indeed vehicles had been recalled worldwide, there would have been no difficulty at all on the part of Plaintiff to have had access to this information from the official website of Defendant or its principal in Germany. There seems to be a substantial question regarding the authenticity of Exhibit ‘C’ series. Exhibit ‘C’ contravenes the best evidence rule enunciated by Lord Hendricks in ONYCHUND v BARKER [1745] 1 AIK 21. The reasons why Plaintiff could not have had documents from official sources from Defendant or its principal was not even explained to the court and in this day and age when the internet can equally be a source of information and misinformation in equal measure, how genuine Exhibit ‘C’ may be was a legitimate issue for Defendant to have raised.

 

A court is always imbued with the power and discretion to exclude a document that has wrongly been admitted into evidence if at the time of writing the judgment it is the opinion of the court that a particular document should not have been admitted into evidence. And authenticity is a precondition precedent to admissibility of a writing. Section 136 of the Evidence Act, NRCD 323. See also the case of JUXON-SMITH v KLM DUTCH AIRLINES [2005-2006] SCGLR 438; where the Supreme Court affirmed the decision of the Court of Appeal to exclude four vital documents admitted by the trial Judge as the precondition necessary for their admissibility had been violated, thus sinning against section 136 of NRCD 323. Rather than rule that Ex ‘C’ was wrongly admitted and exclude same, I restrain myself from taking that path. Instead, I would place scant probative value or weight on Ex ‘C’ series due to the questions regarding its authenticity that I have raised supra. Accordingly I find as a fact that the claim of recalls of particular BMW vehicles that include the model bought by Plaintiff as alleged by Plaintiff was not satisfactorily proved by the Plaintiff who bears the burden of proof and the burden of producing evidence on this issue.

 

DELAY IN THE REPAIR OF PLAINTIFF’S VEHICLE

Plaintiff claim that when the vehicle was towed to the garage of Defendant on the 6th of November, 2014 the vehicle was kept by Defendant for several months and he was kept in the dark as to the cause of the fire. From the evidence it appears Plaintiff intimated to the Defendant that he did not want the vehicle anymore. It is worthy of note that the rejection by Plaintiff’s director of the vehicle had nothing to do with any delay in fixing the problem with the vehicle. Ex ‘B’ being a letter written by Plaintiff’s lawyers gave the reason for the rejection in paragraph 1 of the letter as:

‘Our client instructs us further that he notified you that he did not want the vehicle anymore by reason of the fact that had he rolled up the windows of the vehicle at the time of the fire he would in all certainty have been trapped in the vehicle potentially leading to serious injury or death’.

 

At the time Ex ‘B’ was written on the 2nd of March, 2015, the vehicle had been in the custody of Defendant for about three months. Ex ‘B2’ being the response of Defendant it assured Plaintiff that the repairs had been completed free of charge and invited Plaintiff’s director for a test drive. As Plaintiff’s director had made up his mind after the incident of the battery fire not to take the vehicle back, I think the four months or so that the vehicle spent in the custody of Defendant before the vehicle could be fixed then may not material as Plaintiff’s CEO had made up his mind not to take the vehicle back. This then leads the court to the resolution of the claim for damages for loss use of the vehicle that Plaintiff is claim. Plaintiff per relief d claim damages for loss of use of the vehicle from November 6 till date of receipt of the full value of the vehicle. The Plaintiff’s representative in his evidence in chief at paragraphs 32 and 33 provides further particulars of the claim for damages for the loss of use of the vehicle. Plaintiff claim that the daily rental value of such a vehicle is $300.00 a day and the Plaintiff’s CEO had to suffer the indignity of borrowing vehicles from his children and other officers to conduct his business. I reckon that the claim for recovery of loss of use of the vehicle is in the nature of special damages. Special damages are not presumed by law but must be pleaded, particularized and proved in court. The court would be unable to presume that Plaintiff’s CEO spent an amount of $300.00 each day for the use of alternative vehicle unless Plaintiff provides evidence to this claim. Did the Plaintiff prove expenses incurred for the use of alternative transport whiles the vehicle was in the custody of Defendant for repairs?

