Akutey Vrs Simon [2023] GHADC 435 (2 May 2023)

IN THE DISTRICT COURT HELD AT SOMANYA ON TUESDAY THE 2ND DAY OF MAY, 2023 BEFORE HIS WORSHIP MICHAEL DEREK OCLOO. SUIT NO: A2/40/2023 TETTEH AKUTEY } PLAINTIFF VRS ABIWU SIMON } DEFENDANT PLAINTIFF: DEFENDANT ABSENT : PRESENT : J U D G M E N T The Plaintiff commenced the instant action against the Defendant for the following reliefs: 1. An order to compel the Defendant to fix the engine of Plaintiff’s Opel Zafira vehicle with Registration No. GE 9247-13 which the Defendant caused damaged to. 2. An order for the Defendant to pay Plaintiff the daily sales of GH¢60.00 for keeping and using the Plaintiff car without the knowledge and consent of the Plaintiff since 7/2/2022 to date. 3. Cost of litigation. The Defendant attended Court on the first three adjournment dates and stopped appearing in Court on the subsequent adjourned dated despite the fact that Hearing Notices were served on him personally and by Substituted Service. Order 1 of the District Court Rules, 2009 (C. I. 59) provides that the rules shall apply to all civil proceedings in the District Court and shall be interpreted and applied so as to inter alia achieve speedy and effective justice and avoid delays and unnecessary expense and also ensure the complete effective and final determination of all matters in dispute. Also Order 27 rule 1 of C. I. 59 provides that it is the duty of the parties, their lawyers and the Court to avoid unnecessary adjournments and other delays and ensure that causes or matters are disposed of as speedy as the justice of the case permits. The Court relied on the above provisions and ordered the Plaintiff to file his Witness Statement. The case of the Plaintiff was that he is the owner of Opel Zafira Vehicle with Registration No. GE 9247-13 and the Defendant is an Auto mechanic who repairs his (Plaintiff’s) vehicle any time it develops a fault. According to the Plaintiff his Opel car had a flat tire so on 7/2/2022 he gave the car to the Defendant to pump or fix same. He added that the Defendant failed to bring the said car to him (Plaintiff) for a long time until PW2 Prophet Martin Akutey informed him (Plaintiff) that he saw the said car parked at Atua Gas filling station. The Plaintiff went to the said Gas filling station at Atua and saw his Opel car there so he made enquiries from the security officer as to the Presence of the car at the station. The security officer told him that the car was brought there by two (2) men who said it had developed a fault and that they would come for it later. He further stated that he went to the Defendant at his workplace at Gberkormanya-Somanya and upon enquiry the Defendant told him that the engine of the car has developed a fault. He then told the Defendant that at the time he gave the car to him (Defendant) to fix the tire, the car’s engine was not faulty and since it was the Defendant who used it as his personal car for the said period without his (Plaintiff’s) consent then he (Defendant) should fix the faulty engine. He added that the Defendant promised to fix the faulty engine but failed. He concluded that he had been operating the said vehicle on commercial basis and makes daily sales of GH¢60.00 as such the Defendant should be ordered to pay an accumulated sales of GH¢60.oo per day from 7/2/2022 to date. PW1 David Ababio could not finish with his evidence due to his continuous absence from court as such the Plaintiff told the Court that he would not rely on PW1’S evidence. The Court then expunged PW1’S evidence from the record book. In the evidence of PW2, Prophet Martin Akutey, he corroborated the evidence of the Plaintiff and adduced that he sold the vehicle in issue to the Plaintiff. The legal issue to be determined by the Court is whether or not the Plaintiff is entitled to the relief he seeks. I have subjected the evidence of the proof as provided in sections 10-14 of the Evidence Act, 1975 (NRCD 323) and after a careful examination and evaluation of his evidence, I find that the Plaintiff had led evidence to discharge the burden of proof however he was unable to lead sufficient evidence to establish the issue of the commercial operation of the vehicle in issue. The Plaintiff was expected to produce a document in terms of the sales recording book to indicate whether or not the vehicle is used to work on all the seven (7) days in a week. This would have assisted the Court to arrive at a precise formula for the calculation of the sales. The Court would assume that the said vehicle is used for commercial operation on six (6) days in a week excluding Sundays. The calculation would also be based on 7/2/22 to 25/5/2022 when the case was first called in Court. The number of days within the stated period is therefore 74 days. In the circumstance, I enter Judgment in favour of the Plaintiff for the recovery of GH¢4,440.00 (GH¢60.00 X 74). A costs of GH¢1000.00 is awarded in favour of Plaintiff. I order as follows: That the Defendant shall fix the engine of Plaintiff’s Opel Zafira vehicle with Registration No. GE G247-13. (SGD) H/W MICHAEL DEREK OCLOO (MAGISTRATE) 2/05/2023 F. T. 3