JOHN OTSIBU VRS FIIFI QUARTEY (C2/85/2021) [2023] GHACC 1076 (28 February 2023)

IN THE CIRCUIT COURT OF GHANA HELD IN ACCRA ON TUESDAY, 28TH DAY OF FEBRUARY 2023 BEFORE HIS HONOUR KWABENA KODUA OBIRI-YEBOAH, CIRCUIT COURT JUDGE. C2/85/2021 JOHN OTSIBU VRS FIIFI QUARTEY JUDGEMENT The Plaintiff per an amended Writ of Summons issue from the registry of this Court and amended Statement of Claim against the defendant dated 16/02/2021 claiming the following: i. ii. Recovery of the sum of GHC 45,310.00 being the total of the part payment made to the defendant and the amount spent fixing all the faults in the vehicle and ; Interest at the current bank borrowing rate on GHC 45,310.00 from September 2020 to the date of payment; iii. An order compelling the defendant to pay plaintiff for the total sum for loss of iv. v. vi. daily sales from September 2020; Interest at the current bank borrowing rate on the said sum from September 2020 to the date of final payment. Damages for breach of contract and Cost including Solicitor’s fees. The Defendant filed appearance by himself on 6/01/2021 and on 03/03/2021 an amended Statement of Defence was filed on behalf of the Defendant denying the claims made by the Plaintiff. The Plaintiff then on the 24/03/2021 filed a reply indicating that the Defendant was aware he had plans of changing the nature of the vehicle into a commercial vehicle and that it would be clear to a reasonable mind that the plaintiff would expend the said GHC 13,460 in doing so and again the defendant has admitted that the plaintiff expended monies into changing the nature of the vehicle. The Defendant in his statement of defence and counter claim asked for the following reliefs: i. ii. iii. iv. v. Recovery of the sum of GHC 36,000 being the outstanding amount in addition to towing, repair and body works done on the Sprinter Van. Interest at the current Commercial Bank lending rates on GHC 36,000 from April 2017 to date of final payment and Damages for breach of contract and Cost including Solicitor’s fee. Any other reliefs as the honourable Court may deem fit under the circumstances. The plaintiff filed application for directions on 06/05/21 with eight issues for determination. At the hearing of the application for Directions these were the issues set down for determination by the court. i. Whether or not the purchase price of the contract of sale of the Sprinter Van was GHC 40,000 or GHC 60,000. ii. Whether or not the defendant was entitled to recover the Sprinter Van when the plaintiff defaulted in the payment of the balance of the purchase price without recourse to the court. iii. Whether or not defendant has the right to demand the balance of the purchase price after recovering the Sprinter Van. iv. Whether or not by seizing the Sprinter Van, the defendant terminated the contract. v. Whether or not plaintiff is entitled to recover the part payment and the money expended in fixing the Sprinter Van as well as daily sales from the defendant. vi. Whether or not it is material if plaintiff sought the consent of the defendant before money into fixing the Sprinter van. vii. Whether or not Plaintiff is entitled to his claim. viii. Whether or not defendant is entitled to his counterclaim. Parties were then ordered to file their processes for the conduct of Case Management Conference (CMC). After case management the suit was ripe for hearing. The Court will consider the issues together in this judgment as they are very much related. In civil cases the plaintiff has a burden to prove his case by the preponderance of probabilities and this is indicated in sections 11(4) and 12(1) of the evidence Act 1975 (NRCD) 323. Section 11(4) provides that: “In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence.” Section 12(1) also provides that: “except as otherwise provided by law, the burden of persuasion requires proof by preponderance of the probabilities”. See the case of Adwubeng v Domfeh (1996-97) SCGLR 660 Also, the basic principle of proof in civil suits, a party whose positive assertions are denied by his opponent bears the onus of proof of those assertions. See: Agbesi v Ghana Ports & Harbours Authority (2009) 20 MGLR 109 @ 137. And these principles have been pronounced upon by the Court and want to refer to some of them in this Judgement. Nmai Boi & 2Ors v Adjei & 12 Ors [2014] 78 GMJ Held at page 19: “It is trite law that pleadings are not evidence. To hold otherwise negates the requirements of proof as provided in the Evidence Act and well-known cases of Majolagbe v Larbi [1959] GLR 190; and Zabrama v Segbedzi [1991] 2GLR221.” In AG & 10 Ors v Anthony & 2 Ors [2015] 86 GMJ at 218, the court held: “where the evidence led by the witness was just a repetition of the averments in the pleadings, that is not proof in law as enunciated in Majolagbe v Larbi [1959] GLR 190 and explained in Zabrama v Segbedzi [1991]2 GLR 221” Zabrama v Segbedzi [1991] 2 GLR 221: “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 the averment or assertion determines the degree and nature of that burden.” It is trite law that a bare assertion by a party of his pleadings in the witness box without proof did not shift the evidential burden unto the other party: Adjetey Agbosu & others v Kotey & others (in Re Ashalley Botwe Lands) [2003-2004] SCGLR The parties before the court testified for themselves and tendered various exhibits but did not call witnesses to testify on their behalf. The Plaintiff in his evidence before the court testified how he purchased a refrigerated Sprinter Van from the defendant. He said the agreement was that I would pay a total of GHC40,000 and he made part payment of GHC 31 200, and he took possession of the vehicle. Plaintiff indicated the work he did on the vehicle and the cost involved. Plaintiff testified that somewhere around September 2020, defendant reported him to the police to recover the outstanding amount being GHC 8,800. The plaintiff per his witness statement stated that the defendant admitted selling the car to him for GHC 40,000 and was surprise the defendant wanted to increase the prize. The plaintiff stated further that not long after the defendant seized the van and he said that by his act the defendant had unilaterally terminated the contract and so he demanded the total amount of the part payment and the money expended in fixing the van and improving its quality from him. The plaintiff went further to say that before the van was seized by the defendant, it was on the road and making daily sales of GHC 150 and the continuous seizure of the vehicle was costing him daily sales and end his evidence by saying the defendant has refused to pay back the amount to him after repeated demands and he will not pay the amount unless compelled by the orders of the court. The plaintiff tendered exhibits A-E which were mostly receipts of payments he made. The defendant also testified and said that the Plaintiff agreed to purchase his vehicle which was then a refrigerator van at the cost of GHC 60,000. He testified that at all time material the plaintiff had paid GHC 30,000 for the vehicle leaving a balance of GHC 30,000. The defendant went further to say that around September 2020 when Plaintiff had refused, failed or neglected to pay the outstanding balance after several demands he lodged a report at the police station and the Plaintiff was invited. The defendant testified that the plaintiff indicated that he was going to pay the balance but he reneged on his promise and came back to say that the family has advised him not to follow or have anything to do with the vehicle again. The defendant said the Crime Officer then released the vehicle which was not road worthy and in a very bad condition to him. The defendant went further to say that he has spent GHC 6000 on the vehicle by buying a new engine at the cost of GHC 4,700 and other incidental cost. The defendant ended his evidence by saying he is not liable to pay the plaintiff any amount and rather he has to pay him for the outstanding balance on the price of the vehicle and the cost he had incurred subsequently. The defendant tendered exhibit 1 which was the police report and exhibit 2 was a receipt of the engine he purchased. From the evidence before the court the parties because of their relationship as old school mates had very informal arrangement with respect to the purchase of the Sprinter Van and that is what has culminated into this action before the court. When the Plaintiff was asked the question of the terms of the agreement this was his response: Q12. Tell this court about the terms and conditions in purchasing the Defendant’s car. A. there was no terms and conditions in respect of the purchase of the car. But after I paid a deposit of GHC 31,200.00 he released the car for me to work on it. This means that the arrangement of the parties was not under hire purchase arrangement as the Counsel for the Plaintiff submitted and hence the case of Taylor v S. Y. Sasu & Sons (1973) 1 GLR 176-186 is distinguishable. The plaintiff took a period of 6 months to pay the amount he referred to as deposit. This was the response of the Plaintiff during the cross