KRAMO AND ANOTHER VRS AGYEMAN (RPC/25/2018) [2023] GHAHC 514 (15 December 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE HELD AT THE COMMERCIAL COURT DIVISION “B”, SUNYANI ON 15TH DECEMBER 2023 BY HER LADYSHIP JUSTICE MAVIS AKUA ANDOH (MRS) ============================================================================== CORAM: MAVIS AKUA ANDOH (MRS). ============================================================================== SUIT NO. RPC/25/2018 BETWEEN: ISSIFU KRAMO ABDULLAI SEIDU SUNYANI AND: PLAINTIFFS WILLIAM BANNING AGYEMAN SUNYANI DEFENDANT ============================================================================== PARTIES: 1ST PLAINTIFFF PRESENT, 2ND PLAINTIFF ABSENT BUT REPRESENTED BY ABU SEIDU. DEFENDANT PRESENT ============================================================================== JUDGMENT ============================================================================== The Plaintiffs, by their Writ of Summons dated the 29th of March 2018 issued out of the Registry of this Court, against the Defendant, sought the following reliefs; Page 1 of 17 a) Recovery of cash the sum of Twenty Seven Thousand, Eight Hundred Ghana Cedis(GH¢27,800.00) being the amount Plaintiffs paid to the Defendant somewhere in February 2013 to be used to purchase auctioned cars of which the Defendant failed and has refused to refund same to the Plaintiffs despite repeated demands. b) Interest at the prevailing bank rate on the amount in relief (a) Supra until date of final payment. c) General Damages. d) Costs inclusive of legal fees. Accompanying the Writ of Summons is a 19 paragraph Statement of Claim which sets out the plaint of the Plaintiffs against the Defendant in details. The Defendant after being served with the Writ and the accompanying Statement of Claim entered appearance and filed his defence on the 26th of April 2018 and denied the Plaintiffs claims. The Defendant did not counterclaim. The Plaintiffs filed a Reply to the Defence on the 20th of June 2018 and joined issues with the Defendant and rebutted the averments made by the Defendant in his Statement of defence and contended that, the Statement of Defence was a sham. PLAINTIFF’S CASE In the accompanying Statement of Claim, the 1st Plaintiff averred amongst others that, he is a Teacher and the 2nd Plaintiff is a Purchasing Clerk and that in February 2013, the Defendant who is a colleague Teacher made a representation to them that, he could get the Plaintiffs some of the auctioned cars from the Ministry of Finance in Accra for which the Defendant went ahead to provide the Plaintiffs with a list of cars to be auctioned and gave them the respective prices as well. Page 2 of 17 It is the case of the Plaintiffs that, the Defendant again informed the Plaintiffs that, if they paid the quoted price, he would deliver the cars to them within 21 days. It is the further claim of the Plaintiffs that, the Defendant told them that he knew the one auctioning the cars at the Ministry of Finance and assured them not to entertain any fears since the cars would be delivered to them once they paid the money. The Plaintiffs asseverated that, relying on this representation and assurances given them by the Defendant, they both paid to the Defendant a total amount of Twenty Seven Thousand, Eight Hundred Ghana Cedis (GH¢27, 800.00). It is the contention of the Plaintiffs that, Defendant could not deliver the cars to them within the 21 days that he had promised them, but sometime in August 2013, the Defendant informed them that, the cars were ready for collection and so they accompanied him to Accra to take delivery of the cars but the Defendant could not deliver the cars as promised. The Plaintiffs averred that, they lodged a complaint against the Defendant at the Duayaw Nkwanta Police Station and after investigations, the Defendant was charged with defrauding by false pretences and arraigned before the Circuit Court, Duayaw Nkwanta, but after the trial, the Defendant was acquitted and discharged. It is the case of the Plaintiffs that, the Defendant has refused to refund their monies to them despite repeated demands and has evinced the intention not to pay the plaintiffs unless compelled by Court. The Plaintiffs finally asseverated that, based on the representations and assurances made to them by the Defendant they were compelled to borrow the money at a high interest rate and have suffered damages as a result of that they therefore prayed this Court for the reliefs as endorsed on their Writ. Page 3 of 17 DEFENDANT’S CASE On his part, the Defendant in his Statement of defence denied the Plaintiffs’ claims as contained in their Statement of Claim. The Defendant amongst others stated that, it was one William Ambing who told the parties herein, that he could assist them to buy cars who then invited them to Accra. It is the Defendant’s contention that, when they got to Accra, the said William Ambing could not deliver on his promises, but he told the parties that the cars would be made available to them within the shortest possible time, so they should exercise patience. It is the further contention of the Defendant that, the monies the Plaintiffs paid for the purchase of the car were not with him, but with the said William Ambing. The Defendant asseverated further that, aside the Plaintiffs monies being with the said William Ambing, he also had his monies with him and that the Plaintiffs from the very beginning knew that, he was not the one to deliver the cars to them but the said William Ambing. The Defendant further contended that, both Plaintiffs are very aware that, the monies they paid to him, the Defendant for the purchase of the vehicles were forwarded to the said William Ambing pursuant to the arrangement they had with William Ambling. The Defendant contended further that, by way of confirmation of having received the monies paid by the Plaintiffs, they met with William Ambing and obtained firsthand information from him regarding the transaction. This assertion, the Plaintiffs denied. The Defendant again contended that, the Plaintiffs are aware that William Ambing had received the money and that in a telephone conversation the Plaintiffs had with the said William Ambing, he admitted that he had received the money. It is the case of the Defendant that, he caused the arrest of the said William Ambing who was arraigned before the Circuit Court in Accra and the case against him was still Page 4 of 17 pending in Court. The Defendant contended further that, he is not liable to the Plaintiffs as per their claims and that their remedy may be against the said William Ambing and not him, so the Plaintiffs were not entitled to their claims. REPLY The Plaintiffs in their Reply joined issues with the Defendant and denied the claims made by the Defendant in his Statement of Defence. They stated in their Reply that, throughout their dealings with the Defendant, they never met with the said William Ambing, neither do they know him and that the Statement of defence is a sham. PRETRIAL SETTLEMENT The matter being Commercial in nature, was first referred to the Commercial Court “A” for a pretrial settlement conference. Though this matter seemed simple, the parties failed to settle their differences at the pretrial settlement conference. The suit was therefore remitted to Commercial Court “B” for trial. The following issues were formulated for the Court’s determination. ISSUES 1. Whether or not the Plaintiffs are entitled to their claims. 2. Whether or not Plaintiffs made a payment of GHؖ¢27,800.00 to the Defendant. 3. Any other issues arising from the pleadings. As indicated earlier in this judgment, this matter for which the parties are in Court for the Court to determine the issues, at a glance seems a very simple matter, In the view of the Court, the determination of the second issue will obviously answer the remaining two issues set down, to wit, whether or not the Plaintiffs are entitled to their claims and any other issues arising from the pleadings. Page 5 of 17 ISSUE 1 Whether or not the Plaintiffs made a payment of Twenty Seven Thousand, Eight Hundred Ghana Cedis (GH¢27,800.00) to the Defendant. The 1st Plaintiff, on his own behalf as well as on behalf of the 2nd Plaintiff, testified during the trial. He relied on the witness statement filed by him on 9th April 2019 together with his exhibit “A”, a Judgment of the Circuit Court, Duayaw Nkwanta, as the Plaintiffs evidence in chief. The Plaintiff did not call any witnesses. This Court gleaned from the facts as presented and the evidence in chief of the 1st Plaintiff that, the gravamen of the Plaintiffs plaint is that the Defendant herein made a representation to the Plaintiffs sometime in February 2013 that he could procure some auctioned cars from the Ministry of Finance in Accra for them and further provided the Plaintiffs with a list and their respective prices. Apart from purportedly giving the Plaintiffs the above information, the Defendant also represented to the Plaintiffs that, if they paid the quoted price he would deliver the cars to them within 21 days. The Plaintiffs, relying on the above representation made to them by the Defendant went ahead to pay a total amount of Twenty Seven