|
On 25-06-2008, David Darko, who
says he is a Ghanaian ordinarily
resident in the United States of
America, caused a Writ of
Summons to issue against the
defendant, Roland Atta Kesson,
by which he claims the following
reliefs:
(i)
A declaration that the plaintiff
is the bona fide owner of BMW X
3 vehicle with chassis number
WBXPA-93466-WD-30719.
(ii)
An order releasing the said
vehicle which is under
preservation to the plaintiff.
(iii)
An order compelling the
defendant to pay Ghana cedis
equivalent of US $100 per day
from the date police impounded
the vehicle till date of release
for loss of use.
(iv)
An order compelling defendant to
pay cost to plaintiff.
(v)
Costs.
The case of the plaintiff is
that sometime in February, 2007,
he imported a BMW X 3 cross
country vehicle to Ghana for his
use. When the vehicle arrived in
Ghana, he engaged the services
of a clearing agent who cleared
the vehicle from the Tema
Harbour after he, the plaintiff,
had paid the requisite import
duty and other charges. He used
the vehicle for a while and
decided to sell it before
leaving for the United States.
To ensure that the vehicle was
sold in good times, he informed
friends and acquaintances to
pass on his decision to sell the
car. From time to time, some
friends came for it to show
prospective buyers who wanted to
test drive. One friend came for
it to enable a buyer test drive
but failed to return it so he
reported the case to the police.
The police mounted a search for
the vehicle and retrieved it
from a white man who claimed to
have purchased it but failed to
prove having paid the money to
him (the plaintiff) or anybody
else.
After retrieving the vehicle, he
entrusted same to the care of
his relation, Emmanuel Mensah,
before he left for the United
States. While in the United
States, his said relation
informed him that an
acquaintance of his (the
plaintiff) had indicated that he
had a buyer who wanted to test
drive the car whereupon he
instructed his relative to
accompany the acquaintance and
oversee the test driving.
However, as soon as they got
unto the street, some policemen,
ostensibly in waiting, arrested
them and impounded the vehicle.
The police sent them and the
vehicle to the police station
and there the defendant who was
waiting claimed ownership of the
vehicle. The plaintiff’s
relation challenged the
defendant to prove his claim but
he could not yet his relation
was charged for stealing and
arraigned before the Circuit
Court.
It is the contention of the
plaintiff that he is the bona
fide owner of the vehicle in
issue and he has not sold it to
anybody and still has in his
possession the original
documents covering it. He says
the defendant intends using the
security agencies to intimidate
and deprive him of his bona fide
property. Thus, this action.
The case of the defendant is
that it is the practice of the
plaintiff to arrange with
friends to defraud prospective
buyers of the car by causing the
said friends to conclude sale
transactions with prospective
buyers only for the plaintiff to
turn round and have the sale set
aside pretending not to be aware
of the transaction and later on
share the proceeds of sale with
the friends and that one of the
said friends admitted and
conferred to the foregoing when
the defendant arrested him.
The defendant contends further
that sometime in March, 2007, he
entered into an agreement with
Eric Asamoah and Nii Okai (the
plaintiff’s friends) by which
they agreed to sell the vehicle
in dispute to him for an amount
of $23,000.00. He subsequently
made a part-payment of $10,
000.00 to Eric Asamoah and Nii
Okai and the latter promised to
hand over the original documents
of the car to him at the
Licensing Office, Accra, on
Monday and effect the necessary
transfers since according to
them the plaintiff had travelled
to Winneba for a funeral. On the
agreed day, Eric Asamoah and Nii
Okai, however, failed to turn up
and could not be traced.
Later on, Community 18 police,
led by one Inspector Gyan,
arrested the defendant’s driver
and an expatriate friend of his
with the car on an allegation
that the car was reported to
have been stolen the previous
day. Inspector Gyan, in spite of
the defendant’s protest,
released the car to the
plaintiff the next day.
The defendant contends that he
petitioned the CID Headquarters
and a new police investigator
was assigned to the case and the
latter arrested Eric Asamoah and
several other people and
arraigned them before the
Circuit Court, Accra. Upon
hearing this, the plaintiff hid
the car and bolted to the United
States. The plaintiff returned
to Ghana and was attempting to
sell the car when the new
investigator, upon a tip off,
impounded the car and sent same
to the CID Headquarters. The
plaintiff, however, escaped and
returned to the United States,
again.
It is, finally, the case of the
defendant that Eric Asamoah and
Nii Okai confessed to the deal
between the plaintiff, Inspector
Gyan and themselves and said the
plaintiff gave each of them
(that is Eric and Nii) thirty
million cedis (GH¢30m) while
Inspector Gyan received $2,300.
