Asinu Vrs Issah [2022] GHADC 64 (15 November 2022)

IN THE DISTRICT COURT, KADJEBI IN THE OTI REGION OF THE REPUBLIC OF GHANA HELD ON TUESDAY, THE 15TH DAY OF NOVEMBER, 2022 BEFORE H/W ERIC K. FIAMORDZI ESQ., (MAGISTRATE) FELIX ASINU . PLAINTIFF SUIT NO. A2/26/2022 OF KADJEBI V MOHAMMED ISSAH: DEFENDANT OF MENUSU BORDER Plaintiff present Defendant absent JUDGMENT The Plaintiff claims from the Defendant recovery of an amount of twenty one thousand five hundred Ghana Cedis (GH₵21,500.00) being money the Defendant requested the Plaintiff to give him to enable him purchase a car, (Opel Zafira) for the Plaintiff since 21st day of June, 2021` which vehicle the Defendant purchased but failed to pay Ghana Revenue Authority (Custom Duty) on same, and the vehicle was later impounded by GRA (Custom Division) at Menusu Border Post, and he has also refused to refund the Plaintiff’s money to him (Plaintiff) despite several demands, and cost of the application. SUMMARY OF SUBJECT MATTER OF CLAIM Plaintiff is a mobile money vendor resident at Kadjebi, whilst the Defendant is an officer of the Ghana Immigration Service, resident at Menusu Border Post near the Kadjebi Township. In the month of February , 2021 the Plaintiff saw a type of vehicle called Opel Zafira on face book with the Defendant’s mobile telephone number under it. The Plaintiff then contacted the Defendant on phone and asked to find out whether he could purchase same car Opel Zafira for him, Plaintiff. Plaintiff says in the same month of February, 2021, the Defendant sent him (Plaintiff), the picture of the car with request for money for payment. As a result, the Plaintiff also sent various amounts of money from his (Plaintiff) mobile money (Momo) merchant line with the name Adolf Hitler, into the Defendant’s GCB Bank PLC account number 0011010187317 all amounting /totaling twenty-one thousand, five hundred Ghana Cedis (GH₵21,500.00) being the full purchase price of the car and paying of customs duty fee/charges on the vehicle from the Republic of Togo to the Republic of Ghana. The Plaintiff avers that in the month of March, 2021, the Defendant brought the vehicle (Opel Zafira) to the Plaintiff. The Plaintiff further stated that, on the 24th day of June, 2021, the Customs Authorities /Officials intercepted the Opel Zafira and requested the Plaintiff to produce documents that are covering the car/Opel Zafira. The Plaintiff again added that when he sent the documents he obtained from the Defendant on the vehicle to the GRA Office in Dambai, it was detected that the documents were all fake. The Plaintiff then informed the Defendant about the developments. But, the Defendant failed to make any attempt for the vehicle to be returned to the Plaintiff. The Plaintiff later reported the Defendant’s conduct to his superior officers in Dambai, where the Defendant was asked/tasked to pay the customs duty on the Plaintiff’s car or refund the Plaintiff’s entire amount of GH₵21,500.00 to him within two weeks but he has refused or failed to pay back. All efforts to let the defendant refund Plaintiff’s money to him cannot succeed hence this action to seek redress. Wherefore the Plaintiff claims as per the reliefs endorsed on his writ of summons. On the face of the records, the Defendant was seen and served with the writ of summons and a copy of hearing notice in Kadjebi on the 18th day of November, 2021 at 4.00 pm. The Defendant so motu filed a copy of his statement of Defence on the 29th day of November, 2021 even before the return date. On the 2nd day of December, 2021, the parties appeared before the court and the plea of the Defendant was taken. He (Defendant) pleaded not liable to the reliefs of the Plaintiff. The court then ordered the parties to file their witnesses statements and any relevant documents in their possession in relation to the subject matter, and they did. After a few adjournments, the Plaintiff was heard on oath on the 25th day of April, 2022. He (Plaintiff) relied on his witness statements in his evidence in chief to the court. The Defendant was made to cross examine the Plaintiff. The matter was adjourned to the 18th day of May, 2022 for continuation of the cross examination of the Plaintiff by the Defendant. Since then, the Defendant has been unable to appear before the court. The Defendant earlier on the 21st day of March, 2022 filed a permission notice to be absent from court due to his wife’s ill health and requested that the matter was adjourned to the 11th day of April, 2022 for him, and the court obliged him. The Plaintiff filed a motion ex-parte with an accompanying affidavit for an order of the court for judgment to be entered in the matter on the 13th day of October, 2022. The motion was moved on the 21st day of October, 2022 after a couple of adjournments to create opportunities for the defendant to appear before the court. The court upheld the application of the Plaintiff on same day, 21st October, 2022. The issue (s) for the determination of this court are whether or not: 1. There was any contractual agreement between the parties for the purchase of a vehicle/car (Opel Zafira) in the year 2021 (specifically 31/01/2021). 