Okyere Vrs Ofosu [2022] GHADC 255 (7 December 2022)

THE DISTRICT MAGISTRATE COURT HELD AT BEGORO ON WEDNESDAY THE 7TH OF DECEMBER, 2022 BEFORE HER WORSHIP FLORENCE A BAAH DISTRICT MAGISTRATE SUIT NO: A11/16/22 VINCENT OKYERE………………………………………. PLAINTIFF VRS KWASI OFOSU……………………………………………. DEFENDANT Parties: Present JUDGMENT The Plaintiff, Vincent Okyere sued the Defendant, Kwasi Ofosu & Kofi Amankwaa alias Anadwo ye de claiming the following reliefs: 1. An order of the Honourable Court prevailing upon the defendants to purchase the under listed home used parts and fix same in the plaintiff’s Kia Avera Taxi Cab with Registration No. GW 945-09 and spray the said car and further order of the Court prevailing upon Defendants to renew all document(s) in respect of the said car at the insurance office (s) and DVLA and hand over the same to the plaintiff in its perfect working condition forthwith. 1. Four (4) tires 5. Two (2) board sticker 2. Four (4) doors 6. Back tail light 3. Bonnet 7. Boot Avella 4 Front fender 8. Front wind screen 9. Sun shad In the Plaintiff’s statement of claim, he stated among other things that he owns a taxi cab GW 945-09 and that he brought the taxi to Begoro because he was sick and packed it in his house. He subsequently asked 1st Defendant to assist him with a trustworthy driver to drive the said taxi to enable the Plaintiff to pay for his medication. He stated further that later the Plaintiff brought the 1st Defendant after which they negotiated a daily sales of GH¢50.00 and that even though the 2nd Defendant was to drive the car but the care and responsibility of the taxi was in the hands of the 1st Defendant. He stated that after the Defendants took the taxi away, he did not hear from them or see them until he was told the taxi cab was packed at Kumfari near Miaso but he subsequently asked for the taxi to be towed to him at Begoro but the vehicle was packed in the 1st Defendant’s house without the plaintiff’s consent until he was later informed by the 1st Defendant. In the statement of defense, the Defendants denied paragraphs 1,2,4,5,7, and 8. Defendants stated that Plaintiff asked him to look for a driver to drive his packed taxi and so he contacted 2nd Defendant for him and agreed for him to make a daily sale of GH¢50.00. He states further that the taxi needed some repairs such as boot and replacement of bushings of the absorbers. The defendants aver that on same day when plaintiff tried to start the engine for 2nd defendant same did not start initially but upon plaintiff persistent attempt to fix something, same eventually started. Again it was also agreed that there were some repair works to be made on the taxi cab such as the boot and replacement of bushings on the absorbers. The defendants aver that 2nd defendant used the taxi cab on the first day and gave to 1st defendant a sale of GHȼ 40.00 which same was given to the plaintiff after repairing the above mentioned parts of the taxi and promised to add the second day’s sales to the third day’s sale. The 1st defendant mentioned that 2nd defendant on the third day called to inform him that the taxi had developed a fault that the fuel pump was not functioning which same was made known to the plaintiff who gave defendants GHȼ 30.00 to add to the second day’s sales to buy a new fuel pump. The defendants aver that due to the above 2nd defendant could not use the taxi for the intended purpose and plaintiff was duly informed as the taxi cab was left at its parking lot beside the District Assembly. That after the taxi was parked, plaintiff sent his nephew for the key and the battery which were kept in 1st defendant’s house to start the car but same did not start and attributed it to lack of fuel. The 1st defendant state that plaintiff after two weeks of parking the taxi came to complain that he had it in his spirit that 2nd defendant used the taxi and had failed to account for his daily sales which 1st defendant advised plaintiff to ignore that feelings and even reported same to 1st defendant’s mother. The 1st defendant and on behalf the 2nd defendant states that the plaintiff is very much aware that the taxi cab was not in good condition before releasing same to 2nd defendant for use because plaintiff had the intension of selling same which 1st defendant advised plaintiff to fully repair same for a good price. The parties appeared before the Court on the 02/03/22 and when the claim was read and explained to the Defendant he pleaded Not Liable. The case was therefore set down for a full trial for the Plaintiff to prove his claim on the balance of probabilities required by law. After a careful study of pleadings filed the following issues were identified for determination. Whether or not the Plaintiff has succeeded in proving his case against the Defendants beyond the balance of probabilities required by law. Whether or not the Defendants are responsible for damaging the parts being claimed