Acquaye v Adamah and Another (GJ/1866/2019) [2025] GHAHC 83 (20 March 2025)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, INDUSTRIAL AND LABOUR DIVISION 2 HELD IN ACCRA ON THURSDAY THE 20TH DAY OF MARCH 2025 BEFORE HER LADYSHIP JUSTICE ANANDA J. AIKINS (MRS) JUSTICE OF THE HIGH COURT. SUIT NO. GJ/1866/2019 ADOTEI ACQUAYE PLAINTIFF VRS 1. SAMANTHA ADAMAH DEFENDANTS 2. ISAAC ADU GYAMFI COUNSEL FOR THE PLAINTIFFS: THEODORE E.N AYI-BONTE ESQ. COUNSEL FOR THE DEFENDANTS: AKOSUA GYAMFI DUAMROH ESQ. JUDGMENT INTRODUCTION 1 The plaintiff sued the two defendants for the following reliefs: - a) Specific performance for the delivery of caterpillar 330BL to the plaintiff or in the alternative a refund of the amount of forty-six thousand United States dollars (USD 46,000.00) being monies paid to the defendants for the purchase of caterpillar 330 BL, plus interest at the time of payment at the prevailing Bank of Ghana interest rate; b) General damages for breach of contract. c) Legal costs d) Any further reliefs as this honorable court may deem fit. The defendants, in their response to the writ, denied liability for the claims made by the plaintiff and at the close of pleadings the parties filed their respective issues for the consideration of the court. The plaintiffs’ issues were as follows: - 1) Whether or not the defendants represented to the plaintiff that they bought and sold excavators from China? 2) Whether or not the defendants sold the excavator caterpillar 330 BL to plaintiff? 3) Whether plaintiff made payments to the defendants for the purchase of the excavator? 4) Whether or not the excavator which 2nd defendant represented to the plaintiff was what was shipped to plaintiff? 2 5) Whether or not the excavator 2nd defendant shipped to the plaintiff was functioning? 6) Any other issues arising from the pleadings. The defendants’ additional issues were also as follows: - 1) Whether or not any alleged defects in the excavator is attributable to the defendants? 2) Whether or not the plaintiff is entitled to claim the cost of repairs of a 2nd hand vehicle from the defendants or at all? CASE OF PLAINTIFF According to the plaintiff, somewhere in March 2019, he contacted the 1st defendant to assist him in buying an excavator caterpillar 330BL from China. He claimed the 1st defendant told him that the 2nd defendant could help or assist in this venture. The plaintiff said he was given different pictures of excavators and he chose one after which he gave a total sum of forty-six thousand US dollars to the defendants for the purchase and shipment of the caterpillar 330 BL he had chosen from China to Ghana. The plaintiff also said that after clearing the excavator from the Tema port, he had it assembled and that was when he found out or realized that what he had received was significantly different from the samples or pictures that had been sent to him by the defendants. The plaintiff also claimed that the excavator he received was faulty and not fit for the purpose for which it was bought. He said he drew the attention of the defendants to the 3 defects on the excavator and requested them to remedy the defects but the defendants did not comply with his request. He said he lodged a complaint to the police at Dawhyena and that the police investigations revealed that the defendant had delivered a faulty excavator to the plaintiff. The plaintiff continued to say that despite several demands made on the defendants to remedy the breach of the contract, they remained adamant hence his resort to this court for the reliefs referred to supra. CASE OF DEFENDANTS According to the defendants, they only assisted the plaintiff in purchasing an excavator from China and in shipping same to Ghana. They claimed they never sold the excavator to the plaintiff. The defendants said their assistance to the plaintiff took the form of searching the various websites which advertised excavators for sale and passing on to the plaintiff the information they gathered from these websites including photos of the excavators. They said the plaintiff eventually settled on an excavator from a company by name Machinery Trade Group Company Ltd and he decided to purchase same at a price agreed with the seller. The defendants continued to say that they only facilitated the payment for the excavator from the plaintiff to the seller. The defendants acknowledged that the plaintiff did complain to them about the excavator being faulty but the 2nd defendant claimed that when he went to the site to inspect the excavator, he realized that it was the plaintiff and his operator who could not navigate the machine and that there was really no fault