Aworo Vrs Gyamfi & Another [2023] GHADC 384 (31 March 2023)

IN THE DISTRICT COURT HELD AT KUKUOM THE 31ST DAY OF MARCH, 2023 BEFORE HER WORSHIP AKUA OPPONG-MENSAH (ESQ) JOHN KWADWO AWORO } PLAINTIFF SUIT NO. A11/2/2023 VRS. 1. 2. AMOS GYAMFI } DEFENDANTS STEPHEN AMANKWA PER HIS NEXT FRIEND YAW FRIMPONG} JUDGMENT FACTS: The case revolves around a transaction entered into by the Plaintiff and Defendant (1st Defendant) for use of the tricycle by the 1st Defendant on a desultory basis. The facts of this case, which are not materially complex (which is disputed by the Defendant), are that the Plaintiff on 28th February, 2022 gave his unregistered Apsonic Tri-Cycle (Abobo Yaa) to the defendant (now 1st Defendant) for use to return it on the same day. The 1st Defendant upon taking possession of the Tricycle, however failed, to return it to the Plaintiff, much to the chagrin of the Plaintiff hence the present action. The Plaintiff therefore on the 2nd day of November, 2022, issued a writ of summons, for the following reliefs: a) An order of the court compelling the Defendant to return his unregistered Apsonic Tri-Cycle (Abobo Yaa) given to the defendant on 28th February, 2022, which the Defendant has refused to return despite repeated demands OR IN THE ALTERNATIVE Pay Twenty-Four Thousand Cedis (GHC24000) as its current value. b. General damages for denying the Plaintiff the use of the tri-cycle (Abobo Yaa). c. Costs. In the course of the trial, after the Plaintiff had closed his case and the original Defendant was to open his defence to the present action, the 1st Defendant brought an application which sought to join the 2nd Defendant, Stephen Amankwaa to the suit. The court considering the merits of the application found that in the interest of justice, the 2nd Defendant ought to be joined and granted the application pursuant to order 9 r 5 of C. I.59. The court in granting the application, however observed that the Plaintiff was a minor, aged only 15 and appointed the 2nd Defendant's father as his guardian pursuant to order 9 r 13 of C. I. 59 to defend the action as the 2nd Defendant's next friend. Therefore at the end of the trial there were two defendants to the action. ISSUES The germane issues for determination by the court are (i) whether or not the 1st Defendant's conduct amounts to a breach of contract (ii) whether or not the 2nd Defendant had a valid contract with the 1st Defendant (iii) whether or not the Plaintiff is entitled to general damages CASE OF THE PLAINTIFF The Plaintiff's case is that on the 28th of February, 2022, the 1st Defendant approached him and requested to use his tricycle. According to the Plaintiff, when the Defendant broached the subject of using the tricycle, he did not tell the Plaintiff exactly what he was going to use it for, but as he (the Plaintiff) had no intention of hiring same out to the 1st Defendant, he did not enquire from the 1st Defendant what he intended to use the tricycle for. The Plaintiff, however stated that he made the Defendant aware that he uses the tricycle to convey feed for his cattle that he was rearing for commercial purposes. The Plaintiff again stated that he informed the Defendant that he had a chain and padlock for purposes of securing the tricycle and told the Defendant to use the chain and padlock the secure same at his home, or at the Police Station. The Defendant however assured him, that he would find a safe spot to secure it. According to the Plaintiff the Defendant did not return the tricycle and three days later, on 2nd March, 2022 he found that another person (whom it turned out was the 2nd Defendant) in possession of the tricycle that he had entrusted into the care of the 1st Defendant. The Plaintiff then enquired from the 2nd Defendant, how the tricycle came into his possession and the 2nd Defendant intimated that same had been given to him by the 1st Defendant. The Plaintiff stated that he then called the 1st Defendant to ascertain the veracity of the 2nd Defendant's claims, but the 1st Defendant did not respond to his calls. It is the Plaintiff's case that the following day around 6 am or 7am, one Bawa Francis (who later testified in the suit as PW1) called him on phone and informed him that tricycle he had given to the 1st Defendant was missing. According to the Plaintiff, PW1 further informed him that when he informed the 1st Defendant about the development, the 1st Defendant did not show any concern about the loss of tricycle. The Plaintiff in his testimony before the court stated that a day after PW1 gave him this piece information, PW1, in the company of the 1st Defendant and three others also came to his house to inform him about the missing tricycle. The Plaintiff stated that after they had informed him of their mission, he proceeded to enquire from the Defendant whether he had placed the tricycle under lock with the chain and padlock but the Defendant replied in the negative. The entourage then suggested that a complaint be lodged at the Police Station, but as at that material time he was on his way to work, he requested that they take lead, so he could report to work and seek permission to attend to the issue. The Plaintiff stated that he later followed up at the Police Station, where the 1st Defendant was arrested and later granted bail by the police. The Plaintiff in his testimony further stated that the subsequent to the Plaintiff being granted bail, Amankwaa Isaac, a brother of the 1st Defendant pleaded for the matter to be settled out of court. The Plaintiff testified that a meeting was then convened and a panel comprising of the Nifahene, Kyidomhene, Ankobeahene, the Aterkyikromhene and other Chiefs sat on the matter. The Plaintiff testified that they were asked to go into accounts at the said meeting, and he showed the panel the Receipt of Purchase of the Tri-cycle from Apusigah Inusah Apsonic Motors which he tendered in evidence in court as Exhibit A (which showed that the Plaintiff had purchased the Tri-Cycle for GHC11200 on 22nd November, 2021. The Plaintiff in support of his claim further stated that he was further requested by the panel to furnish them with an invoice of the current price as at the time the panel was sitting which the Plaintiff tendered in court as Exhibit D, and which indicated the market price of the tricycle as GHC13700. The Plaintiff as evidence of his ownership of the Tri-Cycle in Court tendered in documentary evidence on the Chassis Number and other pertinent information on the document as Exhibits B1, B2, B3 and B4 and a Receipt of Licensing of the Tri-Cycle as Exhibit C. The Plaintiff testified that at the panel's hearing the Panel recommended that the Plaintiff should forgo the sum of GHC3700 and accept a sum of the GHC10,000 from the 1st Defendant. The 1st Defendant and the Ankobeahene then sought permission to deliberate on the proposal, and when they returned they indicated that the 1st Defendant indicated that he would be unable to pay the amount he was demanding from the 1st Defendant. The Plaintiff stated that three days after the meeting with the Chiefs and elders, the 1st Defendant called him and requested that they meet with the Chiefs and Elders again. The Plaintiff stated that when they went to the Chief's Palace the 1st Defendant did not show up with the excuse that he had gone to the farm, and couldn't find anyone to accompany him to the meeting with the elders. The Plaintiff further alluded to the fact that the 1st Defendant and his entourage again failed to honour the invitation of the Chiefs and elders when the Chiefs and elders summoned them to be present the following day. The Plaintiff stated that the day after this, one Hon. Abdulai Donkor, a former Assemblyman of the Achiase Area, informed him that the 1st