by the Plaintiff. EVALUATION OF EVIDENCE ADDUCED AND APPLICATION OF LAW Section 12 of the Evidence Act, 1975, NRCD 323 provides that proof must be by a preponderance of probabilities. That section defines “preponderance of probabilities” as denoting “a certain degree 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.” This position was confirmed by the Supreme Court in the case of Adwubeng v Domfeh [1997-98] 1 GLR 282 that the standard of proof in all civil actions, without exception, was proof by a preponderance of probabilities. Plaintiff in proving his case called one witness and tendered no exhibits in evidence. Plaintiff told the Court in his evidence as appeared in his witness statement filed to the Court that he was a taxi driver driving his own taxi cab with registration No. CW9 945 in Accra but because of ill-health came to Begoro to seek medical care. He claims the 1st Defendant is his cousin and that about two years ago, he suffered from both legs and became bedridden. As a result, his mother sent him to Begoro for medication. He claims when he was coming to Begoro, he brought his Taxi Cab which is the subject matter in issue along. According to him one day he and his mother (PW1) were in the house opposite the Begoro police station when 1st defendant came to visit him. And that he subsequently asked him whether he will get a credible driver to drive his packed taxi to enable him to get something to support his medication where the Defendant assured him to get a driver for him. He states that three days later, he was in the house with his mother who is also PW1 when defendants approached them to introduce the 2nd defendant to them to drive his taxi cab. As a result, defendants went and inspected the car in issue and they expressed their interest in same, where they negotiated the transaction in the presence of his mother. According to him they agreed that the Defendants will make a daily sales of GHȼ 50.00 and that defendants told them the taxi will operate in Begoro Township (town running). He claims they also agreed that the 1st defendant will take responsibility and care of the said taxi which same was accepted by Defendants. Plaintiff avers that his mother gave defendants GHȼ 50.00 to top the petrol in the tank. Defendants subsequently took the car away but after three (3) days, of using the taxi made sales of GHȼ 40.00 instead of GH¢100.00 of which he later gave the 1st defendant GHȼ 10.00 out of same as a token. He submitted that for more than three (3) weeks, he did not hear from the defendants until they later came and informed him that the fuel pump was damaged. As a result, he gave them GHȼ 30.00 and requested them to add GHȼ 20.00 to make GHȼ 50.00 to enable them buy a new pump for the car. But did not hear from the defendants until a week later, when they came and informed him they have parked the car at Kumfare, a village near Miaso. So he requested defendants to go and tow the car to him in Begoro, which they obliged but about a week later, 1st defendant went to informed him that they towed the car but same had been packed in 1st defendant’s house around the Zoom lion car parked behind the Fanteakwa North District Assembly. He claims consequently, he and his mother went there to have a look at it. On their arrival he ignited the car but same could not ignite, as a result he examined the parts critically where he found that the parts listed on his Writ of Summons and the wires as well as the battery were damaged. He later sent a message through one Ofosu alias Abele to go and inform 1st defendant to buy the damaged parts, fix same and spray the car and renew all the documents in respect of the car at the appropriate quarters and hand over same to him. He avers in conclusion of his evidence that Ofosu came and informed them that, when he delivered the message, the 1st defendant categorically stated that if plaintiff sue them at the Honourable Court they will be in a position to put the car in issue, on the road. And that he found all avenues for defendants to make his car roadworthy but same proved fiasco. He is of the opinion and verily belief that, defendants will not make his car roadworthy unless this Honorable Court compel them. That since the Honourable Court is the forum convenient for the determination of such matters, he filed this action seeking the reliefs endorsed on his Writ of Summons. PW1 was Elizabeth Obese, she told the Court she is a trader and a resident of Begoro She stated in her witness statement to the Court that she knows the plaintiff; he is her biological son and also knows the 1st defendant, as the grandson of her late husband Opanin Buabeng (Plaintiff’s father). According to her about two (2) years ago, the plaintiff had problem with both legs which made him bedridden. Consequently, she brought him to Begoro to seek for medication where the Plaintiff took his Taxi Cab which is the subject matter