DERKONG-DERY VRS MUNTAWAKILU (UW/WA/DC/A2/19/2023) [2024] GHADC 437 (27 June 2024)

IN THE DISTRICT COURT, WA. HELD ON THURSDAY, 27TH DAY OF JUNE, 2024, BEFORE HIS WORSHIP, MAXWELL M. TITRIKU, DISTRICT MAGISTRATE. SUIT No: UW/WA/DC/A2/19/2023. LAZARUS DERKONG-DERY ............ PLAINTIFF CHORKOR SECTION, WA. V ALHASSAN MUNTAWAKILU ............ DEFENDANT KABANYE SECTION, WA. PARTIES PRESENT HON. CLEMENT ELEDI, ESQ., FOR PLAINTIFF. CHARLES LWANGAH PUOZUING, ESQ., FOR THE DEFENDANT. JUDGMENT. The Plaintiff, on 6th day of January, 2023 filed writ of summons against the Defendant, and claimed for: i. The sum of Eighty-One Thousand Ghana Cedis (GH¢81,000.00), being the sum of money paid to the Defendant by the Plaintiff for Toyota Hilux Pick-Up Vehicle No. GN 289-13. ii. Interest on the said amount of Eighty-One Thousand Ghana Cedis (GH¢81,000.00) from the 1st day of June, 2022 at the prevailing Bank rate till the date of final payment. 1 iii. iv. Costs inclusive of legal fees. Any other relief (s) the Honourable Court deems fit. The Defendant however, pleaded “Not Liable”, after the reliefs sought by Plaintiff were read and explained to him. CASE FOR THE PLAINTIFF In his evidence-in-chief, the Plaintiff (Lazarus Derkong-Dery), a Teacher, with the Ghana Education Service, resident in Chorkor, a suburb of Wa, stated that, he knew the Defendant as a car dealer, resident in Kabanye, a section of Wa, who offered a Toyota Hilux Pickup, No. GN 289-13 to him (Plaintiff) for sale. According to him, after negotiation with the Defendant on 20th day of May, 2022, they arrived at a purchase price of Eighty-One Thousand Ghana Cedis (GH¢81,000.00). He said, on the instructions of the Defendant, he (Plaintiff) paid the said Eighty-One Thousand Ghana Cedis (GH¢81,000.00) into the Defendant’s Account No. 2015019429801, with the Wa-Branch of the National Investment Bank Limited (Exhibit “A”), dated 20/05/2022. He said, he also obtained his Statement of Account (Exhibit “B”), with the National Investment Bank Ltd, No. 2015067191201, which shows the withdrawal of the amount of Eighty-One Thousand Ghana Cedis (GH¢81,000.00) by Cheque No. 000043, which amount was subsequently paid into the account of the Defendant. He said, after the payment of the amount to the Defendant, the Defendant handed over to him (Plaintiff) the Toyota Hilux Pickup, without any documents, though he (plaintiff) demanded for the documents, but Defendant told him that, he (Defendant) could not immediately hand over the documents because the Toyota Hilux Pickup was an auction Vehicle. The Plaintiff further stated that, after persistent demands, the Defendant handed over to him, photocopies of the documents to the Toyota Hilux Pickup with a promise to hand 2 over the original copies of the documents to the vehicle at a later date, but Defendant failed, despite repeated demands by the Plaintiff, which prevented him (Plaintiff) from making change of ownership of the vehicle at the Driver and Licensing Authority (DVLA), thereby preventing him (Plaintiff) from using the vehicle. He said, since Defendant could not hand over the original documents to him, he then demanded that, Defendant should refund the said Eighty-One Thousand Ghana Cedis (GH¢81,000.00) he (Plaintiff) paid for the vehicle to him, so that, he (Plaintiff) hands over the vehicle to the Defendant. However, according to the Plaintiff, when he met the Defendant at the premises of Melcom Limited, Wa, the Defendant offered to make a part payment of Thirty Thousand Cedis (GH¢30,000.00) and pay the balance of Fifty-One Thousand Ghana Cedis (GH¢51,000.00) by two monthly instalments, but he (Plaintiff) disagreed. He said, as a result, he (Plaintiff) has to park the vehicle, and on 15th February, 2023, shortly after the proceedings of this Court, he (Plaintiff) was invited to the Regional Police Headquarters, where he was informed that, the Toyota Hilux Pickup the Defendant sold to him was a stolen vehicle, and same was taken away from him by the