ASIGBE VRS SADIK & ANOTHER (UW/WA/DC/A1/08/21) [2023] GHADC 1250 (19 December 2023)

IN THE DISTRICT COURT, WA HELD ON TUESDAY, 19TH DAY OF DECEMBER, 2023 BEFORE HIS WORSHIP, MAXWELL M. TITRIKU DISTRICT MAGISTRATE. SUIT No. UW/WA/DC/A1/08/21 ABU ASIGEE ............... PLAINTIFF V 1. MRS SADIK 2. MR. MAHAMA SADIK ............... DEFENDANTS PLAINTIFF PRESENT DEFENDANTS PRESENT SAMUEL KWAME OFOSU, ESQ. FOR PLAINTIFF CRISPIN W. ZIEKAH, ESQ., FOR DEFENDANTS JUDGMENT The Plaintiff, on Monday, 23rd day of August, 2021 filed writ of summons against the Defendant herein, and claimed for: a. A Declaration that, Defendants trespassed to Plaintiff’s chattel, to wit, the Motor tricycle. b. An order directed at the Defendants to pay to the Plaintiff forthwith, the GH¢24,480.00 being the unearned daily sales from 17/09/2020 to 20/08/2021 and an additional GH¢80.00 per day from 20/08/2021 till date of final payment. c. An order directed at the Defendants to return Plaintiff’s motor tricycle forthwith to Plaintiff in the state in which it was unlawfully taken from Plaintiff or in the alternative, an order directed at the Defendants to purchase a new motor tricycle (the same type) to the Plaintiff. d. Punitive damages for trespass to Plaintiff’s chattel. e. Costs on full indemnity basis. Upon receipt of the writ of summons, Defendant, however counter-claimed, and filed same on Monday, 20th September, 2021 for the following reliefs: a. Declaration that, Plaintiff fraudulently schemed and obtained two bales of sacks worth Three Thousand Ghana Cedis (GH¢3,000.00) from 1st Defendant through her daughter. b. Declaration that, Plaintiff owes 1st Defendant an amount of Three Thousand Ghana Cedis (GH¢3,000.00) being the sale price of two bales of sacks which Plaintiff bought from them. c. An order directed at the Plaintiff to pay to the 1st Defendant the amount in relief “a” above together with interest at the prevailing Commercial Bank interest rates with effect from April, 2020, till date of final payment. d. Damages for lost of profit and business capital e. Costs of litigation. CASE FOR THE PLAINTIFF. In his evidence-in-chief, the Plaintiff (Abu Asigee), unemployed, resident at Sombo, in the Wa Municipality, stated that, he got to know the Defendants through his trade as a tricycle operator. He said, the Defendants are traders in in sacks and other general merchandize. According to him, he used to operate a motor tricycle (Apsonic Motor King, AP 150, blue in colour), from which operation he earns his living, and through his trade as a tricycle operator, he developed a business relationship with the 1st Defendant sometime in 2018 in the nature of buying empty sacks from 1st Defendant and reselling same for profit to people who are in charcoal business. He said, he used to pay One Cedi, Fifty Pesewas (GH¢1.50) as a unit price per sack whenever he made cash purchases and Two Cedis (GH¢2.00) as a unit price per sack whenever he made credit purchases of the sacks from the 1st Defendant. he said, sometime in July, 2020, he took delivery of 200 pieces of sacks worth Four Hundred Ghana Cedis (GH¢400.00) from the 1st Defendant on credit, and that he took delivery of the 200 sacks in two batches of 100 sacks each on the same day, and the 1st batch of 100 sacks were delivered to him at the house of the 1st Defendant at Kumbiehi in Wa in the presence of 1st Defendant, whiles the second batch of 100 sacks was delivered to him by 1st Defendant’s daughter, who was directed by 1st Defendant to lead him to 1st Defendant’s shop at the new market, Wa for the purpose of taking delivery of the said 100 sacks. The Plaintiff further stated that, after taking delivery of the aforesaid sacks from the 1st Defendant, he then had an emergency call from his village (Varimpere), that his father was critically ill, and he immediately left for the village to attend to the health of his father as well as to take care of his father’s cashew farm, but could not inform the 1st Defendant, and he returned a month’s later to Poyentanga. He said, on or about 17/09/2020, which was his first day at work, at about 1pm, he was confronted by the 1st Defendant at Poyentanga, when he was on his usual operations with his tricycle where 1st Defendant insisted he paid the cost of the sacks he took on credit, and when he tried to explain himself, 1st Defendant ignored his explanations and forcefully removed the keys to his motor tricycle, and unfasten the ropes that secured 22 bags of charcoal on his motor tricycle, and threw them off, which caused the sacks containing the charcoal to burst, thereby discharging the charcoal on the ground. According to the Plaintiff, he left the tricycle since 1st Defendant told him that, the 2nd Defendant was coming to pick the tricycle to Wa for keeps until he paid an amount of GH¢400.00 he owed the 1st Defendant. He said, on the 19th day of September, 2020 or there about, he and one of his relatives, by name Mathew Kofi Buobason, went to 1st Defendant’s house to refund to her the GH¢400.00 being the cost of sacks he owed her so that, he could retrieve his tricycle, but 1st Defendant declined to accept the money, but insisted that, he paid the money to her Husband (the 2nd Defendant). He said, the next day, the said relative, Mathew Kofi Buobason and another Uncle of his, by name Oli-Naa, (a Teacher at Wa Senior High School), went to meet the 2nd Defendant at his shop to pay the GH¢400.00 as directed by the 1st Defendant, but 2nd Defendant also refused to accept the GH¢400.00 from his relatives, but instructed them to go and pay the said money to the Police. He said, two weeks later he got information that, his motor tricycle was parked by the road side at Poyentanga, and he immediately