Emmanuel Vrs Agyemang [2021] GHADC 2 (15 May 2021)

IN THE DISTRICT COURT HELD AT NSOATRE IN THE BONO REGION HELD ON MONDAY THE 15TH DAY OF MAY, 2023 BEFORE HIS WORSHIP JOSEPH HAMIDU NASIGRE, DISTRICT MAGISTRATE SUIT NO. A2/49/2021 OPPONG EMMANUEL == PLAINTIFF VERSUS DR. PRINCE AGYEMANG == DEFENDANT JUDGMENT The plaintiff claim against the defendant is for; (a) The payment of GH¢50,000.00 being the balance of money owed and due to the plaintiff on account of a sale of an unlicensed Toyota Camry Saloon car to the defendant on 18/01/2021 which the defendant has failed to pay to the plaintiff repeated demands notwithstanding. Or (b) In the alternative an order compelling the defendant to produce and hand over the car stated in claim (a) to plaintiff in its original state. (c) Damages for breach of contract. (d) Cost of legal fees. (e) Compensation for loss of use of the Toyota Camry saloon car from 11th January, 2021 till 6th May, 2021. (f) Any other order (s) of the court. The plaintiff sought leave of the court to amend his relief (a) to include the phrase that makes the claim to read that the outstanding balance of GH¢50,000.00 on the car was agreed by the parties to be paid by the end of August, 2021. The parties attempted out of court settlement of the suit and this culminated in the return of the plaintiff’s car to him on 5th May, 2021. This rendered the plaintiff’s reliefs (a) and (b) moot. The defendant set up a counterclaim against the plaintiff for the following reliefs. (a) Recovery of GH¢15,000.00 being an initial deposit paid to the plaintiff for the car. (b) A recovery of GH¢4,900.00 being cost of additional value he made to the car. In the face of the plaintiff’s amended writ to indicate that payment for the car was to conclude by the end of August, 2021 by the defendant and the defendant’s counterclaim set up against the plaintiff, the triable issues are now narrowed down for the court to determine; (i) A claim for damages for a breach of contract. (ii) Compensation for loss of use of the Toyota Camry saloon car from 11th January, 2021 till the 6th May, 2021 and (iii) The counterclaim of the defendant for recovery of GH¢15,000.00 initial deposit and (iv) GH¢4,900.00 being enhancement made to the car. THE PLAINTIFF CASE The case of the plaintiff is that he sold a Toyota Camry Spider car to the defendant at an agreed price of GH¢65,000.00. They had an oral agreement for the defendant to pay GH¢15,000.00 initially and the balance of GH¢50,000.00 to be paid fully by the end of August, 2021 on a monthly installment. Upon the payment of GH¢15,000.00 initial deposit to the plaintiff, the car was given to the defendant on 11/01/2021. On the basis of this agreement, the defendant assured the plaintiff that he was expecting some money from a friend in March, 2021 to make another payment to plaintiff but failed to do so. The plaintiff tendered exhibit ‘C’ which was a WhatsApp interactions on 4/03/2021 between the parties. According to the plaintiff towards the end of March, 2021 the defendant told him that he was fed up with the car issue between them and said he was no longer interested in the car. With this information from the defendant, the plaintiff believed the defendant has breached their oral contract and has sued for the reliefs as endorsed on the plaintiff’s amended writ of summons. In furtherance of the plaintiff’s testimony the plaintiff stated that he has been denied the use of the car from 11/01/2021 till 6/05/2021 when the car was returned to him and he has suffered loss of use of same. The plaintiff also stated that the defendant tempered with the engine of the car and as a result of that the gasket got burnt resulting in the car being sold for GH¢50,000.00 below the expected price as buyers were not prepared to go beyond that amount The plaintiff stated further that before the defendant returned his car to him, he asked him to remove any enhancement he claimed he affixed to the car but the defendant refused to do so. He thus denies liability to the defendant’s counterclaim for the payment of any enhancement made to the Toyota Camry Spider car before same was returned to him. THE DEFENDANT’S CASE The defendant for his part stated that the installment payment to liquidate his indebtedness to the plaintiff was to commence from August, 2021. The defendant thus believes that the instant action taken by the plaintiff against him constitutes a breach of their oral contract because commencement of payment was at the beginning of August, 2021. The defendant further stated that he made an enhancement to the car before handing over same to the plaintiff amounting to GH¢4,900.00. It is also his case that he wants a refund of the initial down payment of GH¢15,000.00 paid to the plaintiff in respect of the car following the return of same to him (plaintiff). The defendant stated further in his defence that his mother was privy to the agreement between himself and the plaintiff that defendant was to commence payment of the outstanding balance of GH¢50,000.00 from August, 2021 to the plaintiff and would take him ten months to complete the payment. ISSUES FOR DETERMINATION The issues posed for the determination of the court in the instant suit in my respective view are as follows; 1. Whether or not the parties agreed for the defendant to conclude payment for the car by the end of August, 2021 or payment to commence in August, 2021. 