 

Plaintiff in the exhibits tendered before the court brought Exhibit ‘H’ series. Exhibit ‘H’ show an invoice or bill of $500.00 for BMW and Benz S class all totaling $1,000.00. Exhibit ‘H1’ is only a quotation of prices for rentals from a company called Yoks Rent A Car and does not demonstrate any expenses incurred for the use of alternative vehicles. Exhibit ‘H2’ does not show on the face of it who it is addressed to being a bill for the use of a vehicle for an amount of $411.35 whiles Exhibit ‘H3’ is addressed to Obeng Sakyi & Co being a proforma invoice.

 

Under cross examination George Wiredu rather showed that he did not pay for alternative vehicles costing $300.00 a day to be entitled to any such recovery in the following discourse:

 

“Q: Mr. Wiredu, at the last time you testified I was asking questions about your BMW vehicle... According to you that vehicle was purchased exclusively for your use as a CEO of Wiren International, not so?

A: Yes My Lord.

Q. Were you using it daily

A. No My Lord

Q. Apart from the vehicle you have a pool of vehicles at your disposal

A. No not at my disposal

Q. Are you saying that was the only vehicle at your disposal

A. I have an X6 which I was using from then

Q. Was that what you were using normally

A. The 7 series was for exceptional cases like going for an important meeting”.

 

The admission by Plaintiff’s representative that the vehicle was for exceptional or occasional use would not make Plaintiff entitled to an order for payment for daily rental use. Besides, Plaintiff even failed to lead any evidence to show the monies spent for the use of alternative vehicles as he concedes that there was an X6 vehicle which was used as an alternative vehicle and did not need to have resorted to the use of rental vehicles. See the cross examination of the Plaintiff’s CEO on the 23rd of October, 201. What is more, with the occurrence of the battery fire well outside the period of the warranty negating any finding of latent defect for which Defendant could have been responsible, the claim of special damages by Plaintiff for the use of alternative vehicles become a non sequitor, and I hereby find that Plaintiff is not entitled to such an award as Plaintiff could not prove any such damages and even if such damages had been proved, Plaintiff would have still failed in such a claim due to the expiration of the warranty.

 

WAS THE FLOOD THAT DAMAGED THE VEHICLE DUE TO NEGLIGENCE OR AN ACT OF GOD

Plaintiff has accused the Defendant for negligence for the damage caused to its vehicle due to the flood waters of June 3, 2015 and seeks a recovery of an amount of €74,000.00 as the value of the vehicle at the time it was damaged by the flood. As I have found the Defendant not liable in respect of negligence for the battery fire caused the vehicle of Plaintiff, can it also be that Defendant again is not liable for negligence for the damage caused Plaintiff’s vehicle due to the flood waters that engulfed Accra on the 3rd of June, 2015. Plaintiff in his evidence produced Exhibits ‘E’ series to show that it was not the first time that the South Industrial area, where Defendant is located had been flooded. There is evidence of flooding on July 4, 1995 and May 30, 2013.

 

For Plaintiff to be entitled to his claim for negligence he must prove that, one that Defendant owed a duty, two there has been a breach of that duty, three, that there is causation and four that harm has been occasioned Plaintiff as a result of the breach of the duty. Duty of care is the primary requirement for a successful claim in negligence. For if there is no duty the failure to take reasonable care would not give rise to liability. The leading judicial test for a duty of care in England was found in the judgments of CAPARO INDUSTRIES PLC v DICKMAN [1990] AC 605; in which the House of Lords set out the following three-part test: Harm must be a "reasonably foreseeable" result of the Defendant's conduct; A relationship of "proximity" must exist between the Defendant and the Plaintiff; It must be "fair, just and reasonable" to impose liability. See also the following cases DONOGUE v STEVENSON [1932] AC 562; CHAPMAN v HEARSE [1961] 106 CLR 112.

 

The second element in negligence is breach. Once it is established that there was a duty, the plaintiff must then demonstrate that defendant breached that duty and that involves testing of the actions of the defendant against the standards set out supra. A defendant who fails to realize the substantial risk of loss to a Plaintiff, which any reasonable person in the same situation would clearly have realized, is deemed to have breached that duty of care. The third element is causation. The loss that has occurred to the plaintiff must be directly attributable to the conduct of Defendant. The test is to find out whether the harm caused the Plaintiff was the proximate cause of Defendant’s conduct. The test usually is to ask if the injury would have occurred without the Defendant’s breach of the duty owed to the plaintiff. See STRONG v WOOLWORTHS [2012] 285 ALR 420.