went there with his relatives, Mathew Kofi Buobason and Oli Naa, and when they got to Poyentanga, they found that, the motor tricycle had been dismantled and the parts carried away (including the tyres, lamps, suspensions and the tools), leaving behind the frame of the motor tricycle resting on stones. Plaintiff further stated that, he then reported the conducts of the Defendants to the Police, after all attempts to settle the debts to the 1st Defendant and to retrieve his motor tricycle failed. He said, the Police invited him, where he went and met the Defendants together with one Alhaji Adamu Haki and the Daughter of the Defendants and a Police Officer, one Mujeeb showed him his motor tricycle, but he (Plaintiff) protested and refused to accept the motor tricycle because he discovered that, the 2nd Defendant has fitted the motor tricycle with old motor parts, which motor parts were also not the make of his motor tricycle. He said, Police therefore advised 2nd Defendant to repair the motor tricycle, and the 2nd Defendant through Alhaji Adamu Haki requested him (Plaintiff) to furnish them with an invoice covering the cost of the motor parts that were required to be used to repair his motor tricycle. He said, he subsequently obtained an invoice from the shop of one Mohadeen and gave same to Alhaji Adamu Haki, who later instructed him to go to Mohadeen shop to take the parts, but when he went to take the parts, the said Mohadeen said that, no payment was made for the parts and he insisted on payment before he would release the parts to him. According to him, he later reported to the Police about the conduct of the 2nd Defendant’s failure or refusal to pay for the parts, and when Police invited the Defendants, they (Defendants) strangely alleged, for the first time that, he (Plaintiff) owed 1st Defendant an amount of Three Thousand Ghana Cedis (GH¢3,000.00), being cost of sacks he took from 1st Defendant, and he was detained by Police and later released by the help of Mathew Kofi Buobason. He said, he later lodged a report with the Commission on Human Rights and Administrative Justice (CHRAJ), Wa, in April, 2021, in the hope of getting the Defendants to repair and release his motor tricycle to him, but this attempt also failed. He said, he bought the said motor tricycle in question on hire purchase for the sum of Nine Thousand Ghana Cedis (GH¢9,000.00), which he paid on instalment basis, which he attached Exhibits “A” and “A1” as receipts covering two (2) installment payments. He said, he used to operate his motor tricycle and make daily sales, on average, of Eighty Ghana Cedis (GH¢80.00), out of which he used to repay the purchase price on installment, and because Defendants seized his motor tricycle, he defaulted in payment, and has also lost earnings from the use of the motor tricycle. He said, in all, he missed 306 days of his daily sales, with effect from 17th September, 2020 to 20th August, 2021, which he was prevented from earning a total of Twenty-Four Thousand, Four Hundred and Eighty Ghana Cedis (GH¢24,480.00). Plaintiff finally stated that, the conducts of the Defendants caused him grave suffering, loss of income, business and also exposed him to a civil suit at the instant of the person who sold the motor tricycle to him on hire purchase, since he (Plaintiff) has defaulted in payment. End of Evidence. Cross-Examination of Plaintiff by Counsel for Defendant: Q: The cost of the two (2) bails you took on the promise of paying back amounted to GH¢3,000.00? A: Not true. Q: You agree with me that, even in respect of the 200 pieces of sack you alleged you bought, you did not pay for same after several months? A: It is true, I have not paid for the 200 pieces. Thereafter, Plaintiff called One (1) Witness: PW1 In his evidence-in-chief, PW1 (Mathew Kofi Buobason), a retired educationist, resident at Dobile-Kambalipaani Residential Area, and a grandfather of the Plaintiff, stated that, he knew 2nd Defendant long ago before the instant suit. According to him, on 19th day of September, he went to 1st Defendant’s house with the Plaintiff to pay her an amount of Four Hundred Ghana Cedis (GHc400.00) to enable Plaintiff recover his motor tricycle, but 1st Defendant declined to accept the money and insisted Plaintiff paid the money to her husband, 2nd Defendant. He said, later he and another Uncle of Plaintiff, Oli Naa, who is a teacher, went to see the 2nd Defendant at his shop at New Market to pay the GH¢400.00 to him, as directed by the 1st Defendant, but 2nd Defendant refused to receive the money from them. He said, Plaintiff later informed him that, he (Plaintiff) had an information that, his motor tricycle was parked at the road side at Poyentanga, and he immediately accompanied Plaintiff to Poyentanga, where they found out that, the tricycle had been dismantled and the parts carried away, including the tyres, lamps, suspensions and the tools., leaving the frame of the tricycle resting on stones. PW1 further stated that, Plaintiff later reported the conducts of the Defendants to the Police in Wa, after all attempts to settle the debt and retrieve his motor tricycle proved futile. He said, he let the Plaintiff to the Police station and met the Defendants and the Daughter of the Defendants including one Alhaji Adamu Haki, where a Police Officer, one Mujeeb showed Plaintiff the motor tricycle, but Plaintiff refused to accept the motor tricycle because the tricycle had been fitted with very old motor parts, which were not the make up of Plaintiff’s motor tricycle. He said, the Police then advised the 2nd Defendants to repair the tricycle, which 2nd Defendant agreed to do. He said, one Alhaji Adamu Haki, who accompanied the Defendants was requested by the Police