Lodo Vrs Addae and Another [2022] GHADC 161 (11 October 2022)

IN THE DISTRICT MAGISTRATE COURT HELD AT ESSARKYIR ON TUESDAY THE 11TH DAY OF OCTOBER, 2022 BEFORE HER WORSHIP ARABA NUNOO ESQ GODSON MAWUTOR LODO PLAINTIFF SUIT NO. A21/13/22 VRS 1. BILL KOFI ADDAE 1ST DEFENDANT 2. PASTOR MATTHEW ADDAE WONTUMI 2ND DEFENDANT JUDGMENT The Plaintiff’s claim against the Defendants is for the following 1. A declaration that the defendants owe the plaintiff an amount of GHC50,000 2. An order directed at the defendants to pay the amount of GHC 50,000 to the Plaintiff 3. Interest on the GHC50,000 from December 2016 till date of final payment 4. General damages for breach of agreement 5. Costs including Lawyer’s fees According to the Plaintiff, in December 2016 he contracted to buy a vehicle from the 1st Defendant at a cost of GHC37,000, then in June 2018, he took the car for repairs and the 1 | P a g e repairer told him that the car had developed some faults while being transported on the sea, so they had to repair same, and after the repairs, he incurred a further cost of GHC13,000. The Plaintiff then sought to recover both the cost of the car and the amount used in the repairs from the Defendants. It is the case of the Plaintiff that the 1st Defendant promised to replace the car, but has since failed to do so despite several demands on him. The Defendants were never at the trial, but the Defendants lawyer entered conditional appearance to the suit on behalf of the Defendants on 16th February, 2022. A statement of Defence was then filed on behalf of the Defendants on the 1st of April, 2022. After these steps were taken by the Defendants lawyer, the Defendants themselves never showed up in court, and lawyer for the Defendants also subsequently stopped appearing in court. Order 25 1(2) provides that where an action is called for trial and a party fails to attend, the trial magistrate may where the Plaintiff attends and the Defendant fails to attend, dismiss the counterclaim, if any, and allow the Plaintiff to prove the claim. Thus, although the Defendants failed to appear in court, the Plaintiff was still under an obligation to prove his claim. The court accordingly went ahead to hear the case of the Plaintiff and took his evidence. In proving his case, the Plaintiff was under the same burden imposed by the rules of civil procedure, that is, proof on a preponderance of the probabilities. The Plaintiff called no witnesses, but filed his witness statement on 15th June, 2022. The Plaintiff was then sworn in to give his evidence, and he relied on all the averments contained in his witness statement. The Plaintiff further tended Exhibits A to F which included various receipts on all the transactions made in respect of fixing the car. 2 | P a g e In the Plaintiff’s witness statement, he stated that he bought the car in December, 2016. Then in June 2018, he took the car for repair works and spraying, and his mechanic told him that bottom of the car had rusted, and in order to prolong it, he needed to repair it. The Plaintiff then went ahead to pay for the cost of these repairs. The Plaintiff then says that the 1st Defendant never gave him the documents pertaining to the car, so in February 2019, he demanded that the 1st Defendant come for the car and refund his money to him. According to the Plaintiff, the Defendant promised to replace the car, and even sent him pictures of cars from which he chose which car he wanted. The law is settled that where a party makes an averment capable of proof in some positive way e.g., by producing documents, description of things, reference to other facts and instances, and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances from which the court can be satisfied that what he avers is true - Marjolagbe vrs Larbi (1959 GLR 190) The Defendants filed a statement of defence dated 1st April, 2022 in which they denied all the claims of the Plaintiff. It was therefore incumbent on the Plaintiff to adduce evidence to prove his claim, and while he said in his evidence on oath that the 1st Defendant agreed to replace the car for him and sent him pictures of cars to choose from, the Plaintiff did not tender any evidence of this communication or pictures to the court. Neither did he call any witnesses to prove this agreement. I therefore find that on the authority of Marjolagbe and Larbi as espoused above, failure by the Plaintiff to tender positive proof of this averment, which was capable of being proved, is detrimental to his case, as I am unable to hold that any such agreement was reached between the parties. Consequently, it is unclear whether the 1st Defendant agreed to 3 | P a g e replace the car, or the 1st Defendant merely agreed to sell the car the Plaintiff had already bought from him. However, the Defendants admitted in paragraph 4 of their Statement of Defence that the Plaintiff indeed bought the car from 1st Defendant at a cost of GHC37,000. Defendant also admitted in paragraph 8 of their Statement of Defence that the 1st Defendant sold the car upon the instruction of the Plaintiff. Under the circumstances, I am unable to hold that there was any agreement by the 