ANSAH VRS. EDUBOAH AND OTHERS (E2/168/2018) [2024] GHAHC 179 (26 June 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT ‘B’ HELD IN TEMA IN THE GREATER ACCRA REGION OF THE REPUBLIC OF GHANA BEFORE HER LADYSHIP JUSTICE PATRICIA QUANSAH (JUSTICE OF THE HIGH COURT) ON WEDNESDAY THE 26TH OF JUNE 2024. SUIT NO.: E2/168/2018 ________________________________________________________________ VINCENT ANSAH SUING PER HIS LAWFUL ATTORNEY PLAINTIFF JONATHAN ANSAH SOWUTUOM, ACCRA VRS 1. JERRY JOHN EDUBOAH 2. RICHARD BROWN BATSA 3. EBENEZER TEYE KOKO DEFENDANTS 4. MICHAEL COFFIE QUARSHIE 5. MUSAH AYIKU PLAINTIFF PRESENT JUDGMENT – VINCENT ANSAH vrs JERRY JOHN ADUBOAH & 4 ORS 1 1ST AND 2ND DEFENDANTS PRESENT 3RD TO 5TH DEFENDANTS ABSENT JUDGMENT 1. THE PLAINTIFF’S CASE [i] The Plaintiff herein instituted the present action against the Defendants, seeking to recover the following: (a) An amount of sixty two thousand, two hundred and sixty six Ghana cedis and eighty-three pesewas (GH¢62,266.83.00) jointly and severally from the Defendants being the cost of the Plaintiff’s Scania articulator head registered No. GT. 3641-11 which the Defendants on or about 8th April 2017, by their joint arrangement and collusion took and used without the knowledge and consent of the Plaintiff or his authorized representative, to load fuel at Tema and transport same out of Tema driven by the 2nd Defendant and which vehicle was involved in an accident at Nkoranza in the JUDGMENT – VINCENT ANSAH vrs JERRY JOHN ADUBOAH & 4 ORS 2 Brong Ahafo Region on 8th April 2017, resulting in the vehicle being damaged beyond economic repairs. (b) An order for the Defendants jointly and severally to repair the bulk in which the fuel was loaded, also belonging to the Plaintiff, and coupled to the articulator head, and which was also damaged in the accident on 8th April 2017 to the state in which it was before the accident. (c) Loss of use at the rate of GH¢3,648.76 per week from 8th April 2017, the date of accident to the date of judgment. (d) Costs. [ii] In the supporting statement of claim, the Plaintiff stated that he is the owner of a Scania articular head vehicle with a bulk for loading fuel and which is registered as GT 3641 - 11. The 1st, 2nd and 3rd Defendants are said to be drivers whilst the 4th and 5th Defendants are said to be fuel dealers. The Plaintiff further stated that he imported the said Scania articulator head into Ghana from Germany in 2010 at the cost of Gh¢62,266.83 and additionally purchased the bulk for the truck, for the loading and carrying of fuel at a further cost of Gh¢60,000.00. In line with his business, the Plaintiff stated that he employed drivers to work with the fuel tanker/articulator truck, including the 2nd Defendant herein. Between March 2014 and February 2016 therefore, these drivers including the 2nd Defendant were working for the Plaintiff. JUDGMENT – VINCENT ANSAH vrs JERRY JOHN ADUBOAH & 4 ORS 3 [iii] Additionally, the Plaintiff stated that he engaged the 1st Defendant and authorized him to monitor the drivers to ensure that the vehicles loaded fuel from only Ghana Oil Company (GOIL). At all material times, this fact was known to the 1st Defendant and all the drivers, that the Plaintiff’s fuel tanker be used to carry fuel only from GOIL. In March 2017, the Plaintiff’s Attorney, Jonathan Ansah was said to have ordered that the fuel tanker be parked in the workshop/yard of one Inusah Suleiman at Tema until some shortages detected in the 2nd Defendant’s operations with the tanker had been resolved. The Plaintiff’s Attorney therefore tasked the 1st Defendant to ensure that the vehicle was parked and the key of the vehicle handed to Inusah Suleiman until a resolution was found for the 2nd Defendant’s problem. The 1st Defendant later informed the Plaintiff’s Attorney that the vehicle had been duly parked in the yard of Inusah Suleimana. [iv] According to the Plaintiff, on or about the 8th April 2017, the 1st and 2nd Defendants connived and had the fuel tanker released to them under the pretext of undertaking repairs on same. The 1st