Police, and same was handed over to the rightful owner. According to the Plaintiff, the claim of the Defendant that, he (Plaintiff) dealt with one Aziz Nuhu in respect of the said Toyota Hilux Pickup, with Registration No. GN 289-13 is not true, he (Plaintiff) had never dealt with the said Aziz Nuhu in respect of the said vehicle, but rather dealt with the Defendant at all times in respect of the said vehicle. Moreover, he (Plaintiff) did not know the said Aziz Nuhu till date, and never met him anywhere in respect of the said vehicle. He said, it was the Defendant who gave him (Plaintiff) his (Defendant’s) bank account details at a place near the Ministries, in Wa, where Defendant sells vehicles in the presence of witnesses, but there was no Aziz Nuhu present. He said, it is also not true that, he (Plaintiff) had verified from DVLA, and satisfied himself before he made payment to the said Aziz Nuhu through Defendant’s 3 Bank Account, and also had no knowledge that, the vehicle was an auction vehicle as Defendant did not show to him any document to that effect. The Plaintiff finally told the Court that, it was not true as alleged by the Defendant in his paragraph 16 and 17 of his Written Statement that, he (Plaintiff) have since become aware that, the Toyota Hilux Pickup was also purchased by Aziz Nuhu from one Inusah Mahama (aka Agya Koo). He therefore prayed the Honourable Court that, judgment be entered on all reliefs claimed in his Writ of Summons. End of Evidence. Thereafter, Plaintiff called Two (2) Witnesses: PW1 In his evidence-in-chief, PW1 (Kuuyuor Iku), a Teacher, with the Ghana Education Service, resident in Dobile, a Section of Wa, stated that, he knew both Plaintiff and the Defendant. According to him, Plaintiff bough a Toyota Hilux Pickup, No. GN 289-13 from the Defendant, and in his presence, Plaintiff negotiated with the Defendant, until they arrived at a purchase price of Eighty-One Thousand Ghana Cedis (GH¢81,000.00), and the Defendant then gave his Bank Account details with the National Investment Bank Ltd, Wa, to the Plaintiff, and on 20th May, 2022, he went with the Plaintiff and one Philip Naapor to the said Bank, where Plaintiff paid the said amount through a cheque into the account of the Defendant, as Plaintiff also had an account with the said National Investment Bank, Wa. He said, after the payment, the Defendant handed over the Toyota Hilux Pickup to the Plaintiff, with a promise to provide the original documents covering the vehicle to the Plaintiff, but rather provided Plaintiff with photocopies of the documents, with the pretext that, the vehicle was an auction vehicle, hence was unable to hand over the original documents. 4 PW1 further stated that, following the inability of the Defendant to provide the original documents of the vehicle, the Plaintiff parked the vehicle without being used, and as a result, Plaintiff demanded for the refund of the Eighty-One Thousand Ghana Cedis from the Defendant. He said, he (PW1) in the company of the Plaintiff, and one Philip Naapor, met the Defendant at the premises of Melcom in Wa, where the Defendant offered to pay Thirty Thousand Ghana Cedis (GH¢30,000.00) and pay the balance of Fifty-One Thousand Ghana Cedis (GH¢51,000.00) by two monthly instalments, but Plaintiff did not agree. He said, on Wednesday, 15th February, 2023, he accompanied Plaintiff to Court, as Plaintiff had instituted an action against the Defendant claiming the said GH¢81,000.00 he paid to the Defendant, and shortly after the Court proceedings, the Plaintiff was invited to the Regional Police Station, Wa, in respect of the said vehicle. He said, in his presence the Plaintiff was informed that, the Toyota Hilux Pickup the Plaintiff bought from the Defendant was a stolen vehicle, and the Plaintiff later handed over the said vehicle to the Police, who intend released same to the owner. According to PW1, Defendant’s claim that, the Plaintiff dealt with one Aziz Nuhu in respect of the Toyota Hilux Pickup, is