2. Whether or not the defendant is entitled to recover the GH¢15,000.00 being the initial down payment for the car after same has been returned to the plaintiff. 3. Whether or not the plaintiff is entitled to the compensation for loss of use of his car from 11th January, 2021 to 6th May, 2021. 4. Whether or not the defendant is entitled to recover monies spent on the car whilst it was in his possession. FINDING OF FACT From the evidence, I find as a fact that the parties entered into an oral contract in which the plaintiff offered his unlicensed Toyota Camry car for sale to the defendant on 18th January, 2021 at the cost of GH¢65,000.00. The parties agreed on an initial down payment of GH¢15,000.00 which the defendant paid to plaintiff after which the car was given to the defendant. The outstanding balance of GH¢50,000.00 was to be paid by installment to liquidate the entire GH¢65,000.00 being the cost of the car. According to the plaintiff full payment for the car was to conclude by the end of August, 2021. The defendant however, said payment for the car was agreed to commence in august, 2021. The instant action is borne out of the parties disagreement as to the time for the commencement of payment of the outstanding balance of GH¢50,000.00 to plaintiff. Subsequently the plaintiff during the pendency of the action, had the car returned to him and retained the GH¢15,000.00 initial payment made to him by defendant alleging damage caused to the gasket of the car and also loss of use of the car from January to May, 2021 as his reason for doing so. The defendant counterclaim for a recovery of the GH¢15,000.00 initial down payment and also for GH¢4,900.00 being money spent on the car whilst it was in his possession. EVALUATION OF EVIDENCE The evidence before this court in the instant suit can only be construed by the parties conduct and not by any written agreement between them because none was executed by the parties. Theirs was an oral contract. The plaintiff maintains at the trial that after the defendant made an initial down payment of GH¢15,000.00 to him in January, 2021 they agreed that the outstanding balance of GH¢50,000.00 be paid by installment and full payment be made at the end of August 2021. With the payment of the outstanding balance by installment in mind, when defendant failed to make another payment as at March, the plaintiff called the defendant in March 2021 to demand payment. The plaintiff tendered exhibit ‘C’ which is a WhatsApp conversation on 4/3/21 between him and defendant in which the defendant gave an assurance that he was expecting some money from a friend to make payment to plaintiff. The plaintiff relies on this piece of evidence in his exhibit ‘C’ to demonstrate to the court that the parties had agreed on payment by installment for the defendant to liquidate the debt by the end of August, 2021. This informs the plaintiff’s request for payment of an installment in March, 2021 when the defendant had not made another installment payment. The general rule is that in civil cases, the party who in his writ raises issues essential to the success of his case assumes the onus of proof as was espoused in the cases of Faibi v. State Hotels Corporation [1968] GLR 471 and Bank of West Africa Ltd vs. Ackun [1963] 1 GLR 176 SC. The same principle applies to the defendant who makes a counterclaim. The defendant in rebuttal to the plaintiff’s assertion that the parties agreed on installment payment to conclude by the end of August, 2021 explained that the plaintiff’s request for payment in Mach 2021 was emergency money needed by plaintiff to clear his car at the Port. This explanation was denied by the plaintiff. The plaintiff indicated that it was payment as was expected and could not have been labeled as an emergency money. Section 11(4) of the Evidence Act, Act 323 of 1975 requires a party to produce sufficient evidence which on the totality of the evidence leads a reasonable mind to conclude that the existence of the fact was more probable than its non-existence. Section 12(1) and (2) requires proof in civil cases to be proof on the preponderance of the probabilities. Section 12 (1) reads as follows; “Except as otherwise provided by law the burden of persuasion requires proof by a preponderance of the probabilities”. Section 12(2) reads as follows; “Preponderance of the probabilities means that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence”. In the defendant’s evidence in chief particularly