and 2nd Defendants then arranged with the 3rd, 4th and 5th Defendants to procure fuel from sources unknown to either the Plaintiff or the Plaintiff’s Attorney. The 2nd Defendant then drove the vehicle containing the fuel from Tema to an unknown destination. The tanker was however involved in an accident at Nkoranza in the Brong Ahafo Region on 8th April 2017 resulting in the articulator head being damaged beyond economic repairs. Extensive damage was also caused to the bulk of the tanker containing the fuel. Two persons who were even in the tanker with the 2nd Defendant were said to have died in the accident. JUDGMENT – VINCENT ANSAH vrs JERRY JOHN ADUBOAH & 4 ORS 4 [v] On 11th April 2017, the 3rd Defendant was said to have gone to the Nkoranza Police station to report the accident as the owner of the vehicle, when he clearly was not. This caused the Police to release the truck to the 3rd Defendant. Upon taking possession of the tanker, the 3rd Defendant was said to have coupled the bulk containing the fuel with another articulator head and sold the fuel therein. The 3rd Defendant subsequently left the bulk in a private house in Kumasi and he also took the damaged articulator head and abandoned it in a workshop in Kumasi without attending to it. [vi] It was upon enquiries that the Plaintiff stated he traced the articulator head and bulk to their respective locations, only to realize the head was damaged beyond economic repair and the bulk was also substantially damaged. Upon professional consultation, the Plaintiff stated it was confirmed that the head was indeed damaged beyond economic repairs. The Plaintiff is thus entitled to recover the cost of the articulator head from all the Defendants, jointly and severally, i.e. the original value of the truck, as well as loss of use for the period from the time of the accident till date. The Plaintiff also prayed for the repair of the bulk of the tanker, to be borne by the Defendants. The Plaintiff thus prayed for the reliefs endorsed on the writ of summons and as enunciated above. 2. STATEMENT OF DEFENCE [vii] The 1st, 2nd, 3rd and 4th Defendants filed a defence for themselves, denying all the material averments of the Plaintiff. They however admitted paragraphs 5 and 6 of the statement of claim, and which essentially supported the Plaintiff’s JUDGMENT – VINCENT ANSAH vrs JERRY JOHN ADUBOAH & 4 ORS 5 averments that the Defendants were aware that the tanker was to be parked in a yard but the Defendants still went to get same released to them without the knowledge and consent of the Plaintiff herein. [viii] The 1st to 4th Defendants further admitted all the averments of the Plaintiff at paragraphs 7, 8, 9 and 10 of the statement of claim but added that the Plaintiff reported the Defendants to the Tema Police station, where they were detained. The Defendants further averred that in the presence of the Police, the Plaintiff and his lawyer agreed that the Defendants would repair the head and the bulk of the tanker and upon that agreement, the Defendants stated they were released on bail. The Defendants stated that they proceeded to Kumasi to see to the repair of the truck and the bulk. The Defendants then stated that they asked mechanics to look at the tanker and have purchased the materials for repair. The Defendants are almost at the last stage of repairing the said tanker and they were thus surprised that the Plaintiff issued a writ of summons against them. [ix] The 1st to 4th Defendants concluded by averring that the action against them is a breach of good faith, the parties having agreed that the Defendants would repair the tanker. 3. DEFENCE PUT FORTH BY THE 5TH DEFENDANT [x] The 5th Defendant also denied the Plaintiff’s averments and stated that he was a mere representative of one Ibrahim Ayiku, a fuel dealer and that he had neither connived nor colluded with any of the Defendants or anyone else to buy fuel for the 1st and 2nd Defendants. The 5th Defendant continued to state that JUDGMENT – VINCENT ANSAH vrs JERRY JOHN ADUBOAH & 4 ORS 6 he had never been part of any transaction with the Defendants; and that he is only aware that it was the 4th Defendant’s fuel that was being conveyed when the accident occurred. The 5th Defendant stated he was not a party to any of the transactions narrated by the Plaintiff and so the 5th Defendant was not liable to the Plaintiff in respect of the claims endorsed on the writ of summons. 