of the present suit along and packed same in their residence near the Begoro Police Station. She claims one day the 1st defendant paid a visit to the plaintiff where he saw the car packed in their house. Later, plaintiff asked him whether he could get a credible driver to drive the car for him and he replied yes. Some days later. Defendant approached the plaintiff, where 1st defendant introduced the 2nd defendant as the driver to drive the car in issue. According to her Defendants told plaintiff that they will ply Begoro Township (town running), as a result they agreed that, the daily sales was w GHȼ 50.00, which same was agreed by defendants. And that Plaintiff told defendants that the 1st defendant will take responsibility of the taxi, which same was agreed by defendants. She claims she subsequently, gave defendants GHȼ 50.00 to fuel the car because there was not enough fuel in the tank where they took the car away but for some days they only made sales of GHȼ 40.00 instead of GHȼ 100.00. She submitted that she did not hear anything concerning the car in issue until about three (3) weeks later, defendants came and informed the plaintiff that the car in issue was not road worthy and so it had been parked at Kumfere because as the Defendants claim, the fuel pump is damaged. As a result, plaintiff gave them GHȼ 30.00 and requested them to add GHȼ 20.00 to make GHȼ 50.00 to enable them buy a new fuel pump for the car. But did not hear anything again until the 1st defendant later informed them that they have towed the car to Begoro. She submitted further that, plaintiff accompanied her to inspect the car. On our arrival she saw that the car had been packed near 1st defendant’s house around the zoom lion car pack behind the Fanteakwa North District Assembly and clothes and dresses have been dried on it. Pw1 claim further that she saw that the wires in the car, the glasses, the lights and doors etc. of the said car have been damaged and so later plaintiff told one Ofosu a.k.a Abele to go and inform the 1st defendant to make his car roadworthy and hand over same to him (plaintiff). She continued in conclusion that Abele later informed them that when he delivered the message, 1st defendant told him categorically that if plaintiff sue them at this Honourable Court, they will repair the damaged car for the plaintiff. Hence this action. First Defendant testified for himself and on behalf of the 2nd Defendant. In his evidence to the Court as found in his witness statement the 1st Defendant told the Court he lives in Begoro and a carpenter by profession. According to him the plaintiff is considered as an uncle and had been friends who lived together before plaintiff left for Accra while the 2nd defendant is a native of Begoro and a driver. He claims he once visited the Plaintiff upon his return from Accra and was bedridden in his house where plaintiff showed to him a taxi cab belonging to him parked in his house and told him to look for a driver to drive his taxi cab for commercial purpose for plaintiff to use the proceeds to take care of his illness. He contends that for two weeks he could not get a driver as discussed with plaintiff but upon plaintiff’s pressure mounted, compelled him to contact one Mr. Kwaku Attah (1st defendant’s friend) who introduced 2nd defendant to him as a driver. Subsequently, he contacted 2nd defendant for the offer which he accepted hence they met plaintiff where they discussed and he agreed that 2nd defendant makes a daily sales of GHȼ 50.00. He claims for it to be on record that the Plaintiff made countless effort to start the taxi before handing same over to the 2nd Defendant and was further agreed that there were some repair works to be made on the taxi cab such as the boot and replacement of bushings on the absorbers. 1st Defendant contend further that the 2nd defendant used the taxi cab on the first day and gave him a sale of GHȼ 40.00 with the reason being that the above mentioned repairs were made which same was given to the plaintiff and promised to add the second day’s sales to the third day’s sale. That even out of the GHȼ40.00 plaintiff gave him GHȼ10.00 as a token. He added moreover that 2nd defendant on the third day called to inform him that the fuel pump had developed a fault hence not functioning which same was made known to the plaintiff who gave defendants GHȼ 30.00 to add to the second day’s sale to repair same (@ GHȼ 70.00) and bring the taxi cab to plaintiff. Although the fuel pump was repaired, the engine did not start as a result, 2nd defendant could not use the taxi for the intended purpose and plaintiff was duly informed which plaintiff advised that the taxi be parked at its parking lot beside the District Assembly where it used to be parked and the battery removed and be placed on a pallet to avoid it being damaged. And that a week after the taxi was parked, plaintiff sent his nephew for the key and the battery