Thousand, Eight Hundred Ghana Cedis (GH¢27,800.00) to the Defendant through various modes. The Plaintiffs claim that, it was when they realized that the cars promised them by Defendant were not forthcoming, that they instituted an action against the Defendant for the Court to compel the Defendant to give them back their money. The Defendant also testified himself and did not call any witness. Before setting out the evidential burden of proof in civil litigation, permit me to set out, in some detail, the evidence of the Defendant via his witness statement and through cross examination on these claims made by the Plaintiffs. Doing this will determine whether it Page 6 of 17 would be necessary for the Plaintiffs to discharge any burden of proof laid on them in accordance with the law. The Defendant, in his pleadings in Paragraphs 9 and 11 of the Statement of Defence averred as follows; 9. The Defendant avers that the Plaintiffs are very much aware that the monies they paid to him, the Defendant for the purchase of the cars by William Ambing, were forwarded to him pursuant to the arrangement made with Wiiliam Ambing. 11. The Defendant says that the Plaintiffs are aware that William Ambing has received the said monies. In paragraphs 8, 9 and 14 of the Defendant’s Witness Statement which he relied on as his evidence in chief, this is what he stated. 8. Pursuant to our conversation and the Plaintiffs having spoken with the said William Ambing on phone, the Plaintiffs decided to transact with him in furtherance of which ‘they made some payments to me for me to forward” same to him (William Ambing). 9. After I had forwarded the said payments to William Ambing, sometime later he invited the Plaintiffs and I, to Accra with the information that the cars were ready. 14. The Plaintiffs are very much aware that, the monies they paid to me for the purchase of the cars by William Ambing were forwarded to him pursuant to the arrangement made with the said William Ambing. I shall also, at this stage, set out in detail, the responses of Defendant elicited from him during cross- examination by Counsel for the Plaintiffs as follows. Cross Examination of the Defendant by Counsel for the Plaintiff on 28th June, 2022. Page 7 of 17 Q. And is it your case that the Plaintiffs also never approached you to acquire auctioned cars for them? A. Yes my lady. They did not approach me to acquire auctioned cars for them. Q. You are aware you have filed your Witness Statement in this Court which institutes (sic)”constitutes” your evidence in chief in this matter. A. Yes my Lady. Q. In paragraph 8 of your witness statement filed on 29th April 2019 kindly read out the entire paragraph 8 to the hearing of the Court. A. witness read paragraph 8 of his witness statement which is as follows, “pursuant to our conversation and the Plaintiffs having spoken with the said William Ambing, on phone the Plaintiff’s decided to transact with him, in furtherance of which they made some payments to me to forward same to him (William Ambing). Q. How do you reconcile this statement with your claim that the Plaintiffs never paid any monies to you personally? A. My lady I said they did not pay any money personally to me because the money was to be given to the said William Ambing. Q. Kindly read paragraph 14 of your witness statement. A. Witness read paragraph 14 of the witness statement as follows. “The Plaintiffs are very much aware that the monies they paid to me for the purchase of the cars by William Ambing were forwarded to him pursuant to the arrangement made with the said William Ambing”. Page 8 of 17 I have taken the trouble to set out in detail these pieces of evidence of the Defendant as well as from his own pleadings to leave no one in doubt as to the admission made by the Defendant himself, who though he vehemently set out to deny during cross examination that, he has ever had to deal with the Plaintiffs and for that matter did not receive any monies from them, to establish that, the Defendant whom I observed to be a very evasive witness, tried so hard to suppress the truth. When pushed to the wall by the hard hitting cross examination by Counsel for the Plaintiffs, the Defendant finally admitted that, the Plaintiffs did pay some monies to him thereby boxing himself in, in the web of lies he had woven throughout the trial. It is pertinent to mention at this stage that, the general position of the law is that, where the evidence of an opponent corroborates the evidence of the opposite party and that opponent’s remain uncorroborated on an issue, the Court is bound to accept the corroborated