to settle the issue, and the said Alhaji Adamu Hakim later requested the Plaintiff to bring an invoice covering the cost of the motor parts that were required for the repair of the motor tricycle, and not quite long Plaintiff obtained an invoice from the shop of one Mohadeen, and handed same to Alhaji Adamu Hakim to be given to the Defendants, but when Plaintiff went for the parts, Mohadeen insisted on receiving payment before he would release the spare parts to Plaintiff, and since then, 2nd Defendant has failed or refused to pay for the spare parts. According to PW1 when Defendants failed to pay for the parts, he accompanied Plaintiff to the Police station to report that, Defendants had reneged on the agreement to repair the motor tricycle, and Police subsequently invited the Defendants, where strangely, and for the first time, the Defendants alleged that, Plaintiff owed 1st Defendant an amount of Three Thousand Ghana Cedis (GH¢3,000.00), on the basis which Plaintiff was detained till the next day when he was released. He said, Plaintiff later lodged a complaint with the Commission of Human Rights and Administrative Justice (CHRAJ), sometime in April, 2021, in hope of getting the Defendants to repair and release the motor tricycle to him, but the intervention of CHRAJ also failed. End of Evidence. Cross-Examination of PW1 by Counsel for Defendants: Q: What is your relationship with the Plaintiff? A: Plaintiff is my grandson Q: From your evidence-in-chief, you will agree with me that, Plaintiff owes 1st Defendant? A: Am aware. EVIDENCE OF 1ST DEFENDANT In her evidence-in-chief, the 1st Defendant, (Mrs. Sadik), a trader, stated that, the 2nd Defendant is her husband. According to her, Plaintiff approached her one early morning during the month of Ramadan in the year 2000, and requested to buy some pieces of sacks from her, and at the time Plaintiff approached her, she was already on her way out, so she instructed her daughter to go with the Plaintiff and open the shop and sell the sacks to Plaintiff. She said, Plaintiff never had any discussions with her about buying bails of sacks, neither did they discuss the sale of the sacks to Plaintiff on credit bases. She said, when she returned same day in the evening, her daughter told him that, Plaintiff bought 30 pieces of sacks loaded two (2) bales of sacks unto his motor tricycle and asked her to wait for him to cash-out money and immediately return to pay, and she waited for several hours to receive the money, but Plaintiff never showed up again. The 1st Defendant further stated that, she started looking for the Plaintiff to recover her money for the two (2) bales of sacks, which led to her encounter with the Plaintiff in Poyentanga, where Plaintiff promised to pay but he failed, and she then informed 2nd Defendant about the conduct of the Plaintiff. She said, 2nd Defendant, who was provoked by the conduct of the Plaintiff, immobilized the tricycle by removing its tyres, and the following morning, she (1st Defendant) and 2nd Defendant, together with Alhaji Adamu Hakim immediately lodged complaint with the Police, Wa, about the conduct of the Plaintiff, and subsequently, they were invited to the Police Station, where Plaintiff also lodged complaint against them. She said, at the Police Station, Plaintiff’s complaint was that, they have taken his motor tricycle, and they were instructed to bring the tricycle, and 2nd Defendant went to Poyentanga to transport the tricycle, only to realized that, most of its parts were removed, but on the advice of the Police, they replaced all the parts of the tricycle. She said, Plaintiff was to take his motor tricycle after they replaced the parts and pay her for the two (2) bales of sack, but Plaintiff refused to accept the repaired motor tricycle with the reason being that, the parts installed were not original. According to the 1st Defendant, the cost of the two (2) bales of sacks which Plaintiff took and for which he is to pay for, but absconded is Three Thousand Ghana Cedis (GH¢3,000.00). She said, they were later served with summons from Commission of Human Rights and Administrative Justice (CHRAJ), but the matter did not see any resolution. The 1st Defendant finally stated that, Plaintiff refused to pick his motor tricycle after same has been repaired by the 2nd Defendant, which motor tricycle is currently in safe custody. End of Evidence. Cross-Examination of 1st Defendant by Counsel for Plaintiff: Q: Will I be right if I say on the day was your daughter’s first day of selling in the shop? A: That is not the first time, she sells there, she is a student and any time she comes home and we are not around she sells. Q: I am further suggesting to you that, your claim that, Plaintiff took two (2) bales is not correct? A: It is true. EVIDENCE OF 2ND DEFENDANT In his evidence-in-chief, 2ND Defendant (Mr. Mahama Sadik), a business man, resident in Wa, stated that, 1st Defendant is his Wife According to him, he is aware that, Plaintiff requested during Ramadan time in 2020, to buy some pieces of sacks from the 1st Defendant, his wife, who then instructed their daughter to go and sell to Plaintiff, and the Plaintiff took two (2) bales of sacks with the promise of paying immediately, but he failed. He said, he said, five (5) months later in 2020, 1st Defendant called him one time in the night, that she had an encounter with Plaintiff at Poyentanga, on the issue of payment for the two bales of sacks, and that she was stranded, so he (2nd Defendant) drove to the scene at Poyentanga at about 9:45 pm, where he was briefed on what transpired between Plaintiff and 1st Defendant. he said, being incensed and provoked at the conduct of Plaintiff towards 1st Defendant, he immobilized