not true, since he (PW1) actively took part in the purchase of the vehicle by the Plaintiff, and at no point did the Defendant introduce any Aziz Nuhu to the Plaintiff, and the Defendant’s claim that, he gave his Bank Account details to one Aziz Nuhu and not the Plaintiff is not also true, since he (PW1) was present in the company of the Plaintiff and one Philip Naapor when the Defendant gave his Bank Details to the Plaintiff. He said, he (PW1) and the Plaintiff do not know anybody called Aziz Nuhu, since Plaintiff has never dealt with any Aziz Nuhu in respect of the Toyota Hilux Pickup, but rather dealt with the Defendant in respect of the Toyota Hilux Pickup at all material times, hence Defendant owes Plaintiff an amount of Eighty-One Thousand Ghana Cedis (GH¢81,000.00). End of Evidence. 5 PW2 In his evidence-in-chief, PW2 (Philip Naapor), a Teacher, resident at Bamahu, a suburb of Wa, stated that, he knew both the Plaintiff and the Defendant. According to him, as a friend to the Plaintiff, he is aware for the fact that, Plaintiff bought a Toyota Hilux Pick-up, No. GN 289-13 from the Defendant, in his presence and in the presence of PW1 at Defendant’s garage, near the Ministries, Wa, where Plaintiff negotiated with the Defendant and finally arrived at a purchase price of Eighty-One Thousand Ghana Cedis (GH¢81,000.00). he said, on 20th May, 2022, he (PW2) and the Plaintiff together with PW2 went to National Investment Bank (NIB) Ltd, Wa, where Plaintiff paid the said money through a cheque into the Defendant’s Bank Account, as Plaintiff also had an account with the NIB Ltd. He said, after the payment, the Defendant handed over the Toyota Hilux Pick-up to the Plaintiff with the promise to provide Plaintiff with the original documents covering the vehicle, but after persistent demand, Defendant only handed over photocopies of the documents to the Plaintiff, with the claim that, the vehicle was an auction vehicle. PW2 further stated that, when the Defendant could not resolve the documentation problems, Plaintiff demanded for the refund of the Eighty-One Thousand Ghana Cedis (GH¢81,000.00) from the Defendant, and in the company of the Plaintiff together with PW1, they met Defendant at the Melcom Shop premises in Wa, where Defendant offered to pay Thirty Thousand Ghana Cedis (GH¢30,000.00) and pay the balance of Fifty-0ne Thousand Ghana Cedis (GH¢51,000.00) by two monthly instalments, but Plaintiff disagreed. He said, thereafter, on 15th February, 2023, he accompanied the Plaintiff to the sitting of this Honourable Court, as Plaintiff had instituted an action against the Defendant claiming the said GH¢81,000.00 he paid to the Defendant, and after the Court proceedings, Plaintiff was invited to the Regional Police Station, Wa, and they 6 accompanied Plaintiff to the station, where in their presence, Plaintiff was informed that, the Toyota Hilux Pick-up the Plaintiff bought from the Defendant was a stolen vehicle. He said, Police later took the vehicle from the Plaintiff, and same was handed over to the rightful owner by the Police. PW2 finally stated that, the Defendant’s claim that, Plaintiff deal with one Aziz Nuhu in respect of the Toyota Hilux Pick-up is not true, since he (PW2) took part in the purchase of the said vehicle by the Plaintiff from the Defendant, and at no point in time did the Defendant introduce anybody called Aziz Nuhu to the Plaintiff. He said, it is also not true that, Defendant claimed he gave his Bank Account details to the said Aziz Nuhu and not the Plaintiff, and that, he (PW2) was present in the company of the Plaintiff and PW1 when Defendant gave his Bank Account Number to the Plaintiff. He said, he (PW2) and the Plaintiff do not know anybody called Aziz Nuhu and Plaintiff has never dealt with any Aziz Nuhu in respect of the Toyota Hilux Pick-up, rather, Plaintiff dealt with the Defendant at all material times in respect of the said vehicle. End of Evidence. Thereafter, Plaintiff closed his case. CASE FOR THE DEFENDANT