4. REPLY [xi] The Plaintiff joined issues generally with the Defendants on their statements of defence, stating that it was the Defendants who offered to repair the tanker on 10th August 2017 within three months, from August to November 2017 and the Plaintiff accepted the offer. The Defendants have however failed and/or refused to fulfill their promise till the time of filing the Reply, causing the Plaintiff to incur huge losses through the loss of use of his vehicle. The Plaintiff was thus entitled to the reliefs he sought. Pleadings closed thereafter. 5. APPLICATION FOR DIRECTIONS JUDGMENT – VINCENT ANSAH vrs JERRY JOHN ADUBOAH & 4 ORS 7 [xii] At the Application for Directions stage, the following issues were set down for the trial: 1. Whether or not the 1st and 2nd Defendants employed subterfuge to take and use the Plaintiff’s articulator vehicle from a caretaker without the knowledge and consent of the Plaintiff or his Attorney. 2. Whether or not the 1st and 2nd Defendants colluded with the other Defendants to use the Plaintiff’s vehicle to purchase and load fuel from a source other than Ghana Oil Company (GOIL) which is the only source the Plaintiff’s vehicle is registered to load fuel from, a fact known to the 1st and 2nd Defendants. 3. Whether or not the fuel the Plaintiff’s vehicle was used by the Defendants to load was covered by any valid documents. 4. Whether or not the fuel the Plaintiff’s vehicle was used by the Defendant to load was procured lawfully by the Defendants. 5. Whether the Plaintiff’s vehicle was involved in an accident at Nkoranza in the Brong Ahafo Region whilst being driven by the 2nd Defendant loaded with fuel resulting in serious damaged to both the Articulator Head and the Bulk. 6. Whether or not the 3rd Defendant impersonated as the owner of the Plaintiff’s vehicle after it was involved in the accident and JUDGMENT – VINCENT ANSAH vrs JERRY JOHN ADUBOAH & 4 ORS 8 took control of the vehicle from the Nkoranza Police without the knowledge and consent of the Plaintiff or his Attorney. 7. Whether or not the Plaintiff’s vehicle was taken by the 3rd Defendant from Nkoranza to Kumasi and abandoned in Kumasi by the 3rd Defendant. 8. Whether or not the Plaintiff and the Defendants came to an understanding for the Defendants to repair the Plaintiff’s damaged vehicle. 9. Whether or not if an understanding was reached between the Plaintiff and the Defendants for the Defendants to repair the Plaintiff’s vehicle, the time set for the Defendants to complete the repairs was open-ended or the time frame was specifically agreed upon. 10. Whether or not if a specific time was agreed upon for the Defendants to complete repairing the Plaintiff’s vehicle, the time has expired or not. 11. Whether or not the Plaintiff’s articulator head was damaged beyond economic repairs in the accident. 12. Whether the instant suit instituted by the Plaintiff against the Defendants amounts to a breach of good faith by the Plaintiff. 13. Any other issues raised by the pleadings in this suit. JUDGMENT – VINCENT ANSAH vrs JERRY JOHN ADUBOAH & 4 ORS 9 The parties were ordered to file their respective witness statements and they so did. 6. WITNESS STATEMENT OF THE PLAINTIFF [xiii] The Plaintiff’s lawful attorney testified before the Court by filing a witness statement and a supplementary witness statement. Therein, the Attorney confirmed the averments in the statement of claim of the Plaintiff. He reiterated that the 1st and 2nd Defendants connived with the other Defendants and got hold of the Plaintiff’s truck without the knowledge and consent of the Plaintiff. The 3rd to 5th also arranged for the 1st and 2nd Defendants to carry fuel from another fuel dealer other than GOIL when the