Samuel Vrs Donkor [2022] GHADC 55 (19 October 2022)

IN THE DISTRICT COURT KADJEBI IN THE OTI REGION OF THE REPUBLIC OF GHANA, HELD ON FRIDAY THE 2ND DAY OF JUNE, 2023 BEFORE H/W ERIC K. FIAMORDZI ESQ.,(MAGISTRATE) SUIT NO. A2/56/2021 APAU SAMUEL aka JOE SAM OF DAPAA AMANTA PLAINTIFF V TAASAH SALIFU OF DODI AKUM DEFENDANT JUDGMENT The Plaintiff has initiated this action against the Defendant under Order 2, rule 3 (6) of the District Court Rules, 2009, C I. 59, for the following reliefs: 1. Recovery of an amount of twenty five thousand Ghana Cedis (GH₵25,000.00) in general damages for winning gravel from the Plaintiff’s land at Dapaa Amanta somewhere in the year 2017. 2. Cost. SUMMARY OF SUBJECT MATTER OF CLAIM Plaintiff is a farmer resident at Dapaa Amanta whilst the defendant is a contractor residing at Dodi Akum. The Plaintiff states that somewhere in the year 2017, the defendant was awarded a road construction contract from Dapaa Junction to Dodo Amanfrom by the Kadjebi District Assembly. He states that after winning the contract, the defendant was brought to him (Plaintiff) at Dapaa Amanta by one Alhaji Kofi Peni to allow the defendant to win gravel from his (Plaintiff’s) land. So, he agreed and asked the defendant to use his grader to level the back of his (Plaintiff’s) and create a gutter in the front of the house. He added that before the Defendant came to him (Plaintiff), he had won some quantity of gravel on the land. And heaped same on another portion of the land. The defendant thereafter won the gravel on the land and even collected the heaped gravel on the land which he used to complete the construction of the road since the year 2019. But, he, (defendant) has refused or failed to create the gutter in front of the Plaintiff’s house as well as leveling the back yard of the house, as they had agreed upon. He (Plaintiff) concluded that all efforts to let the Defendant fulfill that part of the agreement between them cannot succeed, hence this action to seek redress. The parties appeared before the court on the 14th day of April 2021, and the plea of the Defendant was taken. He pleaded not liable to the reliefs of the Plaintiff. The Court then ordered the parties to file their witnesses’ statements and any relevant document (s) in their possession in relation to the subject matter before the next adjourned date. On the face of the records the parties complied with the orders of the court to file their witnesses’ statements, but none of them filed any document in relation to the land or the alleged contract between them. The defendant became evasive by not being regular before the court till on the 23rd day of November, 2021, when they both appeared and the Plaintiff gave his evidence in chief on oath. The Defendant was allowed to cross examine the Plaintiff. He called and relied on no witness. After the close of the case of the Plaintiff, the defendant was called upon to open his defence and he did. The Plaintiff was also permitted to cross examine the Defendant. The defendant was to call in his witness who has filed a witness statement on the 16th day of February, 2022, but he failed to do that. On the 6th day of February, 2023, after several adjournments, the Plaintiff applied viva voce for judgment to be entered in this suit. The court upheld the application of the Plaintiff. The court had visited locus in quo on the 6/02/2023 and the parties were present. They both showed the court the portion of land on which the gravel was won. A report is filed to that effect. The issues for determination of this court are whether or not. 1. The parties have agreed that the defendant after winning gravel from the Plaintiff’s land/house at Dapaa Amanta, he (defendant) should use his grader to level the back of Plaintiff’s house and create a gutter in the front of that same house. 2. The defendant won the gravels as the parties had agreed or what was the outcome. 3. A breach has been occasioned to warrant the payment of damages by the defendant to the Plaintiff. It is the case of the Plaintiff that he and the defendant had agreed in the presence of a witness that after he (defendant) wins gravel from his house/around his (Plaintiff’s) building in Dapaa Amanta, the defendant should use his (defendant) grader to level the back of his (Plaintiff) house and also create a gutter in the front of the house. The defendant corroborated the evidence of the Plaintiff in part and denied part of same. According to the Defendant, he and the Plaintiff really agreed in the presence of a witness that he (defendant) should win gravel(s) around his building in Dapaa Amanta. So, the Plaintiff charged him an amount of five hundred Ghana Cedis (GH₵500.00) which he paid. Even his witness (Dw1) did not state that they bargained on the amount to pay. The Defendant continued that it was the Plaintiff himself who directed his grader/machine operator around which area he should