the tricycle by removing the tyres, with the sole intent that, Plaintiff would trace for his tyres and make payment, but he failed to pay for several months without courtesy of an excuse. He said, the following morning, he (2nd Defendant) and 1st Defendant together with one Alhaji Adamu Haki, lodged complaint about the conduct of the Plaintiff to the Police in Wa, where Police ordered them to keep the tyres. The 2nd Defendant further stated that, three (3) months after they made a complaint against the Plaintiff with the Police, he (2nd Defendant) and the 1st Defendants were then invited by the Police, and at the Police Station, they were informed that, Plaintiff also lodged complaint against them that, they (the Defendants) have taken his (Plaintiff’s) motor tricycle, and they were asked by Police to bring same. He said, he (2nd Defendant) then went to Poyentanga to transport same to the Police Station, only to realize that, most of the parts were removed, but he brought the tricycle to Wa, and replaced all parts that were taken and later sent it to the Police Station, Wa. He said, after the meeting with the Police Commander, Plaintiff was instructed to take his motor tricycle, but Plaintiff refused, with the complaint that, the parts fitted were not original and threatened to take the matter to Court. He said, when Plaintiff refused to take the Motor tricycle because the parts were not original, they asked Plaintiff to choose his preferred shop to get the parts so that, they (Defendants) would purchase them and replace same. He said, Plaintiff brought an invoice worth One Thousand Eight Hundred and Eighty Ghana Cedis (GH¢1,880.00), and they then told Plaintiff to go and pick the parts from the shop of one Mohadeen, through the intervention of Alhaji Adamu Haki, which they were ready to for, but Plaintiff never went for the parts, but rather indicated to them that, the said Mohadeen requested for the money before he (Mohadeen) would release the parts. According to the 2nd Defendant, they were later served with summons from Human Rights and Administrative Justice (CHRAJ), Wa, but several attempts to solve the matter proved futile. He said, when all attempts to settle the matter both at Police Station and CHRAJ failed, Police then asked them to take the tricycle away from the Police Station, and the motor tricycle is currently in the custody of Alhaji Haki for safe keeping. End of Evidence. Cross-Examination of 2nd Defendant by Counsel for Plaintiff: Q: You agree with me that, you were not present when Plaintiff requested to buy sacks from your wife (1st Defendant)? A: Yes, I was at home and not present. Q: It is also true that, when your daughter went to sell the sacks to Plaintiff, you were not present at the shop? A: Yes. Q: You claimed that, Plaintiff owed 1st Defendant GH¢3,000.00 is not true? A: I disagree, Plaintiff duly owed 1st Defendant GH¢3,000.00 Q: The claim for GH¢3,000.00 is to dwarf Plaintiff’s effort? A: Plaintiff owes my wife (i.e. 1st Defendant) because, he came for goods. Thereafter, Defendants called One (1) Witness: DW1 In her evidence-in-chief, DW1 (Abdul Rahman Nimatu), a student of Wa Senior High School, stated that, the Defendants are her parents. According to her, barely four days into the month of Ramadan, in the year 2020, a gentleman by name, Abu (i.e. Plaintiff), a tricycle rider and a loading boy came to her house in the early hours of the morning, around 6:00am to buy sacks to package charcoal. She said, her mother (1st Defendant) asked her to go with the Plaintiff to the shop and sell the sacks to him (Plaintiff), which she did. She said, Plaintiff bought thirty (30) pieces of sacks, which amounted to GH¢90.00 and he paid, and he (Plaintiff) then requested to purchase Two (2) bales of sack, but she (DW1) should wait for him (Plaintiff) to go into the market and withdraw money from his mobile money account and come back same day to pay her, which she (DW1) agreed. she said, she kept waiting for the Plaintiff from morning till evening, but he (Plaintiff) never showed up to pay the money for the Two (2) bales he took from her. DW1 further stated that, after a series of events, she was invited to the Police Station, where she went with her father (2nd Defendant), and gave statement to the Police, where Police Commander gave them time to settle the matter but to no avail. End of Evidence. Cross-Examination of DW1 by Counsel for Plaintiff: Q: You said in your evidence-in-chief that, Plaintiff came to your house to buy sacks? A: Yes Q: The sacks were for him to package charcoal? A: Yes Q: Was he (Plaintiff) who told you that, he wanted the sacks to package charcoal? A: Yes Q: As part of your mother’s trade, do you know whether she sells sacks in bales or not? A: Yes, I know she sells sacks in bales. Thereafter, Defendants closed their case. The legal issue that emerged for determination by this Honourable Court was: 1. WHETHER OR NOT PLAINTIFF IS ENTITLED TO HIS CLAIM. 2. WHETHER OR NOT DEFENDANTS ARE ENTITLED TO THEIR COUNTER- CLAIM. THE EVIDENCE ACT, 1975 (NRCD 323), SECTION 11(4), provides as follows: “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.” ANALYSIS OF THE EVIDENCE After the trial, the following fact findings and observations were made by this Honourable Court: I. It was evident that, the Defendants are traders in sacks and other general merchandize, who are known to the Plaintiff through Plaintiff’s trade as a tricycle operator, as Plaintiff stated in paragraph 3 of his evidence-in-chief as follows: Paragraph 3: “I know the Defendants. I got to know the Defendants through my trade as a tricycle operator. The Defendants are traders in sacks and other general merchandize.” ........... This averment was admitted by the 1st Defendant, as she answered the following question from Counsel for the Plaintiff: Counsel : You also stated that, you never knew Plaintiff as an operator of a tricycle, or as someone engaged in charcoal business? 