Fatlas Motors Vrs Zakaria [2023] GHADC 469 (20 June 2023)

IN THE DISTRICT COURT 2, TAMALE HELD ON TUESDAY 20TH JUNE, 2023 BEFORE HIS WORSHIP D. ANNAN ESQ. BETWEEN SUIT NO. A2/34/23 FATLAS MOTORS - PLAINTIFF AND MR. ZAKARIA - DEFENDANT JUDGMENT INTRODUCTION 1. This judgment relates to contract, recovery of money. 2. The plaintiff per it’s manager Mr. Hamza Alhassan instituted this action against the defendant. The plaintiff is a mechanic shop while the defendant is the director of the Salaga District Health Directorate. 3. On 12th January, 2023 the plaintiff took out this action against the defendant for the following reliefs: - 1 - a. Recovery of GHS16,060.00 being the cost of spare parts and workmanship on vehicle number GV 1683-14 brought for servicing and repairs and which remains unpaid despite repeated demands. b. Damages for breach of contract. c. Costs. 4. The defendant on 20th January, 2023 pleaded not liable to plaintiff’s claim. He proceeded to file a defence and counter-claim. In his 50 paragraphed defence and counter-claim filed on 27th January, 2023 the defendant pleaded negligence on the part of the plaintiff and claimed for the following: a. Breach of contract between the parties. b. Damages for breach of contract. c. Damages for negligence, anxiety, psychological trauma as well as non- economic losses plaintiff caused the defendant. d. Refund of an amount of GHS45,000.00 being monies paid for the engine which is not fit for purpose and taking off its defective engine from defendant’s vehicle. e. Costs as well as solicitor’s fees. 5. The plaintiff also filed a reply to the defendant’s defence and counterclaim on 13th February, 2023 disputing the defendant’s claim. The case of either party is detailed below. PLAINTIFF’S CASE 6. According to plaintiff, sometime in July 2021, he received a call that a pickup vehicle with registration number GV 1683-14 had broken down at Dunyin, a suburb of Tamale. He went to Dunyin, met the defendant and then drove the vehicle to his - 2 - shop in Tamale for checks and repairs. After checks, he informed the defendant that the vehicle needed a replacement of a new engine. He suggested a home-used engine to be purchased from one Mr. Agyenim Boateng, who trades in Kumasi. Plaintiff stated that the valued of engine at that time was GHS18,000.00, but the defendant indicated that he could not afford it. Plaintiff added that later in October 2022 the defendant confirmed that he (defendant) had spoken with Mr. Boateng and procured the said engine which price had increased to GHS45,000.00. Plaintiff averred that in addition to fixing the home-used engine, the defendant requested him to also fix the air condition, replace the car battery, replace the engine oil and other works. According to plaintiff, the vehicle was repaired and same given to the defendant on 28th October, 2022. However, the defendant failed to pay for his workmanship but promised that on reaching Salaga he would pay. 7. Plaintiff stated that on 29th October, 2022 the defendant informed him that the car was in good condition and that on his next trip to Tamale he would bring a gift. Plaintiff added that the defendant on his next trip brought 20 tubers of yam, but did not pay for the workmanship. The plaintiff averred that on 21st November, 2022 the defendant rather came to his shop with the vehicle this time complaining that the vehicle had developed a fault (overheating) when he was on his way to Tamale. According to plaintiff, he questioned why the defendant kept driving about 45minutes knowing that the vehicle’s temperature was high, but defendant answered that he just wanted to get to Tamale. Plaintiff explained that on checking the vehicle, he realised that the head gasket, cylinder head, reserve tank, radiator, piston and gasket, gasket silicon and gear oil had to be replaced. He added that the defendant then called Mr. Boateng for the replacement of the said parts. However, Mr. Boateng called him (plaintiff) to ascertain whether defendant will pay should he send the parts. Plaintiff then confirmed that since defendant had paid for the earlier - 3 - GHS45,000.00 for the home-used engine, the said parts would be paid. Hence, he received the parts and fixed the vehicle. However, defendant is yet to pay for his services for the two occasions and also for the said parts, all totaling GHS16,060.00. 