respondent insisted on testing a sample before the sale agreement was signed. If the trial judge had evaluated the evidence as he should have, he would have considered whether the goods which were supplied were even compared with the sample to see whether they corresponded. He did not. In my view, that was a fatal omission given the true nature of the sale agreement. ”
The learned Justice of Appeal then proceeded to analyse the evidence on record and found that no evidence had been led to show that the goods allegedly supplied were compared with the sample to determine whether they corresponded with the sample. The learned Justice of Appeal found that whereas the goods supplied were described as “Orange Oil” as per agreement, the samples tested by PW1, PW2 and PW3 were of “Orange Flavour”.
PW1 testified as follows: -
“My instructions were to inspect on request by the plaintiff and ascertain quality of Ice mixed orange flavour”
In cross-examination he stated, inter alia:
“Yes, the purpose was to inspect as per plaintiff
requirements,................... I was not to compare the three
samples to any other samples............................................. The
specification of sample was orange flavour...................................
I did not know the goods are the ones supplied to Hwang Sung by the Defendant. I just sampled them.
............... We did not do identification analysis. We did
analyse in full the chemical nature of the product. ”
PW2 testified as follows:-
“This is a Certificate of Analysis No. FA 071/20001 of UNBS. I recognise it. It is a Certificate for samples of Orange Flavour. ”
Then on cross-examination he stated as follows:-
“The sample was orange flavour. The client described it as oranse flavour. I did not test for oranse oil etc. I went out by routine to correctly identify the sample thus the appearance by colour, smell and suspended matter. I did not test it if it was
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