...Over Defect VOLVO Trucks

A Ghanaian company, JF-K Ltd has instituted court action against Volvo Truck Corporation of Sweden, manufacturers of Volvo trucks and equipment and their local representative, MULTI-TECH (GH) LTD for supplying them with defective Volvo trucks purchased in 2007.The Company is demanding $10million in general damages and also additional $1,675,156.03 as loss of actual income.

In a the statement of claim, JF-K LTD ,the plaintiff said Upon the arrival of the trucks they were put into operation but they were found to be defective and the defendants had to order Plaintiff to cease operations for the defects to be rectified in an E-mail letter dated 5th May 2008.

The plaintiff was also at a point in time ordered by the Defendant to decrease the load of the vehicle until the defects were rectified. The plaintiff states all the parties met in Accra and drew up an Action Plan to enable the Defendants rectify the defects in order for Plaintiff to re-commence operations. The Plaintiff says the implementation of the Action Plan was delayed which prompted plaintiff to write to defendants in a letter dated the 1st day of December, 2008 and also sent numerous e-mail messages to defendants.

The defendants in E-mails letters dated 19th and 20th day of November, 2008 also protested against the delay in the implementation of the Action Plan. The Plaintiff says as a result of the defects and the occasion of operation and the delay in complying with the Action Plan it has incurred huge loses and suffered other hardship and injuries such as operations, loss of contracts etc. An E-mail message dated the 20th of November, 2008 from Matmerciler builder of the trailer of the trucks indicates the delays in fulfilling the Action Plan.

The Plaintiff engaged the services of a valuer who assessed the actual loss of income to Plaintiff as a result of the defect ad cessation of operations of the trucks, copies of which were sent to defendants through plaintiff’s solicitors in a letter dated the 6th day of August, 2010.

In a letter date the 1st day of September, 2010 the 1st Defendant wrote to plaintiff’s lawyers and stated it is not liable to any losses suffered by plaintiff as a result of defendants’ warranty. However, the plaintiff shall contend it is not aware of any warranty from defendants and that even if any warranty exists it has nothing to do with the loses that plaintiff has incurred. In their defence, the 1st defendant (Volvo Corporation) firmly rejects the plaintiff’s claims, as having no legal and or factual basis. The trucks were sold with the benefit of 1st defendant’s International Warranty Terms and Conditions, which are applied for the 1st defendant’s sale of trucks globally. According to said Warranty Conditions, the warranty does not cover e.g. equipment/parts, superstructure or other installation work not assembled/installed by 1st defendant. Hence, the trailers (that were manufactured by Katmerciler AS Trailer Manufacturer) were subject to its separate warranty and this was expressly noted in the proforma invoice, evidencing the deal between the plaintiff and the 1st defendant.

Further, the 1st defendant’s Warranty Conditions stipulate that 1st defendant makes no representation or warranty other than those expressly set forth in the Warranty Conditions and disclaims any implied warranties of any kind, including without limitation quality, performance, merchantability or fitness for a particular purpose. Consequently, except for as provided in the Warranty, 1st defendant disclaims any liability for direct and indirect losses, costs or damage. The 1st defendant denies paragraph 1 of the statement of claim. The 1st defendant avers in further denial of paragraph 1 that the authorised business of the plaintiff is road and building construction, civil and engineering work, plumbing works, import and export of general goods. Save that the plaintiff imported 1st Volvo trucks from the 1st defendant into Ghana in 2008 for use in its business, the 1st defendant denies paragraph 5 of the claim and put the plaintiff to strict proof By a proforma invoice No. AGHA071b, dated March 14, 2007 the 1st defendant offered to sell to the plaintiff 15 Volvo trucks with 35m3 tipper trailers upon the terms and conditions contained in the said proforma invoice. As mentioned above the trailers were to be constructed by the 1st defendant’s sub-supplier, Kartmercieler, a Turkish company.

The plaintiff accepted the 1st defendant’s said offer and purchased the 15 Volvo trucks with 35m3 tipper trailers upon the terms and conditions contained in the said proforma invoice including the 1st defendant’s international warranty conditions and the sub-suppliers 12 month warranty.

However, the plaintiff reply to the first defendant’s statement of claim that, The plaintiff in reply to paragraph 2 of the defence states he was not made aware of any warranty to the effect that defendant would not be liable for parts to be manufactured by 3rd parties. In any case plaintiff was not told any part of the trucks was to be manufactured by any 3rd party. Plaintiff never had any dealing with Kartmercieler as those to manufacture any part of the trucks. The plaintiff shall contend that even if it was made aware of any such warranty, the defendants are stopped from relying on same in view of their conduct and the action plan dated the 20th day of May, 2008.

The plaintiff denies any knowledge of any warranty as stipulated in paragraph 3 of the statement of defence as it was never made aware of same by defence. The defendants never disclose any such warrant to plaintiff and even if they did. Defendants are stopped from relying on same for later undertaking to rectify the defects which they did. The plaintiff in reply to paragraph 4 of the defence states it is also authorised to engage in mining support service.

The plaintiff denies paragraph 6 of the defence and state the pro-forma invoice was dated 4th January, 2007 from 2nd defendant.

The plaintiff denies paragraph 6 of the defence. Plaintiff was never made aware of any conditions in any warranty or agreed with defendants that any sub-supplier. Kartmercieler of Turkey was going to manufacture the trailer of the trucks. It was later on plaintiff’s attention was drawn to the fact that Kartmercieler manufactured the trailers that was after the defects occurred.

The plaintiff in reply to paragraph 8 of the defence reiterates paragraphs 6 and 7 of its statement of claim.

The plaintiff denies paragraph 11 of the statement of defence and states defendants gave the drivers of the trucks adequate training before commencement of the trucks.

The plaintiff denies paragraph 13 of the defence.

The plaintiff denies paragraph 19 of the defence and states that the pro-forma invoice prior to the purchase was from 2nd defendant.