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By his writ of summons, which
was subsequently amended, the
plaintiff claims from the
defendants the following reliefs:
(a)
Special damages of GH¢135.00
being medical expenses for
assault.
(b)
General damages of GH¢20,000 for
the invasion of his privacy;
assault on his body and his
wife; unlawful arrest; false
imprisonment; pain and
suffering; the humiliation 5th
defendant inflicted on himself,
his wife and children during his
unlawful arrest; the
apprehension his children
suffered during his unlawful
arrest.
(c)
Costs.
(d)
GH¢1, 396.94 being the balance
of monies 5th
defendant owes plaintiff for
jobs done for him.
The 5th defendant,
upon filing his defence,
counterclaims for the following
reliefs:
(i)
an account of plaintiff’s use of
the GH¢9,500.00 advanced to him
by the 5th defendant;
(ii)
GH¢2,500.00 cedis as
reimbursement for the extra
expense incurred by the 5th
defendant as a result of shoddy
work done on his house, no. 2,
Papao Village, Kisseman,
Haatso, Accra;
(iii)
interest on any money found due
upon taking account and on the
GH¢2,500.00
(iv)
loss of use of house; and
(v)
general damages for breach of
contract.
I propose to approach this
judgment by first stating the
undisputed facts. Then, I would
follow up with the controversial
pleadings and make findings of
facts. Thereafter, I would apply
the law to the facts found and
then draw the conclusion.
1.
Undisputed facts
Sometime in February, 2005, the
5th defendant engaged
the services of the plaintiff to
renovate his house, No. 2, Papao
Village, Kisseman, Haatso,
Accra. The 5th
defendant paid by installments
GH¢9,500.00 to plaintiff. Before
the contract was fully executed,
a misunderstanding arose between
them. The plaintiff, alleging
that the 5th
defendant accused him of
stealing his building material,
summoned the latter before the
Nai Wulomo, that is Numo Tete
III, the Highest Priest of the
Ga Traditional Area. The case
was heard on 23-03-2005 and the
5th defendant was
found guilty and fined which he
paid.
After the proceedings before Nai
Wulomo, the plaintiff and the 5th
defendant, by their solicitor,
exchanged letters with respect
to account of monies paid by 5th
defendant to the plaintiff and
the latter’s fees and other
expenditures the plaintiff made
on the project. The 5th
defendant, by his solicitor’s
letter dated 11-04-2005, made a
demand on the plaintiff to
account to him and the letter
replied by his solicitor’s
letter of 27-04-2005 claiming
fees and other expenditure.
Later on 28-07-2005, the 5th
defendant solicitor responded to
the plaintiff solicitor’s
letter.
Meanwhile, while the above
correspondences were going on,
the dispute took another
dimension. The 5th
defendant alleging that, at 3:30
am on 20-04-2005, the plaintiff
caused a fetish priest to come
to his house at Osu and
threatened him, reported the
case to the Osu Police and the
latter went and arrested the
plaintiff at Dansoman-Agege. The
plaintiff was cautioned and
released on bail. The fetish
priest repeated the same threat
and the case was again reported
to the police.
On 15-05-2005, the police went
and arrested the plaintiff at
dawn for failing to report as
requested. Plaintiff was
released the following day and
given a medical form to attend
hospital on the allegation that
he was assaulted. The plaintiff
duly attended hospital for
treatment.
2.
Disputed Facts
(a) Terms of the contract
The plaintiff alleges that he
agreed with the 5th
defendant for a fee of 30% of
GH¢8,399.80 which is the cost of
the materials for the renovation
works which amounts to
GH¢2,519.94. The 5th
defendant paid him GH¢1,123.00
as part payment for the fee
leaving a balance of
GH¢1,396.94.
The plaintiff says he almost
completed the work when the 5th
defendant stopped him and
accused him of stealing the
material for the work. The 5th
defendant, on the other hand,
alleges that he showed the
plaintiff the renovation he
required to be done and enquired
from him of the estimates and
the length of time it would take
to complete the work. The
plaintiff assured him that it
would cost between GH¢5,000.00
and GH¢6,000.00 and it would
take 2 months to complete. The
plaintiff even wrote the
estimates on his letter-head.
However, after he engaged the
plaintiff and upon his request,
he advanced various sums of
money to him totaling
GH¢9,500.00. After paying this
amount and yet the plaintiff had
still not completed the work, he
asked him to account for the
monies received which plaintiff
failed to do so.