with the machine, save the normal wear and tear associated with a second hand machine. It was also the position of the defendants that the chassis number on the machine that the plaintiff selected before shipment of same was made to the plaintiff was the same number 4 on the machine that was actually shipped to the plaintiff and therefore the plaintiff cannot say that he received a different machine or excavator. BURDEN OF PROOF It is trite learning that proof in civil matters is always on the balance of probabilities as provided for in sections 11 and 12 of the Evidence Act of 1975, NRCD 323. A plaintiff succeeds in his or her action on the balance of probabilities and so the burden is always on the plaintiff to prove his or her case against the defendant. In the case of COOPER v. SLADE [1959]66 HL 776 AT 772, WILLES J. stated the principle as follows: “The general rule in the law of evidence is that in a civil case, the onus probandi lies on the party who asserts the affirmative of the issue and the preponderance of probability in favour of a party may be sufficient ground for a judgment in favour of that party” As regards Ghanaian case law, the Supreme Court per Adinyira JSC in the case of ACKAH V. PERGAH TRANSPORT LTD. & OTHERS [2010] SCGLR 728, stated as follows: “It is a basic principle of the law of evidence that a party who bears the burden of proof is to produce the required evidence of the facts and issues that has the quality of credibility short of which his claim may fail. The method of producing evidence is varied and it includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things (often described as real evidence)without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as jury.” ANALYSIS OF ISSUES 5 ISSUE 1 – Whether or not the defendants represented to the plaintiff that they bought and sold excavators from China? The evidence of the plaintiff on this issue is that he was assured by the 1st defendant that she and the 2nd defendant had undertaken several transactions in the purchase and sale of excavators from China to Ghana and therefore they were willing to offer their services to the plaintiff. The defendants on the other hand stated that the plaintiff knew that the defendants dealt in general merchandise from China and he only requested them to assist him in buying an excavator from China and that they had no expertise in excavators. The plaintiff however failed to lead sufficient evidence to prove this issue because his own pleading in paragraph 2 of his statement of claim was to the effect that he knew the 1st defendant as a student nurse and entrepreneur and the 2nd defendant as a business man who engaged in the buying and selling of goods from China to Ghana. Goods can be general goods, not necessarily excavators. The evidence on record seems to suggest that the 2nd defendant only assisted the plaintiff by sending the plaintiff pictures of excavators he had seen in China and it was the plaintiff who made his own choice of an excavator from the pictures sent to him by the 2nd defendant and the 2nd defendant later purchased and shipped to Ghana the excavator chosen by the plaintiff with funds sent to him by the plaintiff for that purpose. My finding of fact on this issue is that there were no representations made by the defendants to the plaintiff that they (defendants) bought and sold excavators shipped from China to Ghana. ISSUE 2 – Whether or not defendants sold the excavator caterpillar 330 BL to plaintiff? Though the plaintiff tried to create the impression that the defendant sold the 330 BL caterpillar excavator to him, the plaintiff’s own chats with the 2nd defendant as captured in exhibit A and his own evidence in paragraph 3 of his witness statement show clearly that the excavator was not sold to the plaintiff by the defendants but rather same was 6 purchased in China and shipped to Ghana by the 2nd defendant at the behest of the plaintiff. It is thus my finding of fact that the excavator purchased in China and shipped to Ghana by the 2nd defendant was not sold to the plaintiff by the defendants but rather same was procured by the 2nd defendant at the behest of the plaintiff for the plaintiff. ISSUE 3 – Whether plaintiff made payments to defendant for the purchase of an excavator? This issue is really not in doubt because the defendants did acknowledge that it was the plaintiff who sent the 2nd defendant money for the purchase and shipment of the excavator from China to Ghana. ISSUE 4 – Whether the excavator which 2nd defendant represented to plaintiff was what was shipped to plaintiff? The plaintiff claimed per paragraphs 11, to 18 of his witness