in paragraph 11, the defendant stated that his mother was privy to the arrangement between him and the plaintiff which allowed him to start paying the outstanding balance to plaintiff commencing from August, 2021 because he had just received his appointment letter and was expecting payment of his salary by August, 2021. The plaintiff rejected this claim and it behooved on the defendant to have called his mother to corroborate his evidence since the defendant’s mother was a material witness for his case. In the case of Majolabe v. Larbi & Ors [1959] GLR 1990-95 it was held in holding 4 that where corroborative evidence must exist, the court expects a party who makes an averment (which the other side denies) to call such corroborative evidence in support of his own. In the instant case, the defendant’s whose averment as to his mother being aware of his transaction with the plaintiff which the plaintiff denied ought to have called his mother as a material witness to prove his case as required of him under section 14 of the Evidence Act, NRCD 323 of 1975. See also the case of Ashalley Botwe Lands v. Adsei Agbosu & Ors 2003/04 SCGLR at 420. From the foregoing the parties evidence as to whether or not payment of the outstanding balance of GH¢50,000.00 in respect of the car was to conclude by the end of August, 2021 by the defendant, it is my considered view that the plaintiff has amply demonstrated in his evidence to the court that the parties agreed for the balance on the car to be paid fully by the end of August, 2021. The plaintiff further maintains that it was the defendant who intimated to him that he was no longer interested in the car which he had delivered to him which defendant had defaulted in the installment payment up to March 2021. This led to the plaintiff retrieval of the car. Deducing rom the parties conduct, it cannot be said that the plaintiff was in breach of the parties oral contract especially when plaintiff had not received the expected payment by installment as at March, 2021 after the initial down payment in January, 2021. It is the case of the plaintiff that he is retaining the GH¢15,000.00 down payment made to him by the defendant in January, 2021 as compensation for an alleged damage caused to the car gasket whiles it was in the possession of the defendant and also for compensation for loss of use of the car from 11/01/2021 to 6/05/2021. The defendant denied having caused damage to the gasket of the car stating that the car was duly examined by an expert and was found to be in good condition before it was handed over to the plaintiff. The defendant however admitted that the subject matter car had been with him from 11/01/2021 to 6/05/2021. Excerpts of the defendant admission under cross-examination on 29/11/2022 were as follows; Q. The subject matter Toyota Camry car was given to you on 11/01/2021 by the plaintiff. A. That is so. Q. You handed over the car to plaintiff on 6/05/2021. A. That is so. Q. Between 1/01/2021 and 6/05/2021 is a period of 113 days, s that correct. A. Yes, that is so. Q. Do you know how much it cost to rent a car for a day in Sunyani? A. No. I did not approach the plaintiff to rent his car. Q. You will agree with me that during the 113 days you had the car in your possession you denied the plaintiff the use of the car? A. No. The agreement was to buy the car and I bought same. Q. Did the plaintiff gave you the car documents when you made a down payment of GH¢15,000.00 in January 2021 to him. A. No, please. Q. Can you explain why? A. Plaintiff told me he was travelling to Kumasi over the weekend and would give me the document and the agreement on his return. Q. It is never correct that the plaintiff told you he would give you the documents of the car on his return from Kumasi but rather he would give you the document after you have fully paid for the car. A. No, please. Q. You would agree with me that part payment of GH¢15,000.00 did not make you the owner of the car. A. No, please. Q. You were going to be the owner of the car after full payment of the agreed price of GH¢65,000.00. A. No please, it made me the owner of the car per our agreement. Q. So a car which became yours, how come you return same to plaintiff upon a mere request for sale. A. The plaintiff wanted the car back. Q. You failed to make an installment payment as agreed and that was the reason the plaintiff requested for the car as same amounted to a breach of the contract between you and the plaintiff. A. That is not correct. Payment was to begin from August, 2021 when I start receiving my salary. The excerpts from the above cross-examination of the defendant by counsel for the plaintiff reveals the defendant admission to keeping the subject matter car for a period of 113 days. It can also be deduced from the cross-examination that documents covering the car had not been handed over to the defendant meaning title in the car had not passed to the defendant. Had