2. Custom duty was properly paid on the vehicle (Opel Zafira) 3. The reliefs of the Plaintiff should be endorsed by this court. It is becoming crystal clear to the court that the Defendant might have decided to use his position to enrich himself by getting himself involved in the acts of purchasing and sales of vehicle (s). This is because the Plaintiff allegedly saw the picture of the advertisement of an Opel Zafira vehicle on line (i.e on face book) with the telephone number of the Defendant by it through a friend. So, he consequently placed calls which made him (Plaintiff) to connect himself with the Defendant. He stated that he took the mobile phone number of the Defendant from the wife who is also a mobile money vendor in Kadjebi. According to the Plaintiff, the defendant agreed to purchase the car/vehicle for him. So from that moment a contractual relationship has been established between the two parties immediately, after which they bargained for the price(s) and the Plaintiff sealed it by the payment of various sums/amounts of monies as exhibited in exhibit F. A.1 - 5. The transaction details are on the face of the records. It is the case of the Plaintiff that he later asked the Defendant to know how much would be involved for the custom duties on the vehicle/car and the Defendant quoted an estimated amount of four thousand five hundred Ghana Cedis (GH₵4,500.00). That amount the Plaintiff stressed, he paid the Defendant through GCB Bank PLC account number 0011010187317 in Kadjebi branch. So, the Defendant sent the duty documents through his wife to the Plaintiff in Kadjebi. These documents convinced the Plaintiff to believe that the vehicle as purchased for him by the Defendant was genuine and free from all encumbrances. He consequently started using the vehicle upon delivery only for it (vehicle)to be intercepted and impounded by the customs Division Personnel of the GRA. The Plaintiff continued further that the matter in issue was reported by him to the Superior Officers of the defendant in Dambai who after going into the case prevailed on the Defendant to do the needful. But, he was adamant. The matter was then reported to the police. Yet still, the Plaintiff had no response or solace. This was the driving force behind the current action before the court for redress. Both the statement of defence and the witness’s statements filed by the Defendant corroborate the fact that a contractual relation has indeed existed between him and the Plaintiff herein. The Defendant has decided to abandon the court processes, and to perhaps concentrate his efforts on other important things/work. In the case of :- In the Ashaley Botwe Lands, Adjetey Agbosu & ors V Kotey & ors [2003- 2004] SCGLR, 420, 425 -426, Brobbey J. S. C, (as he then was) summed up the principle in the Evidence Act 1975, NRCD 323 in the following manner: “….. A litigant who is a Defendant in a civil suit/matter does not need to prove anything; the Plaintiff who took the Defendant to court has to prove what he claims he is entitled to from the Defendant. At the same time, if the Court has to make a determination of a fact, or of an issue, and that determination depends on evaluation of facts and evidence the defendant must realize that the determination cannot be made on zanothing………. If the defendant leads no such facts or evidence that will induce the determination to be made in his /her favor , the court will be left with no choice but to evaluate of facts and evidence, the Defendant must realize that the determination cannot be made on nothing ….. In the instant suit, this court has, as it were, adjourned on several occasions to create room for the Defendant to be heard. But, he (Defendant) has decided the other way. He could have appeared to throw or cast the minutest doubt on the Plaintiff’s case. From the evidence adduced before the court, the facts and the law, I enter judgment in favor of the Plaintiff against the Defendant. The Defendant is hereby ordered to pay the amount of twenty-one thousand, five hundred Ghana Cedis (GH₵21,500.00) which was paid into his account at the GCB 0011010187317 and meant for the Opel Zafira in full to the Plaintiff. I also award a cost of three hundred Ghana Cedis (GH₵300.00) against the Defendant in favor of the Plaintiff Sgd. H/W ERIC K. FIAMORDZI ESQ. (MAGISTRATE) 7