Da Silva's Motors Ltd Appellant v Hudson Soso Respondent
| Jurisdiction | St Vincent and the Grenadines |
| Judge | REDHEAD J.A,SAUNDERS, J.A. [AG.],Adrian D. Saunders,MATTHEW, J.A.,Justice of Appeal |
| Judgment Date | 05 June 2001 |
| Judgment citation (vLex) | [2001] ECSC J0605-1,[2001] ECSC (VCT) J0605-1 |
| Date | 05 June 2001 |
| Court | Court of Appeal (Saint Vincent) |
| Docket Number | CIVIL APPEAL No. 39 of 2000 |
IN THE COURT OF APPEAL
The Hon. Mr. Albert Redhead Justice of Appeal
The Hon. Mr. Albert Matthew Justice of Appeal
The Hon. Mr. Adnan Saunders Justice of Appeal [Ag.]
CIVIL APPEAL No. 39 of 2000
Mr. Williams for the Appellant
Mr. S. Commissiong for the Respondent
The Appellant is a dealer in and an Importer of Motor Vehicles into St. Vincent. On the 23 rd April, 1998 the respondent purchased a 4 ton Nissan Truck from the appellant imported from Japan at a price of $42,800.00. The facts as found by the learned trial judge are that the respondent went to the appellant's sales outlet in mesopotamia with his mechanic, Raphael Steward and his driver, Clement Marshall and looked at the vehicle. The respondent's mechanic, Raphael Stewart, had done the mechanical work on the vehicle. The mechanic had charged the appellant $4,500.00 for the work done on the vehicle. The respondent having seen the truck was interested in it as a second hand vehicle. The appellant had imported the vehicle from Japan at a C.I.F value of $14,128.40. Bank charges, import duties consumption tax, landing charges and other authorised costs, brought the landed cost of the truck to $26,430.11. There is in force in St. Vincent and The Grenadines The Price and Distribution of Goods Act Cap. 1127 (hereinafter referred to as the Act). Under this Act the allowable mark up price is calculated to be $4,238.52. That is 30% (percent) of the C.I.F. value. The maximum price therefore that could be charged by virtue of the Act, is $30,668.63.
About one week after the respondent purchased the truck, on 30th April, the appellant sent to the respondent his receipts for $42,000.00 dated 30 th April, and a contract of sale in respect of the truck. The respondent signed the contract and sent it back to the appellant as requested. The contract recited that the appellant had reconditioned the vehicle and that the respondent had agreed that it was road worthy and had been given the opportunity to examine the vehicle. Shortly after the respondent took delivery of the truck a spring in the truck was broken. The appellant refused to accept responsibility for replacing the spring. This led the respondent to make inquiries as a result of which the respondent discovered that the maximum price that could be charged for the truck under the Act was $30,668.63.
The respondent as a result of this discovery sought legal advice from his solicitor who wrote to the appellant demanding a refund of $11,331.37 from the appellant. The appellant refused to refund the money. As a result the respondent brought an action against the appellant claiming that sum.
The learned trial Judge in giving judgment for the respondent held, inter alia, that to sell a vehicle at a price greater than that certified by the Ministry of Trade was contrary to the Act.
The appellant appeals to this court. Five grounds of appeal were filed on behalf of the appellant.
Under- Ground 2
The appellant alleges that the learned trial judge erred in law when he held that the vehicle sold to the respondent by the appellant fell within the provisions of the price and distribution of Goods Act chapter 112 of the Laws of Saint Vincent and The Grenadines.
Ground 3
The learned trial Judge erred in law when he held that the respondent was entitled to receive the sum of $11,331.37 with interest at the rate of 12.5% from the 23 rd day of April, 1998.
Ground 4
The learned trial Judge having found as a fact that the appellant imported a used vehicle and spent money to have it renovated before selling it to the respondent erred in law by holding that the appellant was not entitled to receive the money expended on the vehicle.
Ground 5
The learned trial Judge having stated that when the Price and Distribution of Goods Act was passed, Parliament did not envisaged that used and second hand vehicles would have been imported and resold, erred in law in holding that, the transaction fell within the provisions of the Act.
Section 13 of the Act provides:
13(1) No person shall in respect of any goods the mark up or maximum price of which has been fixed under the provisions of sections 10 or 11.
(a) sell or buy, or agree to sell or buy, any such goods at a price on which a higher mark up price has been put or at a price greater than the maximum price
(b)
(c)
(d)
(2) Any person who contravenes the provisions of subsection (1) is guilty of an offence and liable.