1st Defendant to replace the car. From the evidence of the Plaintiff and the Statement of Defence of the Defendants, the conclusion I can arrive at, is that the Plaintiff bought a car from the 1st Defendant in December 2016. Then the Plaintiff returned the car again to the 1st Defendant in February 2019, more than two years after using the car. I am unable to understand how the Plaintiff would proceed to buy an item and use it without complaint for nearly three years, and only proceed to rescind the sale when the car started incurring maintenance costs and he no longer wished to use it again. The Plaintiff was not under any obligation to pay for a car whose documents had not been transferred to him. Indeed, the Plaintiff admits that he only sought to rescind the sale after he realized that the car was costing him a lot of money to maintain. I am therefore led to ask, had the Plaintiff not discovered that maintaining the car was costly, would the lack of documents have affected his purchase of same? Most likely not, since the Plaintiff fully aware that he had not been given documents to the car, went ahead to make full payment and used it for more than two years. That notwithstanding, the Plaintiff returned the car to the 1st Defendant, and the 1st Defendant took the car and purported to sell same for him. The 1st Defendant is 4 | P a g e therefore liable to account to the Plaintiff on the amount he sold the car, and pay the Plaintiff the said amount. Beyond that, I fail to see any agreement which has been breached, such as would entitle the Plaintiff to damages. The 1st Defendant failed to appear in court to lead any evidence, save for the Statement of Defence which was tendered on his behalf. In the Statement of Defence, it was admitted that the Plaintiff asked 1st Defendant to sell the car for him for an amount of GHC18,000, and that he indeed took the car and sold it. Consequently, since the 1st Defendant admits to selling the car for GHC18,000, the 1st Defendant is liable to pay the GHC18,000 to the Plaintiff on his own admission. The parties have both admitted that the 1st Defendant has already paid an amount of GHC10,000 to the Plaintiff, and a receipt marked Exhibit 7 has been tendered to prove same. That would leave an outstanding amount of GHC8,000 which the 1st Defendant is liable to pay the Plaintiff. I am unable to hold that the 1st Defendant is liable to pay the cost of the repairs made on the car by the Plaintiff, because the Plaintiff used the car for a period of two years, and the car, which is a vehicle, is subject to wear and tear with usage. The Plaintiff did not lead any evidence to show that the costs he incurred in repairing the car were through any fault of the 1st Defendant. Neither did he adduce any evidence to show that the problems with the car which needed to be fixed were defects that existed at the time he bought the car from the Defendant. He merely stated in his witness statement that the mechanic told him the faults were as a result of the car being shipped, but the said mechanic was never called to give evidence as to this claim. In any case, the Plaintiff had the opportunity to inspect the car before buying, and if those defects existed at the time he bought the car, he would have been entitled to not 5 | P a g e proceed with the purchase. Having gone ahead to buy the car and use it for a period of over two years, he is deemed to have accepted to buy the car as is, and whatever repair works the Plaintiff did on the car can reasonably be attributed to wear and tear, in the absence of any evidence to the contrary. The 1st Defendant is thus not liable to the cost of GHC 13,000 that the Plaintiff used in repairing the car. The Plaintiff has also not been able to establish any claims against the 2nd Defendant, who is the father of the 1st Defendant. According to the witness statement of the Plaintiff, the 2nd Defendant assured him that his son could sell the Plaintiff a car, and the son, who is the 1st Defendant, indeed sold the Plaintiff a car. After buying the car from the 1st Defendant, the 2nd Defendant did not have any dealings with the Plaintiff in respect of the car. Whatever happened afterwards had no bearing on the 2nd Defendant, and the 2nd Defendant is not liable to the Plaintiff in any of the claims on his writ. Consequently, I find that the 1st Defendant is liable to pay to the Plaintiff the amount of GHC8,000 being the remainder of the amount he admitted to selling the car, with interest from the date on which he made the initial payment of GHC10,000, which is 7th February, 2022, as shown on Exhibit F, till the date of final payment. The Plaintiff has not been able to prove any breach of contract such as would entitle him to damages, and the Plaintiff is also not entitled to the amount for the cost of repairing the car. The Defendants having failed to appear in court for the trial despite hearing notices served on them through their lawyer, their counterclaim for the amount of GHC3000 is dismissed. A cost of GHC 3000 is awarded to the Plaintiff against the 1st Defendant. 6 | P a g e (SGD) ………………………… H/W ARABA NUNOO ESQ MAGISTRATE 7 | P a g e