1st Defendant : I know Plaintiff as a tricycle rider, not charcoal seller. Counsel : It is your evidence that, before the transaction that occasioned this suit, you have dealt with the Plaintiff only once? 1st Defendant : Yes, It is true Counsel : Can you tell the Court the nature of that earlier transaction? 1st Defendant : Plaintiff came to buy things from me Counsel : What did Plaintiff come to buy? 1st Defendant : Sacks. ........... These clearly showed that, through Plaintiff’s trade as a tricycle operator, he developed a business relationship with 1st Defendant (in particular), since 2018 in the nature of buying empty sacks from the 1st Defendant, and re-selling same to charcoal dealers for profit. In her business transaction with the Plaintiff, the 1st Defendant, stated in paragraph 4 of her evidence-in-chief as follows: Paragraph 4: “That, Plaintiff approached me one early morning during the month of Ramadan in the year 2020, and requested to buy some pieces of sacks from me.” ........... AND, in paragraph 5 of her evidence-in-chief, 1st Defendant’s stated as follows: Paragraph 5: “That at the time Plaintiff met me, I was already on my way out and thus instructed my daughter to go with Plaintiff to open the shop and sell the sacks to Plaintiff.” ............ AND, in Cross-Examination, 1st Defendant answered the following question from Counsel for the Plaintiff: Counsel : You indicated in paragraph 7 of your evidence-in- chief that, the matters that allegedly took place was narrated to you by your daughter that, Plaintiff took away two bales of sacks? 1st Defendant : Yes. ............ This was a clear indication that, it was only in the presence of the 1st Defendant’s Daughter (DW1), when Plaintiff took the said Two (2) bales from the 1st Defendant’s shop, as stated by DW1, in paragraphs 5, & 6 of her evidence-in-chief respectively, as follows: Paragraph 5: “That, my mother, Hawa Mahama (1st Defendant), asked me to go with him to the shop and sell the sacks to him, which I did.” Paragraph 6: “The Plaintiff bought 30pieces of sacks, which amounted to GHS 90.00, and he paid. He then requested that, I give him Two (2) bales of sacks.” .......... DW1 further stated in in paragraphs 8 and 9 of her evidence-in-chief that, after she released the Two (2) bales to the Plaintiff in the shop, Plaintiff pleaded with her (DW1) to wait for him to withdraw the money from his mobile money account from the market and come back to pay for the Two (2) bales. She said, she waited same day, from the morning till evening, but Plaintiff never came back to pay the money for the Two (2) bales. .......... AND, in Cross-Examination, DW1 answered the following questions from Counsel for the Plaintiff: Counsel : In your paragraph 6 of your evidence-in-chief, you said Plaintiff bought 30pieces of sacks from you? DW1 : Yes Counsel : How did he pay for the 30 pieces? DW1 : In cash Counsel : You also stated in that same paragraph that, he requested to take Two (2) bales of sacks? DW1 : Yes Counsel : Did Plaintiff tell you he was going to pay for the bales in cash? DW1 : Yes Counsel : Did Plaintiff pay by cash? DW1 : No, he told me to wait and he will go and withdraw the money and come. Counsel : He drove the tricycle away with the sacks to make the withdrawal and come and pay? DW1 : Yes. Counsel : Did you protest? DW1 : No, because, he told me he will be right back. Counsel : How many pieces of sacks make a bale? DW1 : Five Hundred (500) pieces Counsel : So, the Two (2) bales give us Thousand (1,000) pieces? DW1 : Yes. Counsel : I am suggesting to you that, Plaintiff never took any Two (2) bales from you? DW1 : Not true. ............. Interestingly, Plaintiff, denied buying Two (2) bales of sacks from the DW1 in 1st Defendant’s shop, but stated in paragraph 8 of his evidence-in-chief that, in July, 2020, he took 200 pieces of sacks worth Four Hundred Ghana Cedis (GH¢400.00) from 1st Defendant on credit. He said, he took the said 200 pieces of sacks in two batches of 100 sacks each on the same day. He said, the first batch of 100 pieces of sacks were delivered to him at 1st Defendant’s house, whiles the second batch of 100 sacks was delivered by 1st Defendant’s Daughter (DW1), who was directed by 1st Defendant to lead him to 1st Defendant’s shop for the delivery. ............ AND, in Cross-Examination, Plaintiff answered the following questions from Counsel for Defendants: Counsel: I am putting it to you that, 1st Defendant never personally gave you or sold the sacks to you on the said date in question? Plaintiff: Not true Counsel: I am putting it to you that, you met 1st Defendant early in the morning on the said date during Ramadan? Plaintiff: Yes Counsel: And after you told 1st Defendant, you wanted to purchase some sacks, she asked her daughter to go with you to the shop, is that not so? Plaintiff : I first went to 1st Defendant’s house and took One Hundred (100) pieces of the sack, and I picked 1st Defendant to the station (Nadowli), and I went to the shop with 1st Defendant’s daughter and took another hundred (100) pieces. Counsel : I am putting it to you that, 1st Defendant does not sell sacks in her house and she never sold sack to you in her house? Plaintiff : I went to her house to pick the said sacks. ........... On the evidence, Plaintiff failed to adduce evidence to prove that, in July, 2020, he indeed took delivery of Hundred (100) pieces of Sacks from 1st Defendant personally in her house, as 1st Defendant denied this assertion by Plaintiff, and answered the following questions from Counsel for the Plaintiff: Counsel : You indicated in paragraph 7 of your witness statement that, the matters that allegedly took place was narrated to you by your daughter that, Plaintiff took away two bales of sacks? 