Tenkorang v Asiamah (SUITNO.A2/163/23) [2025] GHADC 141 (27 March 2025)

IN THE MAGISTRATE COURT HELD AT AMASAMAN ON THURSAY THE 27TH DAY OF MARCH, 2025 BEFORE H/W ANNETTE SOPHIA ESSEL (MRS.) – MAGISTRATE NICHOLAS TENKORANG PLAINTIFF VRS: 1. NANA ABABIO ASIAMAH DEFENDANTS SUITNO. A2/163/23 2. ALHAJI RAJ (DISJOINED) JUDGMENT INTRODUCTION: By a Writ of Summons filed in the Registry of this Court on 17th March, 2023 the Plaintiff seeks the following reliefs against the Defendant. The subject matter of this suit is a Ford Pick-up Truck. CASE OF THE PLAINTIFF: The Plaintiff says that he is a driver resident at Accra. The 1st Defendant owns and runs a garage at Kwabenya. The 2nd Defendant is a client of the 1st Defendant. Plaintiff avers that sometime in August, 2021 he gave a Ford Pick-up Truck to the 1st Defendant to be sold as a piece of One Eight Thousand Cedis (GH¢180,000) only. Plaintiff avers that following the sale of the truck by 1st Defendant, he refused to pay the monies due to Plaintiff. Plaintiff avers that one day he saw the car in town and accosted the driver: 2nd Defendant who informed him that he purchased the Truck from 1st Defendant at a cost of One Hundred and Ninety Thousand Cedis (GH¢190,000) only out of which he had paid One Hundred Eighty Cedis Thousand (GH¢180,000) only with Ten Thousand Cedis (GH¢10,000) only outstanding upon delivery of the car documents. Plaintiff avers that he subsequently confronted the 1st Defendant who paid One Hundred Thousand Cedis (GH¢100,000) only with a promise to pay the outstanding Eighty Thousand Cedis (GH¢80,000) only at a later which same he has reneged on despite several demands by the Plaintiff hence the present action. Page 1 of 10 CASE OF THE 1ST DEFENDANT: The Plaintiff at pleadings stage discontinued this action against the 2nd Defendant and continued with 1st Defendant. The 1st Defendant avers that indeed the Plaintiff offered his Ford Truck to him for sale. Initially the selling price quoted by the Plaintiff was Two Hundred Thousand Cedis (GH¢200,000) only and not One Hundred and Eighty Thousand Cedis (GH¢180,000) only. However, over time when prospecting for a customer became a challenge, the Plaintiff later agreed that same is sold for One Hundred and Fifty Thousand Cedis (GH¢150,000) only. Subsequently 1st Defendant was able to sell the Truck and made payment of One Hundred Thousand Cedis (GH¢100,000) only to Plaintiff. 1st Defendant admit that he owns the Plaintiff Fifty Thousand Cedis (GH¢50,000) only which same is ready for collection yet Plaintiff insist that he is owned Eighty Thousand Cedis (GH¢80,000) only and is not willing to collect the balance of Fifty Thousand Cedis (GH¢50,000) only nor release car documents to Plaintiff. ISSUES FOR DETERMINATION: In view of the pleadings, evidence led and cross-examination of the parties herein, the issue for determination by the court is: 1. Whether or not the 1st Defendant owns the Plaintiff Eighty Thousand Cedis (GH¢80,000) only. 2. Whether or not the Plaintiff is entitled to interest on this sum. PROCEDURE OF TRIAL: Parties in this matter both had legal representation. At the pleadings stage of this suit, the 2nd defendant was disjoined from the suit. The court referred parties to attempt settlement at Court-Connected Alternative Dispute Resolution (CCADR) which same broke down. The court consequently proceeded with Hearing. During Hearing, the parties relied on their witness statements and exhibits tendered and were cross examined on same. Parties testified by themselves selves during trial. The plaintiff called Page 2 of 10 no witness and the 1st Defendant called one witness only. They thereafter announced the closure of their respective cases. BURDEN OF PROOF: This being a civil suit, the standard of proof required by a party who makes assertions, which are denied, is one on a balance of probabilities. This therefore requires a party making assertions to adduce such evidence in proof of the assertions, such that the Court is convinced that the evidence of the facts he or she asserts are more probable than their non-existence. Section 11 (1) and (4) of the Evidence Act, 1975 (NRCD 323) provides that: Section 11 - Burden of Producing Evidence Defined. (1) For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue. (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. Additionally, Section 12 of the Evidence Act, 1975 (NRCD 323) stipulates that: Section 12 – Proof by a preponderance of probabilities (1) “except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of probabilities. (2) Preponderance of probabilities means the degree of certainty of belief in the mind of the tribunal of fact or the Court by which it is convinced that the existence of a