The Supreme Court in unanimity has overturned the decision of the Court of Appeal in the case of FAFAPE AMA ETSA FOE & ANOR v. Z-AUTO TRADE GH LTD & ANOR [TLP-CA-2022-34] and thus, ordered for the replacement or monetary payment of the value of the engine of a brand new Toyota land cruiser with special damages of US$12,000 and general damages of GH¢75,000 against Z-Auto Trade Gh. Ltd.

The decision of the Supreme Court emanates from the claim of the Appellant, Madam Fafape Ama Foe that a brand new land cruiser vehicle acquired from the respondent developed engine problems in just a week of acquisition and use. “According to the plaintiffs, after using the vehicle for a week, they noticed an unusual thick, heavy, black smoke emitting from the vehicle and that was reported to the defendants [Z-Auto Trade]. Although the defendants gave an assurance that the smoke will clear up after some time, it did not until about 5 months later when the vehicle had covered 18000km. Eventually, plaintiffs returned the vehicle to the defendants on 22/03/2016 when, according to the plaintiffs, the unusual noise worsened.”

Per the judgment of the Apex Court delivered in the voice of the learned Justice Bright Mensah JSC, Z-Auto was ordered to pay special damages of USD3,000.00 per month or its Ghana Cedi equivalent for four (4) months period for cost of use and hire by the Plaintiff/Appellant of an alternative land cruiser v8 vehicle when the supposed brand new vehicle acquired from Z-Auto developed engine problems just within one week of use.

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The amount of USD3,000.00 per the court was to be paid within 7 days from the date of the decision of the Court which was the 4th day of April, 2026. According to the Supreme Court, “The same shall attract interest at simple interest rate if it shall remain unpaid after a period of seven (7) days from today.”

Fraud by Z-Auto

In an elegant analysis of the issues between the parties and in heavy reliance on the Sale of Goods Act, terms and warranties under contract law as discussed in the contract law text authored by the respected Christine Dowuona Hammond, the Court arrived at the conclusion that the 1st Respondent-auto trader sold an “empty shell” to Plaintiff/Appellant-customer.

Per Justice Mensah, “The plaintiffs set out to purchase a brand new Toyota Landcruiser station wagon vehicle and not an empty shell. Ordinarily, a person who has purchased a brand new vehicle would not expect thick smoke emitting from the vehicle. The Court of Appeal, therefore, erred in law in holding that there was an acceptance by the plaintiffs of that defective vehicle.”

In its strident effort to depart from the decision of the court appeal, the Court held that the long possession of the vehicle by the Plaintiff-customer did not amount to acceptance of the defective vehicle. The Court held as follows; “Additionally, there was that concealed fraud upon the defendants’ representation to the plaintiffs that the vehicle was a brand new vehicle when it was a vehicle with a refurbished engine and smoke emitting therefrom. Fraud vitiates everything and vitiated the contract of sale and purchase in the instant case.”

READ/DOWNLOAD JUDGEMENT HERE: