Amamo v Kankam and Another (GTNDC A2/84/2023) [2024] GHADC 745 (16 December 2024)

IN THE DISTRICT COURT HELD AT BAATSONAA ON MONDAY THE 16TH DAY OF DECEMBER, 2024 BEFORE HER WORSHIP MABEL N. L. AHELE, DISTRICT COURT MAGISTRATE SUIT NO: GTNDC A2/84/2023 ISAAC KOFI AMAMO PLAINTIFF VRS. 1. NICHOLAS YAW KANKAM @ YAW KWARTENG DEFENDANTS 2. KWABENA DANSO PARTIES: PLAINTIFF - ABSENT DEFENDANTS - ABSENT COUNSEL FOR PLAINTIFF – NII AYI TETTEY COMEY ESQ. HOLDING BRIEF OF EMMANUEL KPATSI ESQ. - PRESENT COUNSEL FOR DEFENDANTS – TERSTER TAMAKLOE ESQ. - ABSENT JUDGMENT 1. It must be stated onset that this is a case inherited from Teshie-Nungua District Court upon the transfer by the Honourable Chief Justice to this Court on 11th January, 2024. The record of proceedings adopted has it that, on 27th June 2023, the Plaintiff filed a Writ of Summons at the Registry of Teshie-Nungua District seeking the following reliefs; 16-12-2024 ISAAC KOFI AMAMO VS NICHOLAS YAW KANKAM & ANOR - JUDGMENT Page 1 of 6 i. A declaration that Defendants have breached the agreement for the sale and purchase of the Toyota Corolla car with registration number GC 8895-21. ii. An order of specific performance directed at the Defendants to hand over to the Plaintiff the Toyota corolla with registration number GC 8895-21 forthwith. OR IN ALTERNATIVE; iii. An order directed at the Defendants to refund to the Plaintiff the sum of Seventy Thousand Ghana Cedis (GH₵70,000.00) being part of the total amount the Plaintiff has paid to the Defendant for sale and purchase of the car. iv. And interest on the amount of seventy thousand Ghana cedis (GH₵70,000.00) calculated at the prevailing commercial bank lending rate form March 2023 to date of final payment. v. General and Punitive damages for breach of contract. vi. Cost inclusive of solicitor’s fees. vii. Any other order or orders as the Honourable Court shall deem fit. 2. It is Plaintiff’s case that, the Defendants are car dealers who operate their business in Lashibi, Accra. The 1st Defendant approached him and informed him that the 2nd Defendant has a Toyota Corolla car with registration No. GC- 8895-21 for sale. According to the Plaintiff, he showed interest in the car which was priced at GH₵78,000.00. That on the 7th March, 2023, he advanced an amount of Seventy Thousand Ghana Cedis (GH₵70,000.00) for the purchase of the 2014 Toyota Corolla car and on the 9th March, 2023, he gave the balance of GH₵8000.00 to the 1st Defendant. The Defendants failed to deliver the car as agreed and only refunded an amount of GH₵8000.00. The Defendant now owes the Plaintiff GH₵70,000.00 which he has refused to pay. 3. Defendant’s Case 16-12-2024 ISAAC KOFI AMAMO VS NICHOLAS YAW KANKAM & ANOR - JUDGMENT Page 2 of 6 The Defendants filed their defence on 6th September 2023, to contest the action. They subsequently filed their witness statements but both the Defendants and their Counsel failed to participate in the trial proceedings when the date for trial was announced in their presence. Since Defendants failed to appear in Court after notice of the trial proceedings had duly been served on them, the Court proceeded with the proceedings in accordance with Order 25 r 6 and Order 1 r. 1(2) of C. I. 59. Their defence and witness statements filed were struck out and same expunged from the record. It is trite law that a party who fails to appear in court after due service on him is taken to have deliberately failed to take advantage of the opportunity to be heard. The audi alteram partem rule cannot be said to have been breached in such situation. See REPUBLIC V HIGH COURT, CAPE COAST; EXPARTE MARWAN KORT [1998-99] SCGLR 833 AND ANKUMAH V CITY INVESTMENT CO. LTD. [2007-2008] 1 SCGLR 1064. 4. Issues for Determination a. whether or not the Plaintiff is entitled to a refund of Seventy Thousand Ghana Cedis (GH₵70,000.00) and interest thereon. b. whether or not Plaintiff is entitled to his claim on general damages or punitive cost? 5. Evidential Burden Sections 11(4) and 12 of the Evidence Act, 1975 (NRCD 323) provides that the burden of proof on a party in a civil suit should be on a balance of probabilities. In ADWUBENG V. DOMFEH [1996-97] SCGLR, the Supreme Court held that in all civil actions, the standard of proof is proof by the preponderance of probabilities and there is no exception to that rule. 6. Also, in the case of YORKWA V. DUAH [1992-93] GBR 281, the Court of Appeal decision per Brobbey J. A. (as he then was) stated that: “The provisions of 16-12-2024 ISAAC KOFI AMAMO VS NICHOLAS YAW KANKAM & ANOR - JUDGMENT Page 3 of 6 the Evidence Decree, NRCD 323, require that in a