KESSE VRS NKANSAH (A2/046/23) [2023] GHADC 709 (21 November 2023)

CORAM: HER WORSHIP AMA ADOMAKO-KWAKYE (MS.), MAGISTRATE, DISTRICT COURT ‘2,’ KANESHIE, SITTING AT THE FORMER STOOL LANDS BOUNDARIES SETTLEMENT COMMISSION OFFICES NEAR WORKERS’ COLLEGE, ACCRA ON 21ST NOVEMBER, 2023. SUIT NO. A2/046/23 ASAMOAH KESSE ADABRAKA ACCRA :: PLAINTIFF VRS. DANIEL NKANSAH ATICO - BUBUASHIE :: DEFENDANT Introduction JUDGMENT The Plaintiff and another originally instituted this action against the Defendant by way of a Writ of Summons issued on 5th September, 2022. The Writ of Summons was subsequently amended on 17th April 2023 wherein the Plaintiff claimed against the Defendant the following reliefs: “i. An order for the Defendant to pay to the Plaintiff an amount of Five Thousand Ghana Cedis (GH¢5,000.00) being amount paid for the price of the Benz 207. ASAMOAH KESSE V. DANIEL NKANSAH ii. An order directed at the Defendant to pay the Plaintiff Two Thousand Ghana Cedis (GH¢2,000.00) for the price of the Hyundai H200 car. iii. An order for the Defendant to pay the Plaintiff Six Thousand, Seven Hundred and Twenty Ghana Cedis (GH¢6,720.00) for maintenance and servicing of the Benz 207 car. iv. An order for the Defendant to pay the Plaintiff Five Hundred Ghana Cedis (GH¢500.00) being money Defendant demanded for do [sic] change of ownership. v. An order for the Plaintiff to pay interest at the prevailing bank rate on the total sum until the final date of payment. vi. Cost. vii. Any further order(s) as this Honourable Court may deem fit. Plaintiff’s Claim It is the Plaintiff’s case per his Particulars of Claim and Summary of Subject Matter of claim that he purchased a used Benz 207 vehicle with Registration Number GW 8317 Z from Defendant at Five Thousand Ghana Cedis, paid in two instalments of Three Thousand Ghana Cedis and Two Thousand Ghana Cedis, and took possession of the vehicle in June 2019. He stated that he also had to pay Five Hundred Ghana Cedis to Defendant for change of ownership. The Plaintiff averred that he also agreed on the purchase of a Hyundai H200 vehicle from the Defendant since the other car needed maintenance and he required a moving vehicle. He stated that he paid Two Thousand Ghana Cedis out of the agreed Eight Thousand Ghana Cedis. ASAMOAH KESSE V. DANIEL NKANSAH The Plaintiff stated that the Benz 207 vehicle needed servicing and he incurred Six Thousand, Seven Hundred and Twenty Ghana Cedis in doing that. According to him, someone known as Kwesi Dwumoh went to the mechanic shop when the vehicle was there claiming ownership of the vehicle and the vehicle was sent to the Achimota Police Station with the mechanic. Plaintiff stated that he went with the Police and the said Kwesi Dwumoh to Defendant’s house where the Defendant agreed to refund his money to him but Defendant has reneged on his promise, hence Plaintiff’s recourse to the legal machinery. The Defendant was duly served with the Writ of Summons, Amended Writ of Summons and Hearing Notices but he never appeared in Court. Order 25 Rule 1(2)(a) of the District Court Rules, 2009 (C. I. 59) provides that where an action is called for trial and the Defendant fails to attend, the Plaintiff would be allowed to prove his claim. The Defendant had the opportunity to come to Court to cross examine the Plaintiff and/or put up a defence to the suit but he elected not to be present to challenge the Plaintiff’s claim by his conduct of not appearing in Court. The Defendant can therefore not raise at any point that the door of justice was shut to him. His Lordship Jones V. M. Dotse, JSC in the case of Bortey v. Paresh & 2 Ors [2018] 120 GMJ 1 @ 26-27 noted as follows: “We are therefore of the view that, if a party voluntarily and deliberately fails and or refuses to attend upon a court of competent jurisdiction, … to prosecute a claim against him, he cannot complain that he was not given a fair hearing or that there was a breach of natural justice.” It was also held in the case of Mence Mensah v E. Asiama [2011] 38 GMJ 174 SC that: “It is a salubrious principle of our jurisdiction that a litigant should have the opportunity of being heard, of telling his side of the story, of being free to present evidence and argument to buttress his case; but it is also settled law and dictates of common sense require also that ASAMOAH KESSE V. DANIEL NKANSAH once these opportunities have been extended to the litigant but the litigant decides not to avail himself of them within the period of the trial, he would not, on judicial considerations, be permitted to come later and plead for the reactivating of the very opportunities he declined to embrace.” See also: Republic v Circuit Judge; Ex parte Dzaka [1984-86] I GLR 741; In Re West Coast Dyeing