1st Defendant : Yes. Counsel : In your evidence-in-chief, you told this Court that, in the morning of that faithful day, the transaction took place, Plaintiff approached you when you were on your way out? 1st Defendant : It is so, Plaintiff came to me early morning and I stated to him that, we don’t sell sacks at home. ............. However, Plaintiff admitted that, he indeed took some sacks from the Defendants and their Daughter (DW1), as he (Plaintiff) answered the following questions from Counsel for the Defendants: Counsel : You have agreed of taking some sacks from 1st Defendant? Plaintiff : Yes, I took them. Counsel : On the said day, you agree with me that, you went with the daughter of 1st Defendant? Plaintiff : Yes. Counsel : The cost of the Two (2) bales you took on the promise of paying back amounted to GH¢3,000.00? Plaintiff : Not true, I only know about Two Hundred (200) pieces of sacks, not Two (2) bales. In the instant case, the Plaintiff who makes an averment on a substantial fact, that he owed Defendants 200 pieces of sacks, worth GH¢400.00, which is denied by his opponents, is therefore under a legal obligation to prove the fact alleged, but he failed. In the Court Appeal case of: ZABRAMA v SEGBEDZI [1991] 2 GLR 221 @ 246, per Kpegah JA (as he then was) stated as follows: “A person who makes an averment or assertion, which is denied by his opponent, has the burden to establish that, his averment or assertion is true. And, he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of that burden.” • ATTORNEY GENERAL v FAROE ATLANTIC Co. LTD [2005-2006] SCGLR 271. • T. K. SERBEH & CO. LTD v MENSAH [2005-2006] SCGLR 341 @ 360-361, SC. • EVIDENCE ACT, 1975 (NRCD 323), S. 11 (4), Applied. ........... Interestingly, the only witness of the Plaintiff, PW1, admitted that, he was not privy to the nature of the transaction between Plaintiff and the Defendants, as he (PW1) answered the following questions from Counsel for the Defendants: Counsel : From your evidence-in-chief, you agree with me that, Plaintiff owes 1st Defendant? PW1 : Yes Counsel : Were you present at the time Plaintiff transacted business with the 1st Defendant? PW1 : No Counsel : So, you do not know the details of the transaction between Plaintiff and Defendants? PW1 : I don’t know Counsel : So, you are not in a position to know the true amount Plaintiff owed Defendants, since you were not present at the time the transaction took place? PW1 : Yes. .......... This evidence clearly corroborated the claim of the Defendants that, Plaintiff duly owed the Defendants. Moreover, the witness (PW1) doesn’t know the exact amount Plaintiff owed Defendants. • MANU v NSIAH [2005-2006] SC GLR 25, SC. • OSEI YAW & ANOR v DOMFEH [1965] GLR 418, SC, Applied. II. It was also evident that, Plaintiff could not pay the said amount (i.e. GH¢400.00), he (Plaintiff) claimed he owed Defendants, as he admitted in his cross-examination by Counsel for Defendants as follows: Counsel : The cost of the Two (2) bales you took on the promise of paying back amounted to GH¢3,000.00? Plaintiff : Not true, I only know about Two Hundred (200) pieces of sacks, not Two (2) bales. Counsel : You agree with me that, even in respect of the 200 pieces of sacks you say you bought, you did not pay for same after several months? Plaintiff : It is true, I have not paid for the 200 pieces. ........... Plaintiff having failed to pay the said amount to the Defendants, he (Plaintiff) later left the community without informing the Defendants, as he stated in paragraph 9 of his evidence-in-chief as follows: Paragraph 9: “Soon after I took delivery of the aforesaid sacks from 1st Defendant, I had an emergency call from my village (Varimpere) that, my father was critically ill. I had to immediately leave to the village to attend to the health of my father as well as take care of my father’s cashew farm, since my father was ill and there was no one at home to help him. Due to the urgent nature of the call from the village, I could not inform the 1st Defendant.” ............ AND, in cross-Examination, 1st Defendant answered the following questions from Counsel for the Plaintiff: Counsel : Between the period the Plaintiff allegedly took the bales, how long did it take before you saw Plaintiff? 1st Defendant : Five (5) Months after Counsel : For Five (5) Months, you made no efforts by reporting the conduct of Plaintiff to Police? 1st Defendant : I tried searching for Plaintiff, but did not find him, and I did not report to Police. ........... This clearly revealed that, Plaintiff after receiving the said goods, despite his promise to pay, disappeared for some time, and could not be traced/ found by the Defendants. This action of the Plaintiff was described by the Defendants that, Plaintiff fraudulently schemed and obtained two bails of sacks through DW1. In the opinion of this Court, when fraud is alleged, it should be pleaded and specifically proven by leading evidence on it. • AIKINGS v DAKWA [2013] 58 GMJ 187 @ 209 & 211. • SASU v AMUAH SEKYI & ANOR [2003-2004] 2 SCGLR 742. • TWUM v SGS LTD [2011] 30 GMJ 92, CA, Applied. ........... On the evidence before this Court, same was not proven, and this assertion by Defendants was based on flimsy, baseless or vague allegations and accusations only, which was firmly ignored. • OSEI ANSONG & ANOR v GHANA AIRPORT Co. LTD [2013-2014] SC GLR 25. Applied. III. It was also evident that, when Plaintiff could not be traced, 2nd Defendant one