Eric Asamoah and Nii Okai,
subsequently, refunded fourteen
million cedis (¢14m) to the
police while Inspector Gyan
refunded eight million cedis
(¢8m) and $700.
The defendant, therefore, says
the plaintiff is not entitled to
his claims.
In reply, the plaintiff denies
being in connivance with friends
to defraud people and that if
Eric Asamoah and Nii Okai
confessed to the said fraud at
all, it is not known to him and
does not bind him.
The plaintiff, also, denies
receiving any payment and if
defendant paid for the vehicle
it was his responsibility to
ensure that he dealt with the
real owner.
At the application for
directions, the following issues
were set down for trial.
(a)
Whether or not the vehicle,
subject matter of dispute
belongs to the plaintiff.
(b)
Whether or not there was a
contract of sale between the
plaintiff and defendant.
(c)
Whether or not the said Nii Okai
and Eric Asamoah had plaintiff’s
mandate to sell the car
(d)
Whether or not the said Nii Okai
and Eric Asamoah passed the
property and its title to the
defendant.
(e)
Whether or not the defendant was
prudent and bona fide purchaser.
(f)
Whether or not any title of
ownership passed from plaintiff
to defendant.
(g)
Whether or not plaintiff
benefitted from the alleged
payment from defendant.
Two witnesses, namely, Emmanuel
Mensah (P.W. 1) and Samuel Elike
Klu (P.W. 2) gave evidence in
support of the plaintiff’s case.
The evidence of P.W. 1 is that
he has been clearing the
plaintiff’s vehicles whenever he
imported them to Ghana. He
cleared the vehicle in issue and
a prospective buyer went to test
drive it but bolted. After the
case was reported to the police,
the vehicle was impounded and
returned to him. Later upon
instructions from plaintiff, he
accompanied another prospective
buyer to test drive the vehicle
but he was arrested by the
police and the vehicle
impounded.
P.W.2’s evidence is that he got
to know the plaintiff in the
course of his duties as a law
clerk to his solicitors. In the
process, he was directed by the
plaintiff to send the vehicle
from the police headquarters to
a garage pursuant to a
preservation order from the
court. The plaintiff, also, gave
the original document of the
vehicle to his solicitors and
the latter gave same to him for
safe-keeping which documents he
tendered in evidence as Exhibit
A.
The defendant alone testified in
his defence. His evidence is
that Eric Asamoah and Nii Okai
Ayitey brought the car in
dispute to a hotel at Abelemkpe
where he was lodging with an
Indian friend and told him it
was for the plaintiff and they
had his permission to sell it.
They bargained and agreed at the
price of $23,000.00 which he
paid the cedis equivalent in two
installments. He tendered the
photocopies of the receipts,
subject to replacing same with
certified true copies of the
originals which he explained
were with a court trying the
criminal aspect concerning the
same car issue. He has, however,
failed to produce the said
certified true copies. The
photocopies of the two receipts
were tendered and marked as
Exhibits 1 and 2.
The defendant testified,
further, that after payment, the
two people gave him photocopies
of the original documents and
asked him to meet them at the
Licensing Office at Accra on a
Monday for the original
documents and to effect the
transfer of ownership. He went
to the Licensing Office on the
agreed date but waited in vain.
When he called their telephone
lines, they were off.
One day, his Indian friend was
using the vehicle when he was
arrested by Tema Community 18
police, led by one Inspector
Gyan, on the ground that the
vehicle was stolen from the
plaintiff. He went there and
gave his side of the story yet
the vehicle was released to the
plaintiff. Aggrieved by the
conduct of the Community 18
police, he petitioned the CID
Headquarters where a different
investigator was assigned to the
case and he saw the vehicle with
P.W. 1 and impounded it and
arrested P.W.1. Eric Asamoah and
Nii Okai were also arrested and
they have been arraigned before
the Circuit Court.
The first issue is whether the
vehicle in dispute belongs to
the plaintiff.
The answer is not difficult to
find. Even in the pleadings,
both parties admit that the
vehicle belongs to the plaintiff
but the defendant is trying to
convince the court, in his
evidence, that he duly purchased
the said vehicle from the
plaintiff through plaintiff’s
agents, Eric Asamoah and Nii
Okai.