The 5th defendant
denies accusing the plaintiff as
a thief and says when the
plaintiff failed to account to
him he caused his solicitor to
write to him on 11-04-2005 which
brought about the other
correspondences.
The plaintiff alone gave
evidence in support of his
averments on the terms of the
contract. The 5th
defendant denies the plaintiff’s
averment. The onus is thus on
the plaintiff to prove his said
averments and it is now trite
law that the plaintiff cannot be
said to have proved the said
averments by mounting the
witness box and repeating same.
There is a need for
corroboration of such evidence
by credible independent
evidence. As the 5th
defendant has denied the
plaintiff’s said averments the
plaintiff has failed to prove
the terms of the contract as
averred by him.
On the contrary, the 5th
defendant has led credible
evidence to support his averment
that the plaintiff gave him
estimates of between GH¢5,000.00
and GH¢6.000.00. Exhibit 1 is a
letter-head of the plaintiff in
which the plaintiff stated the
estimates as amounting to
GH¢6,500.00. The plaintiff
cannot be a truthful witness
when in his evidence-in-chief he
denied that he gave any
estimates to the 5th
defendant.
However, as to whether the 5th
defendant accused the plaintiff
of stealing his building
materials there is ample
evidence to support his
averment. The decision of the
Nai Wulomo Arbitration Committee
puts this issue to rest for in
my opinion it is an issue
estoppel. The 5th
defendant voluntarily appeared
before the committee for
hearing. I do not believe his
evidence that he was not given a
hearing. The committee heard the
case and gave a verdict which he
complied with. So, I find that
he did say that the plaintiff
was stealing the materials for
the renovation works.
It is the plaintiff’s case that
the 5th defendant
used the Osu police as his
servants or agents or debt
collectors to arrest him. He was
thus arrested by the Osu police
without warrant for no offence
committed. In the course of the
arrest, the police brutally
assaulted him.
The case of the defendants, on
the other hand, is that the
plaintiff caused a fetish priest
to issue threats of death on the
5th defendant and the
latter reported the case to the
police who arrested the
plaintiff. The defendants deny
assaulting the plaintiff and
state that the latter resisted
arrest but he was over powered
and arrested.
The plaintiff did not give any
evidence that the 5th
defendant used the police as
agents to collect debts for him.
On the contrary, he testified
that when he was invited by the
police and he went he was
informed that the 5th
defendant reported to them that
he had threatened to kill him.
So, the plaintiff’s own
testimony betrays him and
destroys his averment that the 5th
defendant used the police to
collect debts for him.
As to whether the police
assaulted the plaintiff, the
latter gave evidence that the
police broke into his room,
arrested and assaulted him, and
forcibly pushed him into the 5th
defendant’s taxi and sent him to
the Osu Police Station where
they again assaulted him. The
plaintiff called a neighbor, one
Ernest Aryeetey Solomon (PW2) as
a witness. He testified that he
saw three people forcibly
pushing the plaintiff into a
taxi. He saw that the
plaintiff’s testicles were
heckled as he was being pushed
into the taxi. When the
plaintiff was sent to the Police
Station he was again slapped at
the counter back.
The defendants testified through
two Police men namely, Lance
Corporal Benifo Kwadwo (D.W. 7)
and Lance Corporal Lord Damtse
(D.W. 8), who arrested the
plaintiff. According to them,
they were sent by the District
Commander of Police, Osu, to
arrest the plaintiff. When they
went, the plaintiff refused to
go with them and when they
wanted to arrest him he
resisted. They, however,
overpowered him and sent him to
the Police Station.
The plaintiff had a case at the
Police Station. He was asked to
report but he refused or failed
to do so. The police went to
arrest him. I believe the
testimony of D.W.7 and D.W.8
that the plaintiff resisted
arrest that was why they had to
forcibly arrest him. In the
course of the arrest, in these
circumstances, it is most
probably true that the plaintiff
testicles were pulled to
overpower him. There is even
evidence from both the plaintiff
and D.W.7 and D.W.8 that they
were biting each other in the
course of the arrest.
From the evidence of both
parties, I find that the 5th
defendant reported to the police
that the plaintiff threatened to
kill him. The plaintiff was
invited to the Police Station
and after cautioning was
released on bail to be
reporting. The plaintiff failed
to report. So, on 15-05-2005,
the police went to arrest him.