which were kept in his house to start the car but same did not start and he attributed it to lack of fuel. He avers two weeks after parking the taxi, plaintiff came to him and complained that he had it in his spirit that 2nd defendant used the taxi and had failed to account for his daily sales which he advised plaintiff to ignore that feelings and even reported same to his mother. He submitted it was obvious that the plaintiff is very much aware that the taxi cab was not in good condition before releasing same to 2nd defendant for use because plaintiff said on the 1st day when the engine was not starting that the engine had been idle for some time now and suffered whiles driving same to Begoro. Besides Plaintiff’s intension of selling same due to the numerous faults and unworthiness of the taxi to the road which he advised plaintiff to fully repair same for a good price. He claims plaintiff is finding ways and means to make defendants repair the disputed taxi for his personal use because, since the taxi cab never had accident to warrant the damage of the parts mentioned being claimed by the plaintiff. He concluded by contending that the defendants are not the owners of the said taxi cab and have no right to renew the documentations of same as claimed and therefore pray the Honourable Court to consider plaintiff’s claim as baseless and without merit since the taxi was used by the 2nd defendant for only three days and same broke down. I will now proceed to deal with the issues identified for determination Whether or not the Plaintiff has succeeded in proving his case against the Defendants beyond the balance of probabilities required by law On the writ filed by the Plaintiff as shown supra, he stated he handed his taxi cap with registration number GW945-09 to the 2nd Defendant to drive and make daily sales of GH¢50.00 with the responsibility of the said taxi in the hands of 1st Defendant because he introduced the 2nd Defendant to the Plaintiff as a driver at Plaintiff’s request. However, after the first day sales of GH¢40.00 he reported on the third day that the fuel pump was defective, after which he gave them GH¢30.00 to add GH¢20.00 of the second day’s sales to buy a new fuel pump. He claims he did not hear from the Defendants until after three weeks when he was told the taxi was not road worthy and had been parked at Kumfari, near Miaso. He claims he asked for the said taxi to be towed to him at Begoro, but it was towed to the 1st Defendant’s house around the Zoom lion car Park behind the Fanteakwa District Assembly. And when he went to critically examined it he realized the wires, battery as well as the above mentioned parts as appeared on the writ were damaged and requested the Defendants to buy new parts and fixed same in the taxi and also spray it for him. However, he claims all efforts made for the Defendants to do that have failed besides renewing the insurance and road worthy certificate covering the taxi. Defendants in their statement of defense stated as shown supra, that the taxi cap they took from the Plaintiff with a daily sale of 50.00 broke down the third day the vehicle was given to the 2nd Defendant and the Plaintiff was duly informed about it where he gave Gh¢30.00 and asked the 2nd Defendant to add GH¢20.00 of the second day’s sales to it and fix the fuel pump and bring same to the Plaintiff. He contended that the fuel pump was fixed but the taxi could not start. Because of this problem the taxi was parked at its parking lot beside the District Assembly and the Plaintiff was notified. After which Plaintiff sent his nephew to collect the key and the battery which were kept in the 1st Defendant’s house to start the car but same could not start because there was not fuel in it. 1st Defendant avers that the Plaintiff was very much aware that the taxi was not in good condition and was looking for ways for Defendants to fix it for him because the taxi was not involved in accident to warrant the damage of the parts being claimed by the Plaintiff besides the fact that the taxi was not theirs for them to renew the insurance and the Road Worthy certificates covering the disputed taxi. He claims the Plaintiff’s claim is baseless and without merit since the car was used by the 2nd Defendant for only three days. On the evidence above the Plaintiff did not show to the Court the state of the Taxi before and after giving it to the Defendants and even the current state of the taxi is not known for the Court to make a determination on its assessment. In his own assessment, he claims the parts on his writ of summons were damaged and the Defendants were liable. In the defense by the Defendants the 1st Defendant drove the taxi for only three days before it broke down. 2nd Defendant contend further that plaintiff is finding ways and means to make defendants repair the disputed taxi for his personal use because, plaintiff’s taxi cab never had accident to warrant