8. Plaintiff tendered in evidence Exhibit A, a copy of the invoice totaling GHS16,060.00. Plaintiff maintained that the defendant is personally liable to the above debt. Plaintiff’s Witness 9. Plaintiff called Mr. Agyenim Boateng (PW1) as a witness. He corroborated the above story and added that he was under the believe that the plaintiff had received the money for the parts but had failed to send same to him. Upon sighting this writ, he agrees with plaintiff that the defendant owes and that once plaintiff is paid, he will get his money. DEFENDANT’S CASE 10. Defendant in his 64 paragraphed witness statement contended that he is not a proper party to be sued, rather the Salaga District Health Directorate since the vehicle, the subject matter of this suit, is a government vehicle. He contended that after the initial repairs were done, on his return to Salaga on 28th October, 2022 the vehicle was not ‘pulling’ but he managed to send the vehicle to Salaga, a journey that should have been done in 2hours was done in 4hours. On 29th October, 2022 when he complained to plaintiff, he was informed that the engine was yet to ‘open’ so there was no need to worry. He added that plaintiff confirmed that the engine had a warranty for 2weeks. Defendant averred that on 21st November, 2022 on his way from Salaga to Tamale, at Kpalbe the vehicle developed overheating. He then called the plaintiff and was informed that when he arrives it would be checked. He added that it took him about 5hours to arrive in Tamale. On meeting the plaintiff, he was informed that the - 4 - engine needed a replacement. Defendant averred that he was not in the position to commit further funds and so called Mr. Boateng to express his displeasure about the engine. He added that he informed the plaintiff not to work on the vehicle if the Mr. Boateng will not replace it. However, on 26th November, 2022 he received a call from plaintiff indicating that vehicle had been fixed, without replacing the engine. He then sent his driver to pick the vehicle and when the vehicle was being driven to Salaga on 27th November, 2022 it developed another overheating. According to defendant, the driver then left the vehicle at a community and asked the plaintiff to go for it. With this new fault, defendant stated that the apprentice of the plaintiff who checked the vehicle indicated that the pistons and connecting rod needed to be replaced. 11. Defendant contended that the plaintiff replaced the said radiator tank, reserve tank and engine head on credit without his knowledge or consent. He admits that the directorate will pay for the radiator and reserve tanks but will not pay for the engine head since the office is demanding for change of the engine from Mr. Boateng. He contended further that the actions of the plaintiff and PW1 are aimed at siphoning money from him or the directorate. At paragraph 60 of his witness statement, defendant pleaded negligence on the part of the plaintiff stating that plaintiff, “(a) failed to acquire a fit for purpose engine despite assurances, (b) failed to carry out proper maintenance and purported replacement of the vehicle engine, and (c) caused extreme damage to other parts of the vehicle.” He maintained that the vehicle presently is not functioning and same parked. Hence, his counter-claim. 12. Defendant tendered in evidence the following exhibits: Exhibit 1 – Copy of the payment for the home-used engine. Exhibit 2 – Copy of the vehicle document. Exhibit 3 – Picture of the vehicle parked. - 5 - Defendant’s Witness 13. Defendant called a witness, Issahaku Tahiru (DW1). According to him, he caused to be paid the GHS45,000.00 for the home-used engine. He confirmed that the vehicle is faulty and currently parked. ISSUES FOR DETERMINATION 14. The issues borne out of the facts are: a. Whether or not the defendant is a proper party to the suit? b. Whether or not the plaintiff negligently caused damage to the vehicle? c. Whether or not the plaintiff or defendant is entitled to his respective claim? BURDEN OF PROOF 15. It is essential to note