Defendants were aware that the Plaintiff’s tanker only carried fuel from GOIL. The customs and other documents covering the cost of the articulator head were tendered in evidence by the Attorney as proof of the ownership of the truck in the Plaintiff; and also to establish to the Court that the Plaintiff was entitled to the reliefs sought. The Attorney, among others concluded and prayed the Court to grant the reliefs endorsed on the writ of summons. [xiv] The Plaintiff filed a witness statement for some witnesses but those witnesses were not called and so after the Plaintiff’s Attorney was cross-examined, the Plaintiff closed his case. 7. WITNESS STATEMENT OF THE DEFENDANTS JUDGMENT – VINCENT ANSAH vrs JERRY JOHN ADUBOAH & 4 ORS 10 [xv] The 1st Defendant also testified for and on behalf of the 2nd, 3rd and 4th Defendants, and he filed a witness statement as well as a supplementary witness statement in an attempt to put across the Defendants’ case. D1 stated he knew the Plaintiff and he was appointed the chief Driver of the Plaintiff’s drivers. The 1st Defendant was thus in charge of the Plaintiff’s bulk vehicle and he stated he exercised due care and attention and yet the accident occurred. D1 added that he and the 2nd to 4th Defendants agreed to repair the vehicle and are at an advanced stage of repairs and the 1st Defendant tendered in evidence pictures to show the state of repairs, or so the 1st Defendant claimed; as well as an invoice to show the cost of the various parts that would be used to repair the articulator as Exhibits 1 and 2 series. [xvi] The 5th Defendant also filed a witness statement for himself and he testified to the effect that on or about April 2017, one of his father’s customers needed some fuel but they had no supply and so the 4th Defendant agreed to supply the fuel. The 4th Defendant thus entered into an agreement with the 2nd Defendant to transport the consignment paid for. As per his witness statement, the 5th Defendant stated that he did not procure the services of the 1st to 4th Defendants to transport fuel and neither was he a party to the transaction that led to the tanker being involved in the accident. He was thus not liable to the Plaintiff’s claims. The Defendants also called no witness(es) and the trial came to a close. 8. INCIDENCE OF THE BURDEN OF PROOF IN CIVIL CASES JUDGMENT – VINCENT ANSAH vrs JERRY JOHN ADUBOAH & 4 ORS 11 [xvii] This is a civil case and the burden of proof lies on the party that asserts the affirmative of his case. Section 12 of the Evidence Act, 1975, NRCD 323 provides that in civil cases, the burden of proof on a party is on a preponderance of probabilities. The section states: (1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities. (2) "Preponderance of the probabilities" means that degree of certainty 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 was confirmed by the Supreme Court in the case of Adwubeng v Domfeh [1996 - 97] 1 GLR 282, which added that there was no exception to this rule. [xviii] Also, in the case of Dzaisu v Ghana Breweries Limited [2007-2008] SCGLR 539, the Supreme Court per Adinyira JSC held: “It is a basic principle in the law of evidence that the burden of persuasion on proving all facts essential to any claim lies on whosoever is making the claim.” The Learned Justice of the Supreme Court went on to state: It is trite law that a bare assertion by a party of his pleadings in the witness box without proof did not shift the evidential burden onto the JUDGMENT – VINCENT ANSAH vrs JERRY JOHN ADUBOAH & 4 ORS 12 other party. Finally, Viscount Dunedin in the case of Robins v. National Trust Co [1927] AC 505 at 510 (PC) held: “Onus is always on a person who asserts a preposition or a fact which is not self-evident. To assert that a man who is alive was born requires no proof. The onus is not on the person making the assertion because it is self-evident that he had been born. But to assert that he was born on a certain date, if the date is material requires proof: the onus is on the person making the assertion. Now in conducting any enquiry, the determining tribunal will often find that onus is sometimes on the side of one contending party, sometimes on the other side, or, as it is often expressed, that in certain circumstances onus shifts”. 