Defendant had asked him to intervene on his behalf and requested that they meet. The Plaintiff stated that he honoured Hon. Abdulai Donkor's invitation, but the 1st Defendant failed to turn up. The Plaintiff stated that after the Defendant failed to turn up after he fell on Hon. Abdulai Donkor to settle the matter, he (the Plaintiff) again fell on the Panel who sat on the matter (with the exception of the Kyidomhene) who had travelled to Kumasi, and still failed to show up, so the Nifahene advised that as they had done the needful but the 1st Defendant had paid no heed, the Plaintiff should seek recourse at the courts for the case to be determined on its merits, hence the present action. EVIDENCE IN CHIEF OF PW1 PW1, Bawa Francis, who testified on behalf of the Plaintiff in his evidence to the court stated that sometime ago, the Plaintiff engaged his services to convey his animal feed for his business and it was through this that he became well acquainted with the Plaintiff. PW1 further testified that around June, 2022, the 1st Defendant requested for the Plaintiff's tricycle to convey some goods. PW1 testified that in his presence the Plaintiff asked the 1st Defendant, if he would find a safe place to park the tricycle and intimated to the 1st Defendant that if he could not find a secure spot to park the tricycle, he should return it home to the Plaintiff for the Plaintiff to secure same at the Police Station as he had a chain and padlock. PW1 stated that the Defendant however allayed the Plaintiff's fears and assured the Plaintiff that he would find a secure spot to park the tricycle. PW1 in his testimony also stated that at that material time the Plaintiff had engaged a rider to use his tricycle, however the rider had travelled for three days, so the 1st Defendant had requested to use the tricycle as a substitute rider. According to PW1 two days after the tricycle was entrusted into the care of the Defendant, the Plaintiff called him to convey his cattle feed, but he was unable to honour the Plaintiff's request as that day he had been engaged by a prominent member of Kukuom, one Nana Addai to carry out an assignment on his behalf. PW1 stated that whilst he was attending to Nana Addai’s assignment, he observed that someone other than the 1st Defendant was in possession of the tricycle that the Plaintiff had entrusted into the Defendant's care. PW1 in his testimony to the court stated that the following day the Plaintiff asked him why he had been unable to convey his cattle feed and he explained to the Plaintiff that it was because it had rained the previous day. According to PW1 the Plaintiff added that he had been calling the 1st Defendant the previous day to convey his cattle feed but the Defendant did not respond to his calls that is why he had called him to convey the feed on his behalf. PW1 testified that the following day, he received information from the 1st Defendant on phone that the tricycle was missing. PW1 stated that he initially intended to immediately go to the Defendant in his house, but then he thought it rather prudent to go to the meet the 1st Defendant at the exact spot where the tricycle had purportedly been parked. PW1 stated that when he got to the point where the 1st Defendant claimed he had parked the tricycle, he met the 1st Defendant in the company of other persons, and enquired from him how the tricycle got missing to which the 1st Defendant responded that he had no idea, so he PW1 advised that they inform the Plaintiff about the development. PW1 testified that when they got to the Plaintiff's house, he informed the Plaintiff about the information, the Defendant had given him. PW1 stated that the Plaintiff responded by stating that he was required to report to school so he would follow up at the Police Station, where he (PW1) and the 1st Defendant going lodge a complaint. PW1 finally stated at the Police Station, he and the others in whose company they went to the Police Station advised the 1st Defendant to lodge a complaint as the tricycle had been entrusted into his care. EVIDENCE OF PW2 PW2, Hon. Abdulai Asonbi Donkor, a former Assemblyman of Achiase Electoral Area, and the Director of NADMO, at the Asunafo South District Assembly, testified that around the latter part of May getting to June, 2022, the 1st Defendant came to his house in the company of one Bashiru and he enquired of their mission. According to PW2, the 1st Defendant informed him that the Plaintiff had entrusted his tricycle into care and that same had gotten missing whilst in his possession, based on which the Plaintiff was threatening to arrest him (the 1st Defendant) and requested that PW2 plead on his behalf to the Plaintiff so that the Plaintiff would not cause his arrest. PW2 stated that he then called the Plaintiff on phone to inform him of the Defendant’s intentions, and advised the Plaintiff that getting the 1st Defendant arrested is not the best option and that it would be more prudent to give the 1st Defendant time to pay. PW2 further stated that he made it a point to meet face to face with the Plaintiff and 1st Defendant to thrash out issues. PW2 further alluded to the fact that the Plaintiff agreed to the Defendant's proposal so they dispersed for a subsequent meeting. PW2 again alluded to the fact that whilst waiting for a final meeting, he found out that the 1st Defendant had fallen on another group of persons concerning the same issue, so he did not follow up on the matter again. EVIDENCE OF PW3 PW3, Nana Kofi Agyenim Boateng, the Benkumhence of Kukuom testified that around June, 2022, that the Plaintiff personally informed him that he was engaging someone to temporarily use his tricycle, however, just three days after receiving the information, he was notified by the Plaintiff that the rider in whose care the tricycle had been entrusted had alluded to the fact that the tricycle was missing. According to PW3, the Plaintiff further notified him that the person in question (who it emerged was the 1st Defendant), had agreed to meet with him to resolve issues with the Plaintiff, and requested his presence at the said meeting. PW3 testified that in accordance with the Plaintiff's request, he attended the meeting which had been convened together with the wife of the Plaintiff and two friends of the Plaintiff. The Defendant was also accompanied by the Ankobeahene and Kyidomhene of the Kukuom Traditional Council, and the brother of the Defendant. PW3 testified that prior to the meeting with the 1st Defendant at the Plaintiff's house at Kukuom Zongo, he advised the Plaintiff to ascertain the value of the tricycle, so the Plaintiff heeded his advice and obtained an invoice. PW3 testified that at the said meeting the price was made known to everyone present so he accordingly advised the Plaintiff to absorb GHC3700 from the sum and require the 1st Defendant to only pay a sum of GHC10000 of the total purchase price which was GHc13700, to which the Plaintiff agreed. PW3 further alluded to the fact that after the Plaintiff made his intentions known to the panel the Ankobeahene, the Kyidomhene, the Defendant and his family asked to be permitted to go home to deliberate further on the Plaintiff's proposal. The 1st Defendant's side later requested for some subsequent meetings, but failed to show up to any of those meetings. PW3 stated that he later enquired from the Ankobeahene why they failed to show up, and the Ankobeahene explained that the 1st Defendant had failed to pick up his calls to enable them conclude on the amicable settlement , so he advised the Plaintiff to seek recourse in court. EVIDENCE OF PW4 PW4, Mohammed Abu in his evidence to the court stated that around mid-2022, the Plaintiff came to his house and requested for his presence at a meeting