Yirenkyi v. Tormekpey [1987-88] 1 GLR 533.
COURT OF APPEAL, ACCRA
ABBAN J.S.C., OSEI-HWERE AND AMPIAH JJ.A.
Osei-Hwere J.A. Osei-Hwere J.A. delivered the first judgment at the invitation of Abban J.S.C. The plaintiff’s writ sued for the refund of the following amounts by the defendant:
“1 ¢157,000 being the cost of one Toyota truck paid by the plaintiff to the defendant.
2 ¢56,860 being the cost of repairs carried out by the plaintiff on the said truck at the request of the defendant.”
In addition he sued for damages for loss of use of the said vehicle and damages for breach of contract of sale. The plaintiff is himself a businessman and the defendant a motor vehicles dealer. It was agreed in the pleadings that on or about 18 May 1980 the plaintiff bought from the defendant one Toyota truck No. AK 5697 at a price of ¢157,000 for which the defendant issued his receipt against the purchase.
It was averred in the accompanying statement of claim of the plaintiff that upon delivery of the truck it was discovered that contrary to the warranty given by the defendant the said truck was not roadworthy and that it needed substantial repairs on it—see paragraph
(4). The averments continued:
“5 To avoid a police charge against the defendant for fraud and misrepresentation, the plaintiff was authorised to effect repairs on the truck against repayment by the defendant.
9. Accordingly the plaintiff spent in all the sum of ¢56,860 in rehabilitating the said truck.
10. Despite repeated demands, the defendant has refused to pay back the said sum of ¢56,860 to the plaintiff.
11. The plaintiff says, he has not been able to use the said truck because the defendant has still not effected transfer of the vehicle in his name despite repeated demands.
12. The plaintiff says that he has thus suffered substantial material damage and loss as a result of the defendant’s breach of the contract of sale.”
The defendant essayed to rock the foundation of the plaintiff ‘s claim by the following matters in his defence:
“2 The defendant denies paragraph 4 of the statement of claim.
3. In further reply to paragraph 4, the defendant says that before the plaintiff bought the vehicle he brought his own choice of mechanics who thoroughly examined the said vehicle and after being satisfied of its roadworthiness the plaintiff arranged and met the defendant at Somanya where he paid the sum of ¢157,000 to the defendant for the purchase of the truck.
4. In further reply aforesaid the defendant says he never gave any warranty expressly nor by any implication. The defendant again maintains that the vehicle was roadworthy at the time the plaintiff took delivery of it.
5. In reply to paragraph 5 the defendant says that three months after the purchase, the plaintiff approached the defendant to
say that the vehicle had broken down and pleaded with the defendant to repair it. The defendant expressly stated that he was not liable to repair the vehicle. After further pressure from the plaintiff, the defendant suggested that the plaintiff should return the vehicle in its alleged broken down form and collect his money back as he (the defendant) could sell it for a higher price. To this the plaintiff alleged that he had transformed certain parts of the truck and made it almost new so he could not return the truck. The plaintiff at this stage left the defendant’s office. The defendant never authorised the repair of the truck and was never told of any alleged prospective police charge for fraud or fraudulent misrepresentation.
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- Paragraph 6 of the statement of claim is denied.
- In reply to paragraph 7, the, defendant says that somewhere in December 1980 he received a letter from the plaintiff’s solicitor demanding ¢56,860 allegedly being the cost of repairs on his vehicle, the alleged repairs whereof were carried out without his authority.
- In reply to paragraph 8 the defendant says that at the time of the sale he told the plaintiff that he was not in a position to effect immediate transfer as the person who sold the truck to him was outside the country and was being awaited to effect the necessary transfer. The plaintiff therefore was aware of the defendant’s incapacity to effect immediate transfer of ownership before the purchase.
- In further reply to paragraph 8 the defendant says that since the time of the purchase, the plaintiff has been in effective possession of the vehicle and has through his agents been running the vehicle for hire. The plaintiff ‘s allegation of non-user of the vehicle is therefore denied.
- In reply to paragraph 9 the defendant denies that the plaintiff has suffered any loss and he the defendant further denies any breach of contract.”
In the face of the incrimination and recrimination evoked by the pleadings the plaintiff made bold to move the court for summary judgment in respect of his claim for the refund of the ¢157,000 under Order 14 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A) as amended by rule 2 of the High Court (Civil Procedure) (Amendment) (No. 2) Rules, 1977 (L.I. 1129). His supporting affidavit relied on the defendant’s admission that he received the ¢157,000 and also on the letter signed by the defendant’s wife authorising the repairs on the vehicle. Furthermore, he deposed that paragraph 8 of the defence admitted that the defendant had not been able to transfer legal title to
him thereby frustrating the whole basis of the contract. The defendant’s affidavit in answer, in brief, maintained that he never authorised the plaintiff personally nor through an agent to effect repairs on the truck. He also contended that he has a formidable defence to the action and that the plaintiff should not be allowed to short-circuit the determination of the case.