the damage of the parts mentioned and being claimed by the plaintiff. Defendants therefore pray the Honourable Court to consider plaintiff’s claim as baseless and without merit since the taxi was used by the 2nd defendant for only three days and same broke down. PW1 as shown supra corroborated the Plaintiff’s side of the issue about the agreement concerning the usage of the taxi which the Defendants do not dispute. The issue for determination by this Court is whether or not the Defendants are liable for damaging the parts the Plaintiff is seeking them to replace as listed on the writ of summons by Plaintiff. For the Court to order the Defendants to do as he is seeking, the evidential burden is on the Plaintiff to lead sufficient evidence to prove to the Court that the Defendants are indeed liable for damaging the taxi for which the Court can find them liable. Unfortunately, as the case stands, in the evidence on record by the Plaintiff, there was no evidence of the taxi before giving it to the Defendants and neither did he also show in his evidence the state of the taxi currently, from which the Court can make an inference that the Defendants are liable as to the claim he seeks. Neither was is shown to the Court, how long the taxi was packed at its current location. In his evidence he did not show that the taxi was involved in an accident within the three weeks the taxi was in possession of the Defendants. Defendants also contended that the taxi was not involved in an accident within the three weeks the taxi was in their possession. The Plaintiff’s evidence was silent on the agreement he made with the Defendants to renew the road worthy certificate and the insurance which are personal obligations on the owners or users of vehicles in Ghana. Whether or not the documents for the renewal were with the Defendants and an agreement was reached with them to renew same, from which they failed do so, the Plaintiff’s evidence did not mention. It baffles the Court how the taxi parts such as appeared on the writ such as the four tires, four doors, bonnet, front fender, sun shade, back tail light, boot Avella and front wind screen could be damaged within three weeks of usage for which the Defendants are liable when there is no shred of evidence on record to show the veracity and credibility of the said assertion that the said parts were damaged within the three weeks period the said taxi was in the possession of the Defendants, when the said taxi had not been involved in an accident. How the Defendants became responsible for renewing the insurance and the road worthy certificates covering the taxi was not also mentioned. Since by law they are mandatory requirements for owners and users of vehicles to do with certain information on the vehicle known to the owner before same could be renewed annually. Without cogent evidence on these issues, since the burden of persuasion is on the Plaintiff, the Court would have no basis to base its determination to find the Defendants liable and enter judgment in favour of Plaintiff. Upon a careful consideration of the Plaintiff’s case, I hold humbly that the Plaintiff woefully failed to prove his case beyond the preponderance of the probabilities required by law for the civil burden of proof to be discharged. Whether or not the Defendants are responsible for damaging the parts being claimed by the Plaintiff As held supra, since the persuasive burden is on the Plaintiff to lead sufficient evidence to prove what he seeks, coupled with facts on record that the Plaintiff woefully failed to discharge that persuasive burden required for judgment to be in his favour, what the Defendants said in defense of the claim that the Plaintiff is only devising a way for them to fix his already damaged taxi for him could be true. On the evidence , it was found as a fact that there was an agreement between the Plaintiff and the Defendants for the 2nd Defendant to drive the Plaintiff’s taxi GW 945-09 for commercial purpose and to make a daily sales of GH¢50 .00 . It was also found as a fact that the taxi was in the Possession of the Defendants for three weeks. For the 1st Defendant to drive and 2nd Defendant to be responsible for the upkeep of the taxi since he introduced the 1st Defendant to the Plaintiff at his request. Moreover, it was found as a fact that the Plaintiff was made aware by the 1st Defendant when the disputed taxi was packed at its current location. On the totality of the evidence adduced before me, I hold that the Plaintiff has failed in prove his case on the balance probabilities required by law. Claim is accordingly dismissed. Costs of GH¢500. 00 for the Defendants against the Plaintiff. DECISION: Plaintiff has failed to prove his case on the balance of probabilities required by law. Claim is accordingly dismissed. Costs of GH¢500. 00 for the Defendants against the Plaintiff. …………………………………… FLORENCE A. BAAH (DISTRICT MAGISTRATE) 9