statement that the excavator he selected from the various sample pictures that were forwarded to him by the 2nd defendant was a caterpillar 330 BL. He attached the sample pictures as his exhibit ‘A’ series and he also attached a copy of the shipping document in respect of the excavator he chose as his exhibit ‘B’. He claimed that after he had cleared the excavator from the Tema port and got it assembled, he realized that the excavator that was shipped to him by the 2nd defendant was significantly different from the one in the sample pictures that had been sent to him by the 2nd defendant. The plaintiff also claimed the excavator he received was faulty and not fit for the purpose for which it was bought. He claimed the excavator that was delivered to him was fitted with a Mitsubishi engine and it did not match the specifications he had agreed on with the 2nd defendant. The defendants on the other hand stated that the machine or excavator that was shipped to the plaintiff by the 2nd defendant had the same chassis number as the excavator that the plaintiff selected from the sample pictures that were sent to him. They also stated that 7 no investigations were conducted by the police in Dawhenya to determine any fault in the machine as claimed by the plaintiff. The court has looked through the whatsapp chats between the plaintiff and the 2nd defendant as captured in the defendants’ exhibits 2 and 3 and the plaintiff’s exhibit A and has also looked at the shipping document (exhibit B) in respect of the excavator that was shipped to the plaintiff and the court has seen that the chassis number which is stated on exhibit B is 1JS00696S*. This same number is seen on pages 39 and 40 of exhibit 3 which is attached to the 2nd defendant’s witness statement and also on the twelfth sheet or page of exhibit A series. The court has also looked at the pictures in exhibit C which are the pictures of the excavator that was cleared by the plaintiff from the Tema port. The sample pictures that were sent to the plaintiff by the defendants can be seen in the last two sheets of exhibit A series and pages 18, 19, 24, 27, 28 and 35 of the 2nd defendant’s exhibit 2. There are some differences in the pictures. One clear difference is the painting of the excavators. The painting on the excavator in the sample pictures sent to the plaintiff by 2nd defendant appears newer and of a lighter hue of yellow and the painting on the excavator that the plaintiff cleared from the port appears a little old and dirty and also of a deeper hue. There are also no CAT symbols on the excavator the plaintiff received. However the chassis number is the same. The explanation for the absence of the CAT sign was that it was sprayed over before the excavator was shipped to Ghana. The difference in the hue of the paint can clearly be attributed to the fact that the pictures were not taken by the same camera. Also the presence of a Mitsubishi engine in the excavator is not a surprise since the exhibit 7 tendered by the defendants on 15th June, 2023 show that there has been a merger between Mitsubishi and caterpillar since the year 2008. However since the chassis number on exhibit B is the same as the chassis number that is in the pictures tendered, it is the court’s finding of fact that the excavator which 8 was chosen by the plaintiff from the pictures sent by the 2nd defendant is the same excavator that was delivered to the plaintiff. ISSUE 5 – Whether the excavator the 2nd defendant shipped to the plaintiff was functioning? The plaintiff claimed in paragraph 17 of his witness statement that the excavator that was shipped to him by the 2nd defendant was faulty and not fit for purpose, yet he did not specify the particular faults that were found in the excavator. His chats with the 2nd defendant in exhibit 3 (see pages 39-47) reveal that he only complained about the difference in painting and the fact that the CAT symbol on the excavator was missing. He also complained to the 2nd defendant that the dashboard signals on the excavator were not working and that some accessories of the excavator had to be taken to the machine shop to be worked on. The witness who was called by the plaintiff, also did not help matters. This witness who is said to have inspected the excavator when the plaintiff lodged a complaint against the 2nd defendant at the Dawhenya police station, even refused to identify a picture of the excavator which he claimed he had worked on. The witness in his witness statement stated that, he found out from the excavator he worked on that same was faulty and needed to be massively repaired. He also stated in the witness statement that the