When the motion came before Korsah J., he (in a judgment which, if I may say so, pre-empted the result of all the claims indorsed on the plaintiff’s writ) allowed it and gave judgment for the plaintiff in the sum of ¢157,000 and, at the same time, gave the defendant leave to defend the other reliefs sought by the plaintiff. The defendant’s appeal is against the summary judgment for the ¢157,000 in respect of which two grounds of appeal were filed on his behalf urging an error in law in giving judgment on claim (1) when the pleadings disclosed several disputable issues which could only be resolved by evidence and also that the trial judge failed to appreciate that the same relief was based on a breach of contract which the defendant denied.
Indeed, the learned trial judge seemed to be saying that the defendant breached the implied condition, inserted by section 13 (1) (b) of the Sale of Goods Act, 1962 (Act 137), that the vehicle was reasonably fit for the purpose the plaintiff required it and that the plaintiff was entitled to repudiate the contract, return the vehicle and claim a refund of the purchase price. Again, and as I see it the more important reason for his judgment, the trial judge found that the defendant had not conferred title in the vehicle on the plaintiff, although the agreed price had been paid and the vehicle delivered to the plaintiff. He came to this conclusion by recalling section 10 (1) of Act 137 which implied a warranty on the part of the seller that he will have a right to sell the goods at the time when the property is to pass. He construed this subsection to mean that there is an implied warranty that the seller would be able to confer title on the buyer at the time the property in the goods is to pass to the buyer. He then adverted to section 15 (1) of Act 137 which provides that “unless otherwise agreed the seller must be ready and willing to deliver the goods in exchange for the price.” He concluded from sections 10 (1) and 15 (1) of Act 137 that without any agreement to the contrary, title and property in the goods must pass at one and the same time and that if an attempt is made to pass property without title the buyer gets nothing.
There is much to be said against the conclusions of law drawn by the trial judge. For instance the provisions in section 26 (1) and (2) of Act 137 completely cut across his finding that title and property in the goods must pass at one and the same time. Section 26 (1) of Act 137 provides that the property in ascertained goods passes under a contract
of sale when the parties intend it to pass and section 26 (2) of Act 137 also stipulates that unless a different intention appears the property in the goods passes under a contract of sale when they are delivered. Again, he was not entitled to conclude, without evidence, that there was a breach of warranty that the vehicle ( a second-hand vehicle) was reasonably fit for the purpose for which it was required especially as the allegation of unroadworthiness deposed to by the plaintiff was denied by the defendant.
The trial judge should have admonished himself, in the words of Lord Denning M.R. in Bartlett v. Marcus (Sidney) Ltd. [1965] 2 All E.R. 753 at 755 that:
“ A buyer should realise that, when he buys a second-hand car, defects may appear sooner or later; and in the absence of an express warranty, he had no redress. Even when he buys from a dealer the most that he can require is that it should be reasonably fit for the purpose of being driven along the road.”
In that particular case it was found that the buyer drove away the car himself after he had taken it for a trial run. The car seemed to be running smoothly. He drove it for four weeks before he put it into a garage to have the clutch repaired. Then more work was necessary than he anticipated. Lord Denning M.R. did not consider this to mean that the car was not fit for use as a car at the time of the sale.
But our immediate engagement is not to demonstrate the unsoundness of the learned judge’s conclusions.
It is to decide whether he was right in giving summary judgment on the plaintiff’s first claim and thereby excluding any defence to that claim. The defence to that claim, without doubt, wore the look of the plea of confession and avoidance. In his affidavit opposing the summons he deposed in his paragraph 8 as follows:
“8 From the foregoing I am advised that… this is a case which promises to be very hotly contested. I have a formidable defence to the action and the plaintiff should not be allowed to have a short-cut for the determination of the case.”
The defence filed was already before the court and if the trial judge had cared to glance at it he would have satisfied himself that it raised triable issues as to whether or not, for instance, the plaintiff himself or by his agent inspected the vehicle before the price was paid; whether or not the failure to effect the proper transfer did not make the plaintiff owner of the vehicle, etc. At any rate, the admission that the ¢157,000 was paid could not be considered in isolation. It was inextricably bound up with the contract of sale and to demand its refund there must be proof either on admission or upon legally receivable evidence that the
contract had been breached. In the absence of any of these matters it was wholly unwarranted to proceed under the aegis of Order 14 of L.N. 140A as amended to pray for judgment. In my opinion the appeal ought to succeed and the judgment appealed from set aside.”
Abban J.S.C. I agree.
Ampiah J. I also agree