Kpakpale Vrs Bawa [2022] GHADC 56 (30 November 2022)

IN THE DISTRICT COURT, KADJEBI IN THE OTI REGION OF THE REPUBLIC OF GHANA HELD ON WEDNESDAY THE 30TH DAY OF NOVEMBER, 2022 BEFORE H/W ERIC K. FIAMORDZI ESQ. (MAGISTRATE) SUIT NO A2/04/2022 NASSOUGOU KPAKPALE PLAINTIFF V TADJUDEEN BAWA DEFENDANT OF KADJEBI Plaintiff present. Defendant absent JUDGMENT This judgment stems from a writ of summons issued by the Plaintiff under Order 2 rule 3 (6) of the District Court Rules, 2009, CI 59, against the Defendant for the following reliefs: - 1. An order from the court compelling the Defendant to produce the Plaintiff’s one APSONIC motor bike or its current equivalent market value to the Plaintiff, which motor bike the Defendant alleged he kept in safe custody for Plaintiff since the month of August,2021, but has woefully refused or failed to release to the Plaintiff despite several and repeated demands. 2. General damages for loss of earning since 8th day of August, 2021. 3. Cost of this application. SUMMARY OF SUBJECT MATTER OF CLAIM. Plaintiff is a native of Atakpame in the Republic of Togo but currently resident in Avornyokope-Kadjebi. Defendant is a farmer also resident at Kadjebi-R. C Kpodzi. Plaintiff states that he travelled from Atakpame in the Republic of Togo to do business in Ghana to earn his living. The Defendant who is his (Plaintiff’s) Landlord called him (Plaintiff) on his mobile phone to come and pick him (Defendant) from his farm around Ketsi Road to Kadjebi on the 1st day of August, 2021. But on reaching a spot near the Roman Catholic Diocese Premises, the Plaintiff was involved in an accident. So, he (Plaintiff) was later conveyed from the accident scene to Kadjebi Health Centre by his brother, one Kabesema Kwame, where he was admitted, treated and discharged on the 4th day of August, 2021. Whilst the Plaintiff was on admission at the Health Centre in Kadjebi, the Defendant visited him and told him that he had gone for the motorbike that got involved in the accident and sent same to some motor fitters for repairs. He (Defendant) then requested the Plaintiff to pay an amount of one hundred and forty Ghana cedis (GH₵140.00) as the repair charges. After the repairs, the Defendant kept the motor bike in his (defendant’s) room at Kadjebi. Plaintiff states that, when he returned from the hospital/Health Centre, he paid the said amount of one hundred and forty Ghana Cedis (GH₵140.00) to the Defendant. On the 7th day of August, 2021, the Plaintiff called the defendant on his mobile phone but the Defendant was not picking up the calls. So, the Plaintiff later called the wife of the Defendant and informed her of his intention to come for the motor bike to his (Plaintiff’s) custody. On the 8th day of August, 2021, around 9.00 am to 10.00 am, the defendant called the Plaintiff and informed him that his (Plaintiff) motor bike was stolen from his (Defendant’s) room. The Defendant later informed the Plaintiff that he had sent the documents covering the motor bike to the Police, Kadjebi for investigation. At the police station, the Defendant admitted that he would look for the motor bike and added that if he is unable to find the motorbike, he would pay the cost of same (that is the motor bike) on 31st day of August, 2021 which was a Tuesday to the Plaintiff. On the 31st day of August, 2021, the Defendant told the Plaintiff he could only get the money (ie the cost/value of the motor bike) on Saturday, 20th day of November, 2021. Plaintiff states that he had suffered damages for loss of earnings whilst the motorbike was in the custody of the Defendant. All efforts to let the Defendant get or return the Plaintiff’s motor bike for him or pay for its cost cannot succeed hence this action. Wherefore the Plaintiff claims as per the reliefs endorsed on his writ of summons. HEARING On the 2nd day of September, 2021, (Thursday), the Defendant on the face of the record was served at 3.20 pm at Kadjebi with the writ of summons. On Monday, 20th day of September, 2021, the Defendant so motu filed a statement of defence in which he admitted some paragraphs of the Plaintiffs summary of subject matter of claim and denied others. On the return day, 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 ordered the parties to file their witness’s statements and any relevant document(s) in their possession in relation to the subject matter of claim before the court. The parties complied with the order of the court to file their witness’s statements. On the 11th day of October, 2021, the Plaintiff filed some documents on the alleged motorbike which were marked exhibits NK1, NK2 and NK 3. On the 19th day of November, 2021, the witness’s statements were swapped between the parties and the matter was set down for hearing on the 16th day of December, 2021. But the Defendant absented himself from court on that 16th day of December, 2021. On the 12th day of January, 2022, the parties appeared before the court and the Plaintiff was heard on oath. The same day the defendant was made to cross examine him (Plaintiff). The cross examination of the Plaintiff by the defendant has still not ended because the defendant has become evasive. He decides when to appear before the court with one or the other excuse. This has prompted the Plaintiff to file a Motion ex-parte with an accompanying affidavit for an order of the court to enter judgment in his favor. The motion was moved on the 25th day of October, 2022 and the application of the Plaintiff/applicant has been upheld by the court. The issue for the determination of the court is whether or not the reliefs of the Plaintiff should be granted. In the instant suit, two possible