Court of Appeal
Civil Appeal No. 2 of 1991
25th September, 1991
KENNETH ST. L. HENRY, P.
NICHOLAS J.O. LIVERPOOL, J.A.
SIR JAMES A. SMITH, J.A.

Mr. Zuniga for Appellant.
Mr. Sabido for Respondent.

Sale of Goods - Guarantee to repair items free of cost expired - Whether Plaintiff entitled to recover item in a state of repair without paying for the cost of repairs.

J U D G M E N T

By writ of action dated April 5, 1984 the Appellant sought from the Respondent the return in good repair of a tape recorder alleged to have been bought in December, 1980 with a 2 year guarantee and which was, pursuant to the guarantee, returned to the Respondent for repair on March 11, 1982. In the alternative the Appellant claimed $2,500 the value of the tape recorder. The defence filed in the action was in the following terms:

"1. The Defendant did not sell to the Plaintiff a tape recorder in or about December, 1980 for the price of $2,500,00.

2. The Plaintiff first purchased an AKAI tape recorder Unit Model GX 280DSS on the 6th day of December, 1977 for $1,345.50.

3. No guarantee of two years was given by Maya's to the Plaintiff as stated in his Paragraph 2 of his Statement of claim undertaking "to repair the said tape recorder free of cost if it should malfunction or if any defect come to light within 2 years".

4. Maya's as retailers go along with the usual warranty of one (1) year that the AKAI factory gives on all its products for service and parts at cost.

5. In the early part of January, 1978 the Defendant delivered to the Plaintiff tape recorder Model GX 630D brand new without any guarantee from Maya's save the usual AKAI factory warranty aforementioned of one year.

6. More than three years later May, 1981 or there abouts the Plaintiff brought Model Unit GX 630D to Maya's for the technician to look it over.

7. In November, 1981 the visiting AKAI trained technician checked the Model unit and diagnosed that the unit had suffered considerable use and was showing signs of definite wear.

8. In November, 1981 the Defendant offered to repair the unit at a cost of US $150.00 including service and parts but the Plaintiff refused.

9. The Defendant offered to return the model unit to the Plaintiff who refused to accept same.

10. Save as hereinbefore specifically admitted the Defendant denies each and every allegation contained in the Statement of claim as though the same were herein set out and traversed seriatim."

At the conclusion of the trial of the action the learned trial judge dismissed the plaintiffs claim with costs. This is an appeal against that judgment.

The grounds of appeal which were argued are as follows:

"(1) The Judgment is against the weight of the evidence;

(2) The learned Trial Judge upon a proper assessment of the evidence and directing himself properly on the Law could not have come to the conclusions at which he came upon the facts and/or the Law;

(3) The learned Trial Judge failed to consider the case as a whole."

In Support of these grounds counsel submitted that the learned trial judge erred when he referred to the central issue being a written guarantee and its specific terms, because at the commencement of the trial the statement of claim had been amended by deleting the reference to a written guarantee and substituting a reference to an oral guarantee. Counsel also submitted that paragraph 1 of the defence was defective because it did not make clear how much of the Appellant's case was being disputed. He conceded however that at the trial no complaint was made or objection taken to the pleadings.

It seems to me that the real issue in the case was as the date of purchase of the tape recorder. If, as the Respondent alleged, it was purphased in January 1978 as a replacement for one originally purchased in December 1977 and was returned for repair either in March 1982 as the Appellant alleged in his statement of claim or in May 1981 as the Respoadent alleged in its defence, it was immaterial whether guarantee was a 2 year written guarantee, a 2 year oral guarantee or a 1 year guarantee as any such guarantee would have expired.

The Appellant's evidence was that he purchased a tape recorder in December 1980 for $1,300, exchanged it in January 1981 for another for which he paid an additional $1,000 and returned this second machine for repair in May 1982 when it started malfunctioning. He was given another machine with which he was not satisfied and he returned it to await the repair of his machine to be effected when the necessary replacement part arrived from Japan. He declined however to pay the $150 demanded for this repair since in his view the 2 year guarantee given with the machine had not expired. He put in evidence a receipt which he said was given him when he returned the tape recorder but that receipt is dated 3.11.81.

In cross examination he agreed that a letter written on his behalf indicated that the tape recorder was brought in 1979, not 1980. In 1977, he said he bought a receiver from Maya's but he was shown a copy of a receipt saying that he bought an AKAI tape recorder in 1977. His evidence then continued.

"The receipt shows that the value is $1,345. 1 did not bring it back in 1978. 1 brought it back in 1981. 1 bought a receiver in 1977. In January 1981, 1 returned the machine. In 1982, 1 returned the second machine. It was in late 1982. I bought the first machine in 1980 and I took back that machine in January 1981 and I got another machine, which machine was taken back in 1982. I kept the second machine for a year and some months. The defendant company gave a two year guarantee. It was not in writing. The guarantee was that if the machine faltered within 2 years they would repair it free of cost. When a second machine was given to me I don't remember getting a receipt for the $1,000 I paid in cash. A few weeks later I bought the first machine that I got the second machine. The second machine was a brand new machine in a Shipment box."

The confused state of the Appellant's evidence could have done little to discharge the burden of proof which lay on him and none of the documents produced supported his claim of a purchase in December 1980 or January 1981.

The evidence for the Respondent on the other hand was of a sale of an AKAI tape recorder to the Appellant on December 6,1977 in respect of which a sales invoice was produced. That tape recorder cost $1,345. A few days later it was replaced because the Appellant was not happy with it. Two or three weeks later that recorder was replaced for the same reason with a third and eventually on January 1978 a fourth recorder was substituted. It was a more sophisticated unit for which the Appellant paid an additional $1,000. Complaint about the malfunctioning of this unit was made in May 1981 when the Respondent lent the Appellant a unit pending the repair of the malfunctioning one. Subsequently the Appellant refused to pay $150 for the replacement of the unit's head which was required.

On balance and having regard to the documents put in evidence, the evidence, for the Respondent appears more credible. On that evidence no guarantee was in operation when the tape recorder was returned and the Appellant, having refused to pay for the repair to the unit was not entitle to succeed in his claim for its recovery.

I would therefore dismiss the appeal with costs to the Respondent to be agreed or taxed.

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