title in the car passed to the defendant upon full payment for the car, the defendant would not have returned the car to plaintiff upon a mere request for him to resell same to a third party. It is not in doubt that an outstanding balance of GH¢50,000.00 in respect of the car had not been paid to plaintiff occasioning a return of the car to him. The request for the return of the car by the plaintiff followed intimation by the defendant that he was no longer interested in the car. This averment by the plaintiff was not denied by the defendant. This was clearly demonstrated by the defendant’s conduct by agreeing to return the car to plaintiff following his request that same be returned to him if defendant failed to pay the outstanding balance to him. The issues set out for the resolution of the court in the instant case are resolved thus far. Issue (i) Whether or not the parties agreed for the defendant to conclude payment of the outstanding balance of GH¢50,000.00 by the end of August, 2021, is resolved as the plaintiff successfully proved his claim that the parties agreed for payment to end by the end of August, 2021 as against the defendant’s denial and averment that payment of the outstanding balance was to commence in August, 2021 and shall take ten months to conclude payment. I also make a finding from the evidence that it was the defendant who breached the parties’ oral contract by intimating to the plaintiff that he was no longer interested in the car and by his conduct did return the car to plaintiff without hesitation. The overdue installment payments to the plaintiff as at March, 2021 and beyond until the car was returned to the plaintiff in May, at the request of the plaintiff in my considered view amounted to a breach of the parties’ oral agreement on the part of the defendant. How else could a reasonable man have acted under the peculiar circumstances to recovery locked up money? The conduct of the defendant was a constructive breach of the parties’ agreement in my respective view. Whether or not the plaintiff is entitled to compensation for loss of use of his car from 11/01/2021 to 6/05/2021 is a matter of fact which the defendant himself admitted to in cross-examination. This brings a resolution to issue two. The cumulative period within which the defendant kept the car from the plaintiff was found to be 113 days. The defendant admitted to keeping the plaintiff’s car for these number of days but was evasive to reckon compensation if he were to rent the car for these number of days. It is my respected view that damages/compensation follows a breach of contractual agreement. In the case of Borketey v. Achinivu & Ors [1966] GLR 92 where a taxicab collided with a bus leading to a complete damage of the taxicab beyond repairs, the Supreme Court in an appeal held that the appellant was entitled not only to the market value of the taxi cab at the date of the accident but also to the profits he would have made had the car remained on the road. (Total or actual loss). The same principle applies to damages in contract as it was applied by the Supreme Court in the case of Royal Dutch Airlines & Another vs. Farmex Ltd [1989-90] 2 GLR 623 at 625. It was held in the following words; “On the measure of damages for breach of contract, the principle adopted by the courts was restitute in intergrum i.e if plaintiff has suffered damage not too remote he must, as far as money could do it be restored to the position he would have been in had that particular damage not occurred. What was required to put the plaintiff in the position he would have been in was sufficient to compensate him for what he has lost. The same principle was echoed in the case of Juxon Smith vs. KLM Dutch Airlines [2005-06] SCGLR 438 at 442. It was held thus “Where a party has sustained a loss by reason of a breach of contract, he was so far as money could do it to be replaced in the same situation with respect to damages, as if the contract had been performed. The authorities cited above underscore the need for the plaintiff to be compensated following a breach of the parties’ oral contract by the defendant as clearly demonstrated in the evidence before the court. The issues 3 and 4 set out for the determination of the court constitute the counterclaim of the defendant against the plaintiff. The issue 3 is the reverse of issue 2 which determined whether or not the plaintiff is entitled to compensation for loss of use of his car from 11/01/2021 to 6/05/2021. Once issue 2 is resolved as entitling plaintiff for compensation, issue 3 is equally resolved as finding the defendant’s counterclaim to recovery in full the initial down payment of GH¢15,000.00 not proved to entitled the defendant for a recovery of same. Issue 4 has to do with whether or not the defendant is entitled to recover money he spent on the subject matter car. The plaintiff denied liability to the defendant’s counterclaim for an amount of