that was going to take place between the 1st Defendant and his family in respect of the tricycle that had gotten missing. PW4's evidence, which was essentially in consonance with that of PW3, was that around 4pm on the day of the meeting, he went to the Plaintiff's residence at a place popularly known as Borlaso, where they met with the 1st Defendant's family, and his Deputy Imam, Zak, where the Kyidomhene spoke on behalf of the 1st Defendant's family and assured the Plaintiff that the 1st Defendant is ready to pay the amount involved. The Plaintiff then showed the invoice covering the tricycle to the panel which indicated the purchase price then as GHC13700. The 1st Defendant and his family then decided to hold a short meeting to deliberate on the amount that had been presented. When the Kyidomhene returned from the meeting, he proposed that the amount should be reduced, so the Plaintiff was advised by the Benkumhene to forgo the sum of GHC3700. PW4 stated that the matter was not determined conclusively the meeting was dissolved for another meeting to be reconvened at a later date. EVIDENCE OF 1ST DEFENDANT The defence of the 1st Defendant is that sometime in February, 2022, he noticed that PW1 had two tricycles parked in his house and enquired from PW1 why this was so. The 1st Defendant stated that PW1 explained to him that the second tricycle was being used by one Vandam, who had then travelled to Accra. The 1st Defendant further alluded to the fact that PW1 further indicated to him that the owner of the vehicle, (who it later emerged was the Plaintiff) required a rider and asked whether he would be interested in riding the tricycle to which he replied in the affirmative. The 1st Defendant stated that PW1 then called the Plaintiff to inform him that he had found a rider, and they later proceeded to the Plaintiff's house to negotiate on the terms of the use of the tricycle. The 1st Defendant stated that during negotiations on the use of the tricycle the Plaintiff informed him that the main purpose of the tricycle was not for commercial purposes, but for the conveyance of his cattle feed. The 1st Defendant then stated that he enquired from the Plaintiff how much he was expected to render in terms of sales, but the Plaintiff informed him that he was not expectant of any particular amount, but whatever sales, he (the 1st Defendant) made should accordingly be paid to him (the Plaintiff), and reiterated that what was most important to him was that the cattle feed should be conveyed. According to the 1st Defendant, the Plaintiff then asked him if he had a safe place to park the tricycle to which he replied in the affirmative as he had a spot he had been parking the previous tricycle. The 1st Defendant further testified that the Plaintiff then handed over a chain and padlock to be used to secure the tricyle. The 1st Defendant stated that he used the tricycle for two days, that is on Monday and Tuesday, but on the second day on Tuesday, he fell ill around 3:00pm as he was going with one Kwame to Siana to convey cabbage to a farm in Goaso. The 1st Defendant stated that as he was feeling dizzy, he contacted PW1 to enquire from him whether he could convey the cabbage on his behalf , but PW1 informed him that he was at Yankye, so when he came back from Yankye he would come and convey the cabbage for him. The 1st Defendant stated that at that point he left Siana to Kukuom, and when he got to Kukuom, he met the 2nd Defendant and requested that he convey the cabbage on his behalf to which the 2nd Defendant agreed. According to the 1st Defendant, after giving the tricycle to the 2nd Defendant, he called PW1 to ascertain his whereabouts and PW1 told him that he was in front of the Post Office at Kukuom, so he instructed the 2nd Defendant to meet PW1. The 1st Defendant stated that about 5 minutes later, he contacted PW1 to confirm whether the 2nd Defendant had met him and PW1 responded in the negative. According to the 1st Defendant, PW1 later informed him on phone that the 2nd Defendant had arrived. The 1st Defendant stated that about an hour after PW1 and the 2nd Defendant had left, he called PW1 and requested to speak to the 2nd Defendant. The 1st Defendant testified that he enquired from the 2nd Defendant why it took him so long to get to PW1 and he explained that the Plaintiff had met him on the way, and he asked him how he came into the possession of the tricycle, so he informed the Plaintiff that he had entrusted same into his care. According to the 1st Defendant, the 2nd Defendant informed him that the Plaintiff had also asked him to collect some refuse from the refuse dump and further requested that upon his return, he should collect some animal feed that he has gathered at various points, and also directed that if he cannot find a safe place to park, he should return it to him. The 1st Defendant testified that as he was not feeling well he slept off and called PW1 around 10 pm to ascertain whether he had returned but PW1 explained that it was raining, so he was waiting for the rain to subside, The 1st Defendant stated that around 11 to 12 pm, he called PW1 again to enquire why they had kept so long and PW1 explained that they had been directed to offload the cabbage to different locations, and so the 2nd Defendant had already offloaded the cabbage and was heading to Kukuom as the Plaintiff had directed him to come early to convey his cattle feed. The 1st Defendant stated that the following day the 2nd Defendant came to knock on his door and informed him that the tricycle had been taken by an unknown person. The 1st Defendant stated that he immediately called PW1 to inform him of the development. The 1st Defendant further stated that PW1 then called the Plaintiff to inform him and the Plaintiff enquired how the tricycle got missing and PW1 explained that the 2nd Defendant had parked same in front of his house and when he woke up the following day the tricycle was missing. The 1st Defendant stated that they then proceeded to the Plaintiff's house although the Plaintiff had informed them that he was on his way to work. When they got to the Plaintiff's house, he explained to them that he was late for school so if they intended to lodge a complaint at the Police Station, they could do so and he would follow suit later. The 1st Defendant stated that they lodged a complaint about the missing at exactly 7:30 am , but at 9:15 am, the Plaintiff caused his arrest and that of the 2nd Defendant. The 1st Defendant testified that after he was granted bail, the Criminal Investigation Department (CID) Officer instructed that they search for the tricycle and report back to the station within a month. The 1st Defendant stated that following this several attempts were made to settle the matter out of court which all provide futile. The 1st Defendant, in his evidence to the court stated, in the spirit of settlement, a meeting was convened between himself, his brother Isaac Amankwaa , the Kyidomhene, the 2nd Defendant's next friend and his uncle, as well as the Plaintiff and some other persons who include prominent chiefs. The 1st Defendant testified that at the said meeting the Plaintiff showed an invoice of the current value of the tricycle (at the time of the meeting), and requested that for restitutionary purposes, the current value of the tricycle be paid. The 1st Defendant further alluded to the fact that the 2nd Defendant's family as well as his family pleaded that the amount be shared into two equal parts and further pleaded for reduction of the GHC10000 to GHC9000, after which the 2nd Defendant's family and his family asked to be excused to deliberate on the Plaintiff's proposal. According to the 1st Defendant, the 2nd Defendant's next friend explained that if he was