fact is more probable than its non-existence. Section 14 of the Evidence Act, 1975 (NRCD 323) provide that: Allocation of Burden of Persuasion “Except as otherwise provided by law, unless it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence that party is asserting.” Section 10 of the Evidence Act, 1975 (NRCD 323) states that: Burden of Persuasion Defined Page 3 of 10 (1) For the purposes of this Act, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the Court. (2) The burden of persuasion may require a party (a) to raise a reasonable doubt concerning the existence or non-existence of a fact, or (b) to establish the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt. In explaining the principles relating to the duty to produce evidence, S. A Brobbey JSC. (as he then was) states at page 31 of his book; Essentials of the Ghana Law of Evidence thus; “This literally means “The proof lies upon him who affirms, not on him who denies, since by the nature of things, he who denies a fact cannot produce proof. Where the Plaintiff makes a positive assertion at the start of the trial, he bears the legal burden. At the same time, he bears the evidential burden to adduce evidence at the start of the trial.” Each party making an assertion that the marriage had broken down beyond reconciliation must prove same. In the case of Dzaisu and Others v Ghana Breweries Limited [2007-2008] 1 SCGLR 539 at page 545, the Supreme Court per Sophia Adinyira (Mrs.) JSC. stated as follows: “It is a basic principle in the law of evidence that the burden of persuasion on proving all facts essential to any claim lies on whosoever is making the claim.” EVIDENCE ADDUCED BY PLAINTIFF: Plaintiff testified on oath that sometime in August, 2021 he gave a Ford Pick-up Truck to the 1st Defendant to be sold at an initial price of Two Hundred Thousand Cedis (GH¢200,000) only when same later reduced to One Hundred Eighty Thousand Cedis (GH¢180,000) only. 1st Defendant subsequently sold the vehicle at One Hundred Eighty Thousand Cedis (GH¢180,000) only to Alhaji Ray. Yet accounted for same to Plaintiff at One Fifty Thousand Cedis (GH¢150,000) only. Plaintiff access that says the 1st Defendant sold same at less than the agreed price of One Hundred and Eighty Thousand Cedis (GH¢180,000) only he gave him on option of paying for same at One Eighty Page 4 of 10 Thousand Cedis (GH¢180,000) only or returning the vehicle to which 1st Defendant opted to pay the One Hundred and Eighty Thousand Cedis (GH¢180,000) only. Plaintiff access that in this regard, he prepared an agreement for them to sign but the 1st Defendant refused to execute same in support of his averment he tendered Exhibit ‘A’. Plaintiff access that in pursuit of this money, he caused his brother to engage in a chat via WhatsApp with 1st Defendant where 1st Defendant agreed to pay Plaintiff the amount owned: One Hundred Eighty Thousand Cedis (GH¢180,000) only. Plaintiff concluded that following payment of One Hundred Thousand Cedis (GH¢100,000) only 1st Defendant had refused to pay the balance outstanding of Eighty Thousand Cedis (GH¢80,000) only despite repeated demands. EVIDENCE ADDUCED BY 1ST DEFENDANT: The 1st Defendant vehemently maintained that in August, 2021 approached him with the Truck for sale and opted that he needed the Truck to be sold at Two Hundred Thousand Cedis (GH¢200,000) only which same was later sold at One Fifty Thousand Cedis (GH¢150,000) only of which he had paid the Plaintiff One Hundred Thousand Cedis (GH¢100,000) only with a balance of Fifty Thousand Cedis (GH¢50,000) only which same he expect Plaintiff to collect at his pleasure and intend release the Truck Document but he refused to do so. With respect to Exhibit ‘A’ tendered by Plaintiff, he added that he refused to sign same as he was not the purchaser of the vehicle. All told he maintained that he owned the Plaintiff Fifty Thousand Cedis (GH¢50,000) only and not Eighty Thousand Cedis (GH¢80,000) only. During trial, 1st Defendant testified that when a prospective buyer in the person of Alhaji Ray sought to purchase the vehicle, it was his colleague DWI who bargained for a reduction in price of the vehicle over the phone with Plaintiff. After same had been in the garage for six months. DWI: Emmanuel Opare Sarpong a director of 1st Defendant garage corroborated the evidence of 1st Defendant. In support of his testimony before the Court, he tendered Exhibit ‘1’ which is an audio recording of his conversation with Plaintiff. He concluded that the ANALYSIS: Page 5 of 10 From the pleadings of Plaintiff, it is his case that he gave a Ford Pickup Truck to sell at One Eighty Thousand Cedis (GH¢180,000.00) only. His further case is that 1st Defendant sold the vehicle to 2nd