YUSSIF VRS G.S. NILE DRILLING COMPANY (C11/02/2023) [2023] GHACC 1163 (7 December 2023)

IN THE CIRCUIT COURT HELD AT DUAYAW NKWANTA ON MONDAY THE 7TH DAY OF DECEMBER, 2023 BEFORE H/H AKOSUA ASANTEWAA SARPONG ESQ CIRCIUT COURT JUDGE C11/02/2023 IDDRISU FARAUK YUSSIF PLAINTIFF VRS. G. S. NILE DRILLING COMPANY DEFENDANTS ISAAC KABANI JUDGMENT The plaintiff in this case is a borehole agent stationed at Sunyani. The 1st defendant is a registered company with its office at Dumasua near Sunyani. It deals in drilling and mechanization of boreholes. The 2nd defendant is a worker at the 1st defendant company and responsible for receiving money from customers and a foreman for the company. The plaintiff states that as an agent of borehole drilling he was contacted by vim sporting club to drill a borehole for them at Susuaho R. C. J. S. S. for the pupils and workers of the school and also for commercial purposes. Around 3rd June, 2022 plaintiff contacted 1st defendant company to drill a borehole for vim sporting club and R. C. J. S. S. and he was charged GH¢4,900.00 which plaintiff paid in full. The plaintiff bought pipes from Boacha Water Technology at an amount of GH¢3,680.00. The defendants asked plaintiff to buy gravels at an amount of GH¢840.00. Plaintiffs further bought other items at Boacha to the tune of GH¢4,520.00. Plaintiff also bought one tank of water for GH¢600.00. upon the instructions of the defendants. 1 | P a g e On the 3rd of June, the Defendants started to drill but plaintiff discovered that water was not flowing after one week. 2nd Defendant asked plaintiff to replace the pump with a new one which he did but still the water did not flow. The plaintiff informed the defendants and 2nd defendant promised to come and blow the borehole but after that there was no water. The plaintiff’s lawyer wrote to the defendants to come and complete the work but they failed to do so. The plaintiff says all efforts for defendants to complete the work or refund money spent totaling GH¢10,020.00 to him has failed. The plaintiff states that the Act of the defendants have brought untold hardship to him and R. C. J. S. S School with vim sporting club putting pressure on him to provide a borehole that water flows, to the said School. The plaintiff further states that the defendants have breached the contract agreement they entered into as water cannot flow from the borehole that they drilled. The plaintiff says that unless and until the defendants are compelled by the Court they will not complete the bore hole water to flows or pay his money to him. The plaintiff prays for the following reliefs jointly and severally against the defendants for specific performance of a contract to drill a borehole for water to flow throughout the year at R. C. J. S. S. Susuaho or in the alternative General damages for breach of contract. The writ of summons was filed on 25/10/2022 After the writ was served on the defendants they failed to enter appearance after Eight (8) days. A search was therefore conducted at the Court’s registry to ascertain this fact. An affidavit proving due service of the writ and statement of claim on the defendants under Order 10 R (6) (1) of C.147 was filed on 8/12/2022. The affidavit in support of appearance, not being a judgment on the merit, must depose to only the following facts: (a) That the defendant has been serve with the Writ of Summons and statement of claim 2 | P a g e (b) That it has been more than eight (8) days the defendant was served with Writ of Summons and statement of claim (c) That the defendant has not filed a notice of entry of appearance to the Writ of Summons and statement of claim (d) That a search report from the registry of the court proves the facts narrated above. Order 10 r 6 (1) of C. I.47 states “where the plaintiff makes a claim of a description not mentioned in rules 1 to 4 against a defendant, and the defendant fails to file appearance, the plaintiff may, after the time limited for appearance and upon filing an affidavit proving due service of the writ and statement of claim on the defendant, proceed with the action as if the defendant had filed appearance”. The case was then set down for trial. The defendants were served with a hearing notice to attend court on 16/12/2022 but still the defendant failed to attend court. On the 03/03/2023 the plaintiff and his witness filed their witness statements and documents. On 24/08/2023 the plaintiff filed his pre-trial check list and the two were served on the defendants on 28/08/2023. Another hearing notice was served on the defendants to attend court for hearing on the 27th October, 2023. On the 27/10/2023 hearing commenced and the plaintiff tendered his witness statement and his documents attached as his evidence-in-chief with no defendants present to object to it or even cross-examination the plaintiff on same and therefore same was adopted as the evidence-in-chief of the plaintiff. The exhibits that was attached to the witness statement was an official receipt of GH¢4,520.00 being borehole items from Boacha water technology. An invoice from Boacha water technology with the description of items purchased and the unit price and amount paid. There was another receipt from impact Water Service for the supply water of water for an amount of GH¢600.00. After the evidence-in-chief of the plaintiff his witness John Danso Nimade also entered the witness box and his witness statement was also adopted without any objection as his evidence- 3 | P a g e in-chief to the court. There was no cross-examination. That was the end of the plaintiff’s case. Since the defendants were served severally to appear before the court with numerous hearing notices and they refused to attend court and defend the case, the court is bound to enter judgment for the plaintiff. The plaintiff is entitled to his reliefs endorsed on the writ of summons against the defendants jointly and severally for specific performance of a contract to drill a borehole for water to flow throughout the year at R. C. J. S. S. Susuaho or in the alternative Damages for breach of contract being an amount of GH¢10,020.00. Cost of GH¢5,000.00 awarded against the defendants. SGD. H/H AKOSUA ASANTEWAA SARPONG ESQ (CIRCUIT COURT JUDGE) 4 | P a g e