Ind. Ltd; Adams v Tandoh [1984-1986] 2 GLR 561; Republic v High Court, Cape Coast; Ex parte Marwan Kort [1998-1999] SCGLR 833; Ankumah v City Investment Co. Ltd. [2007-2008] 1 SCGLR 1064 (holding 2); Poku v Poku [2007-2008] SCGLR 996. The Court on the strength of these authorities therefore proceeded to hear the Plaintiff prove his claims. Issue Whether or not the Defendant is indebted to Plaintiff in the sums claimed. Evaluation of evidence/Legal Analysis It is trite that in civil cases, the general rule is that the party who in his/her pleadings or writ raises issues essential to the success of his/her case assumes the onus of proof. The one who alleges, whether a plaintiff or a defendant, assumes the initial burden of producing evidence. It is only when such a party has succeeded in producing evidence that the other party will be required to lead rebuttal evidence, if need be. Proof lies upon him who affirms or alleges, not upon him who denies since, by the nature of things, he who denies a fact cannot produce any proof. See Sections 11(1) & (2), 12(2) and 14 of the ASAMOAH KESSE V. DANIEL NKANSAH Evidence Act, 1975 (NRCD 323); Tagoe v. Accra Brewery [2016] 93 GMJ 103 S. C; Deliman Oil v. HFC Bank [2016] 92 GMJ 1 C. A. In the case of Takoradi Flour Mills vs. Samir Faris [2005-2006] SCGLR 882, the Supreme Court captured the trite position of the lzaw relating to the burden of proof and stated as follows at page 900: “To sum up this point, it is sufficient to state that this being a civil suit, the rules of evidence require that the Plaintiff produces sufficient evidence to make out his claim on a preponderance of probabilities, as defined in Section 12(2) of the Evidence Decree, 1975 (NRCD 323). Our understanding of the rules in Evidence Decree, 1975 on the burden of proof is that in assessing the balance of probabilities, all the evidence, be it that of the Plaintiff or the defendant, must be considered and the party in whose favour the balance tilts is the person whose case is more probable of the rival versions and is deserving of a favorable verdict.” Similarly, in GIHOC Refrigeration & Household vs. Jean Hanna Assi (2005-2006) SCGLR 458, the Supreme Court held that: “since the enactment therefore, except otherwise specified by statute, the standard of proof (the burden of persuasion) in all civil matters is by a preponderance of the probabilities based on a determination of whether or not the party with the burden of producing evidence on the issue has, on all the evidence, satisfied the judge of the probable existence of the fact in issue... Hence, by virtue of the provisions of NRCD 323, in all civil cases, judgement might be given in favour of a party on the preponderance of the probabilities...” The Plaintiff therefore had the onus of discharging the burden of producing sufficient evidence in respect of his claim against the Defendant on a balance of probabilities, notwithstanding the fact that the Defendant did not appear in Court. ASAMOAH KESSE V. DANIEL NKANSAH The Plaintiff testified by himself and also called two witnesses to support his case. In his evidence-in-chief by way of oral evidence adduced on 28th August 2023, the Plaintiff, a pensioner, testified that the Defendant advertised for sale a Benz car and he therefore went to see him sometime in June 2019 with one Nkansah Nimako as he was interested in purchasing it. He testified that the original sale price was Seven Thousand Ghana Cedis but the Defendant was willing to accept Five Thousand Ghana Cedis if the amount was going to be paid outright. According to the Plaintiff, he paid Three Thousand Ghana Cedis and was handed a receipt which was tendered in evidence as Exhibit ‘A’, and he paid Two Thousand Cedis few days later and was issued with another receipt indicating that was the final payment. That receipt was also tendered in evidence as Exhibit ‘B’. The Plaintiff’s testimony was that the vehicle was in need of maintenance and he thus sent it to a mechanic shop where he had to expend some monies. A copy of the receipt of payment was tendered by him as Exhibit ‘D’. It was Plaintiff’s evidence that since he needed a moving vehicle to work with and the Benz 207 had been sent for repairs, he agreed to buy a Hyundai H200 vehicle which was also been sold by the Defendant at a price of Eight Thousand Ghana Cedis. He said he made part payment of Two Thousand Ghana Cedis and was issued with a receipt which he tendered in evidence as Exhibit ‘C. He further stated that he had to pay Five Hundred Ghana Cedis to Defendant upon his request for Defendant to prepare some documents before he could be given the car documents. According to the Plaintiff, whilst the Benz 207 was at the mechanic shop, he was informed by the