Defendant at One Hundred and Nighty Thousand Cedis (GH¢190,000.00) only and paid Plaintiff only One Hundred Thousand Cedis (GH¢100, 0000.00) only leaving a balance of Eighty Thousand Cedis (GH¢80,000.00) only. This payment came with incessant mounting of pressure on 1st Defendant. Plaintiff is claiming Eighty Thousand Cedis (GH¢80,000) only with interest from August, 2021 till date. 1st Defendant admits the contract between parties but at the following terms: 1. Initial purchase price was Two Hundred Thousand Cedis (GH¢200, 000.00) only and not One Hundred and Eighty Thousand Cedis (GH¢180,000,00) only. 2. When it became difficult to sell at Two Hundred Thousand Cedis (GH¢200,000.00), the parties agreed at One Fifty Thousand Cedis (GH¢150,000) only which he did. Defendant claims he has paid part of the purchase price to Plaintiff and that Fifty Thousand Cedis (GH¢50,000.00) only remains outstanding and not Eighty Thousand Cedis (GH¢80,000.00) only as Plaintiff contends. So, the following fact are not disputed: The Defendant admits owning Plaintiff Fifty Thousand Cedis (GH¢50,000) only. Upon this admission, accordingly the Court enters judgment for the sum of One Hundred Thousand Cedis (GH¢ 100,000.00) only with interest from August,2023 till date of full and final payment in favour of the plaintiff against the 1st Defendant. So the part of departure between the two parties is as following: if the Plaintiff story is to be believed; if the car was sold for One Hundred and Eighty Thousand Cedis (GH¢180,000) only and One Hundred Thousand Cedis (GH¢100,000) only has been given to the plaintiff, then the outstanding balance is Eighty Thousand Cedis (GH¢80,000) only With the version of Defendant, he fixed the purchased price at One Fifty Thousand Cedis (GH¢150,000) and since he has refunded the One Hundred Thousand Cedis (GH¢100,000) only to Plaintiff, the outstanding balance is rather Fifty Thousand Cedis (GH¢50,000) only. Which of these rival stories is to be believed by the Court? The case of the Plaintiff or that of the 1st Defendant. A careful reading of the Witness Statement of Plaintiff will reveal that the assertions he had made regarding the purchase price of the car was capable of positive proof. The Plaintiff was not able to provide any documentary evidence about the agreement of the parties. From the evidence before me, the agreement which the parties entered into is an oral agreement. Page 6 of 10 The 1st Defendant on the other hand who had no burden on him tried to create a doubt in the case of the plaintiff by maintaining that the purchase price was One Hundred and Fifty Thousand Cedis (GH¢150,000) only and One Eighty Thousand Cedis (GH¢180,000) only as contended by the Plaintiff in support of this, the Defendant attached Exhibit 1 which is a voice recording Plaintiff in challenging same tendered Exhibit ‘A’ however the said document is not signed. The court in its wisdom shall not rely on the 1st Defendant telephone conversation recording exhibit which he sought to rely on in accordance with Section 52 of Evidence Act, 1975 (NRCD 323) as the general law in Ghana on the exclusion of relevant evidence by a trial court states that if the probative value of the evidence is substantially outweighed by the risk that it will create substantial danger of unfair prejudice the trial court must exclude same. Section 52 of Evidence Act, 1975 (NRCD 323) which provides that: “Discretion to exclude relevant evidence The court in its discretion may exclude relevant evidence if the probative value of the evidence is substantially outweighed by- (a) (b) (c) considerations of undue delay, waste of time, or needless presentation of cumulative evidence; or the risk that admission of the evidence will create substantial danger of unfair prejudice or substantial danger of confusing the issues; or the risk in a civil action, where a stay is not possible or appropriate, tat admission of the evidence will unfairly surprise a party who has not had reasonable ground to anticipate that such evidence would be offered.” Article 18 of the 1992 Constitution of the Republic of Ghana provides that: 18 Protection of Privacy of Home and Other Property. (2) No person shall be subjected to interference with the privacy of his home, property, correspondence or communication except in accordance with law and as may be necessary in a free and democratic society for public safety or the economic well-being of the country, for the protection of health or morals, for the prevention of disorder or crime or for the protection of the rights or freedoms of others. Page 7 of 10 In the case of Cubagee v. Asare & Others (J64 of 2017 [2018] GHASC 14 (28th February, 2018) the apex court stated the principle on