excavator he worked on was rather a 325L and not a 330BL yet he was unwilling to identify a picture of the excavator he had worked on at the behest of the plaintiff, 2nd defendant and the police at Dawhenya. His testimony therefore was not of much help to the court. The plaintiff did admit under cross-examination at page 4 of the record of proceedings for the 7th June, 2022 that he knew that the excavator he had bought was not a brand new one and that as a second-hand machine he had to work on it or carry out repairs on it to 9 bring it to a usable condition and he also admitted under cross-examination that the police reports on the state of the excavator (exhibit D) was actually what he had told the police (see page 4 of the record of proceedings for 7th June, 2022). If indeed the excavator was not functioning at the time the plaintiff got it out of the Tema port, the plaintiff would definitely have informed the 2nd defendant immediately through whatsApp. His only complaint at that time was the differences in the painting of the excavator that had been shipped to him and the missing CAT logo in the sample pictures that he had received from the 2nd defendant. My findings of fact is that the excavator was in a reasonably fit condition since the only complaint of the plaintiff at the time he received it was the missing logo and the differences in painting and sight should also not be lost of the fact that he was able to move the excavator from the Tema port to Dawhwenya. The question is, how was the excavator sent to Dawhwenya if indeed same was not functioning? It has never been the case of the plaintiff that the excavator was towed from the Tema Port to Dawhwenya. Additional Issues of defendants. The two additional issues of the defendant were Whether or not any alleged defect in the excavator is attributable to the defendants? And Whether or not the plaintiff is entitled to claim for the cost of repairs of a second-hand vehicle from the defendants or at all? These two issues will be discussed together. The plaintiff knew that the excavator that he chose and which was shipped to him was a used one and therefore it had undergone some wear and tear. It was not a brand new equipment and the plaintiff himself 10 acknowledged that as a used machine he was aware that he had to do some repairs on it to bring it to a usable condition (see page 4 of the record of proceeding for 7th June, 2022). The plaintiff could not lead any credible evidence to convince the court that the used excavator was unserviceable and unusable. As rightly submitted by counsel for the defendants in her closing address, the plaintiff was able to move the used excavator from the Tema Port to Dawhenya with no issues. The plaintiff’s only complaint to the 2nd defendant was that some of the excavator’s accessories were different, that the dash board signals were not working and that there had been alterations to the chain tyre. (See page 46 of exhibit 4 which is the whatsapp conversation between the plaintiff and the 2nd defendant.) This court agrees with the submission of counsel for defendants that these issues complained of by the plaintiff were minor issues attributable to normal wear and tear from the use of a vehicle and these cannot be the basis for the plaintiff to avoid the sale and even if so, his cause of action lies against the seller not the defendant. Indeed the evidence before this court is clear that the excavator that the plaintiff chose was what was bought and shipped to him by the 2nd defendant and the plaintiff also knew that the excavator he chose was a used one and would definitely need some works to be done on it because of the normal wear and tear that it had undergone. Also the presence of any wear and tear could not be attributed to the 2nd defendant since the latter had no expertise in excavators and that he (2nd defendant) only assisted him (plaintiff) in getting the excavator plaintiff had chosen, paid for same with money sent by the plaintiff and shipped it from China to Ghana. The plaintiff is thus not entitled to claim from the defendants any cost of repairs in respect of the used excavator. CONCLUSION 11 In the light of the foregoing analysis, this court is of the opinion that the plaintiff has not been able to establish his case on the balance of probabilities and he is therefore not entitled to the reliefs he seeks against the defendants. The case of the plaintiff is dismissed as same is unmeritorious and the court awards cost of seven thousand Ghana cedis (GHS7,000.00) against the plaintiff in favour of the defendants. (SGD.) JUSTICE ANANDA J. AIKINS (MRS.) JUSTICE OF THE HIGH COURT *c.a.a* 12