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JUDGMENT:
The Plaintiff has sued the
Defendants for the following
reliefs:
“a. USD7,000 and GH¢5,300 paid
to the Defendant against the
purchase of a Saturn Vue Vehicle
– 2006 model.
b. Interest on the said amount
at the prevailing commercial
rate from 2nd October
2009 to date of final payment.
c. Damages for breach of
contract.
d. Further and other
relief.
e. Costs for bringing this
action on full recovery basis
including
solicitor’s costs.”
The Plaintiff’s case, per his
pleadings and the evidence led,
is that upon his return to Ghana
from the USA to take up an
appointment, he required a
vehicle urgently for his work as
he had been relying on the
hiring of commercial vehicles to
and from work at great cost to
him. In July 2009, the 1st
Defendant offered a 2006 model
of a Saturn Vue Vehicle for sale
to him. According to the
Plaintiff, the vehicle was
described to the Plaintiff as
“accident free and dent free and
ready for use.” The 1st
Defendant introduced the 2nd
Defendant on phone as his Agent
in Ghana. Consequently, the 2nd
Defendant contacted the
Plaintiff and confirmed his
relationship as the 1st
Defendant’s Agent. The vehicle
which was to be shipped from the
U.S.A. by the 1st
Defendant to the Agent in Ghana,
was priced at USD16,800 The
Plaintiff paid a total of
USD7,000 to the Defendants in
Ghana.
It is Plaintiff’s further case
that the 1st
Defendant understood that time
was of the essence and following
the urgency attached to the
transaction the 1st
Defendant warranted that the
vehicle would arrive in Ghana by
the end of August 2009.
However, it was not until 28th
September 2009 that the
Plaintiff got to know that the
vehicle had arrived at the Port
of Tema when the Defendants
requested the Plaintiff to pay
GH¢5,300 to a Clearing Agent, to
have the vehicle cleared. And
even though the Plaintiff
insisted on seeing the vehicle
at the Port to verify for
himself the state in which the
vehicle was before paying the
clearing fees, Plaintiff says
that the Defendants managed to
scheme him out of seeing the
vehicle at the Port, but
succeeded in getting him to
release the sum of GH¢5,300 to
the Clearing Agent who cleared
the vehicle.
The Plaintiff also says that it
was not after weeks subsequent
to clearing of the vehicle that
he saw it for the first time at
the 2nd Defendant’s
house. The vehicle at the time
had been involved in an accident
and could not be started due to
mechanical faults resulting from
the accident. This, the
Plaintiff contends, was contrary
to the warranty given to the
Plaintiff that the vehicle was
accident free and dent free and
ready for use. The Plaintiff
rejected the vehicle and
demanded a refund of the amounts
of USD7,000 and GH¢5,300 which
he had paid for the vehicle.
Subsequently the Defendants sent
the vehicle to a garage at
Mamprobi in Accra where it
underwent mechanical repairs,
bodyworks and spraying. The
Defendants were asking the
Plaintiff to pay the difference
so that he could have the
vehicle.
The Plaintiff claims that the
Defendants colluded to sell an
accident vehicle to him as an
accident free vehicle. The
Plaintiff claims further that he
has suffered damages as a result
of the conduct of the
Defendants. Plaintiff testified
that on the 7th of
June 2011, the Defendants paid
an amount of US$3,000 to
Plaintiff through the
Defendants’
The Defendants on the other hand
deny in their pleadings, the
Plaintiff’s assertions and
contend that the vehicle in
question was valued at US$10,000
and an additional amount of
US$2,000 was to be paid by
Plaintiff to cover freight
charges. It is the contention
of the 1st defendant
that he informed Plaintiff that
the said vehicle was an accident
vehicle which had been repaired
after a tree fell on the top
while it was parked in the USA.
That, pictures of the vehicle as
well as pro-forma invoices,
indicating the chasis number of
the vehicle were sent to the
Plaintiff before Plaintiff
completed negotiations with the
1st Defendant on the
sale of the vehicle. After the
parties had settled on the
purchase price of US$12,000 as
well as the terms of payment.