even given one year, he would be unable to come up with even GH1000. The 1st Defendant stated that they then dispersed to their various homes, so later went with his brother to the CID Officer to give feedback on the developments in respect of the settlement attempted with the Plaintiff. The 1st Defendant testified that they informed him of the position of 2nd Defendant's next friend that if he was even asked to pay GHC1000, he could not do so. The CID then promised to speak to the 2nd Defendant's next friend. The 1st Defendant stated that it came to his knowledge that the CID had indeed spoken to the 2nd Defendant's next friend and asked him to reconsider his position as if the 2nd Defendant had brought in something valuable he would include himself. The CID Officer called Red who spearheaded the settlement also informed the District Police Commander, ASP Opare, about the matter and the Commander advised that the matter be settled so that the relationship is not soured. According to the 1st Defendant, he called the Plaintiff requesting for another meeting for the settlement of the matter in June 2022, but the Plaintiff told him that some of his family members who were present at the earlier meeting were not available. About three days later the Plaintiff called him requesting for another meeting as his father was back in town, so he called the 2nd Defendant's next friend to inform him about it, but he told him his eye was swollen and he would inform him when he gets better, but he never did so he was unable to meet the Plaintiff again for settlement. The 1st Defendant in concluding his evidence tendered Exhibits 1A and IB, being audio recordings of conversations between himself, PW1 and the 2nd Defendant. DW1 DW1, Nana Kwabena Manu, in his evidence to the court stated that about six months prior to the institution of this action, the Defendant approached him and informed him that a tricycle that had been entrusted into his care had gotten missing and he needed him to accompany him to the tricycle owner to thrash out issues with him. DW1 testified that that very evening, he together with the 1st Defendant and the 1st Defendant’s brother one Amankwaa proceeded to the Plaintiff’s house. DW1 stated that when they arrived at the Plaintiff’s premises, the 1st Defendant recounted how the tricycle had gotten missing to the Plaintiff. DW1 stated that after they informed the Plaintiff of their mission, the Plaintiff responded by stating that he had made it clear that the 2nd Defendant had failed to park the tricycle in his house though he had instructed him to do so, but however had received information that the tricycle was missing the following day. DW1 stated that he commiserated with the Plaintiff and stated that he knew the Plaintiff as a teacher, so it was more probable than not that he took a loan to purchase the tricycle, and suggested that the Plaintiff furnish the Defendants with the value of the tricycle, so that they paid a portion whilst he took care of the other part. According to DW1, the Plaintiff however stated that it would be difficult for him to assume responsibility for part of the sum as the tricycle had been missing for several weeks. DW1 stated that they could not conclude on the matter at the said meeting so another meeting was rescheduled. DW1 testified that at the next meeting, which took place about a week later, he re-iterated his earlier suggestion to the Plaintiff to permit the Defendants to each pay a portion of the purchase price of the tricycle, but once again no conclusion was reached. A third meeting was rescheduled where he together with the 1st Defendant, the 2nd Defendant’s next friend and the family of the 2nd Defendant’s next friend were present. The 1st Defendant was also accompanied by the Ankobeahene and Kyidomhene whilst the Plaintiff was accompanied by the Benkumhene. DW1, however stated that the meeting also yielded no results and ended inconclusively. DEFENCE OF 2ND DEFENDANT’S NEXT FRIEND The 2nd Defendant’s next friend in his evidence to the court stated that about a year ago, the 2nd Defendant, who was then a Junior High School student at the Kukuom Anglican Junior High School, on his way home from school met the 1st Defendant who intimated to him that he was indisposed and requested that the 2nd Defendant go to Siana with the tricycle to convey cabbage to the Goaso on his behalf. According to the 2nd Defendant’s next friend when the 2nd Defendant got to a storey building opposite the Anglican Junior High School, he met the Plaintiff who deposited a sack of animal feed and asked him to convey it to the Yankye Station, following which the 2nd Defendant proceeded to the Post Office where Bawa Francis (PW1) was waiting for him to convey the cabbage. The 2nd Defendant’s next friend stated that when the 2nd Defendant and Bawa Francis (PW1) got to Noberkaw, it rained so they delayed in conveying the cabbage from Siana. According to the 2nd Defendant it continued to rain heavily when they got to Goaso so they had to wait for the rain to subside before they offloaded the cabbage at different locations. The 2nd Defendant’s next friend in his testimony to the court further stated that due to the erratic weather the 2nd Defendant got to Kukuom at 1am the next day, so he decided to park the tricycle in front of their residence. According to the 2nd Defendant’s next friend the following day when the 2nd Defendant went to the spot where he had parked the tricycle it was nowhere to be found, so the 2nd Defendant went to inform the 1st Defendant about the development. The 2nd Defendant’s next friend testified that when the 2nd Defendant got to the 1st Defendant’s house, he enquired from him whether the 1st Defendant had come for the tricycle to which the 1st Defendant replied in the negative, and rather warned the 2nd Defendant that he should go and search for the tricycle, as he was to return it to the Plaintiff that day. The 2nd Defendant’s next friend stated the confronted the 1st Defendant about his utterances and explained to him that he should have shown concern as he had given the tricycle to a minor unannounced without the consent of his parents The 2nd Defendant's next friend stated that they proceeded to the residence of the Plaintiff who was then leaving for school to inform him about the developments, and after the relayed same to the Plaintiff, the Plaintiff indicated that they took whatever steps they considered expedient concerning the missing tricycle as he had to report to school. The 2nd Defendant's next friend stated that at 7am they headed to the Police Station to lodge a complaint, but the police officers asked them to return around 9am. The 2nd Defendant's next friend stated that when they returned to the Police Station, the 1st Defendant was placed behind bars whilst the 2nd Defendant was asked to sit behind the counter. According to the 2nd Defendant's next friend, the Defendants were granted Police Enquiry bail and asked to report the following day. The 2nd Defendant's next friend further alluded to the fact that the 1st Defendant fell on several people to intervene of his behalf in respect of the incident. According to the 2nd Defendant's next friend, the 1st Defendant informed him that the issue had been dealt with to a point, so he should avail himself for a subsequent meeting so that matters are concluded on. The 2nd Defendant's next friend stated that he availed himself for the meeting , and during deliberations, it was suggested that the purchase price of the tricycle should be split between himself and the 1st Defendant, but he explained that it would be impossible for him to pay as he was not in good financial standing. According to the 2nd Defendant's next friend, the prominent Chiefs amongst