evidence unless there are compelling reasons to the contrary on that. In the case of Chou Sen Lin V Tonado Enterptise Ltd [2007-2008]1 SCGLR 135 @ 140 the Supreme Court speaking through Brobbey JSC as he then was, stated that; “on the point that devastated the case of the defendant was the evidence given by their own witness, the second witness. His testimony was clearly against them to the extent that he even described the acquisition of the third plot as an error. Rather, his testimony supported the case of the plaintiff. The law on the issue is settled and it is this. When the evidence of a party remains uncorroborated but that of his opponent is corroborated even by the witness of his opponent, the court ought not to accept the uncorroborated version in preference to the corroborated one. The only exception to this rule is where the court has or finds reason to reject the corroborated evidence” As stated earlier, the law is trite that where an adversary has admitted a fact advantageous to the cause of a party, the party does not need any better evidence to establish that fact than by relying on such admission which is an example of estoppel by Page 9 of 17 conduct. See the case of In Re Asere Stool;Nikoi Olai Amontia IV (Subsituted by Fato Amoni 11 ) V Akotia Oworsika 111 (Substituted By Laryea Ayiku 111) 2005 -2006 SCGLR 637.@656 The principle of estoppel by conduct has been provided for in Section 26 (1) and (2) of the Evidence Act, [1975] NRCD 323 as follows. Estoppel by own statement or conduct. Section 26. “Except as otherwise provided by law, including a rule of equity, when a party has, by that party’s own statement, act or omission intentionally and deliberately caused or permitted another person to believe a thing to be true and to act upon that belief the truth of the thing shall be conclusively presumed against that party or the successors in interest of the party in proceedings between”. 1) That party or the successors in interest of that party and 2) The relying person or successors in interest of that person. Per the Defendant’s own showing, he had represented to the Plaintiffs that, he could get them auctioned cars and they, acting on the representation made to them by the Defendant, had gone ahead to part with monies which they paid to the Defendant which he has himself admitted in his pleadings, his evidence and through cross-examination. The conduct of the Defendant that has led to this dispute was in bad faith, and that conduct is rightly caught by Section 26 of the Evidence Act supra. It is clear from the proceedings on record that, because of the representations made by the Defendant the Plaintiffs had acted. In the respectful view of the Court, the conduct of the Defendant amounted to deceit and as indicated earlier, is caught under Section 26 of NRCD 323 on estoppel by conduct or statement. Page 10 of 17 This estoppel by conduct also known as estoppel in pais is a well-known principle of law. In Moorgate Mercantile Co Ltd V Twitching (1975) 3 ALLER 314, At Page 323 CA Lord Denning MR explained it thus; “Estoppel….. is a principle of justice and equity. It comes to this. When a man by his words and conduct has led another to believe in a particular state of affairs, he will not be allowed to go back on it when it would be unjust or inequitable for him to do so. In the Ghanaian case of Sasu V Nyaduala [1973] 1 GLR 221 at 225 Apaloo JA as he then was, no doubt had this principle in mind when he delivered himself as follows’ “A party should be held to any act or statement which it would be unconscionable to permit him to deny”. From the above, I hold the respectful view that, what the Defendant did by representing to the Plaintiffs that he could get them auctioned cars and they believing that the Defendant could actually get them cars, parted with the monies being claimed now, which the Defendant has himself admitted to having been paid monies by the Plaintiffs, is estopped from denying that he did not receive any monies from them as he had sought to do in the trial. Further, the Defendant despite his denials in his pleadings and witness statement when he was further cross- examined by Counsel for the Plaintiff on 20th July 2022 this evidence was elicited. Q. On 28th of June 2022, in this Court, you admitted that some monies were paid to you by the Plaintiffs. I am suggesting to you that GHC10, 000.00 was given to you physically. A. My Lady, that is not true. There was no money given to me physically. Page 11 of 17 Q. An amount in excess of GHC17, 000.00 was also deposited to your Agricultural Development Bank