examination. Q57. Kindly tell this honourable court how many months or years did it take you to pay an amount of GH31,200.00 A. It took 6 months. Even though the defendant gave this response to Counsel for the defendant when he was asked a question earlier these were his responses before the court. Q16. It was agreed between you and the defendant that you will pay half of the purchase price of the vehicle, is that correct A. Is not correct. Q17. So you paid the said GH30,000.00 in installment basis, is that correct. A. It is correct. Q18. Because of the relationship you have with the defendant he gave you the document covering the vehicle, is that correct. A. Yes It is the case of the plaintiff that they agreed for the cost of the vehicle at GHC 40,000 and the defendant says they agreed to the amount of GHC 60000 as the purchase price. Counsel for the plaintiff in her written submission made statement and concluded that the cost of the vehicle was agreed to be GHC 40,000 and not GHC 60,000. Counsel said and I quote, “The parties had been friends since High School and Defendant had to let the vehicle go because he intimated to the Plaintiff that he was in urgent need of money. Plaintiff agreed to purchase it at GHC 40,000 as a favor to his friend.” These points of “urgent need of money” and “favor to his friend” are not borne out of the record. The plaintiff took 6 months to pay the amount that he paid which is more likely to be GHC 30,000 as was admitted by both parties as demonstrated above. The plaintiff as demonstrated above and the defendant in response to cross-examination demonstrated below: Q7. The Plaintiff offered you GH31,200.00 as part payment of the vehicle and you accepted it, is that not so. A. No, that is not the case. Q8. How much did the Plaintiff offer you as part payment for the vehicle. A. GH30,000.00 The plaintiff after the release of the vehicle had several months to complete payment which was not done and eventually the defendant after trying to get his money and to no avail reported the matter to the police. I am of the opinion that if the outstanding amount was GHC 8,800 the plaintiff would have completed the payment before the defendant would have reported the case to the police and would not wait after all the months for the defendant to report the matter to the police and then he will say “…. I was ready to pay the balance owing instead of off setting the cost against it, but the defendant would not accept it claiming that I owed more than GHC 8,800” as he stated in paragraph 11 of his witness statement. The defendant also tendered the police report exhibit 1 through the plaintiff and there was no objection to the tendering of the exhibit and in the exhibit, it is stated as part of brief facts that the vehicle was to be sold at GHC 60,000 and the plaintiff deposited GHC 30,000 with a promise to pay the remaining balance. I am therefore of the opinion that the cost of the sprinter van was agreed at GHC 60,000 and the plaintiff paid GHC 30,000 after which the vehicle was released to him by the defendant with the document covering the vehicle. From the records before the court, the defendant reported the matter to the police for the recovery of the outstanding amount. And as the police report exhibit 1 indicates and concluded that the case docket was closed as “CIVIL” the defendant should have taken legal action against the plaintiff in this case to recover his outstanding amount and not the police. Again, the police report indicates that the vehicle has been released to the defendant and after the defendant has received his vehicle and keeping same, after admitting the changes that the plaintiff had done and money spent after taking possession, he cannot turn round to demand the balance of the purchase price which the plaintiff did not pay and for which the vehicle was released to him. The defendant himself on record admitted that the plaintiff after taking possession of the vehicle and considering the business he was going to use the vehicle for was entitled to the changes he made on the vehicle. From the record before the court, the vehicle was not seized. The plaintiff in his own testimony, before the court, indicated that he was asked to bring the vehicle to the police, and later indicated per the evidence of the defendant, which was not challenged, by counsel, under cross examination, that he has been advice not to follow the vehicle. I am convinced, it was based on that, the vehicle was later released by the police to the defendant. And it is not surprising that the plaintiff taking