them, expressed their displeasure and used brash words against him. The 2nd Defendant stated that that meeting also ended inconclusively after which they never met for subsequent deliberations, and heard nothing until the Plaintiff filed the case in court. EVIDENCE OF DW2 (2ND DEFENDANT’S WITNESS) DW2, Kofi Boateng , in essence stated that around mid 2022, the 2nd Defendant's next friend, who is his maternal nephew informed him that his son, the 2nd Defendant in the suit had been entrusted with the care of a tricycle by the 1st Defendant, and due to unforeseen circumstances, including the deflating of the tyres of the tricycle the 2nd Defendant delayed in carrying out the task he had been assigned to do, and returned home rather late and parked the tricycle in infront of their home which had resulted in the tricycle getting missing. DW2 stated that he was further informed by the 2nd Defendant's next friend that they were in the process of amicably resolving the matter and the Plaintiff had requested for a refund of the current purchase price of the tricycle, but the parties had not been able to meet an amicable conclusion, so a subsequent meeting had been scheduled. DW2 stated that he accompanied the 2nd Defendant’s next friend to the next meeting where the Plaintiff proposed that the 1st Defendant and 2nd Defendant’s next friend pay GHC10000 out of the sum of Ghc13000 being the current value of the tricycle, but the 2nd Defendant’s next friend stated that he was not in a position to pay Ghc5000 even if he was given up to a year. DW2 stated that the 2nd Defendant’s next friend position infuriated the 1st Defendant’s brother as they had come to seek amicable resolution, nevertheless 1st Defendant’s brother advised that the Plaintiff that it would be prudent in the circumstances forgo the sum he was demanding from the Defendants, but added that if the Plaintiff was reluctant to do so then he should seek redress before the court. Before I proceed to determine the issues, I wish to state that it is the duty to the court to interweave the pieces of evidence of the parties to ascertain the veracity of the claims made by parties in court ISSUE 1 The court in resolving this germane issue, will adopt a two-prong approach, i.e to first determine whether there was a valid and binding contract between the Plaintiff and 1st Defendant and secondly, in the event that there was a binding contract to determine whether the 1st Defendant had done anything which amounts to a breach of the agreement. The court in considering this issue observes that though at first blush, it appears that that the agreement between the parties was merely a non-formal agreement without lucidly defined terms and obligations, from the evidence adduced at trial it may be inferred that the agreement entered into by the parties constitutes a contract. Consequently, although the Plaintiff nonetheless alluded to the fact that the agreement broached was not one for the hire of his tricycle by the 1st Defendant, by the terms and conditions the Plaintiff stipulated, the agreement met the conditions of a contract. As may be gleaned from the evidence, the Plaintiff gave express instructions to the 1st Defendant to park the tricycle at a safe place to avoid theft and handed him a chain and padlock to secure same. Again, though the Plaintiff did not request for a specific amount for sales, he still requested for the 1st Defendant to bring whatever sales he had accrued whilst the tricycle was in his possession. What then constitutes a contract ? A contract, in essence, refers to an agreement, to which parties are ad idem and which is legally enforceable, barring any issues of capacity or illegality. In the case of Baher Fattal v Emmanuel Oko Tei (Junior) Civil Suit No. H1/15/2016 decided on 2nd February, 2017, the court in elucidating on the pertinent elements of a contract relied on Osborn’s Concise Law Dictionary 8th Edition by Leslie Rutherford and Sheila Bone where it was stated thus For a contract to be valid and legally enforceable, there must be; 1. Capacity to contract; 2. Intention to contract; 3. Consensus ad idem; 4. Valuable consideration. 5. Legality of purpose; 6. Sufficient certainty of terms The germane elements of a contract are all present in the agreement between the Plaintiff and 1st Defendant, and the mere fact that the monetary compensation that the 1st Defendant was entitled to pay was not a substantial or significant sum does not suggest that valuable consideration was not provided per the agreement. This position is hinged on Section 9 of the Contracts Act. 1960 (Act 25) which provides Section 9. Law as to consideration The performance of an act or the promise to perform an act may be a sufficient consideration for another promise although the performance of that act may already be enjoined by a legal duty, whether enforceable by the other party or not. This proposition of law received judicial pronouncement in the case of Maxwell Oppong v Commercial Investments Limited Civil Appeal No. OCC/38/2015, decided on 3rd February, 2018, where the court in delivering its judgment relied on the authoritative text “The Law of Contract in Ghana, published by Frontiers Printing and Publishing Company, Accra, were the learned author Christine Dowuona-Hammond stated at page 99: “Under Ghanaian Law, the performance or the promise to perform an act which one is already under a legal duty to perform constitutes sufficient consideration for another promise.” As may be gleaned from the above, the performance of the act of acting as a substitute rider in the absence of the Plaintiff's rider, constitutes valuable consideration. The court having irrefutably established that there is a valid contract between the parties, the court's duty is now to determine whether or not the 1st Defendant committed any act which amounts to a breach. From the evidence on record, when the 1st Defendant was handed over the tricycle, the Plaintiff unequivocally asked him to secure the tricycle and handed him a chain and padlock to do so. The 1st Defendant was again directed to not to under any circumstance hand over the tricycle to a spare rider. The following ensued in cross-examination of the Plaintiff by the 1st Defendant. Q Do you remember that on 1st March, 2022, when you came in the company of Bawa Francis to my house, I told you that if you take the tricycle away and you are unable to find a secure place to park the tricycle you should bring it so that you can go and park same at the Police Station, but you told me you would get a secure place for the tricycle A. That’s correct Again, the 1st Defendant in cross-examination enquired from the Plaintiff the following: Q If you claim it is not correct that you asked me to park the tricycle in the house why did you give me the chain meant for locking the tricycle. A I gave you the said padlock on chain because you promised to ensure that the tricycle is kept secure, after you turned down my request for you to park same at the Police Station. Q When you came for the tricycle on the 1st of March, 2023, were there any further arrangements to let you give the tricycle to another person or spare rider without informing me A There was no such arrangement....,,,I gave the tricycle to the 2nd Defendant on my own volition without informing you. The 1st Defendant, however, blatantly disregarded this fundamental terms of the agreement and this amounts to a clear breach of contract. On what connotes a breach of agreement, the court in the case of Augustina Engmann vrs Pelican Group Limited SUIT NO. CM/BDC/0414/16, decided on 23 NOV 2018, the court, per Eric Kyei-Baffour J (as he then was) quoted the definition by Professor Treitel in his book"The Law of Contract where he stated