mechanic that someone had come there claiming ownership of the vehicle so he had to go to the Achimota Police Station. He said it came to light that the vehicle was not for the Defendant and the latter promised to refund the monies paid to him but all efforts to get him to pay had proved futile. ASAMOAH KESSE V. DANIEL NKANSAH Plaintiff’s first witness (PW1), Nkansah Nimako, testified that the Plaintiff had had discussions with him that he needed a vehicle to use on commercial basis as a pensioner and he informed Plaintiff that he had seen a vehicle on sale. PW1 stated that he went with a mechanic to check out the vehicle upon Plaintiff’s instructions and the mechanic indicated it was a good car so he relayed the information to Plaintiff and he went with Plaintiff for the negotiations on 26th June 2019 and a part payment of Three Thousand Ghana Cedis was made and the car released to them to be sent for repairs. He stated that the balance of Two Thousand Ghana Cedis was paid on 28th June 2019 and Defendant released the car to them to send to a mechanic shop for repairs. PW1 testified that the mechanic indicated that the vehicle would be at the shop for about three months and since they needed a moving vehicle to work with, another negotiation was done with Defendant in respect of another vehicle and part payment of Two Thousand Ghana Cedis was made in respect of that vehicle and a Five Hundred Ghana Cedis for documentation, which documents Defendant never released to them. According to PW1, he also realized later that the Hyundai H200 was not where it was and he went to Defendant several times for him to refund the Two Thousand, Five Hundred Ghana Cedis but he always gave excuses. He stated that he received a call from the Plaintiff that he had been arrested with the complaint being that the car was stolen so he followed up at the Police Station. PW1 stated that the Defendant promised to refund the monies paid and the expenses incurred but he has failed to live up to his promises and even after Defendant was summoned to Legal Aid, he has still failed to pay back the money. The mechanic was called by Plaintiff as his second witness. PW2’s evidence was that sometime in June 2019, PW1 came to his shop for him to go with him to check on a Benz 207 vehicle to advise if it was good to be bought and after checking it, he told them it was good, once some repair works are done on it. He stated that he went with the Plaintiff ASAMOAH KESSE V. DANIEL NKANSAH and PW1 on 26th June 2019 for them to make part payment of Three Thousand Ghana Cedis to Defendant. PW2 testified that he was later in his shop when he was informed that the full payment had been made so he went for the vehicle to work on it and whilst the vehicle was there, someone came there claiming ownership of the shop and he had to go to the Police Station to explain how the vehicle got to his shop. PW2 said that when they later went to Defendant’s house, he agreed to refund the money and based on what he said, the car owner himself came to his workshop to take the vehicle. The Plaintiff’s evidence which was duly corroborated by his witnesses is evident that the Defendant indeed sold a Benz 207 vehicle to the Plaintiff for which an amount of Five thousand Ghana Cedis was paid, and he also agreed to sell to Plaintiff a Hyundai H200 vehicle for which Two Thousand Ghana Cedis was paid. It is also a finding of fact that the Plaintiff had to pay Five Hundred Ghana Cedis to Defendant upon his request for him to use to work on documentation, which documents Plaintiff never received. In Exhibit ‘A’ which is indicated to be ‘Agreement on Sale of Benz 207’, the Defendant acknowledged receipt of the amount of Three Thousand Ghana Cedis from Plaintiff as part payment of his Benz 207 with Registration Number GW 8317-Z. It was duly signed by the parties and their witnesses. Exhibit ‘B’ is also a handwritten note by Defendant stating that he had that day (28/6/2019) received Two Thousand Ghana Cedis from Plaintiff as final payment of his Benz 207 sold to him and it was signed by Defendant. There is abundant evidence that the Defendant therefore received a total of Five Thousand Ghana Cedis from the Plaintiff in respect of the Benz 207. Exhibit ‘C’ also supports the Plaintiff’s case in respect of the Two Thousand Ghana Cedis he paid to the Defendant as deposit for the Hyundai H200. The Defendant in this exhibit confirmed receipt of that amount on 28th June 2019 and signed the said exhibit himself. ASAMOAH KESSE V. DANIEL NKANSAH The Plaintiff’s uncontested evidence in respect of the further payment of the Five Hundred Ghana Cedis was corroborated by PW1. Quite apart, Exhibit ‘D’, which is an Invoice/Receipt from Opamago Safo Engineering dated 3rd July 