this action did not ask for the vehicle as part of the reliefs he is seeking from the court but rather asking for money spent. During the trial the plaintiff tendered various exhibits as receipts for the money he spent on the vehicle to change the vehicle into a commercial van for transportation. During the cross examination of the plaintiff all the receipts were challenged by counsel for the defendant that they are afterthought. I have looked at the receipts and also the evidence of the plaintiff during cross-examination and I am inclined to agree with counsel for the defendant. These are some of the responses of the plaintiff during cross examination: Q26. Is that also your signature. A. It is my signature. Q27. So you have 2 signatures, is that correct. A. It is not 2 signatures. Q28. I am putting it to you that you did not sign the exhibit B to D, those receipts were not signed by you. A. They were signed by me. The plaintiff was also questioned about some of the enterprises that he obtained the receipts from and these were the answers or his responses: Q32. So they only deal in welding and straightening. A. Yes Q33. Look at the description of goods, you bought a set of seats at Wofa Yaw Generation Benz Garage, is that correct. A. It is correct. Q34. You bought a set of seats from Wofa Yaw Benz Garage who is a specialist in Welding and straightening. A. Yes The plaintiff also admitted to signing the receipts for the defendant and Mr Man without any indication that on the receipts that he was signing for them. It is also not clear from the record why those steps were taking by him. These are the examples: Q41. Read the name of the person who made that purchase. A. Witness reads. I have the reason for writing the name there. The agreement on the vehicle amount was GH40,000.00 because he told me that there was no passenger door so he will give me a discount of GH2,500.00 so that is why I wrote his name there. Q42. So that means you signed for Fiifi Quartey and not yourself, is that correct. A. It is correct. Q43. But you have admitted that the signature on this exhibit C2 is yours but there is no indication you signed for Fiifi Quartey. A. It is not correct. Q45. Kindly take a look at C3 NB: Witness was shown C3 Q46. Did you sign the said exhibit A. Yes I signed for it. Q47. Are you called Mr. Man A. I am not called Mr. Man but I have explanation. His own mechanic gave it to me so two of us went to Abossey Okai to buy the items so the owner of the Sprinter Cap knows him because he normally buy spare parts from him so he wrote his name Mr. man on the receipt. Q48. Again you signed as Mr. man. A. Yes The question I asked myself was, were these infractions exposed in cross examination necessarily? And the answer is “YES”. This is because from the evidence it is clear that the plaintiff made expenditures on the van to change it into a commercial vehicle. Therefore, the issue is, using these receipts to prove same in a court of law his responses must be above board and must be clean if not, then what will be the essence of proof in court and the requirement of cross examination. Therefore, the court comes to the conclusion that, the plaintiff using the various receipts to prove his expenses on the vehicle, he was not successful. The defendant also was not successful with the receipt he tendered that is exhibit 2 as the court could not rely on same. The plaintiff in his pleading indicated in paragraph 11 of his statement of claim that he was making daily sales of GHC 150. The plaintiff repeated this averment in his witness statement paragraph 15. This does not meet the standard of proof as required in Marjolagbe v Larbi and Zabrama v Segbdzi authorities supra. The plaintiff testified that his driver drove the vehicle to the police station. This driver was not called, and the plaintiff did not show any document of receipt, any lodgment of the said regular sales into the bank or any regular recording of this money, on a daily basis, to prove these daily sales, when he was in the box. I am therefore of the view that the plaintiff was not able to prove this and hence not entitled to the relief before the court. In conclusion I am of the opinion that the plaintiff is entitled to his relief before the court to the extent of the part payment made for the vehicle which is GHC 30000 and interest on same from September 2020 to the date of final payment. The defendant is not entitled to his counter claim before the court. Cost of GHC 10,000 in favour of Plaintiff. SGD HIS HONOUR KWABENA KODUA OBIRI-YEBOAH, CIRCUIT COURT JUDGE. 13