He resisted arrest but he was
overpowered and arrested to the
Osu Police Station. In the cause
of the arrest, the plaintiff and
one of the policemen sustained
injuries.
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Application of the law to
the facts
This portion of the judgment is
better dealt with by addressing
the relevant issues which in my
view are the following:
(a)
Whether the plaintiff is
entitled to the sum of GH¢
1,396.94 being the balance of
monies 5th defendant
owes him for jobs done him.
(b)
Whether the 5th
defendant is entitled to call
upon the plaintiff to account
for the GH ¢9, 500.00 advanced
to him.
(c)
Whether the 5th
defendant is entitled to
reimbursement from the plaintiff
for extra expense he incurred as
a result of the uncompleted and
shoddy work done on his house.
(d)
Whether the 5th
defendant is entitled to general
damages for loss of use of his
house and for breach of
contract.
(e)
Whether the defendants
unlawfully arrested the
plaintiff.
(f)
Whether the defendants assaulted
the plaintiff.
The above issues would be taken
in the order in which they are
set out.
Issue (a)
The plaintiff could not give any
credible evidence to prove that
he agreed with the 5th
defendant that the cost of
materials for the renovation of
the house was GH¢ 8, 399.80 of
which his fee for service was
30%. On the contrary, there is
evidence that the plaintiff
stated the estimates in Exhibit
1 as GH¢6,500.00. Moreover, both
the plaintiff and the 5th
defendant have agreed that the
plaintiff ended up collecting
the sum of GH¢9,500.00 from the
5th defendant and as
such the latter is even calling
upon the plaintiff to account
for the said sum. The accounts
would of course take into
consideration the fee payable to
the plaintiff.
So, the plaintiff has failed to
prove this issue and is thus not
entitled to the sum of GH¢1,396.94.
Issue (b)
Following from my finding above,
the 5th defendant who
was given an estimate of Gh¢6,500.00
for the renovation works but
ended up paying Gh¢9,500.00
is entitled to call upon the
plaintiff to account to him.
Issue (c)
The 5th defendant
testified that he spent GH¢2,
500.00 to complete the
renovation works. He did not
testify to any shoddy work that
was done. He called several
witnesses to testify that they
worked for him. The plaintiff
denies that a lot of work was
yet to be done and says it was
left with painting. The 5th
defendant is unable to prove how
he arrived at the figure GH¢
2,500. In my view, therefore,
there is no credible evidence to
prove that the 5th
defendant spent GH¢ 2,500.00 to
complete the renovation for
which he should be reimbursed.
In any case, whatever work was
left undone would be taken into
consideration when the accounts
are taken.
Issue (d)
The 5th defendant has
not testified to the terms of
the contract that the plaintiff
breached. Also, there is
undenied evidence by the
plaintiff that it was the 5th
defendant who stopped him from
completing the work. So, the 5th
defendant cannot now turn to
complain of breach of contract
and loss of use of his house
which is caused by the
plaintiff.
Issue (e)
The plaintiff was already aware
of the case he had at the Osu
Police Station. He failed to
report. Police went to arrest
him. By article 14(2) of the
1992 constitution, the plaintiff
was entitled to be informed of
the reasons for his arrest.
However, the plaintiff already
knew the reasons for his arrest
so there was no need to inform
him again.
Issue (f)
As already found from the
evidence, the Police had to over
power the plaintiff in order to
arrest him when he resisted
lawful arrest. So, whatever
injuries plaintiff sustained was
his own making. From the above,
therefore, the plaintiff has
failed to prove his entire case
and same is hereby dismissed.
For the 5th
defendant, he has proved that he
is entitled to ask for an
account of the plaintiff’s use
of the GH¢ 9,500.00 that he
advanced to him. Also, he is
entitled to interest on any
money found due upon taking the
said account from the time of
payment to the plaintiff at the
current bank rate. Save that,
the other claims of the 5th
defendant are also dismissed.
The defendants are awarded cost
of GH¢5,000.00
COUNSEL
1. Mr. John Opoku for Plaintiff.
2. Mr. Ebenezer Appiah Opare
(Assistant State Attorney) for 1st,
2nd, 3rd
and 4th Defendants.
3. Mr. Akoto Ampaw for the 5th
Defendant.
(SGD.) UUTER PAUL DERY
JUSTICE OF THE HIGH COURT.
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