2019 attests to the fact that the Plaintiff expended a total amount of Six Thousand, Seven Hundred and Twenty Ghana Cedis in repair works on the Benz 207. I find that there is ample evidence on record to support the Plaintiff’s claim that the Defendant owes him the sums claimed with the total amount being Fourteen Thousand, Two Hundred and Twenty Ghana Cedis in respect of the two vehicles. On the issue of interest payable, the Court must avert her mind to the guidelines laid down by the courts. The Court in the case of Standard Chartered Bank (Ghana) v Nelson [1999-2000] GLR 366 held that; “interest may be awarded where: (i) by the custom or trade practice. Such interest is usually awarded on money clause upon proof of custom or trade practice: see Pappoe v Bank of British West Africa (1933) WACA 287; or (ii) by agreement in transactions between parties where such interest may become payable upon action brought after default: see Senedza v Djokoto [1991] 2 GLR 8; or (iii) interest charges arising out of contracts—actually stated or implied: see Kaas Fisheries Ltd v Barclays Bank Ltd [1989-90] GLR 1. In Royal Dutch Airlines (KLM) v Farmex Ltd [1989-90] 2 GLR 623 at 644-645, SC expressed himself thus: “Interest is normally awarded to the plaintiff where the defendant’s breach of contract has deprived him of the opportunity to work with the money to earn profit or income. The power of the courts to award interest is derived from section 98 of the Courts Act, 1971 (Act 372) and the Courts (Award of Interest) Instrument, 1984 (LI 1295) and the rate to be awarded is the bank rate prevailing at the time the order was made by the court.” (iv)By statute. Interest to be claimed under statute may arise under (a) the usury laws (Moneylenders Ordinance, Cap 176/(1951 Rev) or under LI 1295. In the case of Senedza v Djokoto (supra) Benin, J (as he then was) considered the application of LI 1295 to an action for the recovery of an interest-free loan which the defendant had subsequently defaulted in paying. At 87 of the report his lordship put the issue of the award ASAMOAH KESSE V. DANIEL NKANSAH of interest in graphic form when after dismissing the defendant’s counterclaim with costs he stated: “But thereafter when the defendant became in breach of the agreement to pay, it entitled the plaintiff to be awarded interest on the sum. Can he be awarded interest without putting in a claim for it? Yes, a court can award interest without any claim being made in the pleadings, more particularly when power has been given by a statute . . . The defendant’s breach of the agreement to pay as I said entitled the plaintiff to recover interest. Interest is awardable by virtue of the Courts (Award of Interest) Instrument 1984 L. I. 1295).” The Plaintiff as part of his reliefs has prayed this Honourable Court to order interest on the amounts Defendant is to refund to him. In view of the evidence adduced and the fact that Defendant’s willful refusal to refund to Plaintiff the monies he paid for vehicles which were not actually for the Defendant, has deprived Plaintiff of monies lawfully due him and he has also been deprived of the opportunity to have invested this money in another venture as a pensioner or for him to even rely on same for his sustenance, interest on the sum owed is awarded in favour of the Plaintiff against the Defendant. A prayer has also been made for cost. The policy rationale behind the institution of costs in litigation has been judicially articulated in SCOA Motors v Koranteng [1967] GLR 263, where Azu Crabbe JA (as he then was) said; "The real object of awarding costs is to recoup a plaintiff who had successfully established his right to maintain the litigation which he had commenced or the defendant who had been wrongly dragged into court and harassed with litigation." In order not to frustrate the policy rationale behind the award of costs in litigation, it is of paramount importance this Court takes the question of costs seriously to ensure that justice is done to the parties not only in respect of the merit of the issues but also with regard to expenses incurred by them in the prosecution of the case. It is the duty of the Court to conduct or cause to be conducted a thorough inquiry into the expenses incurred ASAMOAH KESSE V. DANIEL NKANSAH by the parties and use it as a guide in awarding costs bearing in mind that unreasonable and unnecessary expenses are not to be countenanced. The court must exercise its discretion in a judicial manner and this requires that all relevant factors should be taken into consideration and impartially adjudicated upon in fairness to the parties involved in accordance with reason and justice and not according to a feeling of hostility or sympathy. The