situations have presented themselves: either under the law of contract or the law of tort” As a court it is imperative to state that the issue of concurrent liability is at stake herein. In the classic case of Edwards V Mallon [1908] 1 K B 1002, referred to in 3 All ER 57 1 [1978] at 598; [1979] Ch. 384 at 420 “There is not and never has been any rule of law that a person having alternative claim must frame his action in one or the other. If I have a contract with my dentist to extract a tooth, I am not thereby precluded from suing him in tort if he negligently shatters my jaw”; In the instant suit, it was the Defendant who allegedly invited the Plaintiff to pick him (Defendant) up on his (Plaintiff’s) motor bike as the landlord of the Plaintiff from an area called Ketsi. On the way going the Plaintiff out of negligence or an accident got himself involved in an accident. The Plaintiff has never and should not try to get the defendant involved in the issue of the mere accident. So, I would not put weight on this. From the evidence adduced before this court, after the Plaintiff was whisked away to the hospital/clinic to receive medical attention, the defendant, who got the news or information of the involvement of the Plaintiff in the accident went and took the motor bike away for repairs without first reporting the accident and showing the mangelled/destroyed motor bike to the police or any security apparatus of the state. Whilst on his visit to the hospital to see how the Plaintiff was fairing , he told the Plaintiff himself that he had gone for the motor bike which he sent for repairs and which was going to cost the Plaintiff the amount of one hundred and forty Ghana Cedis GH₵140.00) to fix. A reasonable man in the streets of Kadjebi would have thought that the focus of visiting a sick person in a health facility would be to first offer help and express one’s desire in seeing the sick person recuperating and subsequent release or discharge within the shortest possible time. Then on the heels of that would come the issue of funds to pay the medical bills of that sick person, but not to rather saddle the sick person with repair charges whilst on admission. However, the Plaintiff upon his discharged from the clinic /hospital went and paid the charges of the amount of one hundred and forty Ghana Cedis (GH₵140.00) to the Defendant which he took. From that moment, a contractual relation as well as the duty of care has been established between the two parties. An obligation has been created between the Plaintiff and the Defendant for the repair and safe keeping of the Plaintiff’s motor bike. Assuming without admitting that the motor bike in issue has been stolen, the core of the issue would have been that if the Defendant had not taken the motor bike for repairs, and might not have been using it, it (the motor bike) would not have attracted any thief or thieves. After all, it was not the Plaintiff who instructed the Defendant to fix the motor bike for him. Whatever the situation, several opportunities have been created for the Defendant to be heard but he has abused the court process. In the classic case of In Re- Ashaley Botwe lands, Adjetey Agbosu & others V Kotey and others [ 2003 – 2004] SCGLR 420, 425-426, His Lordship Brobbey J. S. C. (as he then was) summed up the common law principle in the Evidence Act, 1975 section 11 (1) and 14, and similar sections as follows: “A litigant who is a Defendant in a civil suit/case does not need to prove anything; the Plaintiff who took the Defendant to court has to prove what he claims he is entitled 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 nothing. If the defendant desires the determination to be made in his favor, then he has the duty to help his own cause or case by adducing before the court such facts or evidence that will induce his favor…… “ but if he leads no such facts or evidence, the court will be left with no choice but to evaluate the entire case on the basis of the evidence before the court, which may turn out to be the only evidence of the Plaintiff.” On the issue of general damages Justice Dotse, J. S. C. has held in the case of Ankomah V City investment Co. Ltd., [2013]43 MLRG, 39 -41 that; ” The basic rule for the measure of damages is again that the claimant should be restored to his position before the tort was committed. Where the property has been completely destroyed, the measure of loss is the market value of the property at the time of the destruction…….. Damages are also recoverable for the loss of use of property before it is replaced…… Damages for loss of use may include the cost of hiring a substitute where it is reasonable to do so………..” In the instant suit, the Plaintiff stated that he relies on the motorbike for his livelihood. So, a loss of earning has consequently, arisen. As stated supra, the Defendant has been given several opportunities to cast the minutest doubt on the evidence of the Plaintiff but, he has decided to absent himself from the court. This court has no other choice but to evaluate the evidence and facts before it. 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 to produce Plaintiff’s Apsonic motor bike or its current market value to the Plaintiff. I award general damages of an amount of two thousand, five hundred Ghana Cedis (GH₵2,500.00) in favor of the Plaintiff against the Defendant for loss of earning created as a result of the theft or otherwise of the Plaintiff’s motor bike which was in the custody of the Defendant. A cost of one thousand, five hundred Ghana Cedis (GH₵1,500.00) is award against the defendant herein in favor of the Plaintiff. H/W ERIC K. FIAMORDZI ESQ., (MAGISTRATE) 8