Account, Sunyani Branch. A. My lady, some monies were deposited in my ADB account to be given to William Ambing, but I do not remember the amount that was given. Q. I am putting it to you that, in all, the Plaintiffs gave you an aggregate sum of GH¢27,800.00. A. My lady, I do not remember the amount he has mentioned because the money was not meant for me. Q. So you do then agree with me that you collected those monies from the Plaintiffs. A. No my Lady, I did not collect those monies from the Plaintiffs, they were given to me to be given to someone else, that’s William Ambing. In this case, the testimony of the Plaintiffs is more preferable to that of the Defendant as the Defendant has corroborated the fact that, the Plaintiffs paid some monies to him. Need the Plaintiffs prove anything again? The answer is no. The Defendant by his own showing, though he was being economical with the truth, admitted having received monies from the Plaintiffs. Based on the pleadings of the parties and on all the evidence including the admission of the Defendant himself of having received monies from the Plaintiff, the only logical conclusion the Court can come to, on the issue is that, the Defendant, did very much receive monies from the Plaintiffs which he had falsely represented to them that he would get them auctioned cars from the Ministry of Finance through a certain William Ambing whom the Plaintiffs throughout their evidence denied ever meeting or talking to. As indicated above, it is trite that, in all civil litigation the burden of proof lies on the Plaintiff, but the general position of the law is that, if an averment of a party is admitted Page 12 of 17 by his opponent that party needs not call any evidence to substantiate that averment. See the case of Okudzeto Ablakwa No.2 V Attorney General & Obetsebi Lamptey No.2 [2012] 2 SCGLR 845. As such, the Plaintiffs with the admission made by the Defendant do not have any burden on them to prove anything since the Defendant has by his own showing admitted that he did take some monies from them. Based on the above cited laws and authorities, and on the Defendant’s own admission as well as the principle of estoppel by conduct, I find that, there is overwhelming evidence that the Defendant received some monies from the Plaintiffs to get them auctioned cars from a certain William Ambing, but he ended up pocketing the money and having pocketed the money, failed to follow up on his promise to get them the cars and has simply refused and or failed to make good his promise to the Plaintiffs. The Defendant did not show the mode in which the monies was given to the said William Ambing and whether the said William Ambing even acknowledged receipt of same. There is no evidence of Plaintiffs ever meeting with the said Ambing and getting instructions from him directing that the amount of monies be received on his behalf by Defendant from the Plaintiffs. I therefore have no hesitation in holding that, the Plaintiffs did pay some monies in the sum of Twenty Seven Thousand, eight Hundred Ghana Cedis (GH¢27, 000.00) to the Defendant and the Defendant is estopped by the principle of estoppel by conduct to deny same. I therefore resolve issue 2 in favour of the Plaintiffs. The other two issues set down are, whether the Plaintiffs are entitled to their claim as endorsed on the Writ of Summons and any other order that the Court deems fit. As indicated earlier, it is the respectful view of the Court that, the second issue will resolve issue 1 and so having made a finding that the Defendant received monies from Page 13 of 17 the Plaintiffs totaling GH¢27, 800.00, it is the holding of the Court again that, the Plaintiffs are therefore entitled to all their reliefs as endorsed on the Writ of Summons. I therefore enter judgment for the Plaintiffs as follows; a) Recovery of cash, the sum of Twenty Seven Thousand, Eight Hundred Ghana Cedis(GH ¢27,800.00) being the amount Plaintiffs paid to the Defendant somewhere in February 2013 to be used to purchase auctioned cars of which the Defendant failed and has refused to refund same to the Plaintiffs despite repeated demands. b) Interest at the prevailing Commercial bank rate on the amount in relief (a) Supra from the date of receipt of the money by the Defendant in 2013 till date of final payment. Having held that the Plaintiffs are entitled to their reliefs (a) and (b), I shall now consider the issue of damages. I hold the view that, the Plaintiffs are entitled to Damages. I note that, the Plaintiffs did not specifically state any amount in damages. In my respectful opinion, the fact