KWABENA SARFO SARFO-KANKANKA VRS KOS COMPANY LIMITED & ANOR. (C2/149/2022) [2023] GHACC 1078 (25 July 2023)

IN THE CIRCUIT COURT OF GHANA HELD IN ACCRA ON TUESDAY, 25TH DAY OF JULY 2023 BEFORE HIS HONOUR KWABENA KODUA OBIRI-YEBOAH, CIRCUIT COURT JUDGE. KWABENA SARFO SARFO - KANTANKA C2/149/2022 VRS KOS COMPANY LIMITED SETH KWAKU POKU JUDGEMENT The Plaintiff per Writ of Summons and Amended Statement of Claim issued from the registry of this Court against the defendant, claiming the following: i. Recovery of the sum of GHC 34,000.00 being the amount the Plaintiff paid to the defendant to purchase a 2009 model of Toyota Camry on the 09/09/16 which later proved to be a stolen car and same was impounded by the Commercial Crime Unit of the Ghana Police Service Headquarters. Interest on relief (i) supra at prevailing Commercial bank rate from January 13, 2017, till date of final payment. General damages for breach of contract. General damages for the inconvenience and hardship caused the Plaintiff by the ii. iii. iv. conduct of the defendant. v. Cost including legal fees. The Defendant filed statement of defence on the 6th June 2022 denying the claims made by the Plaintiff. The Plaintiff did not file a reply but after close of pleadings filed application for directions. At the application for directions hearing, the following issues were set down for trial: a. Whether or not Defendant and Plaintiff agreed to a purchase price of GHC 44, 000 for a Toyota Camry 2009 model. b. Whether or not the defendants in their negotiations acted for themselves or for some vendors. c. Whether or not 2nd defendant paid GHC 10,000 as part of refund of the amount. d. Whether or not the Plaintiff and 2nd Defendant reported the matter to the Tesano Police Station. On the 5th December 2022, the suit was called before the Court and Case Management Conference (CMC) was conducted for both the plaintiff and the defendants, and the suit was adjourned for hearing. Hearing indeed commenced and Counsel for the defendants objected to various paragraphs of the witness statement of the plaintiff which caused the plaintiff to apply for the case to be adjourned for them to put their house in order. The plaintiff made the necessary amendments and filed the process, and the case was again fixed for hearing. At the hearing of the case, which started de novo, Counsel for plaintiff made the submission before the court that they have issued hearing notices for trial to commence but the defendant have not shown up by themselves or their Lawyer and they therefore want to call their witness. The request of Counsel was granted as there was hearing notice served on record. The Plaintiff was therefore made to open his case before the court. The witness relied on his witness statement that was filed before the court and also tendered exhibits A-D which were admitted into evidence. The exhibits were A. Statutory declaration by the Plaintiff, B. Gazette of change of name, C-Publication of the change of name and D was the receipt received by the Plaintiff from the 1st Defendant company. The witness statement and the exhibits were adopted before the court as the evidence in chief of the Plaintiff. The case was adjourned afterwards for the witness to be cross examined on the next adjourned date if the defendants are interested. On the next adjourned date there was prove of service of the hearing notice, but the defendants were absent and there was no representation. The witness was therefore discharged. The plaintiff then called his witness who testified for him. The witness PW1, Asante Godwin Fokuo relied on the witness statement filed on his behalf and same was adopted as his evidence in chief before the court. And as the defendants even though they were served with hearing notice and absent, the witness was discharged by the court. Counsel for the plaintiff after announced the end of the case of the Plaintiff and prayed the court that in the light of the rules of court, under order 36 rule 1 (2) of CI 47, the court should struck out or dismiss the case of the defendant and enter judgment in favour of the plaintiff. The case was afterwards adjourned for judgment. In this case as provided by the rules as stated above, the plaintiff was allowed to prove his claim as the defendant did not counterclaim against the plaintiff before the court. The plaintiff’s testimony as a witness before the court was that the defendant is a Limited Liability Company incorporated under the laws of Ghana and is engaged in the selling of new and used cars. Plaintiff said the 2nd defendant is an officer of the 1st defendant and at all material times acted on behalf of the 1st defendant. Plaintiff said in the year 2016 he decided to purchase a car , and his friend and colleague Asante Godwin Fokuo, PW1, introduced him to the defendants. Plaintiff says after all the arrangements were done, he made payment of GHC 44,000.00 for the car, and he was given a receipt by the 2nd defendant in the name of the 1st defendant. Plaintiff said even though he was given the car he could not register, when he attempted to register same as it was tagged as stolen vehicle and