that “A breach of contract is committed when a party without lawful excuse fails to perform what is due from him under the contract, or performs defectively or incapacitates himself from performing”. This is essence suggests that where a party without legal justification or reasonable cause fails to perform their obligations under a contract or fails in their bounden duty to effectively execute a contract, that person can be said to be in breach of contract in law. The court therefore concludes that the 1st Defendant is in breach of the contract the 1st Defendant entered into with the Plaintiff. ISSUE 2 In determining the 2nd issue, the court would delve into the capacity to contract. Capacity to contract is so fundamental that without it the foundations of any contract would crumble. As stated supra the salient elements of a contract as extrapolated on in the case of Baher Fattal v Emmanuel Oko Tei (Junior) Civil Suit No. H1/15/2016 decided on 2nd February, 2017 are essentially, the capacity to contract, the intention to contract, consensus ad idem, valuable consideration, legality of purpose and sufficient certainty of terms, with capacity being the penultimate. Capacity is that which confers a party with the legal ability on which any valid contract is embedded. Capacity remains the fountainhead of all contracts because the law seeks to protect incapacitated persons, persons of unsound mind, and minors from unscrupulous persons who may seek to take advantage of them. Again, as contracts may result in litigation due to a breach or unforeseen circumstances, the law seeks to protect the above category of persons, as they would not be able to defend the suit themselves. It is also to protect the other party entering into the contract since if a minor reneges on their obligations under the contract, the contract cannot be enforced by an court, except in limited circumstances such as where the contract is one for necessaries, apprenticeship contracts and beneficial contracts of service from which a minor can earn their livelihood. Generally contracts entered into with minors under age 21 years are not legally binding on them, although the Land Act, 2020 (Act 1036), and the Companies Act, 2019 (Act 992) now allow persons aged 18 and over to enter into valid contracts within the letter and spirit of these acts, even though such contracts may be voidable. Consequently, an age old and well- founded principle of law is that contracts entered into by minors are not enforceable except with limited exceptions. The policy consideration is that minors are unable to understand the complex nature and consequences of entering into a contract. Therefore, if a minor misrepresents their age to another person and induces them to enter a contract the minor cannot be found liable for its repudiation or be required to remedy a breach. The 1st Defendant in order to shield himself from any liability emanating from the agreement entered into with the 2nd Defendant stated that it was not within his knowledge that the 2nd Defendant was a minor, and that minor’s day to day activities led him to believe that he had attained the age of majority. The following ensued in cross-examination of the 1st Defendant by the 2nd Defendant’s next friend. Q Are you aware that the 2nd Defendant is underage A I was not aware that he was underage but I know him as a tricycle rider The 2nd Defendant’s next friend, his father did not make a mere assertion that the 2nd Defendant, was an infant under the law, aged only 15years, but proffered cogent evidence in support of this claim , and produced a birth certificate to that effect. Therefore, whatever agreement the 1st Defendant entered into with the 2nd Defendant was not legally binding in law. Furthermore, no exception could be created as the agreement could not be construed as a beneficial contract of service as the 1st Defendant himself conceded that he took custody of the sales the 2nd Defendant had made from the conveying the goods on his behalf, and furthermore as a fifteen year old, the 2nd Defendant did not qualify to have a license to ride a tricycle under the law. Thus, in the locus classicus of Kessie V Namih (1981) GLR 444, the court opined that a contract which had been entered into by a minor could not be in enforced. More recently, this position of law was re-iterated in the case of NAOMI AKUFFOBEA AWUKU & 2 ORS V JOYCE YIRENKYIWA AWUKU & 2 ORS, 7TH MARCH 2017 where the court affirmed that a minor could not enforce rights under a deed that was executed in her favour. Therefore, based on the above there was no valid contract between the 1st and 2nd Defendant. The 2nd Defendant is therefore absolved from liability. ISSUE 3 The third and final issue for determination is whether or not the Plaintiff is entitled to damages for breach of contract. The law is clear that an innocent party is entitled to general damages for breach of contract. This position of law was expressed in the case of SAMUEL KODWO DARKO V. NANA AGYAKOMA APRAKU HIGH COURT · FAL 909/2011 · 11 JAN 2017 · GHANA , where the court stated “It is trite knowledge that general damages flow from the breach of contract or tort.” Furthermore, in the case of Obak Automobile Limited v Nana Kwesi Kodua Enterprise and Another High Court, Suit No CM/BDC/0857/16 dated 26th March, 2018, the court stated inter alia that an innocent party is entitled to damages for a breach of contract. The court in the Obak Automobile case (supra) noted that the object of an award of damages is to give the claimant compensation for the damage loss or injury he has suffered. Again in SG-SSB V. Hajaara Farms Limited [2012] 1 SCGLR 1, the court stated the principle for awarding damages for breach of contract was that the innocent party must be restored, so far as money could do so, to the position he would have been in had the breach not occurred. Furthermore, general damages need not be proved but flow naturally from a breach as proffered by apex court, the Supreme Court in Klah v. Phoenix Insurance [2012] 2 SCGLR 1139. General damages are therefore distinguishable from special damages as elucidated on by the court in BRIGHT ASANTE APPIAH V. HUANG YUMIN SUNLIGHT ENGINEERING LIMITED COURT OF APPEAL · HI/135/2022 · 19 OCT 2022 · GHANA, where the court stated: “A distinction exists between general and special damages: for whereas general damages arise by inference of law and therefore does not need to be proved by evidence; special damages representing a loss which the law will not presume to be the consequence of the defendant’s act but which depends in part, on the special circumstances, must therefore be claimed on the pleading and particularized to show the nature and extent of the damages claimed. The courts have also laid down the key principles to be followed in measuring damages for breach of contract. In LA REAL ESTATE LTD V. EAST DADEKOTOPONG DEVT. TRUST HIGH COURT · SUIT NO. RPC/345/10 · 14 MAY 2018 · GHANA, the court relied on the case HADLEY v. BAXENDALE (1854) 9 EX.341, where the court, in determining the measure of damages in an action for a breach of contract stated: “Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered as either arising naturally i.e., in the usual course of things from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of a breach of it.” The above cited authorities suggests that once it is garnered from the evidence adduced at trial that there has been a breach of contract, the innocent party is entitled to damages, commensurate to the injury incurred as set out by the guidelines in the case of Hadley v Baxendale (supra). Therefore based on the plethora of authorities above and the well-embedded legal principle in civil jurisprudence that general damages do not require