AMOAKO VRS ESHUN & ANOTHER (C11/217/23) [2024] GHACC 9 (22 February 2024)

IN THE CIRCUIT COURT “A”, TEMA, HELD ON MONDAY 22ND DAY OF FEBRUARY, 2024, BEFORE HER HONOUR AGNES OPOKU-BARNIEH, CIRCUIT COURT JUDGE SUIT NO. C11/217/23 PATRICK AMOAKO ---- PLAINTIFF VRS. EBENEZER LLYOD ESHUN ---- 1ST DEFENDANT MR.GEORGE AKPABLI 2ND DEFENDANT PLAINTIFF PRESENT DEFENDANTS ABSENT NO LEGAL REPRESENTATION JUDGMENT FACTS The plaintiff caused a writ of summons with an accompanying statement of claim to be issued against the defendants on 1st August 2023 for the following reliefs; a. An Order directed at the defendants to pay an amount of Eight Thousand Nine Hundred and Sixty Ghana Cedis ( GH₵8,960). b. An order directed at the defendants for the payment of his charges for 12 weeks in Abidjan or in the alternative the load of Black Oil be released to the court and the police for sale for his charges to be calculated and paid out of the sales to him with costs. The plaintiff’s case is that he is a driver and a transporter and resides both at Kumasi and Kpone Tanker yard. The defendants are petrol dealers and they reside in Tema. The plaintiff says that on the 17th day of April 2023, the defendants hired his petrol tank from Tema to Abidjan to cart Black oil from Abidjan to Tema. The plaintiff says that 1 they bargained and arrived at an amount of Thirty Thousand Ghana Cedis (GH₵30,000) for three days to and from Abidjan. The plaintiff says further that after agreeing on the terms, he proceeded to Abidjan. When he arrived in Abidjan on 17th April 2023, the defendant directed him to park the truck at Ajare town, a suburb of Abidjan in the Extra Energy Company yard. The plaintiff says that after spending two weeks at the yard without being loaded with the black oil, he decided to move his truck out of the yard. The plaintiff avers that after loading, he spent another three days in the yard and the defendant claimed that he had no money to pay the owner of the black oil. Due to this fact, his truck was impounded in the company’s yard from 5th May 2023 to 15th July 2023. The plaintiff says after the 4th occasion, the defendants on the 5th May, 2023 after the truck was loaded with the black oil the defendants did not pay and left him and the load at Abidjan. They came to Ghana and later returned to Abidjan on the 20th of July, 2023 and the load was all this while on the truck. The plaintiff says that in the absence of the defendants, he reported the matter to the Abidjan Police but was of no help. The plaintiff says that he thereafter left Abidjan and arrived in Tema, Ghana on 22nd July 2023. The plaintiff says that due to the overload of the truck by the defendants and the poor road network, on his way to Tema, he broke his back springs and the defendant replaced it for him. The plaintiff says that he later moved the truck with the load and was impounded at the Elebu border because of nonpayment of duty and he spent two weeks and two days at the border. The plaintiff says that on his arrival at Tema, the defendants refused to pay him for the number of days he overstayed at Abidjan and asked him to discharge the load but he refused. The plaintiff states that because of his experiences on 3 occasions that the defendants failed to pay him after discharging the load, he failed to do so. 2 The plaintiff further states that on 2nd July 2023, after discharging the load at Kpone Police Station for safety, he lodged a complaint of nonpayment against the defendants. The plaintiff says that the charge between the plaintiff and the defendants is GH₵30,000 for three days and they have kept him and his truck from 24th April to 2nd July 2023 being 12 weeks. The plaintiff says that the conduct of the defendants shows that they will not willingly pay his charges unless they are compelled by this Honourable Court. The plaintiff says that the defendants be ordered to pay damages for the ordeal he went through in Abidjan for 12 weeks. The plaintiff says that out of the Thirty-Thousand Ghana Cedis (GH₵30,000), the defendant made part payment of Twenty-One Thousand Forty Ghana Cedis (GH₵21,040) leaving a balance of GH₵8,960 due the plaintiff. The first defendant was served personally the second with the writ of summons and the statement of claim on 7th August 2023 and the second defendant was also served by substituted service on 3rd October 2023 but the defendants failed to enter appearance. On 2nd November, 2023 the the court entered judgment in default of appearance on relief “a” to recover from the defendants an amount of GH₵8,960. The Court entered interlocutory judgment on relief (b) for the plaintiff's evidence to prove the same before final judgment is entered. The defendants were served with witness statements and hearing notices to appear in court to participate in the trial but they failed to do so. LEGAL ISSUE Whether or not the plaintiff is