9. EVALUATION OF THE EVIDENCE ADDUCED AT THE TRIAL [xix] From the entirety of the trial, I find that there is no doubt whatsoever that the Scania articulator head and the bulk belongs to the Plaintiff herein. The Defendants admitted that the tanker belonged to the Plaintiff and that it was the Plaintiff who employed drivers to work with the tanker. The 1st Defendant admitted that he was in charge of the Plaintiff’s drivers and that the 2nd Defendant was one of the drivers. It is also obvious that the 1st Defendant was in charge of the entire transaction that led to the accident and the leader of the pack. JUDGMENT – VINCENT ANSAH vrs JERRY JOHN ADUBOAH & 4 ORS 13 [xx] The Plaintiff made allegations against the Defendants that the Defendants took the tanker without the Plaintiff’s knowledge and consent, loaded fuel from another source to be transported and the tanker was involved in an accident. The Defendants did not dispute any of those averments, save that the 1st to 4th Defendants admitted that they agreed to repair the articulator head and the bulk. [xxi] The 5th Defendant, on the other hand, consistently stated that he had no knowledge of whatever transaction there was among the first four Defendants. He stated that he only made arrangements for the 4th Defendant to supply fuel to the 2nd; and knows nothing else. Indeed, the 1st Defendant never included the 5th in the agreement to repair the tanker and neither did the 1st Defendant ever mention the 5th Defendant as being involved in the transaction. Therefore, I find it reasonably probable that the 5th Defendant was indeed not a party to the transaction that led to the damage caused to the tanker as a result of the accident. Based on the above findings, I proceed to deal with the issues set down for trial as follows: 10. ISSUES (A), (B), (C), (D) - Whether or not the 1st and 2nd Defendants employed subterfuge to take and use the Plaintiff’s articulator vehicle from a caretaker without the knowledge and consent of the Plaintiff or his Attorney. JUDGMENT – VINCENT ANSAH vrs JERRY JOHN ADUBOAH & 4 ORS 14 - Whether or not the 1st and 2nd Defendants colluded with the other Defendants to use the Plaintiff’s vehicle to purchase and load fuel from a source other that Ghana Oil Company (GOIL) which is the only source the Plaintiff’s vehicle is registered to load fuel from, a fact known to the 1st and 2nd Defendants. - Whether or not the fuel the Plaintiff’s vehicle was used by the Defendants to load was covered by any valid documents. - Whether or not the fuel the Plaintiff’s vehicle was used by the Defendant to load was procured lawfully by the Defendants. [xxii] With all due respect to the Plaintiff’s Counsel, the above issues are not relevant at all to the gravamen of the issues before the Court. The Defendants, at least the 1st to 4th Defendants never denied the Plaintiff’s averments in the statement of claim and expressly admitted certain relevant paragraphs of the statement of claim. In their defence, the 1st to 4th Defendants averred at paragraphs 3, 5 and 6 as follows: 3. 1st, 2nd, 3rd and 4th Defendants admit paragraph 3 of the statement of claim. 5. 1st Defendant admits paragraphs 5 and 6 of the statement of claim. 6. 1st, 2nd, 3rd and 4th Defendants admit paragraphs 7, 8, 9 and 10 of the Statement of Claim. The paragraphs admitted above appear in the statement of claim thus: JUDGMENT – VINCENT ANSAH vrs JERRY JOHN ADUBOAH & 4 ORS 15 3. The 1st, 2nd and 3rd Defendants are Drivers. The 1st Defendant resides at Effiakuma and Tema, whilst the 2nd and 3rd Defendants reside at Ashaiman. The 4th and 5th Defendants are Fuel Dealers and reside at Ashaiman and Kakasunanka No. 1 respectively. 