proof but arise as a result of breach of contract, the Plaintiff is entitled to general damages for the breach of a fundamental and germane term of the contract by the Plaintiff. ANALYSIS OF EVIDENCE ADDUCED AT TRIAL In civil trials the burden placed on a party alleging the existence of a fact is proof on the preponderance of the probabilities In civil trials, the standard of proof required for a party to prove the veracity of his claim in court, is proof on the balance of probabilities. This is codified under our law under 12 (1) and (2) of the Evidence Act, 1975 (NRCD 323) which provide: Section 12—-Proof by a Preponderance of the Probabilities. (1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities. (2) "Preponderance of the probabilities" means that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence. The concept of preponderance of the probabilities was described by the court in the case of ESTHER KUDZORDZIE V. MAJOR NELSON AGBEKO (2010) SUIT NO: BFA 59/08 · 15 DEC 2010 · GHANA, in the following terms “………… in assessing the balance of probabilities, all the evidence, be it that of the plaintiff and the defendant must be considered and the party in whose favour the balance tilts is the person whose case is more probable and he wins. Furthermore, more recently in the case of SAMUEL Y. MENSAH V. KWADWO DONKOR & ANOR COURT OF APPEAL H1/31/2021 · 1 JUN 2022, the court cogently stated “Cases are decided on the totality of evidence adduced by balancing the cases of both sides and determining whose version is more probable and whether a relief sought has been proved in accord with the standard burden of proof. Again, the court in the case of DZIEDZOM AWO HETTEY V. JOSEPH BLAY ERZUAH E1/64/19 · 7 APR 2022 · GHANA, explained what proof connotes: "Proof, in law, is the establishment of fact by proper legal means; in other words, the establishment of an averment by admissible evidence. Where a party makes an averment and his averment is denied, is he unlikely to be held by the Court to have sufficiently proved that averment by his merely going into the witness-box, and repeating the averment on oath, if he does not adduce that corroborative evidence which (if his averment be true) is certain to exist." The Plaintiff led cogent and convincing evidence that was corroborated by his witnesses that the 1st Defendant flouted their agreement which occasioned the loss of his tricycle, and of which admission has been made by the 1st Defendant. Section 7(1) of the Evidence Act, 1975 NRCD 323 provides as follows: Corroboration consists of evidence from which a reasonable inference can be drawn that confirms in a material particular the evidence to be corroborated and connects the relevant person with the crime, claim or defense. In the case of J. K. Ackah v Francis Eghan, Civil Appeal No. H1/56/2010, delivered on 9th April, 2014, the court stated inter alia that corroborative evidence in a lay man’s terms is evidence used to substantiate pieces of information. Again, in the case of THERESA BOAKYE &. FRANK ASIEDU BOAKYE V. OPANIN KWAME ASIEDU SUPREME COURT · J4/22/2021 · 15 DEC 2021 . the court stated that “Corroboration in law is evidence that supports the testimony of a witness by confirming that the witness is telling the truth in some material particular. The Plaintiff's witnesses through their independent testimony confirmed the claims of the Plaintiff, and although it has long been held that corroboration is not a sine qua non in determining the credibility of a claim made by a party in court, corroboration substantiates the evidence of a party and to a large extent lends more weight to the testimony of a party. Section 7 (3) of the Evidence Act, 1975 NRCD 323 provides Unless otherwise provided by this or any other enactment, corroboration of admitted evidence is not necessary to sustain any finding of fact or any verdict. This well grounded principle received judicial mention in the case of Isaac K. B. Asiamah v Bright Mordo, H. T. Adjirackor Suit No H1/54/07 decided on 3rd April, 2008 where the court stated that whether corroboration was needed in any particular case depended on the counter allegations and allegations made, and further opined that generally corroboration became necessary where a particular issue could not be resolved by the evidence of one party over another. The 1st Defendant, in court, admitted his folly of failing to gird the tricycle with a chain and padlock in non-compliance with the terms of the contract. Furthermore, the Defendant’s conduct of requesting for an entourage to plead on his behalf for amicable resolution of the issue, amounts to an admission of liability and lends credence to the Plaintiff's claims before the court. It is trite that where a party admits the veracity or truth of a fact no further proof is required. In the case of Amofa Kofi Kusi v Unicredit Ghana Limited , delivered on the 29th of July, 2019, Justice Richmond Osei Hwere , on this point relied on the case of Samuel Okudzeto Ablakwa and Anor v Jake Obetsebi Lamptey and Anor (2013-2014) 1SC GLR 16, where the court stated that where a matter is admitted proof is dispensed with,as it is no longer in contention (emphasis mine). Furthermore in O’SVAN-BOYE LIMITED V. DAVID KOJO ANAGBO AND THE LANDS COMMISSION COURT OF APPEAL · H1/109/2021 · 28 APR 2022 · GHANA, the court on admissions relied on the case of In re Asere Stool; Nikoi Olai Amontia IV (substituted by Tafo Amon II) v. Akotia Oworsika III ( substituted by) Laryea Ayiku III [2005-2006] SCGLR, where the court stated “Where an adversary has admitted a fact advantageous to the cause of a party, the party does not need any better evidence to establish that fact than by relying on such admission, which is an example of estoppel by conduct.” In the light of the foregoing, the court need not delve any further to determine whether the Plaintiff led substantial evidence to buttress his claims as no further proof is required as the 1st Defendant has admitted these facts. The 1st Defendant on the other hand was discredited due to the inconsistencies and contradictions in his claims before the court. The 1st Defendant, in cross-examining PW1, Bawa Francis claimed that it was PW1 who had entreated him to negotiate with the Plaintiff to allow him to use the tricycle in the absence of a rider whom the Plaintiff had engaged. Q Do you remember that the Sunday before going for the Plaintiff's tricycle on the following Monday, you came to me, and told me that there was no rider riding the Plaintiff's tricycle and since I did not have a tricycle at the time, if I am interested, I should go for the Plaintiff's tricycle to use A. That is not correct, what transpired was that the rider of the Plaintiff's tricycle was travelling to Accra ............................he told me he was late catching up with the bus, so I should send him to the bus terminal with the Plaintiff's tricycle........you were aware that the Plaintiff's rider had travelled, so when you saw me..........................you asked me how long the rider was going to be away and I replied that he promised to return in three days. It was then you told me that you were interested in using the machine and I asked you to inform the Plaintiff. The 1st Defendant, however in his evidence altered the story and stated that sometime in February, 2022, he saw two tricycles parked in PW1's house , and enquired from him who the second tricycle belonged to, to which PW1 replied was his friend properly known as Vandam, and he had travelled to Accra. According to the 1st Defendant, it was at this point that PW1asked him if he was interested in riding the tricycle as the owner intends to find another rider to ride his tricycle. This is in contradiction, with his earlier