entitled to final judgment for the recovery of an amount of Thirty Thousand Ghana Cedis for Twelve weeks or an order for the sale of the Black Oil. 3 ANALYSIS It is trite that he who asserts must prove. The burden on a party to prove his claim on a balance of probabilities remains the same even when the action is uncontested. In the case of Tei & Anor v. CEIBA Intercontinental [2017-2018] 2SCGLR 906 at 919, per Per Pwamang JSC stated as follows: “It must be remembered that the fact that the defendant does not appear to contest a case does not mean that the Plaintiff would be granted all that he asked for by the court. The rule in civil cases is that he who alleges must prove on the balance of probabilities and the burden is not lightened by the absence of the defendant at the trial. The absence of the defendant will aid the plaintiff only where he introduces sufficient evidence to establish a prima facie case of entitlement to his claim.” The plaintiff testified that he is a tanker driver and that the defendants hired his truck for three days at the Kpone Tanker yard to convey black oil from Abidjan to Tema. They agreed on an amount of GH₵30,000 as transportation cost between himself and the defendants with three days covering the entire duration of the contract. After agreeing on the terms, he departed with the driver’s mate for Abidjan on 17th April 2023. At Abidjan, the product was loaded onto the truck two weeks after their arrival and the 1st defendant claimed not to have money to pay for the products. Prior to loading the product on the truck, it was not done successfully without meeting stiff opposition from the defendants who refused to load his truck. Based on the fact that the defendants did not have money to pay for the products, they offloaded the product back to the warehouse where their truck was stationed, and this incident happened about three times. The plaintiff further testified that he later called to inform the 1st defendant that, since he could not settle the fee for the product, he would return to Ghana. He insisted on staying in Abidjan and instructed the warehouse owner not to allow the truck to move out of the warehouse. Subsequently, he took ill and later reported the matter to the Agyare Police Station at Abidjan but they could not solve the problem. 4 The plaintiff testified further that on or about the 20th day of July 2023, the first defendant asked the warehouse owner to release him after loading another product onto his truck. He spent about three months in Abidjan and arrived in Tema on or about the 22nd day of July 2023. When he arrived, he informed the defendants to settle the debt owed him including the days he overstayed in Abidjan and further requested a location to offload the product, but he refused his request. He reported the matter to Kpone Police Station for amicable settlement. However, the defendants did not show up and he was directed by the officer in charge to park the truck with the load for safekeeping in a private yard at Kpone Kokompe around the Goil Filling Station. According to him, the defendants have made a part-payment of Twenty-One Thousand and Forty Ghana Cedis (GH₵21,040) with an outstanding balance of Eight Thousand Nine Hundred and Sixty Ghana Cedis (GH₵8960). The plaintiff states that the actions of the defendants have kept him out of employment since 3rd April 2023 and he has not been able to use his truck for business to cater for his family. According to the plaintiff, he makes weekly proceeds of Thirty Thousand Ghanan Cedis (GH₵30,000) from his tanker business which is evidenced by the contract that he signed with the defendant. Again, between 24th April 2023 and 27th November 2023 will be about 31 weeks. He therefore prays that judgment is entered in his favour as the defendant is justly indebted to him. The plaintiff’s witness PW1 Salifu Abubakari testified in support of the case of the plaintiff that sometime in June 2023, his car owner engaged the defendants for him to convey black oil from Anane to Tema. When he arrived at Anane in Cote d’Ivoire, he met the plaintiff who informed him that the defendants had contracted him to convey black oil from Abidjan to Tema and he had been in Anane for about two months and a week. The plaintiff further informed him about his ordeal which led to a 5 misunderstanding between himself and the defendants. He stated that the defendants were to load his truck and that of the plaintiff. Three weeks after he arrived at Anane, the defendants released the plaintiff’s truck and he left for Ghana. Again, he spent about one month in Anane before his truck was loaded and released to Ghana. He met the plaintiff who had spent a week at Elubo on the Cote d’Ivoire Ghana border and they spent one week together. Their challenge was that the defendants failed to give them the necessary documents to travel to Ghana. After two