5. Between March 2014 and February 2016 the Plaintiff employed four drivers, including the 2nd Defendant, to drive his fuel tanker vehicles including the vehicle which is the subject matter of this case. The 1st Defendant had been authorized by the Plaintiff to monitor the drivers to ensure that the vehicles loaded fuel from only Ghana Oil Company (GOIL) which is the only source the Plaintiff’s vehicles load from, a fact known to the 1st Defendant and all the drivers. 6. The 2nd Defendant was the driver of the vehicle in issue but in March 2017, Plaintiff’s Attorney, Jonathan Ansah, who handles the accounts on the vehicles ordered it to be parked in the workshop yard of one Inusah Suleiman at Tema until some shortages detected in the 2nd Defendant’s operations with the vehicle had been resolved. Plaintiff’s Attorney tasked the 1st Defendant to ensure that the vehicle was parked and the key of the vehicle handed to Inusah Suleiman until a resolution was found for the 2nd Defendant’s problem. The 1st Defendant later informed the Plaintiff’s Attorney that the vehicle had been duly parked in the yard of Inusah Suleimana. 7. On or about 8th April 2017 the 2nd Defendant went to Inusah Suleimana, the caretaker of the vehicle, and informed him that the 1st Defendant wanted to speak with him on his phone. The 1st Defendant on taking the phone requested Inusah Suleimana to release the vehicle to the 2nd JUDGMENT – VINCENT ANSAH vrs JERRY JOHN ADUBOAH & 4 ORS 16 Defendant for some repairs to be done on it. Insah Suleimana believing that the release of the vehicle was merely for repairs released it the 2nd Defendant. All these occurred without the knowledge of the Plaintiff’s Attorney who had ordered the vehicle to be parked in Inusah Suleimana’s yard. 8. The 1st and 2nd Defendants upon their collusion to take out the vehicle from the caretaker by subterfuge arranged with the 3rd, 4th and 5th Defendants to procure fuel from sources unknown to neither the Plaintiff nor the Plaintiff’s Attorney. The Plaintiff has registered his vehicle to load and cart fuel only from Ghana Oil Company (GOIL), a fact known to all the drivers employed by the Plaintiff. The fuel procured was not covered by any valid documents. 9. The 2nd Defendant drove the vehicle containing the fuel from Tema heading to a destination unknown to the Plaintiff’s Attorney. 10. The vehicle got involved in an accident at Nkoranza in the Brong Ahafo Region on 8th April 2017 resulting the Articulator Head being damaged beyond economic repairs and serious damage to the Bulk containing the fuel. Two persons who were in the vehicle with the 2nd Defendant died in the accident. [xxiii] In the case of Asante v Bogyabi & Ors [1966] GLR 232, the Court held: JUDGMENT – VINCENT ANSAH vrs JERRY JOHN ADUBOAH & 4 ORS 17 “Where admissions relevant to matters in issue between parties to a case are made by one side, supporting the other, as appears to be so in the instant case … then it seems to me right to say that that side in whose favour the admissions are made, is entitled to succeed and not the other, unless there is good reason apparent on the record for holding the contrary view.” Further in Kwadjo v Speedline Stevedoring Co. Ltd [2016] 92 GMJ at 82, the Court held: The law is that where a party has admitted a fact advantageous to the case of the other party, that other party does not need to call further evidence of that fact, he can take advantage of that admission and rely on it: Re Anane Stool [2005-2006] SCGLR 637. Even under cross-examination, the 1st to 4th Defendants opted not to cross- examine the Plaintiff’s Attorney. They informed the Court they had no questions under cross-examination for the Plaintiff; and the few questions asked were to the effect that the Defendants had agreed to repair the tanker, simpliciter. Therefore, I hold that the above issues are not worthy of discussion, save that the 1st to 4th Defendants clearly admitted they took the Plaintiff’s tanker without the consent and concurrence of the Plaintiff and they ought to be held liable for the resulting accident. I proceed to deal with the following set of issues: 11. ISSUES (E), (F), (G), (I), (J) & (K) JUDGMENT – VINCENT ANSAH vrs JERRY JOHN ADUBOAH & 4 ORS 18 - Whether the