In his evidence-in-chief, Defendant (Alhassan Muntawakilu), a businessman, resident at H/se No. K50, Kabanye, Wa, stated that, he also deals in the sale and rental of vehicles. According to him, he had never had any dealings with the Plaintiff, but he is aware that, at all material times the Plaintiff dealt with one Aziz Nuhu in respect of the Toyota Hilux Pick-up, No. GN 289-13. He said, in the course of Aziz Nuhu’s dealings with Plaintiff, they requested his account details, which he (Defendant) gave same to him, subsequently, an amount was paid into his account and he (Defendant) withdrew said amount and gave 7 same to Aziz Nuhu. He said, he knew that, the photocopies of the Toyota Hilux Pick-up documents were given to the Plaintiff by Aziz Nuhu, and that, it was after the Plaintiff had verified from the Driver and Vehicle Licensing Authority (DVLA), and satisfied himself before payment was made to Aziz Nuhu through his Bank Account. He said, at all material times, in respect to the purchase of the Toyota Hilux Pick-up, the Plaintiff was informed by Aziz Nuhu that, his vehicle was an auctioned vehicle and that, it had the name of the original owner on the photocopied documents. He said, he (Defendant) is also aware that, the Plaintiff at all material times also knew that, the Toyota Hilux Pick- up had been purchased through an auction by Aziz Nuhu, and that, the Pick-up had no original documents but copies. The Defendant further stated that, the Plaintiff knew that, the said Aziz Nuhu only had photocopies of the Toyota Hilux Pick -up, and not the original documents, but he (Plaintiff) proceeded and purchased the said vehicle from Aziz Nuhu, and thereafter, tried, tested and used the said vehicle even before he made payment to Aziz Nuhu. He said, he knew that, it was an agreement between the Plaintiff and Aziz Nuhu that, the Plaintiff should return the vehicle for same to be sold and his money refunded to him, but Plaintiff refused to release/return the vehicle to the said Aziz Nuhu, and as a result, no refund could be made to the Plaintiff by Aziz Nuhu. He said, the Plaintiff has throughout his dealings with Aziz Nuhu knew that, the Toyota Hilux Pick-up was also purchased by Aziz Nuhu from one Inusah Mahama (aka Agya Koo), and the matters are under investigation at the Police Station. He said, the Plaintiff at all material times knew that, the Toyota Hilux Pick-up was also purchased from another person, but he proceeded to purchase the vehicle from Aziz Nuhu. The Defendant finally stated that, the Plaintiff is not entitled to recover any refund from him (Defendant), since he (Plaintiff) dealt with Aziz Nuhu, and also, the fact that, the 8 vehicle is in the possession of the Plaintiff, who has refused to return same to Aziz Nuhu for it to be sold and his money refunded to him. End of Evidence. Thereafter, Defendant closed his case without calling any witness. The legal issue that emerged for determination by this Honourable Court, after the trial, was: a. WHETHER OR NOT IT WAS THE DEFENDANT WHO SOLD THE VEHICLE IN ISSUE TO THE PLAINTIFF, AND RECEIVED PAYMENT OF EIGHTY-ONE THOUSAND GHANA CEDIS (GH¢81,000.00). b. WHETHER OR NOT PLAINTIFF IS ENTITLED TO HIS RELIEFS SOUGHT. In every civil case, the general rule is that, the burden of proof rests upon a party whether plaintiff or defendant, who substantially asserts the affirmative of his case. This was contained in the Evidence Act, 1975, (NRCD 323), Section 11(4), as follows: S. 11(4): “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 Defendant is known to the Plaintiff, as Plaintiff stated in part of his evidence-in-chief as follows: “I know the Defendant as a car dealer, resident in Kabanye, a section of Wa.” 9 ........... This was also admitted by the Defendant in paragraph 2 of his written statement filed on 12/04/2023, and in cross-examination, Defendant also answered the following questions from Counsel for Plaintiff: Counsel: You know the Plaintiff, Lazarus Derkong-Dery? Defendant: Yes. ............Plaintiff further stated in part of his evidence-in-chief as follows: “I got to know the Defendant when he offered a Toyota Hilux Pick-up, No. GN 289-13 to me for sale. After negotiation with the Defendant, we arrived at a price of Eighty-One Thousand Ghana Cedis (GH¢81,000.00), and on the instructions of the Defendant, I paid the said amount (i.e. GH¢81,000.00) into Defendant’s Account No. 2015019429801 with the Wa-Branch of National Investment Bank Limited (Exhibits “A” & B).” .............BUT, Defendant denied dealing with the Plaintiff in respect of the purchase of the said Vehicle, as he stated in Paragraph 3 of his evidence-in-chief as follows: Paragraph 3: “I have never had any dealings with the Plaintiff, but I am aware that at all material times, the Plaintiff dealt with one Aziz Nuhu in respect of the Toyota Hilux Pick-up, No. GN 289- 13.” ............AND, in cross-examination, Defendant answered the following questions among others from Counsel for the Plaintiff: Counsel : In paragraph 3 of your evidence-in-chief, you claimed that, Plaintiff dealt with one Aziz Nuhu in respect of the Toyota Hilux Pick-up, number GN 289-13? Defendant : Yes Counsel : How did you get to know that Plaintiff dealt with Aziz Nuhu and not you? Defendant : I got to know the transaction between Aziz Nuhu and 10 Plaintiff, when Aziz requested for my account number and I WhatsApp message to prove. Counsel : You have not exhibited this WhatsApp message? Defendant : I can’t tell whether it was included, since I explained everything to my Lawyer. Counsel : Aziz Nuhu has not filed any witness statement in this Court to confirm that, Plaintiff dealt with him? Defendant : Yes, he did not file. Counsel : Despite your claim that, Plaintiff dealt with Aziz Nuhu, when the writ of summons was issued and served on you, you did not join Aziz Nuhu? Defendant : I added him in my witness statement. Counsel : I believe you know this alleged Aziz Nuhu very well? Defendant : Yes, I know him, but not all that much. ...........These responses by the Defendant clearly showed that, the said Aziz Nuhu is only known to the Defendant, whom he (Defendant) should have called as his material witness or join same to the suit to prove his case, but he failed. • OWUSU v TABIRI & ANOTHER [1987-88] 1 GLR 287, H.C, Applied. ..........AND, in paragraph 4 of his evidence-in-chief, Defendant admitted that, the said money (i.e. GH¢81,000.00) was transferred into his account, and he (Defendant) withdrew same, as Defendant stated as follows: Paragraph 4: “In the course of Aziz Nuhu’s dealings with Plaintiff, they requested for my account details, which I gave same to him. Subsequently, an amount was paid into my account and I withdrew the said amount and gave it to Aziz Nuhu.” 11 ...........AND in cross-examination, Defendant admitted same, as he answered the following questions among others from Counsel for the Plaintiff: Counsel : You admitted Plaintiff paid the money into your account, amount that is the purchase price (i.e. GH¢81,000.00) into your account with Wa-branch of NIB? Defendant : Yes, it was paid into my account, since Aziz requested for the money be paid into it. ............. These averment by the Defendant were clear corroboration of Plaintiff’s evidence, on the fact that, Plaintiff transferred GH¢81,000.00 into Defendant’s NIB Account in Wa, and he (Defendant) withdrew same. See: • TSRIFO v DUA VIII [1959] GLR 63 @ 64-65, H.C. • OSEI YAW v DOMFEH [1965] GLR 418, SC. .............. Interestingly, Defendant who admitted in paragraph 4 of his evidence-in-chief that, he withdrew the said money (i.e. GH¢81,000.00) from his Bank and gave same to Aziz Nuhu, answered the following questions: Counsel : So, it is your own oral evidence that, the GH¢81,000.00 was withdrawn from NIB Account? Defendant : I gave Aziz Nuhu cash of GH¢81,000.00, but did not say, I withdraw the said amount and gave to Aziz Nuhu. Counsel : When you testified in paragraph 4 that, an amount was paid into your account and you withdrew the said amount and gave same to Aziz Nuhu, you are not saying the truth? 