The Plaintiff paid various sums
of money totalling US$7,000.
Thereafter, 1st
Defendant, in the presence of
the 2nd Defendant,
gave a quantity of vehicle parts
to Plaintiff with the clear
understanding that those parts
would be needed and used by the
Plaintiff to fix on the said
vehicle. The Plaintiff
subsequently went to the Port of
Tema to see the Clearing Agent
and to negotiate the release of
the vehicle to him. Plaintiff’s
request was however turned down
by the Clearing Agent because he
could not satisfy the Clearing
Agent that he had fully paid the
amount of GH¢5,300 for the
vehicle to warrant its release
to him.
Defendants deny ever scheming
the Plaintiff out of seeing the
vehicle at the Port of Tema.
Defendants say further that the
clearing charges were
voluntarily paid by the
Plaintiff to the Clearing
Agent. It is also the
contention of the Defendants
that after the contract had been
made between the Parties,
Plaintiff sought to place
additional responsibility on the
1st Defendant to have
the vehicle sprayed at 1st
Defendant’s cost, and this was
objected to by the 1st
Defendant .
The Defendants have
counter-claimed for the
following:
i.
An order for specific
performance for the Plaintiff to
pay to the 1st
Defendant, the sum of US$5,000
being outstanding balance on one
used Saturn Vue (2003) model
sold to Plaintiff by the 1st
Defendant but which Plaintiff
has refused, failed or neglected
to fully pay.
ii.
Interest on the said US$5,000
at the prevailing bank lending
rate from the 1st day
of November, 2009 up to and
inclusive of date of final
payment.
iii.
An order that the Plaintiff is
in breach of contract.
iv.
Damages for breach of contract.”
After the Plaintiff led his
Evidence in Chief, the Court
adjourned and served the
Defendants notice to come to
Court to cross-examine Plaintiff
and also defend the suit.
Neither the Defendants nor their
Counsel appeared in Court at the
next adjourned date. The
Defendants were thus deemed to
have waived their right to
cross-examine the Plaintiff and
also to defend the suit. In the
case of Ankumah v. City
Investment Co. Ltd. [2007-2008]
SCGLR 1064 the Supreme Court
held that the trial court
rightly held that a court is
entitled to give judgment if the
party fails to appear after
notice of proceedings has been
given to him. For then, it
would be justifiable to assume
that he does not wish to be
heard.
It is trite learning that
pleadings are not substitute for
evidence. Our Evidence
Decree, 1975 (N.R.C.D 323)
as interpreted in Ababio v.
Akwasi III [1994-95] Ghana Bar
Report, Part II, 74 is
that a party whose pleadings
raise an issue essential to the
success of the case assumes the
burden of proving such issue.
By section 21 (a) and (b) of the
Evidence Decree, a Judge may
find that the evidence of the
party with the right to begin
has so effectively established
the basic facts that a
reasonable mind must necessarily
conclude that their existence is
more probable than their
non-existence. Where this
situation arises, the Judge has
to find that the resulting
presumed facts have been
established; that is, a prima
facie case has been
established in favour of the
plaintiff or the person on whom
lies the burden of persuasion,
unless and until the party
against whom the presumption
operates proves the
non-existence of the presumed
fact.
In Re Ashalley Botwe Lands:
Adjetey Agbosu & Ors v. Kotey &
Ors [2003-04] SCGLR 420, the
Supreme Court per Brobbey JSC
reiterated the position of the
law that it is the duty of the
plaintiff who took the defendant
to court to prove what he
claimed he is entitled to from
the plaintiff. However, 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
realise that the determination
cannot be made on nothing. If
the defendant desires the
determination to be made in his
favour, then he has the duty to
help his own cause or case by
adducing before the court such
facts or evidence that will
induce the determination to be
made in his favour.