(a) in the case of a first offence, to a fine of not less than fifteen hundred dollars nor (sic) [and not more] than three thousand dollars
(b) in case of a second or subsequent offence, within twelve calendar months to a fine of not less than three thousand dollars and not more than fifteen thousand dollars".
Mr. Williams argued strenuously that this statute is penal and therefore must be construed strictly. I agree.
The Act (Booklet 6)
"Section 3 maximum Price–The maximum price of a motor vehicle or parts of a motor vehicle shall not exceed an amount equal to the aggregate of:
(a) in the case of a motor vehicle
(i) the C.I.F. value
(ii) thirty per centum of the C.I.F value"
Section 14(1) states as follows:—
"Every trader offering goods for sale the mark up or maximum price of which has been fixed by an order, shall cause such goods, to be marked with the selling price thereof in a conspicuous and legible manner
(2) Every trader shall display in a conspicuous position at his premises, so that it may be easily read by the customers, the current price list of such goods published under section 3(2)"
It is clear from the evidence that the mark up or maximum price of the truck was not displayed.
The learned trial Judge in his judgment said:—
"The intention of the legislation is threefold it is to specify the permitted charges, to oblige the dealer to publish in a prominent place on the vehicle the permitted charges and to limit the dealer to a maximum mark up of 30% used vehicles are in my view subject to the provisions of the Act. The prescribed information is required to be displayed on imported used vehicles as on imported new and reconditioned vehicles. The maximum price certified by the Ministry of Trade must be published in a prominent place as prescribed by the Act on all imported vehicles offered for sale. To sell a used vehicle that has been reconditioned in Saint Vincent without the information is contrary to the Act. To sell it at a price than that certified by the Ministry of Trade is contrary to the Act [my emphasis]."
Section 11 (1) (a) of the Act is in the following terms:
"(a) Any person who sells a motor vehicle or part at a price in excess of the maximum price
(f) fails or refuses to display particulars as required, is guilty of an offence and liable to a maximum fine of eight thousand dollars
(2) where an importer or trader is convicted of selling at a price in excess of the maximum price, the court shall order the amount in excess of the maximum price to be refunded to the purchaser within forty-eight hours of the date of conviction"
Mr. Williams forcefully stressed that there could be no refund unless there is a conviction and an "ordering" by the court of the return of the excess that is paid. He again for that purpose, stressed that the statute being penal in nature must be strictly construed. Mr. Commissiong, however, argued that the importer being debarred by statute, from selling above the maximum mark up price, the purchaser is entitled to recover any monies paid above the maximum price.
Mr. Commission argued that the purchaser is entitled to bring a civil action for money had and received to which the importer was not entitled to by virtue of the Act.
By section 2(b) of the Act the Consumer Affairs Officer is charged with bringing a complaint to enforce the provisions of the Act. While I agree with Mr. Williams, that having regard to the wording of the Act "notwithstanding anything contained in any other law" that a private prosecution can be maintained under this Act, I still adhere to the view that where there is a recalcitrant Consumer Affairs Officer a breach of the law could take place with impunity. In my view the mischief of the Act is to prevent importers from charging the Consumer whatever price he feels like thereby making a huge profit.
In my opinion, to agree with the submission of Mr. Williams is tantamount to evading the letter, the spirit and the provision of the Act, because in my view an unscrupulous importer, I am not saying that the importer in this case is such, could import a vehicle, do some work on that vehicle and charge whatever price he wishes.
I agree and endorse in full what the learned trial Judge said:
"In my view, the Act does not restrict the dealer from passing on his legitimate preparation costs [or any other legitimate costs for that matter]. Once the merchant lists and publishes the information prepared for the Ministry of Trade, and, additionally discloses fully and in advance to a perspective purchaser the details and costs of any repairs done by him in refurbishing the used vehicle he is entitled to recover those costs".
For these reasons I would dismiss this appeal and affirm the judgment of the learned trial judge and award costs to the respondent to be taxed if not agreed.
Albert J. Redhead
From all indications, persons who import used or damaged motor vehicles and who sell such vehicles after doing repairs thereto, as well as officials at the Ministry of Trade, are awaiting the judgment in this matter with great interest. The decision turns on an interpretation of the Price and Distribution of Goods Act, Chapter 117 of the Revised Laws of Saint...
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