that no figure was stated by the Plaintiffs does not mean that they are not entitled to any damages at all. The 1st Plaintiff asserted that, he made the Defendant aware that he needed the car to enable him transport his children to school as he was relying on taxi’s to do same. The 2nd Plaintiff also said that, relying on the representation and assurances of the Defendant, he deposited the sum of Sixteen Thousand, Four hundred Ghana Cedis (GH¢16,400.00) into the Agricultural Development Bank account belonging to the Defendant and he made the Defendant aware that, he needed the car urgently to facilitate his movements from Sunyani to Sefwi Adobokrom weekly, so based on the representation and assurances of the Defendant, he and his brother secured a loan with high interest rate to pay for the purported auctioned cars. Page 14 of 17 I am not oblivious to the fact that the Plaintiffs in their pleadings and witness statement a trip to Accra to meet with the supposed William Ambing and also had to institute a criminal action against the Defendant at the Duayaw Nkwanta Circuit Court, all in their bid to recover their money from the Defendant, but the case did not end in their favour. I can envisage the frustration, anxiety and uncertainty surrounding the case that the Plaintiffs might have been subjected to when this case could have been resolved at the pretrial stage. So the Plaintiffs are right in asking for damages. In assessing damages for the Plaintiffs, it is important to state that, there are a plethora of authorities that have stated the rule in awarding damages. The Court ought to take into consideration some factors which include physical and psychological pain suffered, loss of amenities, mental agonies and suffering, and the inflationary effect on the purchasing power of the Cedi etc, though the list is not exhaustive, it depends on the circumstances of each case. On that see the case of Opoku Darkwa v Akyea (1974) 1 GLR 272. In the circumstances, I shall award general damages of GH¢10.000.00 each to the Plaintiffs, for the stress, loss of amenities, anxiety of waiting all these years to see that justice is done the Plaintiffs in this case that has spanned a period of about 10 years when the Defendant made the representation to them in February 2013. As well as the inflationary effect on the purchasing power of the Cedi. The Plaintiffs as part of their reliefs have asked for any other order as this Court thinks fit. For all the while that the case was instituted in Court, the Defendant, knowing that the Plaintiffs had indeed paid the monies to him, but taking everyone on a wild goose chase all these years and for waiting for the Plaintiffs to hire the services of a Lawyer both at the Duayaw Nkwanta Circuit Court and also at the High Court, Sunyani, I shall order the Defendant to pay the cost incurred by Plaintiffs in instituting this action in Court which will be included in the cost to be awarded by Court. Page 15 of 17 I cannot end this judgment without commenting on the demeanor of the Defendant who came across as a very evasive witness who tried very much to be very economical with the truth. As a result of his evasiveness he was not truthful to the Court till the truth was elicited from him through cross examination when he was boxed in by Counsel for the Plaintiffs that he admitted that he did take some monies from the Plaintiffs. The Court will reiterate the fact that, all witnesses who take oaths in Court, do not take it for taking sake and that, there is the need for them having taken the oath to speak the truth, as truth is a revered virtue in Court. I shall award cost of this litigation in the sum of Fifteen Thousand Ghana Cedis GH¢15,000.00 against the Defendant in favour of the Plaintiffs. (SGD) ……………………………………………. MAVIS AKUA ANDOH (MRS) JUSTICE OF THE HIGH COURT COMMERCIAL DIVISION B SUNYANI. COUNSEL: STEPHEN KWABENA DUFFOUR DUA WITH ROSE ADUTWUMWAA OWUSU HOLD THE BRIEF OF ISAAC RICHMOND MENSAH FOR THE PLAINTIFFS. NO LEGAL REPRESENTATION FOR THE DEFENDANT AUTHORITIES: 1. CHOU SEN LIN V TONADO ENTERPTISE LTD [2007-2008]1 SCGLR 135 @ 140 Page 16 of 17 2. IN RE ASERE STOOL;NIKOI OLAI AMONTIA IV (SUBSITUTED BY FATO AMONI 11 ) V AKOTIA OWORSIKA 111 (SUBSTITUTED BY LARYEA AYIKU 111) 2005 -2006 SCGLR 637 @ 656 3. SECTION 26 (1) AND (2) OF THE EVIDENCE ACT, [1975] NRCD 323 4. MOORGATE MERCANTILE CO LTD V TWITCHING (1975) 3 ALLER 314, AT PAGE 323 CA 5. SASU V NYADUALA [1973] 1 GLR 221 AT 225 6. OKUDZETO ABLAKWA NO.2 V ATTORNEY GENERAL & OBETSEBI LAMPTEY NO.2 [2012] 2 SCGLR 845 7. OPOKU DARKWA V AKYEA (1974) 1 GLR 272 Page 17 of 17