As stated by Justice Mensa
Boison JA in the case of
Acquaye v. Awotwi [1982-83] 2GLR
1110, the testimony of a
plaintiff is presumptive
evidence which is rebuttable.
The learned Judge stated as
follows:
“For it is a well-known rule of
evidence that although proof in
a civil case rests on the
Plaintiff, this burden is
discharged when once the
Plaintiff has introduced
sufficient evidence of the
probability of his case”
The Defendants herein therefore
had a duty to lead evidence to
rebut the evidence adduced on
behalf of the Plaintiff, but
they failed to do so.
The position of the law was
succinctly stated in the case of
In Re Krah (decd); Yankyeraah
and Others v. Osei-Tutu and Anor
[1989-90] 1 GLR 638 at 639 SC
as follows:
“Having failed to put their case
across, the Defendants must be
presumed to have accepted the
case put forward by the
plaintiff …………..”
In my view, the Plaintiff led
credible and cogent evidence to
prove his case, and I believe
him. I will therefore give
judgment in favour of the
Plaintiff on the four corners of
the Plaintiff’s evidence. I
will accordingly hold that the
Plaintiff is entitled to recover
from the Defendant the sum of
US$7,000 less the amount of
US$3,000 paid to the Plaintiff
in June, 2011. Plaintiff is
also entitled to recover the sum
of GH¢5,300. Plaintiff is
further claiming interest on the
said amounts.
The basis of awarding interest
on amounts due and owing was
succinctly stated by the eminent
Lord Denning in the case of
Harbutt’s Plasticine v. Wayne
Tank Co. Ltd [1970] 1 All ER 225
as follows:
“...it seems to me that the
basis for an award of interest
is that defendant has kept the
plaintiff out of his money; and;
the defendant has had use of it
himself. So he ought to
compensate the plaintiff
accordingly”
Also, by virtue of the Court
(Award of Interest and Post
Judgment Interest)Rules,
2005 (C.I. 52), if the Court
decides to make an order for the
payment of interest on the sum
of money due to a party in an
action, the interest shall be
calculated:
a.
At
the bank rate prevailing at the
time the order is made, and
b.
At
simple interest
As stated above, Defendants paid
US$3,000 to the Plaintiff in
June 2011, therefore reducing
the principal amount owed to
Plaintiff to US$4,000. The
Plaintiff is claiming interest
from 2nd October,
2009. I will find that interest
shall be paid on the sum of
US$7,000 or its equivalent at
the prevailing bank rate from 2nd
October, 2009 until 7th
June 2011. Subsequently,
interest shall be paid on the
outstanding balance of US$4,000
or its cedi equivalent at the
prevailing bank rate from 7th
June 2011 until date of final
payment. Interest shall also be
calculated on the sum of
GH¢5,300 at the prevailing bank
rate from 2nd
October, 2009 until date of
final payment; and I shall so
hold.
Plaintiff is also making a claim
for damages for breach of
contract. Dr. S. Twum JSC in
Delmas Agency Ghana Ltd v. Food
Distributors International Ltd
[2007-2008] SCGLR 748
stated that, general damages are
such as the law will presume to
be the natural or probable
consequences of the defendant’s
act. It arises by inference of
the law and therefore need not
be proved by evidence. The law
implies general damage in every
infringement of an absolute
right. The catch is that only
nominal damages are awarded.
Where the Plaintiff had suffered
a properly quantifiable loss, he
must plead specifically his loss
and prove it strictly. If he
does not, he is not entitled to
anything unless general damages
are also appropriate.
I will find that the Plaintiff
is entitled to an award of
general damages and order that
Defendants pay to Plaintiff an
amount of GH¢2,000 by way of
damages.
In conclusion, I will dismiss
Defendants’ counter claim in its
entirety for want of proof.
Costs assessed at GH¢3,000
against the Defendant.
(SGD)
BARBARA ACKAH-YENSU (J)
JUSTICE OF THE HIGH COURT
COUNSEL
J.A. LARKAI
- PLAINTIFF
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