day met the Plaintiff at Poyentanga, and confronted the Plaintiff, where the 2nd Defendant immobilized Plaintiff’s tricycle by removing the tyres, and later lodged a complaint with the Police the following morning, as he (2nd Defendant) admitted in paragraphs 8 and 9 of his evidence-in-chief respectively as follows: Paragraph 8: “That incensed and provoked at the conduct of Plaintiff towards 1st Defendant, I immobilized the tricycle by removing its tyres with the sole intent that Plaintiff will trace for his tyres, so that, we can engage on the issue of the money for the sacks which he owed but failed to pay for several months without the courtesy of an excuse.” Paragraph 9: “That, the following morning, 1st Defendant and I, together with one Alhaji Haki immediately lodged a complaint about the conduct of the Plaintiff to the Police in Wa, and that, Police asked that we keep the tyres.” ........... And in cross-examination, 2nd Defendant answered the following questions from Counsel for Plaintiff: Counsel : You only made report to Police after your encounter with Plaintiff? 1st Defendant : Yes. In the Supreme Court case of: T. K. SERBEH & Co. LTD v MENSAH [2002-2006] SC GLR 341, it was stated as follows: “There are two elements contained in this interference: (a) dealing with the chattel in a manner inconsistent with the right of the person entitled to it; and (b) exhibiting an intention, by such dealing, to deny another’s right or to assert a right which is adverse to or at variance with his.” In: STANDARD CHARTERED BANK v NELSON [1998-99] SCGLR 810 @ 817, it was stated, per HAYFRON-BENJAMIN, as follows: “Conversion, then is the wrongful possession of goods or chattel belonging to another and use thereof by that other.” In the instant case, it was evident that, there was direct physical interference with Plaintiff’s possession of the chattel by the Defendants, and he (Plaintiff) was deprived or dispossessed of the tricycle, but only that, the tricycle was not used by the Defendants. In the Court of Appeal case of: JOHNSON v DIPROSE [1893] 1 QB 512 @ 515, CA, it was held, per Lord Esher, MR, as follows: “The Plaintiff in an action of trespass must at the time of the trespass have the present possession of the goods, either actual or constructive, or a legal right to the immediate possession.” • FORSON v KOENS & ANOR [1975] 2 GLR 479 @ 484, HC. • SALMOND, on the Law or Torts (11th Ed.) at p. 358, Applied. It was also evident that, after 2nd Defendant’s encounter with the Plaintiff, he reported the conduct of Plaintiff to the Police, and he (2nd Defendant) was ordered by the Police to bring the said tricycle to the Police Station, as stated by 2nd Defendant in his cross- examination by Counsel for Plaintiff as follows: Counsel : You also indicated in your evidence-in-chief that, Police asked you to bring the motor tricycle? 2nd Defendant : Yes. ............ The 2nd Defendant however sent the tricycle to the Police, where he was ordered to repair the tricycle, as he stated in his cross-examination by Counsel for Plaintiff as follows: Counsel : So, you agree with me that, at the Police Station, you agreed to fix the motor tricycle to the satisfaction of the Plaintiff? 2nd Defendant : Yes. Counsel : You also indicated in your evidence-in-chief that, the mechanic you asked to repair the tricycle was the one who took the tricycle to Police Station? 2nd Defendant : Not so, but I first brought the tyres to the Police station and later some parts got missing and I bought same and brought the tricycle to Police Station. ............ It was also evident that, after the Defendants repaired the tricycle, and brought same to the Police Station, the Plaintiff was ordered by the Police to take possession of his tricycle but Plaintiff declined, stating that, the tricycle was not badly repaired, as 2nd Defendant stated answered the following questions from Counsel for the Plaintiff: Counsel : You stated in paragraph 18 of your evidence-in- chief that, the reason why Plaintiff’s motor tricycle is still not repaired was that, he (Plaintiff) refused to go for the parts? 2nd Defendant : The motor tricycle has been repaired but Plaintiff stated that, inferior parts were used, so I told him to go for the original parts. .......... BUT, in his paragraph 16 of his evidence-in-chief, Plaintiff stated as follows: Paragraph 16: “....... I was shown the motor tricycle by a Police Officer, one Mujeeb, but I protested and refused to accept the motor tricycle because I discovered that, 2nd Defendant had fitted the motor tricycle with very old motor parts, which motor parts were also not the make of my motor tricycle.............” ............ AND, in cross-examination, Plaintiff answered the following questions from Counsel for Defendants: Counsel : In your paragraph 16 of your evidence-in-chief, filed on 16/02/2022, you have stated that, the motor tricycle was fitted with parts or repaired? Plaintiff : For me, the tricycle was not repaired. Counsel : As somebody who does not sell or deal in spare parts, you could not say a part is not genuine or old? Plaintiff : I used the Motor as I was growing up to this stage, so I can determine whether a part is genuine or not. Counsel : I am finally putting it to you that, your tricycle was repaired by the Defendants at the instance of the Police, but you refused to take same? Plaintiff : It is my motor parts I want them to return to me, to be the same as it was. Counsel : It is your own conduct and refusal to accept the motor bike that was repaired by the Defendants that led you to take Defendants to CHRAJ? Plaintiff : When they repaired it, I was not satisfied that was why I sent the matter to CHRAJ. ......... These answers from the Plaintiff