case like the instant one, the obligation to adduce evidence should first be placed on the plaintiff”. Section 12(1) also states that “except as otherwise provided by law, the burden of persuasion requires proof by preponderance of the probabilities” 7. Evaluation of Evidence Plaintiff testified that when the Defendants brought the vehicle for his inspection, he negotiated for the price and they finally agreed on the purchase price of Seventy-Eight Thousand Ghana Cedis (GH₵78,000.00). He testified that, when he requested for the documents of the vehicle, the Defendants requested for part payment of the cost so he parted with GH₵70,000.00 to the 1st Defendant. He further testified that both 1st and 2nd Defendants signed an acknowledgment receipt of GH₵70,000.00, supporting his testimony by tendering in evidence EXHIBIT ‘A’, a copy of the receipt. According to him, the 1st Defendant delivered a 2015 model of Benz C250 car with registration number AK 928-20 to him as a lien that he was going to deliver the Plaintiff’s newly purchased 2014 model Toyota Corolla car and the documents in 10 days. According to him, he requested for a refund of his money when the 1st Defendant informed him that the car was no longer for sale but the 1st Defendant only gave him GH₵8,000.00 out of the GH₵78,000.00. 8. The testimony of the Plaintiff stood unchallenged as the Defendants neglected or failed to attend Court to cross-examine on the testimony of the Plaintiff. It is trite law that failure by a party to cross-examine a witness on vital matters tes- tified to in the witness box would be deemed to be an admission of those mat- ters and a party need not call further witness on that. See the following cases: FOLI V. AYIREBI [1966] 1 GLR 627; BILLA V. SALIFU [1971] 2 GLR 87; BE- DIAKO V. THE STATE [1963] 1GLR 48; LANQUAYE V. THE REPUBLIC [1976] 1 GLR 1; TAKORADI FLOUR MILLS V. SAMIR [2005-2006] SCGLR 882. 16-12-2024 ISAAC KOFI AMAMO VS NICHOLAS YAW KANKAM & ANOR - JUDGMENT Page 4 of 6 9. I therefore find and hold that the Plaintiff has established his claim to entitle him a refund of the remaining amount of money paid to the Defendants. 10. Issue 2: Whether or not Plaintiff is entitled to his claim on general damages? 11. General damages are those presumed to be natural or presumed consequence of defendant’s act. See DELMAS AGENCY GHANA LTD. V. FOOD DISTRIBUTION INTERNATIONAL LTD. [2007/2008] 2 SCGLR 748. It is trite that the objective of awarding damages is to give a claimant compensation for the loss or injury he has suffered. The Plaintiff has not demonstrated any loss suffered by him. There is no evidence on record that the Plaintiff and the Defendant entered into an agreement for sale and purchase of the vehicle. The Plaintiff has not adduced any evidence of such agreement of which the Defendants have breached their part of obligation. As held in the Supreme Court case of TEI & ANOTHER V CEIBA INTERCONTINENTAL (2017-2018) 2 SCGLR 906 AT 919, “…the fact that a Defendant does not appear to context a case does not mean that the Plaintiff would be granted all that he asks for by the Court. The rule in civil cases is that, ‘he who alleges must prove on the balance of probabilities and the burden is not lightened by the absence of the Defendant at the trial.’ The absence of the Defendant will aid the Plaintiff only where he introduces sufficient evidence to establish a prima facie case of entitlement to his claims”. 12. The Plaintiff stated in his pleadings that the Defendants are car dealers who operates their business in Lashibi, Accra and further testified at paragraph 4 of his witness statement that he knew the 1st Defendant as a car dealer. Therefore, the Plaintiff clearly patronised the sale business of the Defendants and not that a contract was entered into by the parties. There cannot be an agreement for the sale and purchase to entitle the Plaintiff any award of damages. In conclusion, the Plaintiff succeeds partly in his claims against the Defendants Judgment is hereby entered in favour of the Plaintiff as follows. 13. 14. 16-12-2024 ISAAC KOFI AMAMO VS NICHOLAS YAW KANKAM & ANOR - JUDGMENT Page 5 of 6 a) The Defendant is ordered to refund a cash sum of Seventy Thousand Ghana Cedis (GH₵ 70,000.00) to the Plaintiff. b) An interest on Seventy Thousand Ghana Cedis (GH₵ 70,000.00) payable at the current bank rate from 7th March, 2023 till final date of payment. 15. A cost of GH₵2,500.00 is awarded in favour of the Plaintiff against the Defend- ants. H/W MABEL N. L. AHELE (MAGISTRATE) 16/10/2024 16-12-2024 ISAAC KOFI AMAMO VS NICHOLAS YAW KANKAM & ANOR - JUDGMENT Page 6 of 6