that in civil cases, the general rule is that the party who in his pleadings or his writ raises issues essential to the success of his case assumes the onus of proof on the balance of probabilities. See the cases of Faibi v State Hotels Corporation [1968] GLR 471 and In re Ashalley Botwe Lands; Adjetey Agbosu & Ors. v. Kotey & Ors. [2003-2004] SCGLR 420. The Evidence Act, 1975 (NRCD 323) uses the expression “burden of persuasion” and in section 14 that expression has been defined as relating to, “…each fact the existence or non-existence of which is essential to the claim or defence he is asserting.” See also ss. 11(4) and 12(1) & (2) of NRCD 323. 16. It is when the claimant has established an assertion on the preponderance of probabilities that the burden shifts onto the other party, failing which an unfavourable ruling will be made against him, see s. 14 of NRCD 323 and the case of Ababio v Akwasi III [1995-1996] GBR 774. - 6 - ANALYSIS OF THE ISSUES 17. Issue a is whether or not the defendant is a proper party to the suit? Capacity to bring and/or maintain an action remains a cardinal hurdle that must be jumped if either party is to remain in a case. The law is trite that a party to an action must have capacity and that an objection to capacity of a party may be raised at any time, see Sam Jonah v Duodo-Kumi [2003-2004] 1 SCGLR 50. In R v High Court, Accra, Ex parte Aryeetey (Ankra Interested Party) [2003-2004] 1 SCGLR 398 the Supreme Court held that, “any challenge to capacity therefore puts the validity of the writ in issue. It is a proposition familiar to all lawyers that the question of capacity, like the plea of limitation, is not concerned with the merits …”. In effect, where it is established that a party does not have capacity or is not a proper person to a suit, then there is no need to go into the merits of the case. The suit is to be dismissed, see the cases of Sarkodie v Boateng II [1982-83] 1 GLR 715 SC, Fosua & Adu Poku v Dufie (Dec’d) v Adu Poku Mensah [2009] SCGLR 310, Duah v Yorkwah [1992-1993] 1 GBR 278 CA, HFC Bank (Ghana) Ltd. v Abeka Suit No. J4/5/2018 dated 12th June, 2019, Kasseke Akoto Dugbartey Sappor & 2 Ors. v Very Rev. Solomon Dugbatey Sappor & 4 Ors. Suit No. J4/46/2020 dated 13th January 2021, SC (unreported). 18. With cases that involve the State or properties of the State, section 9 of the State Proceedings Act, 1998 (Act 555) provides that State proceedings are to be instituted by or against the Attorney-General as the plaintiff or defendant, depending on whether the action is for or against the State, as the proper party. In recent times, State institutions have been granted powers by the Attorney-General to act in his/her stead. Nonetheless, s. 10 of Act 555 mandates that thirty days’ notice should be given before an action against the State is commenced. Sections 9 and 10 of Act 555 provide: “9. Parties to proceedings (1) In accordance with article 88 of the Constitution, civil proceedings - 7 - (a) by the Republic shall be instituted and conducted on behalf of the Republic by the Attorney-General or a person authorised by the Attorney- General; (b) against the Republic shall be instituted against the Attorney-General as defendant. (2) Proceedings instituted in accordance with this Act by or against the Attorney-General or any other officer shall not abate or be affected by a change in the person holding the office. 10. Notice of civil action to Attorney-General (1) A person who intends to institute civil action against the Republic shall serve on the Attorney-General a written notice of that intention at least thirty days before the commencement of the action. (2) The notice under subsection (1) shall be served by the claimant or by the lawyer or agent of the claimant (a) on the Attorney-General or an officer of the Attorney-General’s Department, or (b) in a case where action is to be commenced in a Region, on an officer of the Attorney-General’s Department in that Region. (3) The notice shall indicate the cause of action, the name and address of the intended claimant and the relief sought.” 