win/fetch the gravel from. He added that the Plaintiff also directed the machine operator to level around his building for him. But, the Plaintiff did not contracted him (defendant) to constract any gutter as he averred. He continued further that no gravel was taken outside the sections he (Plaintiff) directed. The Defendant explained that, he has met the Plaintiff on few occasions after the work was completed but he has never raised any issue concerning the debt of an amount of twenty-five thousand Ghana Cedis (GH₵25,000.00) as he is currently alleging in his writ of summons The defendant concluded that he is not liable for any damages as claimed by the Plaintiff. It is the case of the witness of the Defendant that the defendant contracted him (DW1) that he wanted gravel to use for a road project. He (Dw1) then contacted the Plaintiff and he agreed that they should dig and level around his building/house. So, he informed the Defendant. He later took the Defendant to the Plaintiff and was present when the Defendant gave the Plaintiff an amount of five hundred Ghana Cedis (GH₵500.00). As a court, I would not put much weight on the statement of the DW1 because he has failed to make himself available in court to give his evidence and to be cross examined on oath. The court visited the area for a locus in quo at the behest of the parties herein. The parties conducted the court round where the gravel was won. The Plaintiff showed the court where water runs from along the main street/road in front of the house where gravel was won. The defendant did not oppose to that. The only argument of the defendant has been, he was not contracted to construct any such gutter over there to direct the flow of water whenever it rains from entering the rooms of the Plaintiff. As a court, I do not want to believe in my wildest thoughts believe that any reasonable person like the Plaintiff or the that would have the defendant would have allowed himself and for that matter, his property in this case, the building to be exposed to such harm and hardship for the payment of a paltry amount of five hundred Ghana Cedis (GH₵500.00) Under cross examination by the Defendant, the Plaintiff said he and the defendant did not negotiate on any amount of money to be paid for the wining of the gravel. He added that the agreement was for the defendant to clear the back of his (Plaintiff) house and construct a gutter in front of same/house. According to the Plaintiff, he was not always present for the three days that the defendant and his agents won the gravel around his (Plaintiff) house. He said, he went to an Alhaji to complain to him about the conduct of the defendant, about four times but each time the Alhaji will tell him (Plaintiff) that he Alhaji has been unable to reach the defendant. The Plaintiff maintained that he did not charge an amount of five hundred Ghana Cedis (GH₵500.00) as the cost price of the gravel to be won by the defendant, although he collected an amount of five hundred Ghana Cedis (GH₵500.00) from him (Defendant). The Plaintiff noted that he showed the defendant the boundaries of the land before he started winning the gravel/laterite. He concluded that the Defendant came to see him over the winning of the laterite with a witness. The Plaintiff relied on no witness. As such the Defendant was called upon to open his defence and he did. In the case of Arrital Ghana V Accra city Hotels [2015] 90 GMJ 134 C A; and the case of Addison V A/S Norway Cement Export Ltd., Annan J. A (as he then was) noted that: “The Plaintiff’s case was based on an oral contract. That case was supported by oral evidence not in dispute and by reasonable inferences from documentary evidence accepted by the court”. Also, in Frafra V Boakye [1976] 2 GLR 332, the court of Appeal implied warranty of fitness on the materials to be included in a contract/agreement. In the instant suit, if the defendant had not succeeded in getting the materials needed to complete his work in full, he would have raised red flags against the Plaintiff. He did not tell the court that the laterite was insufficient there for his work. As a court, I turn to believe the evidence of the Plaintiff that although the defendant paid an amount of five hundred Ghana cedis (GH₵500.00) to the Plaintiff, it was not meant to cover the cost of the laterite /gravel to be won on the land of the Plaintiff. The money paid was to show the defendant’s appreciation to the Plaintiff for helping him to get a ready spot/ place to win the gravel/laterite from. From the evidence adduced in court, the facts and the law, I enter judgment in favor of the Plaintiff against the defendant. The Defendant is to pay the Twenty-five thousand Ghana Cedis (GH₵25,000.00) claimed by the Plaintiff in full. I also award cost the amount of three thousand Ghana Cedis GH₵3,000.00) against the Defendant in favor of the Plaintiff. H/W ERIC K. FIAMORDZI ESQ. (MAGISTRATE) 7