12 Defendant : I indicated that, I gave Aziz Nuhu an amount (i.e. GH¢81,000.00) in cash. Counsel : You are now saying that, the GH¢81,000.00 you allegedly gave to Aziz Nuhu was not withdrawn from your account? Defendant : Yes, I did not withdraw the said money, but I rather gave Aziz Nuhu GH¢81,000.00. ................. These were inconsistencies or contradictions in the evidence of the Defendant, which weakened the merit of his case, and proved fatal to his claim. See: • OBENG v BEMPOMAA [1992-93] 3 GBR 1027, CA. II. In another development, Defendant claimed he paid the said amount (i.e. GH¢81,000.00) to Aziz Nuhu, as he answered the following questions from Counsel for the Plaintiff: Counsel : It is true that, you have not exhibited your account that is NIB, Wa-branch to indicate that, indeed the said amount (i.e. GH¢81,000.00) had been withdrawn by you? Defendant : Yes, but I gave Aziz Nuhu the money, which is GH¢81,000.00, cash. Counsel : Did you ask for your bank statement from NIB, Wa? Defendant : No. Counsel : Did Aziz Nuhu give you any document to acknowledge receipt of this GH¢81,000.00? Defendant : No, because it was his money, I gave to him. 13 Counsel : At the time of this alleged payment to Aziz Nuhu, Plaintiff was not present? Defendant : Yes. Counsel : Apart from you and Aziz Nuhu, was any other person present when you allegedly paid the money to Aziz Nuhu? Defendant : No. Counsel : In your evidence before this Court, you have not even specified where you allegedly gave the money to Aziz Nuhu? Defendant : Yes, I did not specify the said place. In the instant case, it is interesting to note that, Defendant could not tender any document, or call any witness to prove the transfer/payment of the said amount or specified place of payment to Aziz Nuhu. .................. These responses of the Defendant, disproved the claim of the Defendant that, he paid the said GH¢81,000.00 to the said Aziz Nuhu, since he (Defendant) failed to prove same. • KLAH v PHOENIX INSURANCE CO., LTD [2012] SCGLR 1139, SC. • EVIDENCE ACT, 1975 (NRCD 323), S. 11(1), 11(4), Applied. III. It was also evident that, Police have finally retrieved the vehicle sold to Plaintiff by the Defendant, describing the said vehicle as a stolen vehicle, as stated by the Defendant in his cross-examination by Counsel for Plaintiff as follows: Counsel : The invitation to the Police Station was in respect of the pick-up bought by the Plaintiff? Defendant : Yes. 14 Counsel : You are aware that, the Toyota Hilux vehicle, the subject matter in this Court was retrieved by the Police and given back to the owner? Defendant : Yes, it was indicated to us at the Police Station. In the opinion of this Honourable Court, it was clear from the evidence adduced by both parties that, it was the Defendant (Alhassan Muntawakilu), whom Plaintiff had dealings with, and later paid GH¢81,000.00 into the NIB, Wa, Account of the Defendant, as the purchase price of Toyota Hilux Pick-up, No. GN 289-13. The Plaintiff however, did not have any dealings with the non-existence person, Aziz Nuhu, as he was not known to the Plaintiff. Accordingly, on the balance of probabilities, having considered the whole evidence adduced by both parties, Judgment is hereby entered in favour of the Plaintiff for: i. Recovery of Eighty-One Thousand Ghana Cedis (GH¢81,000.00), from the Defendant, being the sum of money paid to the Defendant by the Plaintiff for the purchase of Toyota Hilux Pick-up vehicle, No. GN 289-13. ii. Interest on the said amount (i.e. GH¢81,000.00) with effect from 1st June, 2022, at the Ghana Commercial Bank rate, till date of final payment. I access costs of this action at Eight Thousand Ghana Cedis (GH¢8,000.00) against the Defendant, in favour of the Plaintiff. 15 ................................................ MAXWELL M. TITRIKU. MAGISTRATE, DISTRICT COURT, WA, UW/R, 27/06/2024. 16