clearly showed that, the tricycle was repaired. The only witness of Plaintiff (PW1) also answered the following questions from Counsel for the Defendants: Counsel : The motor tricycle was repaired at some point. Do you know that (i.e. fitted with parts)? PW1 : Badly repaired. Counsel : This motor bike which you said was badly repaired, did you test riding it? PW1 : I did not test riding it. Counsel : As some who does not deal in motor parts or not a motor mechanic or does not know how to operate a motorcycle, you cannot see a motorcycle to know it was badly repaired? PW1 : It is so, but I went to where it was repaired, they used old parts to repair same. They used Haojin and other cycle to repair it. From these averments by both the Plaintiff and his only witness (PW1), it was clear that, the said tricycle was properly repaired by the Defendants. ........ Interestingly, Plaintiff and his witness failed to test ride the motor cycle to ascertain the truth, whether it was properly repaired. A bare assertion or affirmation on oath or the repetition of averments by the Plaintiff and his witness in the witness box that, the tricycle was not properly repaired cannot therefore constitute proof. • T. K. SERBEH & CO. LTD v MENSAH [2005-2006] SC GLR 341 @ 360-361, SC • MAJOLAGBE v LARBI [1959] GLR 190 @ 192, IV. Plaintiff further stated in paragraphs 21, 22 and 23 of his evidence-in-chief respectively as follows: Paragraph 21: “...........that, I bought the motor tricycle in question on Hire Purchase for a sum of GH¢9,000.00, which I was paying on installment basis (Exhibits “A” and “A1”)..........” Paragraph 22: “......... I used to operate my motor tricycle and make daily sales, on average of Eighty Ghana Cedis (GH¢80.00), out of which I used to repay the purchase price on installment, and since Defendants seized my tricycle, I have defaulted. Paragraph 23: “In total, I have missed 306 days of my daily sales (effective from the date of Defendants conduct, which was on or around 17th September, 202, to 20th August, 2021), and have thus been prevented from earning GH¢24,480.00).” ............ In the opinion of this Honourable Court, the above are material averments requiring positive proof by some other means of proof other than merely repeating them on oath. In other words, there is no scintilla of evidence from the Plaintiff to guide the court in assessing the value of each daily loss. Moreover, the law demands more than just mentioning prices without justification how one came by the prices. • HULLBLYTH (GH) LTD & ANOR v ANGLOGOLD ASHANTI [2013] 59 GMJ 89, CA @ 111-112. V. In the instant case, the Defendants counter-claimed against the Plaintiff, filed on 20th September, 2021. It is therefore the Plaintiff who alleges, generally must prove his case on the preponderance of probabilities. The fact that the Defendant has counter-claimed does not lessen the burden on Plaintiff. • YUGUO v AGYEKUM [1966] GLR 482 @ 486, SC. • AKOTO II & ORS v KAVEGE & ORS [1984-86] 2 GLR 365 @ 371, CA. • EVIDENCE ACT, 1975 (NRCD 323), S 11 (4), Applied. However, when the Defendant files a counter-claim, then the same burden of proof would be used in evaluating and asserting his, just as used to evaluate or assess the case of the Plaintiff against the Defendant. • JASS CO LTD. v APAU & ANOR [2009] SC GLR 265, SC. • YEBOAH v AHELE [2012] 44 GMJ 37, CA. • FOSUHENE v ATTA WUSU [2011] 1 SC GLR 273, Applied. In the instant case, whereas Plaintiff and his witness admitted Plaintiff owed the Defendants, and Plaintiff further stated, he is indebted to Defendants to the tune of GH¢400.00, his own witness (PW1), interestingly, stated that, he has no knowledge of the total amount Plaintiff owed the Defendants. The Defendants, together with their witness (DW1), were however consistent on the fact that, Plaintiff owed them a total amount of GH¢3,000.00. In an attempt to resolve conflicting version of facts, it was stated per Wood, CJ, in the Supreme Court case of: FKA COMPANY LTD v EFFAH SARKODIE [2009] SC GLR 69, as follows: “The main issue for the court to determine will simply be that on the preponderance of probabilities, whose story is more probable than not.” Accordingly, on the balance of probabilities, I hold that, Plaintiff failed to adduce sufficient and credible evidence of the facts in issue that has the quality of credibility. The Plaintiff could not succeed in convincing the court that, his Reliefs (b), and (e) are more probable than that of the Defendants counter-claim (b), (c) and (d). In the circumstances, I dismiss claims (b), and (e) of the Plaintiff, and Counter-claim (a) of the Defendants. I hereby enter judgment on Defendants’ counter-claim (b), (c) and (d), as follows: b. Declaration that, Plaintiff owes 1st Defendant an amount of Three Thousand Ghana Cedis (GH¢3,000.00), being the sale price of two (2) bales of sacks, which Plaintiff bought from them. c. Interest on the said amount (i.e. GH¢3,000.00), at the prevailing Commercial Bank interest rate with effect from April, 2020 till date of final payment. d. Damages and Cost of litigation. I assess the costs of this action at Five Thousand Ghana Cedis (GH¢5,000.00) against the Plaintiff in favour of the Defendants. I further enter Judgment in favour of Plaintiff on his Relief (a) {i.e. Trespass to Plaintiff’s chattel by Defendants.] I hereby award Three Thousand Ghana Cedis (GH¢3,000.00) damages for trespass against the Defendants, in favour of the Plaintiff. I further order that, Plaintiff takes immediate possession of his properly repaired Motor Tricycle from the Defendants today, (Judgment Day). .................................................... MAXWELL M. TITRIKU MAGISTRATE DISTRICT COURT, WA, UW/R, 19/12/2023. 30 31