weeks at Elubo, the necessary documents were given to them and the defendants escorted them to Ghana Upon arrival in Ghana, they parted ways and he took his load to his car owners. The plaintiff later informed him that the defendant refused to pay him the outstanding sum of GH₵8,960 and the period he overstayed at Abidjan. The plaintiff reported the matter at the Kpone Police Station for an amicable settlement but the defendants failed to show up. The plaintiff was directed by the officer in charge to park the truck with the load for safekeeping in a private yard at Kpone Kokompe around the Goil filling station where the product and the truck have been since. Thus, from April 2023 till this day, the defendant’s actions have kept the plaintiff out of employment making him lose a weekly income of about Thirty Thousand Ghana Cedis (GH₵30,000). The defendants were duly served with notices but they failed to appear before the court. In the case of the Republic v. High Court (Fast Track Division), Accra Ex-parte State Housing Company Limited (No. 2) [2009] SCGLR 185 at 190, the Supreme Court per Georgina Wood, C.J (as she then was) held that: "A party who disenables himself or herself from being heard in any proceeding cannot turn round and accuse an adjudicator of having breached the rules of natural justice". The need for a defendant to give evidence to explain his version of events culminating in the litigation cannot be gainsaid. Brobbey JSC (as he then was) in the case of 6 Ashalley Botwe Lands; Adjetey Agbosu & Others v. Kate and Others (2003-2004) SCGLR 420 at page 464, underscored the need for a defendant to appear to help his case by participating fully in the trial and putting his rival version across to assist the court in weighing the balance of probabilities. The Court stated that: “…. A litigant who is a defendant in a civil case does not need to prove anything; the plaintiff who took the defendant to court has to prove what he claims he is entitled to from the defendant. At the same time, 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 it cannot be based on nothing. If the defendant desires the determination to be made in his favour, then he has a 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…” From the evidence led by the plaintiff and his witness, the defendants engaged the services of the plaintiff to carte black oil for Thirty Thousand Ghana Cedis for one week. The evidence shows that the agreed amount was Thirty-Thousand Ghana Cedis. They made part-payment and the court entered final judgment in default of appearance on the outstanding balance. The unchallenged evidence of the plaintiff is that he spent three months in Abidjan before the truck was loaded for him to come to Ghana. Thus, the defendants having wasted the time of the plaintiff for 12 weeks without the use of his truck to generate income, he is entitled to recover this amount from the defendants at their contract rate of Thirty Thousand Ghana Cedis (GH₵30,000). From the plaintiff’s showing, he reported a matter to the police based on which the truckload of black oil was impounded at the police station. Based on the fact that it is the complaint of the plaintiff that has led to the continuous stay of the truck at the police station, the defendants cannot be made to pay for the period that the goods have been parked at the police station. 7 The nature of the charge forming the basis of the complaint at the Police Station is not before the court for the court to order the release of the goods to the court and the police for sale. The plaintiff may resort to sale through post-judgment execution processes. On the totality of the evidence led by the plaintiff, I find that the plaintiff proved his claim on a balance of probabilities. I therefore enter final judgment for the plaintiff to recover from the defendants a weekly rate of Thirty Thousand Ghana Cedis (GH₵30,000) for twelve weeks totalling Three Hundred and Sixty Thousand Ghana Cedis. COSTS The plaintiff also claims costs inclusive of legal fees. The enactment of the High Court (Civil Procedure) Rules, marked an end to the arbitrary and capricious exercise of the court’s discretion in the award of Costs since Order 74 provides the rules on the exercise of the court’s discretion in awarding costs. The defendants spurned the opportunity to be heard on costs having failed to appear at the trial. Considering the nature of the case, the length of the trial and the number of court sittings, the fact that the action is uncontested, and the reasonable expenses incurred by the plaintiff in filing processes in court, I will award an amount of Eight Thousand Ghana Cedis (GH₵8,000) as cost in favour of the plaintiff against the defendants. Costs of Eight Thousand Ghana Cedis is awarded in favour of the plaintiff against the defendants. SGD. H/H AGNES OPOKU-BARNIEH (CIRCUIT COURT JUDGE) 8