Plaintiff’s vehicle was involved in an accident at Nkoranza in the Brong Ahafo Region whilst being driven by the 2nd Defendant loaded with fuel resulting in serious damaged to both the Articulator Head and the Bulk. - Whether or not the 3rd Defendant impersonated as the owner of the Plaintiff’s vehicle after it was involved in the accident and took control of the vehicle from the Nkoranza Police without the knowledge and consent of the Plaintiff or his Attorney. - Whether or not the Plaintiff’s vehicle was taken by the 3rd Defendant from Nkoranza to Kumasi and abandoned in Kumasi by the 3rd Defendant. - Whether or not the Plaintiff and the Defendants came to an understanding for the Defendants to repair the Plaintiff’s damaged vehicle. - Whether or not if an understanding was reached between the Plaintiff and the Defendants for the Defendants to repair the Plaintiff’s vehicle, the time set for the Defendants to complete the repairs was open-ended or the time frame was specifically agreed upon. - Whether or not if a specific time was agreed upon for the Defendants to complete repairing the Plaintiff’s vehicle, the time has expired or not. [xxiv] Once again, there is no doubt that the fuel tanker belonging to the Plaintiff and JUDGMENT – VINCENT ANSAH vrs JERRY JOHN ADUBOAH & 4 ORS 19 surreptitiously taken and used to transport fuel without the knowledge and authority of the Plaintiff was involved in an accident at Nkoranza and the Defendants did admit same. The Defendants further tendered n evidence pictures of the damaged tanker and added that the 1st to 4th Defendants had agreed to repair same. Once again, the clear admission of the above issues by the Defendants ought to have resulted in the Plaintiff joining issues with the Defendants on them, such that they ought not to have been set down as triable issues. [xxv] The above were not contentious issues as the 1st to 4th Defendants clearly admitted that the tanker was taken to the Nkoranza police station and thereafter, taken to Kumasi in an attempt to repair same; but not before the Defendants had sold the fuel in the bulk. The Defendants clearly benefitted from the fuel and yet from the date of the accident, the 8th of April 2017 till date, the Defendants have not been able to repair the tanker or the bulk for the Plaintiff. No reasonable man, whose tanker had been damaged, would give the perpetrator over 6 years to repair the damaged vehicle, and that is indeed how long it has taken, from 2017 to 2024. If a deadline for the repairs was agreed upon by the parties, it has long since lapsed. There is therefore no need to belabour the issues above as it would be unconscionable to hold that the Plaintiff gave the Defendants time in perpetuity to complete the repair work on the tanker. [xxvi] The 1st to 4th Defendants were responsible for the accident that damaged the truck and they are liable to repair same or pay for the value or cost of the tanker JUDGMENT – VINCENT ANSAH vrs JERRY JOHN ADUBOAH & 4 ORS 20 since from 2017 till date, the Plaintiff has lost the use of his fuel tanker. I proceed to deal with the final set of issues: 12. ISSUES (L), (M) & (N) - Whether or not the Plaintiff’s articulator head was damaged beyond economic repairs in the accident. - Whether the instant suit instituted by the Plaintiff against the Defendants amounts to a breach of good faith by the Plaintiff. - Any other issues raised by the pleadings in this suit. [xxvii] In the case of Ackah v Pergah Transport Limited [2010] SCGLR 728 the Supreme Court held that: ‘It is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue 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 a jury. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more JUDGMENT – VINCENT ANSAH vrs JERRY JOHN ADUBOAH & 4 ORS 21 reasonable than its non-existence. ’ In the present case, the Plaintiff stated the tanker was damaged beyond economic repair, but there was no evidence whatsoever adduced by the Plaintiff to so establish. There was no police report to chronicle the accident and the damage and neither was there a report from DVLA or any expert witness to state the damage to the tanker, the cost of repair and whether or not the damage to the vehicle rendered the vehicle damaged beyond economic repair. This Court is thus not in a position to determine whether or not the tanker was damaged beyond economic repairs, as the Plaintiff did not even annex pictures of the tanker to demonstrate the said damage. [xxviii] The Plaintiff rather attached proof of ownership and the customs documents on the value of the vehicle as well as the duty component of the vehicle as Exhibits A, B and C but there is no iota of proof to establish that the vehicle was damaged beyond economic repair. It is rather the 1st to 4th Defendants who attached pictures of the truck to their witness statement, but in my candid opinion, it is difficult to determine from the photographs the state of the damaged tanker and whether or not it is damaged beyond economic repair. [xxix] Again, the 1st to 4th Defendants, on the other hand, attached an invoice to their witness statement as Exhibit 2, purporting to list the damaged parts of the tanker and some amounts said to be the estimated values/costs of the damaged parts. Exhibit 2 was not discredited in any way by the Plaintiff’s Counsel under cross-examination. JUDGMENT – VINCENT ANSAH vrs JERRY JOHN ADUBOAH & 4 ORS 22 Therefore, this Court shall instead rely on the estimated amount of Gh¢29,500.00 stated on Exhibit 2 for the repairs of the articulator tanker made in 2018; with 30% appreciation rate to arrive at a total amount of GH¢40,000.00 with interest from the date of the accident, i.e. 8th of April 2017 till date of final payment. [xxx] The 1st Defendant also admitted that it was the 1st to 4th Defendants who agreed to repair the tanker without mentioning the 5th Defendant. The above to me demonstrates that the 5th Defendant was not part of the transaction, as he consistently held in his pleadings and witness statement. I therefore find I would have to absolve the 5th Defendant of all liability in this case. 13. CONCLUSION [xxxi] For the above reasons, judgment is entered in part in favour of the Plaintiff and jointly and severally against the 1st, 2nd, 3rd and 4th Defendants for the recovery of: a) GH¢40,000.00 with interest from the date of the accident, i.e. 8th of April 2017 till date of final payment. The Plaintiff is entitled to recover the amount of GH¢40,000.00 with interest as enunciated above in lieu of the Plaintiff’s relief a. JUDGMENT – VINCENT ANSAH vrs JERRY JOHN ADUBOAH & 4 ORS 23 [xxxii] The Plaintiff’s relief b is granted as follows: An order for the 1st to 4th Defendants, jointly and severally, to repair the bulk in which the fuel was loaded, also belonging to the Plaintiff, and coupled to the articulator head, and which was also damaged in the accident on 8th April 2017 to the state in which it was before the accident. [xxxiii] Relief c for - Loss of use at the rate of GH¢3,648.76 per week from 8th April 2017, the date of accident to the date of judgment. However, the Plaintiff did not adduce even one iota of evidence to establish that the tanker used to earn an amount of Gh¢3,648.76 per week. The Plaintiff averred in his statement of claim that the Attorney is the one who deals with the accounts on the tanker and yet not even one piece of evidence was adduced in support of the earnings purportedly made each week. Showing earnings for a commercial tanker is very easily capable pf positive proof and yet nothing was put before this Court. For that reason, relief c fails but the Court shall award costs of Gh¢20,000.00 in favour of the Plaintiff and jointly and severally against the 1st, 2nd, 3rd and 4th Defendants. The 5th Defendant is absolved of all liability for the foregoing reasons. JUDGMENT – VINCENT ANSAH vrs JERRY JOHN ADUBOAH & 4 ORS 24 SGD. JUSTICE PATRICIA QUANSAH HIGH COURT ‘B’ TEMA GREATER ACCRA REGION. 26TH JUNE 2024. COUNSEL: COL (RTD.) KOFI DANSO ESQ. COUNSEL FOR THE PLAINTIFF PRESENT NO LEGAL REPRESENTATION FOR THE DEFENDANTS. JUDGMENT – VINCENT ANSAH vrs JERRY JOHN ADUBOAH & 4 ORS 25