GH¢4,900.00 and stated that the defendant was asked to remove the enhancements he fixed in the car but he chose not to remove them. By so doing the defendant has waived his right and cannot turn round to assert same. The defendant also painted the car for his own convenience because title in the car had not passed to the defendant. The defendant had not paid fully for the car and was not given the car documents. The defendant argued that his intention was to buy the car ad he was right in adding value to the car. To resolve this, it is my considered opinion that a party can only deal with a chattel in whatsoever manner including sale or gift to a third party when title in the chattel is vested in him. Intention to own something without taking the necessary steps to actual own the thing is not enough to prove ownership or title to it. Being in possession of a chattel is different from having title and ownership of it. To the extent that the defendant was in possession of the car without title passed to him upon full payment for same, I would agree with the plaintiff’s argument that he painted the car for his own convenience. The defendant also waived his right by failing to remove enhancements fixed in the car before returning same to plaintiff. By the defendant’s conduct, he is estopped from turning round in my view to demand a refund of the money spent in a counterclaim. See the case of Obeng & Ors vs. Assemblies of God Church, Ghana [2010] SCGLR 300 at 320 and Section 26 of the Evidence Act, Act 323 of 1975 which espouses the principle of estoppel by conduct. APPLICATION OF THE LAW The general proposition of the law is that it is the plaintiff who sued the defendant who is to prove his case against the defendant. That generally it is the plaintiff who carries the evidential burden imposed on him against the defendant. However, as was held in the case of In Re Ashalley Botwe Lands case supra, the evidential burden on the other hand is an obligation that shifts between parties over the course of trial. See Section 14 of Act 323/75. It is the burden to adduce sufficient evidence to properly raise an issue in court. Section 14 of the Evidence Act 1975, NCRD 323 also states that the burden of persuasion may shift from the plaintiff to the defendant or vice versa. Sections 12 (1) and (2) requires proof in civil cases on the preponderance of the probabilities. These provisions have been stated in my evaluation of the evidence before the court in the instance case and requires no repetition. Other appropriate case law have also been cited to guide the court in its decision. Guided by the principles of law espoused by the courts in the authorities cited in evaluating the evidence before this court in the instant case and relating same to the facts of this case I am of the considered view that the plaintiff case is found proved on the preponderance of the probabilities. The plaintiff, who maintained at the trial that payment of the outstanding balance for his car was expected to end by August, 2021 was not effectively rebutted by the defendant who denied same and stated that his mother was privy to their agreement but never called the said mother to corroborate his claim. The mother of the defendant is deemed a material witness who ought to have been called to testify as stated in the case of Majolabe v. Larbi supra. The burden had shifted to the defendant to adduce sufficient evidence to avoid a ruling against him. See Section 14 of Evidence Act, Act 323/75. The defendant failed to discharge that burden when it was shifted to him. CONCLUSION In the preponderance of the probabilities therefore, the plaintiff claims are found proved. I also in the same vein find the defendant’s counterclaim not proved to entitle the defendant for a full recovery. The defendant’s counterclaim against the plaintiff are directly converse or reserve to the plaintiff’s claim. The success of one is the failure of the other. The defendant counterclaim therefore fails so I proceed to enter judgment for the plaintiff for the reliefs sought for in respect of his claims; (c) Damages for breach of contract. (e) Compensation for loss of use of the Toyota Camry Saloon car from 11/01/2021 to 6/05/2021. Claims (d) and (f) are discretionary reliefs for the beach to decide. To avoid duplicity of the terms damages and compensation for loss of use which in my view in this context have the same effect, I shall merge the two claims i.e. (c) and (e) and assess damages/compensation for loss of use of the plaintiff’s car for the period of about 113 days i.e from 11/01/21 to 6/05/2021 at GH¢7,910.00 at the rate of GH¢70.00 per day by 113 days which sums up to GH¢7,910.00. The defendant’s counterclaim against the plaintiff is dismissed as same was not proved at the trial on the preponderance of the probabilities as required by the law. I allow cost of GH¢3,600.00 to the plaintiff. H/W JOSEPH H. NASIGRE (DISTRICT MAGISTRATE) 15