claim that he had no knowledge about the Plaintiff's intention to find a substitute rider until he was informed of same by PW1. From the 1st Defendant's own evidence it may be inferred that he initially expressed interest in using the tricycle by enquiring from PW1 why two tricycles were parked in his house, which led to the conversation for arrangements to be made with the Plaintiff for the use of the tricycle which has resulted in this present action. Again, the 1st Defendant in cross-examining the Plaintiff claimed that the Plaintiff did not give him possession of all the keys, but handed only one to him. Q It is a normal practice that all keys are given to the rider, why did you have one in your possession A I never removed one key and gave it to you. There are witnesses who can attest to this fact However, in his affidavit in support of his motion for joinder he alluded to the fact that all keys had been handed over to the 2nd Defendant, a fact which the Plaintiff did not gloss over but cross-examined him on. Q Per paragraph 5 of your motion for joinder you stated that the 2nd Defendant brought the keys to you on the following day which shows that I gave you more than one key. A. That's not correct. I mentioned that he bought one padlock key and the tricycle ignition key Again, he himself admitted in his evidence that he did not give the padlock and chain to the 2nd Defendant to secure the vehicle, which renders it highly improbable that he gave the padlock keys to the 2nd Defendant. Furthermore, the Defendant tendered in Exhibit 1A, a phone conversation purportedly recorded between him and the 2nd Defendant, in which the 2nd Defendant alluded to the fact that the Plaintiff sent him to run several errands for him on the day in question and that is what caused his delay. However, when the Plaintiff had the opportunity to cross-examine the 2nd Defendant's next friend who defended the action on behalf of the 2nd Defendant, the following ensued Q In, Exhibit 1A, the 2nd Defendant is purported to have said in that audio, that I asked him to perform various tasks for me when I met him in front of the Anglican Church. Tell the court did the 2nd Defendant give you this piece of information........................ A Apart from the one sack of animal feed that he conveyed on the Yankye Road to the Yankye Station, the 2nd Defendant did not tell me that he performed other tasks for you. The court is of the view that 1st Defendant unduly influenced the 2nd Defendant, as a minor to utter those words to conform with his testimony before the court where he alleged that the 2nd Defendant had indicated to him that the Plaintiff had asked him to perform many tasks, due to the relationship that existed between them. In the case of ALFRED TETTEH ANNAN V. GOLD ROYAL ENTERTAINMENT CO. LTD. HIGH COURT · SUIT NO. INDL/29/15 · 11 APR 2016 the court relied on the case of OBENG v. BEMPONG [1992-1993] GBR part 3 @ PAGE 1027 the Court of Appeal held that “inconsistencies, though individually colorless, may cumulatively discredit the claim of the proponent of the evidence.” Conversely, in the case of LORD HUNNOUR BOBOBEE V. DAVID ATTA EDUDJAN HIGH COURT · SUIT NO. E1/01/2006 · 7 MAR 2017 · GHANA, the court stated inter alia “………………….it makes no sense to rely strictly on minor, trivial and inconsequential inconsistencies and errors in the determination of a suit. However, in the instant case the contradictions and inconsistencies in the evidence of the 1st Defendant are so material that they cannot be glossed over by the court. The court on the balance of probabilities and weighing the testimonies of the parties, finds the claim of the Plaintiff to be more probable. CONCLUSION Relief (a) Per relief (a) of the Plaintiff’s claim, the Plaintiff sought to recover his tricycle from the 1st Defendant or in lieu of same recover a sum of GHC24000 being the current value of a tricycle. Though the Plaintiff asserted that the current value of a tricycle was GHC24000, he did not proffer any evidence to buttress his claims. Exhibit D, the invoice he procured from Apusigah Inusah Motors only showed the estimated value of a tricycle as GHC13700. The court however does not turn a blind eye to inflation rate which has caused an upsurge in prices of goods on the market and therefore on relief (a) enters judgment in favour of the Plaintiff for the sum of GHC13700 with interest at the prevailing bank rate from 2nd March, 2022 till date of final payment. On relief (b) on damages, it is well settled that a party is under an obligation to take reasonable steps to mitigate his losses. This principle received judicial pronouncement in the case of Maxwell Oppong v Commercial Investments Limited Civil Appeal No. OCC/38/2015, decided on 3rd February, 2018, where the court relied on the case of in British Westinghouse Electric and Manufacturing Co Ltd v. Underground Electric Railways Co of London Ltd [1912] AC 673 at 689, HL, where Lord Haldane observed that: “The ... [law] imposes on a plaintiff the duty of taking all reasonable steps to mitigate the loss consequent on the breach, and debars him from claiming any part of the damage which is due to his neglect to take such steps.” Though the Plaintiff is entitled to damages for breach of contract, he is however precluded from claiming damages for a breach he is responsible for, particularly, where the Plaintiff acquiesced and requested that the 2nd Defendant perform an errand on his behalf, when he knew that the tricycle had come into the 2nd Defendant’s possession through the 1st Defendant without his consent. Nonetheless, although the law is that damages are not awarded to punish the party in breach or confer a windfall on the innocent party, due to the Defendant’s conduct, the damages awarded against him would have to be exemplary for his reckless negligence of omitting to give the chain and padlock to the 2nd Defendant, whom he had sent on his volition without recourse to the Plaintiff, and his wanton disregard for the security of a minor by sending him on an errand after 4pm which he knew the minor could not complete before dusk fell, and not following up the next day to ascertain whether the 2nd Defendant had returned home unscathed the previous day. Again, from the evidence garnered at trial the 1st Defendant did not call the Plaintiff to inform him , he was sick on the day of the incident for the Plaintiff to make alternative arrangements nor did not even bother to call the Plaintiff about the missing tricycle and shoved the responsibility on PW1. The following ensued at trial Q Did the 2nd Defendant return to Kukuom on that day A I cannot tell Q I entrusted the tricycle to you when it got missing, on the following day did you personally call me to inform me A I did not call you personally on the phone to inform you, however, I did inform Bawa Francis, because he led me to you to come for the tricycle. Q I am suggesting to you that on that fateful day you did not tell me you were sick A That is correct The court in balancing the omission of the Plaintiff to protect himself from the breach of the 1st Defendant, by directing the 2nd Defendant, who was using the Plaintiff’s tricycle without his consent, but on the instructions of the 2nd Defendant to convey his feed forhim, the 1st Defendant recklessness, and the one year period the Plaintiff has lost the use of his vehicle, therefore awards damages of GH 11000 in his favour. Judgment is therefore entered for the Plaintiff on relief (a) for the sum of GHC13700 plus interest at the prevailing bank rate; (b) for general damages of GHC 11000; and (c) Cost GHC2000 awarded against the 1st Defendant on relief (c). No order as to costs against the 2nd Defendant. SGD. AKUOPPONG-MENSAHESQ. DISTRICT MAGISTRATE 38