guidelines for the award of costs has been provided for in the case of Erskine v. Erskine [1984-86] 1 GLR 249-255 where Twumasi J (as he then was) succinctly stated that; “…I have arrived at a few factors or guidelines for the award of costs and these are: (1) the fact that a party has unduly delayed the trial by causing unnecessary adjournments: Guardian Assurance Co, Ltd. v Khayat Trading Store [1972] 2 GLR 48, CA; (2) costs should normally bear a relationship to the trial and its incidents and not to the measure of damages awarded. Since costs are in the discretion of the court and the law requires that such discretion should be exercised reasonably…, Guardian Assurance Co, Ltd. v Khayat Trading Store (supra); (3) the fact that the point which forms the main basis of the judgment or decision was raised not by counsel but by the court: Asamoah v Koufu (1958) 3 WALR 315; (4) costs must neither be excessive nor ridiculously low but must be reasonable having regard to the circumstances of the case: Bank of Ghana v Nyarko [1973] 2 GLR 265, CA and Sasraku v David [1959] GLR 7, CA; (5) a party can, in the discretion of the court exercised judicially, that is to say by giving sufficient and good reasons, be deprived of his costs in exceptional cases, otherwise a successful party is always entitled to costs: London Welsh Estates Ltd. v Philip (1931) 100 LJKB 449, for instance if [p.255] the court is satisfied that the conduct of the party has involved the defeated party unnecessarily in the expense of litigation; (6) insolvency or impecuniosity of a defeated plaintiff is not a sufficient ground upon which a court can deprive a successful defendant of his costs, nor is the insolvency or impecuniosity of a defeated defendant a good ground for depriving a successful plaintiff of his costs: Amalgamated Press Ltd. v Independent Press Ltd. [1960] GLR 113; and (7) where each party is only partially ASAMOAH KESSE V. DANIEL NKANSAH successful, eg. where a plaintiff is successful on his claim and the defendant is also successful on his counterclaim, costs are apportioned proportionately in terms of the issues and incidents in each action or where appropriate each party bears his own costs: Gariba v Ibrahimah (1951) 13 WACA 171.” Order 7 Rule 1(1) of C. I. 59 also provides that costs in a suit is at the discretion of the Court and the Court may after hearing the parties award costs it considers just. The Court considers the peculiar circumstances of each case in arriving at the quantum of costs such as amount of expenses incurred by the party or his lawyer, amount of Court fees paid, length and complexity of proceedings, conduct of parties and/or their lawyers during proceedings, length of trial, number of witnesses. The Court must be fair to both parties in awarding cost. See: Bank of Ghana v Nyarko (1973) 2 GLR 265, GATCO Chempharam v Pharmadex Gh. Ltd. (1999-2000) 2 GLR 262 @ 275, Neuseite Meditek and Konsult vs. United Bank for Africa (Gh) Ltd. [2021] DLCA 10755 I have considered the trouble Plaintiff had to go through in order to assert his rights over what is lawfully due him and the fact that he had to ensure that hearing notices were served and he had to also go to some length of bringing in two witnesses. Plaintiff’s troubles must count for something. Relying on these authorities cited supra, and having regard to the circumstances of this case, I award costs of GH¢3,000.00 in favour of Plaintiff against Defendant. Conclusion ASAMOAH KESSE V. DANIEL NKANSAH Having regard to the totality of the evidence adduced and based on the evaluation of the evidence done supra, this Court finds that the Plaintiff has been able to discharge the burden of proof on him and holds as follows: a. The Defendant is to refund to the Plaintiff the sum of Five Thousand Ghana Cedis (Gh¢5,000.00) being the amount paid by Plaintiff to Defendant for the Benz 207 vehicle. b. The Defendant is to refund to the Plaintiff the sum of Two Thousand Ghana Cedis (Gh¢2,000.00) being the amount paid by Plaintiff to Defendant for the Hyundai H200 vehicle. c. The Defendant is to refund to the Plaintiff the sum of Five Hundred Ghana Cedis (Gh¢500.00) being the amount paid by Plaintiff to Defendant for documentation. d. The Defendant is to pay to the Plaintiff the sum of Six Thousand, Seven Hundred and Twenty Ghana Cedis (Gh¢6,720.00) being the amount expended by Plaintiff on maintaining and servicing the Benz 207 vehicle. e. The Defendant is to pay interest on the amounts in a., b., c. and d. supra at the prevailing commercial bank rate from August 2019 to the date of final payment. f. Cost of GH¢3,000.00 is awarded for the Plaintiff against the Defendant. [SGD] AMA ADOMAKO-KWAKYE (MS.) (MAGISTRATE) ASAMOAH KESSE V. DANIEL NKANSAH 13