AMOH-FEBIRI VRS KWAKYE (C11/12/2023) [2024] GHACC 98 (20 February 2024)

IN THE CIRCUIT COURT HELD AT TECHIMAN ON TUESDAY 20TH FEBRUARY, 2024 BEFORE H/H SAMUEL DJANIE KOTEY ESQ. SITTING AS A CIRCUIT COURT JUDGE SN: C11/12/2023 AMOH-FEBIRI JOHN VRS TWUMASI KWAKYE JUDGMENT The plaintiff wants to recover from the defendant by order of this court, one Toyota belta vehicle and one madza cx 5 vehicle or their current market value in the alternative. Plaintiff further wants damages for breach of agreement and cost. The defendant disputes the plaintiff’s claim for the vehicles or their current market value. According to the plaintiff’s writ of summons and statement of claim, he paid the total sum of Thirty-Four Thousand Ghana cedis (Ghc 34,000.00) to the defendant towards the purchase and delivery to him of a Toyota Belta vehicle. Plaintiff averred also that he paid another Sixty Thousand Ghana cedis (Ghc 60,000.00) to the defendant for the purchase and delivery to him of Mazda CX-5. Plaintiff’s story is that the defendant though promised to deliver those vehicles to him upon receipt of those monies has defaulted on his obligation to supply those vehicles. The plaintiff having exhausted his patience in waiting to receive the vehicles from the defendant has instituted the present action against the latter. On his part, the defendant in his statement of defence filed on 19th May, 2023 admitted receiving those monies from the plaintiff for supply of those vehicles. He stated that rather than the plaintiff being awarded his claim to compel the defendant to deliver the vehicles to him or their equivalent market price, the plaintiff should be made to recover only the monies he paid for those vehicles without more. He offers no reasonable defence to the plaintiff’s claims save to say that the plaintiff should be held entitled to the total sum of money he paid to him for the two cars without more. In effect, the defendant admitted owing the plaintiff to the tune of Ghc 94,000.00 which he has failed to pay. The reason for the failure to either deliver the vehicles was later to be provided in the testimony of the defendant’s attorney although wryly stated by the defendant in his statement of defence. In the case of the Toyota belta, the defendant stated in his statement of defence that there was a delay in delivering the vehicle to the plaintiff due to challenges faced in importing the containing into Ghana. With regards to the Mazda vehicle, the defendant stated that a wrong vehicle was imported instead of the kind specified by the plaintiff. Since the defendant has admitted owing the plaintiff less than the claim mounted by the plaintiff in this action, the burden rests on the plaintiff to prove that he is entitled to the claims beyond what the defendant admits. This case being a civil one, that burden that the plaintiff carries can be discharged on the preponderance of the probabilities as Section 11(4) of the Evidence Act, 1975 (NRCD 323) requires. The plaintiff in simple terms is required to provide sufficient evidence on his claims so that this court can reasonably conclude that his case has a more probable occurrence than not. I will determine the case along the issues that the court adopted for trial as proposed by the parties. Those issues are as follows: a. What were the terms agreed between the parties regarding the purchase and supply of the Toyota Belta? b. What were the terms agreed between the parties regarding the purchase and supply of the Mazda CX-5? c. Whether or not the defendant has breached the agreement he had with the plaintiff with respect to the vehicles. I will resolve the issues above in the manner they have been raised. At the trial, the evidence of the plaintiff was presented by himself alone. He did not invite any witness. On the part of the defendant, his attorney was the only one who testified for the defendant. No other witness was called by the defendant. What were the terms agreed between the parties regarding the purchase and supply of the Toyota Belta? On this issue, the plaintiff testified that regarding the Toyota belta, he gave his Toyota vitz to the defendant to sell and use the proceeds to buy a new car for him. He told the court that the defendant told him that he realized the sum of Ghc 34,000.00 from the sale of the said Toyota vitz and informed him that that amount can get him a Toyota belta. He testified that he instructed the defendant to buy the said vehicle for him. He said that when the defendant delayed in delivering the vehicle to him and he inquired from him as to the reason for the delay, the defendant told him that the vehicle had arrived at the port but has been seized by his agent. He testified that the defendant has failed to deliver the said vehicle to him. The defendant’s attorney also testified that the agreement regard the Toyota belta is that the sum of Ghc 34,000.00 which was realized from the sale of the plaintiff’s Toyota vitz was to be used to import the vehicle and when it arrives at the port, the plaintiff will pay the freight charges and import duty. He insists that the defendant has not breached the agreement he had with the plaintiff. From the testimonies of both parties before me, there is no doubt regarding the fact that the sum of Ghc 34,000.00 was received by the defendant on behalf of the plaintiff for the supply of the Toyota belta. What is in dispute is whether beyond that amount, it was further agreed that another sum be paid for import duty or freight charges. On this question, the plaintiff says that there was no such agreement. The defendant insist there was such an agreement. Both parties tendered documents in evidence including the bill of lading for importing the vehicle and screen shots of watsapp chats. Plaintiff’s watsapp chat screen shots (exhibits B series) appears to be communication between the mobile number +233 244487385 and another person whose contact number and information is not clear from the exhibit. The chat appears to be a communication between the said number and another person who is not the direct person the number identified is dealing with. Under cross examination, the defendant’s attorney agreed that one of the persons engaged in the communication is the defendant. I am not told who the other person was. Since the plaintiff was the one who tendered the document, I will assume that the communication was between himself and the defendant. The communication between the two suggests that one of the parties to the chat is a messenger who is to carry the information to his brother and return with further information for the identified number he was chatting with. The communication in that chat was very inconclusive regarding the said Toyota belta. There was no mention of import duty or freight charges with regards to the Toyota