therefore was impounded by the police. Plaintiff said he informed the 2nd defendant, and the case was reported to the Tesano Police Station and eventually the case ended with the Police CID Headquarters. Plaintiff says the 2nd Defendant refunded GHC 10,000 through the police and same was handed over to him personally by the police conducting the investigations. Plaintiff says after the payment, he tried all means necessary to retrieve the outstanding amount of GHC 34,000 from the defendants who have failed or refused to pay the said outstanding amount. Plaintiff concluded his testimony relying on the exhibits tendered and concluded by saying that the defendants will not pay the outstanding amount unless they are compelled by the court. The evidence of the plaintiff was corroborated in totality by his witness PW1. This was the evidence of the plaintiff that was before the court at the end of the trial as the defendants as indicated earlier did not avail themselves before the court for the trial, as they refused to appear before the court despite all the hearing notices that were served on them. As stated earlier the plaintiff who brought the action had the responsibility to prove his case by giving evidence and calling a witness and that is what was done by the plaintiff before the court. In civil cases the plaintiff has a burden to prove his case by the preponderance of probabilities and this is indicated in sections 11(4) and 12(1) of the evidence Act 1975 (NRCD) 323. Section 11(4) provides that: “In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence.” Section 12(1) also provides that: “except as otherwise provided by law, the burden of persuasion requires proof by preponderance of the probabilities”. See the case of Adwubeng v Domfeh (1996-97) SCGLR 660 Also, the basic principle of proof in civil suits, a party whose positive assertions are denied by his opponent bears the onus of proof of those assertions. See: Agbesi v Ghana Ports & Harbours Authority (2009) 20 MGLR 109 @ 137. Again, the right to be heard is an established common law principle. It is also an inalienable right which should not be taken away unless the rules of court permit it to be so. See Republic v High Court, Accra Ex-parte Salloum & Others. (2012) 37 MLRG 34 SC. In the case of Ankumah vrs City Investment Co. Ltd (2007-2008) 2 SCGLR 1064 the Supreme Court held per Adinyira JSC at page 1076 as follows: “The trial Court therefore rightly adjourned the case for judgment. A Court is entitled to give a judgment in default as in the instant case, if the party fails to appear after notice of the proceedings has been given to him. For then, it would be justifiable to assume that he does not want to be heard”. See the Rep v Court of Appeal Ex Parte Eastern Alloy Co. Ltd 2007-08 SCGLR It is my humble view that since the defendants failed to file any amended statement of defence, after the plaintiff amended and failing to appear to further cross examine the plaintiff witness and absent when hearing notices was served on them for hearing, the defendants waived their right to be heard. In a civil trial as in this case, the plaintiff will have to prove their case before the court. The position of the law is settled by a legion of authorities that, when a party makes an averment and the averment was not denied, no issue is joined, and no further evidence need to be led on that averment. Also, when a party had given evidence of a material fact and was not cross-examined upon it, he even need not call further evidence to establish that fact. Fori v Ayerebi (1966) GLR 622 SC Bonsu v Kusi (2010) 26 GMJ 20 SC Looking at the case per the 4 issues that were set down by the court for determination, the plaintiff through his testimony and that of his witness led evidence to prove his case and to demonstrate per the exhibits that the defendants have to pay him the outstanding amount. Therefore, issues a-d which were set down as issues for determination will all be answered in the affirmative and resolved in favour of the plaintiff. From the reliefs of the plaintiff, the plaintiff is seeking recovery of the outstanding amount, which is GHC 34,000 from the defendants, interest on the said amount from January 13, 2017, and cost. The plaintiff has been able to prove that the defendant is owing the plaintiff the said amount and therefore the plaintiff is entitled to the reliefs seeking before the court including the interest and cost. See KAMA Health Services v Unilever Ghana Ltd Civil Appeal No. J4/24/2013, 19th July 2013, Butt v Chapel Hill Properties and Another (2003-2004) 1 SCGLR 636. The plaintiff is therefore entitled to the reliefs per the writ of summons before the court, and relief (iii) and (iv) will be considered together as general damages. The Plaintiff is to recover GHC 34,000 from the defendants, interest on the said amount at the prevailing commercial bank rate from January 13, 2017, till date of final payment. Plaintiff will be awarded general damages of GHC 20,000 and cost of GHC 10,000 will be awarded in favour of the plaintiff against the defendants. SGD HIS HONOUR KWABENA KODUA OBIRI-YEBOAH, CIRCUIT COURT JUDGE. 7