The onus is, therefore, clearly
on the defendant to prove his
purchase. The only evidence the
defendant provided is a
repetition of his averments
supported by the receipts of
purchase, that is, Exhibits 1
and 2, which evidence the
plaintiff denies. Exhibits 1 and
2 speak for themselves. Exhibit
2 is quite instructive and it is
worth reproducing in this
judgment. It states as follows:
“… Eric Asamoah/Nii Okai Ayitey
acknowleges (sic) receipt of an
amount of ¢220,800,000.00 … from
Rowland Atta-Kesson as the full
payment of the price of one BMW
X 3 on the 30th of
March 2007.”
Exhibit 2 is signed by the three
people, Eric Asamoah, Nii Okai
Ayitey and the defendant. There
is nothing in Exhibit 2 to show
that the vehicle mentioned
therein is the vehicle in
dispute and more importantly
that Eric Asamoah and Nii Okai
Ayitey received that money for
and on behalf of the plaintiff.
On the contrary, the evidence of
P.W.1 and 2 clearly shows that
the plaintiff imported the
vehicle in dispute from the
United States (See Exhibit A).
That, prima facie, is evidence
that the vehicle belongs to him.
The defendant, as indicated
above has failed to prove that
he purchased the plaintiff’s
said vehicle from the plaintiff
either directly or from his duly
authorized agents.
The second issue, that is,
whether or not there was a
contract of sale between the
plaintiff and the defendant, is
already answered in the
negative. There is no evidence
of contract of sale between the
parties.
In the same way, the third
issue, that is, whether Eric
Asamoah and Nii Okai had
plaintiff’s mandate to sell the
vehicle is also answered in the
negative. As stated earlier, the
onus is on the defendant to
prove that the people who sold
the vehicle to him had authority
from the owner of the vehicle,
that is, the plaintiff. The
defendant failed to prove same.
From his own evidence, the
defendant never spoke to the
plaintiff in connection with
this transaction. He relied on
what Eric Asamoah and Nii Okai
told him which is of no
evidential value. What they told
him is not convincing enough
that they really spoke to the
plaintiff and had his consent to
sell the car to the defendant.
The fourth issue, that is,
whether Nii Okai and Eric
Asamoah passed the property and
its title to the defendant is an
obvious no. They could not pass
property which they did not own.
The defendant, as stated
earlier, has also failed to show
that they acted as the
authorized agents of the
plaintiff.
The fifth issue, that is,
whether the defendant was
prudent and bona fide purchaser,
from the defendant’s own
showing, can only be answered in
the negative. He bought a
property without seeing or
hearing from the owner. A
prudent, purchaser of course,
needed to see the original
documents before paying the last
installment. It is also not
prudent to just rely on the
alleged agents anytime they told
him that they were speaking to
the plaintiff. Indeed, the
defendant who says he is a
businessman did not exercise
caution in this transaction as
expected of him.
The sixth issue is whether any
title passed form plaintiff to
defendant. The defendant, from
the evidence, did not buy any
vehicle from the plaintiff so he
cannot expect title in the
vehicle to pass to him whether
in law or equity.
The last issue is whether the
plaintiff benefitted from the
alleged payment made by the
defendant. It is the defendant
who alleges so he must prove it.
It is not enough for the
defendant to say that the
plaintiff might have received
the money he paid to Nii Okai
Ayitey and Eric Asamoah. The
plaintiff has denied receiving
any such money and the defendant
has not provided any credible
independent evidence to
corroborate his evidence.
From the above findings, it is
clear that the plaintiff has
proved his case. The defence put
up is a complete sham. The
plaintiff is, accordingly,
entitled to his claims as
follows:
(1)
A declaration that he is the
bona fide owner of BMW X 3
vehicle with chassis number
WBXPA-93466-WD-30719.
(2)
An order releasing the said
vehicle which is under
preservation to him.
For the loss of use, the
plaintiff is claiming US$100,
per day, from the date the
police impounded the vehicle
till date of release for loss of
use. The plaintiff has, however,
not led any evidence to
establish why he should be paid
this sum for loss of use. I
would, therefore, award him
general damage for loss of use
which I fix at GH¢5,000.00.
The plaintiff, also, claimed an
order to compel the defendant to
pay cost to the plaintiff. He
has not stated what kind of cost
and compounded the confusion by
asking for costs, simpliciter.
On these arms of claims, I
assume that it is for the cost
of litigation which I fix at GH¢2,000.00.
COUNSEL:
1. Mr. Osei Owusu for Plaintiff.
2. Mr. Benjamin Ampoma Boateng
for Defendant.
(SGD.) UUTER PAUL DERY
JUSTICE OF THE HIGH COURT.
|