privacy as guaranteed by Article 18 of 1992 Constitution of the Republic of Ghana with respect to a person secretly recording a telephone conversation to which he is a party. In the wise words of Pwamang JSC.: “When a person talks on telephone to another the conversation is meant to be oral communication since if the speaker wanted the speech in a permanent form, he could elect to write it down or record and send to the other person. It would be wrong for the person at the other end to assume that the speaker has waived his rights of privacy and consented to him recording the conversation and rendering it in a permanent state. Therefore, to record someone with whom you are having a telephone conversation is to interfere with his privacy beyond what he has consented to In similar vein, it would amount to breach of privacy to put your phone on loudspeaker for the listening of third parties when you have a telephone conversation with another person because to so would be causing an intrusion into the caller's private sphere beyond what she consented to. Before recording someone or allowing third parties to listen to what he says on telephone, his consent must be sought or he must be informed such that he can decide to end the call if he does not want to be recorded or heard by third parties. We are in an environment where people take the rights of their neighbour. very lightly. We are therefore not persuaded to join those jurisdictions that permit secret telephone recording by a party to the conversation.” The defendant claimed that the plaintiff allowed him to record their conversation, what is more it is a custom in their line of business. Nowhere in the testimony of the plaintiff is this confirmed There is no iota of evidence before the court of the plaintiff’s consent to any such recording which the defendant sought to tender as evidence in this matter. Clearly therefore on the facts of this case, the secret recording of 1st Defendant amounted to a violation of Plaintiff of his right to privacy which has been guaranteed by the 1992 Constitution of the Republic of Ghana. The Defendant maintained his stance that parties agreed on One Hundred and Fifty Thousand Cedis (GH¢150,000.00) and not One Hundred Eighty Thousand Cedis (GH¢180,000) only. So listening to the rival stories of the parties I find the story of 1st Defendant more probable than that of the Plaintiff. Page 8 of 10 During cross-examination of Plaintiff, he admitted that he agreed to the price of One Hundred and Fifty Thousand Cedis (GH¢150,000) only. He subsequently told 1st Defendant to hold on while he confirms the duty. This part of the Plaintiff evidence was capable of positive proof. He could have called a witness to corroborate but he failed to do so. The 1st Defendant in the heat of cross-examination maintained his story as contained in his Witness Statement that the vehicle was sold upon the agreement of parties for One Hundred and Fifty Thousand Cedis (GH¢150,000.00) only and not One Hundred and Eighty Thousand Cedis (GH¢180,000.00) only. He also admitted paying Plaintiff One Hundred Thousand Cedis (GH¢100,000.00) only, so going by the admission of the parties and considering the evidence before the Court, I find the evidence of 1st Defendant that the vehicle was sold for One Fifty Thousand Cedis (GH¢150,000) only more probable on the preponderance of probabilities. Since he has paid One Hundred Thousand Cedis (GH¢100,000.00) only, the sum of Fifty Thousand Cedis (GH¢50,000.00) only remains outstanding. I find the version of Plaintiff story less probable. On the totality of evidence before the court, judgment is entered in favour of the 1st defendant against Plaintiff for the payment of Fifty Thousand Cedis (GH¢50,000.00) only with interest at the prevailing commercial bank interest rate thereon from the date of sale of the Ford pick-up trick till date of full and final payment. Since the record shows that 1st Defendant breached the contract by failing to pay the purchase price of the car to Plaintiff after he had sold same. General Damages of Five Thousand Cedis (GH¢5,000.00) only is warded against the 1st Defendant in favor of the plaintiff. This court is of the opinion that this amount is fair. Cost of Five Thousand Cedis (GH¢5,000) only is awarded against the plaintiff in favour of the defendant. Page 9 of 10 The court further orders the plaintiff to release all documentation covering this vehicle in his possession to the 1st defendant upon payment of Fifty Thousand Cedis (GH¢50,000) only with interest at the prevailing commercial bank interest rate from the date of sale of the Ford pick-up truck till date of full and final payment. (SGD) H/W ANNETTE SOPHIA ESSEL (MRS.) MAGISTRATE Page 10 of 10