 

Though the Plaintiff had rejected the vehicle and was demanding its replacement after the vehicle had been fixed and Plaintiff had been informed that the repairs were completed in April, 2015. And it was not until June 3, 2015 two months after that the flood waters caused damage to the vehicle. Notwithstanding the failure of Plaintiff to take the vehicle back, can it be said that Defendant was still under a duty to ensure that the vehicle was safe. And safe from what? Safe from theft, safe from fire, safe from the deliberate and calculated acts of Defendant’s staff or third parties. Can it be said that it was within the power of Defendant to have prevented or averted the flood that swept some parts of Accra on that June 3rd 2015 with its attendant havoc that it wrecked to property and human life?

 

The answer of Defendant to a charge of negligence in respect of the flood is the defence of an act of God. Was the flood an act of God and even if this defence fails I raise for my consideration as to whether a party can claim damages for the value of a property in the custody of a Defendant when he had clearly indicated that he did not want his property back any longer? And having so rejected the vehicle was the vehicle at the shop of Defendant at Plaintiff’s own suo periculo? Act of God is an unforeseen natural occurrence which when raised by a Defendant in an action in contract or tort and sustained discharged a party from the performance of his obligation. In the case of TENNANT v EARL OF GLASGOW (1864 2 M (HL) 22) an act of God was defined as:

Circumstances which no human foresight can provide against, and of which human prudence is not bound to recognize the possibility, and which when they do occur, therefore, are calamities that do not involve the obligation of paying for the consequences that may result from them”.

 

Lord Hobhouse in the case of TRANSCO PLC v STOCKPORT METROPOLITAN (2003) UKHL 61 where Transco plc had sued the council for repairs of £93,681.55 underneath one of its pipes in Brinnington. The ground beneath the gas pipe had washed away when the Council’s water pipe leaked. The court held the Council not to be liable and described an act of God to be an event that one involves no human agency, two which is due directly and exclusively attributable to natural causes, three and which could not have been prevented by any amount of foresight, plan or care. Foreseeable results of unforeseeable causes may still give rise to liability. Natural events such as floods, earthquakes, hurricanes, tornadoes, tsunamis have all in the past been ruled to be acts of God.

 

Can the floods of June 3rd, 2015 be said to be act of God? That first depends on whether the Defendant could on its own have done something to prevent the flood waters from entering its workshop. From the evidence it was not only the Defendant’s workshop that was flooded but other shops such as PHC Motors, Toyota etc. Many parts of Accra were flooded and there could have been human factors involved that exacerbated the havoc caused by the rains. I cannot however find that something special or extraordinary was expected of the Defendant to have insulated it from the flood. I will therefore find as a fact that the flooding of Defendant’s premises where the vehicle of Plaintiff was kept thereby causing damage to the vehicle was an act of God.

 

Even if this finding is wrong it does not matter. Why? Defendant has repaired the vehicle free of charge way after the warranty had expired and had notified the Plaintiff to come for the vehicle but had refused more than three months before the flood. In that circumstance, Defendant bore no obligation to the Plaintiff as the vehicle was kept with the Defendant at Plaintiff’s own risk. I am not unmindful that attempts were made to amicably settle the matter, whereupon the parties commissioned Intercity STC to value the vehicle which was done as shown in Exhibit ‘F’. Plaintiff was however not happy with the value and commissioned his own independent valuation in Exhibit ‘G’ where Assenta

 

Properties put the open market value at €60,000.00 and forced sale value at €48,000.00. This second valuation at the instance of Plaintiff could be said to be self-serving. The attempt at settlement before court and even in the course of trial was totally without prejudice and could not be said to bind the Defendant. For good business practice and to retain an abiding client, a business entity may decide to give more than what the law requires and that cannot be used as evidence of liability.

 

On the whole, I find the claims of Plaintiff unproved and not meriting an award of the court for the reliefs claimed. I accordingly dismiss the claim of Plaintiff in its entirety. Each party shall its own cost.