19. From the instant case, the defendant stated at paragraph 46 of his defence and counter-claim that considering the subject matter being a government vehicle, he was not the proper party to be sued, rather the Salaga Health Directorate. He added that at all material times he was acting for and on behalf of the Directorate. See also paragraph 58 of his evidence-in-chief. The plaintiff, in his reply, at paragraph 16 - 8 - maintained that the defendant approached him “…in his private capacity and not in his capacity as a Health Director of Salaga Health Directorate and so cannot claim he … is not a proper party to be sued.” 20. Now, I take judicial notice of the fact that all vehicles with the GV number plates are government vehicles. With the subject matter being a pick-up vehicle with registration number GV 1683-14, there is no doubt that the said vehicle is a government property and that it is the State that bears the cost thereof. Therefore, save that the defendant was on the frolic of his own, the proper party will be the State/Republic, see also the cases of Ewudziwa v Attorney-General [1982-83] GLR 625 and Iddrisu v Attorney-General [2003-2004] 1 GLR 608. 21. From the evidence, Exhibit 1 shows that the initial replacement of the engine was paid by the East Gonja Municipal Health Administration. DW1 confirmed that, as the accountant of the Salaga District Health Directorate, the defendant drew his attention to the replacement of the engine and he caused the GHS45,000.00 to be paid. From the said payment, Exhibit 1, it is clear that the payment was not from the personal account of the defendant. Also, there is no evidence to the effect the defendant is representing the Attorney-General or the Salaga Health Directorate in this present suit. I, therefore, come to the conclusion that the proper party to this action is the Attorney-General or any person/institution so authorised by Attorney-General to be the proper defendant, see s. 9 of Act 555. Having come to this conclusion, there is no need for me to go into the merits of plaintiff’s case and I so hold, see Sarkodie v Boateng II (supra). Issues b and c. 22. Issues b and c are whether or not the plaintiff negligently caused damage to the vehicle and whether or not the plaintiff or defendant is entitled to his respective claim? The law here is - 9 - that where the defendant is not a proper party to be sued, he cannot also maintain an action against the plaintiff per his counter-claim. The said counter-claim is a nullity, see the case of Nii Kpobi Tettey Tsuru II (sub. by Nii Obodai Adai IV for and on behalf of LA Stool) & Ors. v Agric Cattle & Ors. Suit No. J4/15/2019 dated 18th March, 2020. As such, the defendant’s counter-claim is also dismissed. CONCLUSION 23. I hereby dismiss the plaintiff’s action since the defendant is not a proper party to the suit. Also, the defendant’s counter-claim is dismissed since he is not a proper party (in his personal capacity) to institute an action against the plaintiff. 24. No order as to costs. H/W D. ANNAN ESQ. [MAGISTRATE] SYLVESTER ISANG ESQ. WITH SAMPSON B. LAMBONG ESQ. FOR THE PLAINTIFF ABRAHAM N. DAMTAR ESQ. HOLDING THE BRIEF OF ALHAJI MOHAMMED SHAIBU ABDUALLAI FOR THE DEFENDANT References: 1. ss. 11(4), 12(1) & (2) and 14 of the Evidence Act, 1975 (NRCD 323) 2. ss. 9 and 10 of the State Proceedings Act, 1998 (Act 555) 3. Faibi v State Hotels Corporation [1968] GLR 471 4. In re Ashalley Botwe Lands; Adjetey Agbosu & Ors. v. Kotey & Ors. [2003-2004] SCGLR - 10 - 5. Ababio v Akwasi III [1995-1996] GBR 774. 6. Sam Jonah v Duodo-Kumi [2003-2004] 1 SCGLR 50 7. R v High Court, Accra, Ex parte Aryeetey (Ankra Interested Party) [2003-2004] SCGLR 398 Sarkodie v Boateng II [1982-83] 1 GLR 715 SC 8. Fosua & Adu Poku v Dufie (Dec’d) v Adu Poku Mensah [2009] SCGLR 310 9. Duah v Yorkwah [1992-1993] 1 GBR 278 CA 10. HFC Bank (Ghana) Ltd. v Abeka Suit No. J4/5/2018 dated 12th June, 2019 11. Kasseke Akoto Dugbartey Sappor & 2 Ors. v Very Rev. Solomon Dugbatey Sappor & 4 Ors. Suit No. J4/46/2020 dated 13th January 2021, SC (unreported). 12. Ewudziwa v Attorney-General [1982-83] GLR 625 13. Iddrisu v Attorney-General [2003-2004] 1 GLR 608 14. Nii Kpobi Tettey Tsuru II (sub. by Nii Obodai Adai IV for and on behalf of LA Stool) & Ors. v Agric Cattle & Ors. Suit No. J4/15/2019 dated 18th March, 2020. - 11 -