belta. The sum of Ghc 34,000.00 was bandied about severally in the chat for the Toyota belta. However, the chat ended inconclusively on whether that was the final amount the parties had agreed for the Toyota belta although in the said chat, one of the parties asked whether the sum of Ghc 34,000.00 will be accepted and the response that question received was that if everything can be given then it will be accepted. It gave the impression that the sum of Ghc 34,000.00 was the final price for the Toyota belta. The defendant’s attorney also tendered some screen shots of watsapp chat between one Febiri Techiman who is said to be plaintiff herein and another person whose number and identity is not revealed in the screen shot tendered as exhibit 4 and 4A. From the said screen shots, the price of a car is stated as Ghc 52,000 with freight charges of Ghc14,000.00 Exhibit 4A is chat between one Bro Pee and another person whose particulars are unknown from the screen shot tendered. In this chat also, some pictures were sent with an attached audio recording. Again the price of car (unspecified) is given as Ghc 52,000.00 with freight charges as Ghc 14,000.00 for a vehicle which was not indicated. The documents tendered by both parties at the trial are not helpful in any way in resolving the issue of the terms of the agreement regarding the Toyota belta. What this means is that beyond the fact that the price of Ghc 34,000.00 was agreed for the vehicle, there was no further evidence of any other term agreed between the parties regarding the Toyota belta. The burden to show that there was an agreement for the payment of freight charges and import duty for the Toyota belta is on the defendant who is making that allegation. It has been established beyond doubt that the defendant received the sum of Ghc 34,000.00 from the plaintiff towards the purchase by the plaintiff and delivery by the defendant of Toyota belta. Beyond this agreement, I do not find evidence from the evidence presented before me that there was a further agreement that the plaintiff would pay for the freight charges for the vehicle as well as the import duty when that vehicle is delivered. It is the defendant who wants the court to accept that the parties agreed that beyond the GHc 34,000.00 which the defendant received from the plaintiff, there was a further agreement that the freight charges and import duty will be paid when the vehicle is delivered. At the trial however, the defendant failed to produce evidence of the agreement for the plaintiff to pay those additional charges. On the basis of that I hold that the price for the Toyota was agreed to be Ghc 34,000.00 without more. The court did not find any evidence that the parties agreed that the said Ghc 34,000.00 defendant received from the plaintiff was exclusive of freight charges and import duty. What were the terms agreed between the parties regarding the purchase and supply of the Mazda CX-5? On this issue, the plaintiff testified that the defendant demanded a deposit of the sum of Ghc 60,000.00 towards the purchase of the mazda cx 5. On the part of the defendant, his attorney testified that the defendant received the sum of Ghc 60,000.00 from the plaintiff for the vehicle. There was no further evidence from the defendant as to the reason the said vehicle was not delivered. When the plaintiff was answering questions from the defendant’s attorney under cross examination, he testified that the parties held discussions over the duty for the mazda. He testified specifically that it was agreed that after the vehicle has been delivered that he will be required to pay the duty for it. He confirmed that the Ghc 60,000.00 he paid to the defendant was not the full payment for the mazda cx 5. This statement is an admission that payment regarding the import duty was not part of the Ghc 60,000.00 the plaintiff paid to the defendant. The agreement as between the parties was inferred from the defendant’s attorney’s testimony under cross examination to be that the defendant will pay the import duty for the vehicle when it is delivered. During cross examination of the defendant’s attorney by the plaintiff, the following ensued: Q. According to your exhibits 4 series, it was agreed that the cost of the Mazda cx5 was to be Ghc 60,000.00 less the duty for the vehicle. Is that not so? A. That is correct Q. On 3rd April, 2023, defendant told me the vehicle had arrived at the port and asked me to pay you Ghc 60,000.00 which I did. Is that not correct? A. That is correct Q. Have you delivered the vehicle to me yet? A. No my Lord. From the above, it was established that after the payment of the sum of Ghc 60,000.00 for the mazda, the vehicle will be delivered to the plaintiff and then he will be required to pay the duty on the said vehicle to the defendant. The sum has been paid and receipt duly acknowledged by the defendant but the vehicle is yet to be delivered. On the basis of the above, I hold that the defendant is in breach of the contract that he entered with the plaintiff regarding the supply of the Toyota belta to the plaintiff. In the case of the Toyota belta, the plaintiff has no outstanding obligation. In the case of the mazda however, the plaintiff has an outstanding obligation to perform but that is subject to the performance of the defendant’s obligation to deliver the vehicle. The court hold that the defendant having failed to deliver the Toyota belta when the plaintiff has performed his obligations under the contract, is in breach of the contract to supply the plaintiff with the Toyota belta. In the case of the mazda cx 5, giving that there was no agreement as to the time that the said vehicle is to be delivered for the plaintiff to pay the duty, I cannot hold that there has been a breach of the agreement. Apart from the evidence from the plaintiff that the defendant told him in April that the mazda vehicle had arrived at the port, there was no evidence regarding the time that the vehicle was to be delivered. I reckon that it has taken close to a year since the vehicle was said to have arrived at the port but there was no indication by the plaintiff at the trial that the delay in delivering the vehicle was contrary to what they had agreed. I am therefore unable to hold that as regards the mazda cx5, the defendant is in breach of the contract. Claim for award of damages The reason for the need to find out what the terms regarding those two vehicles were is to enable the court determine whether or not the claim for the vehicles in question or its current market value. If it is shown that the plaintiff owed some obligation which he is yet to perform, then the court cannot uphold his claim for the market value of the vehicle or the delivery of the vehicle. In that case, it will mean that the plaintiff is to blame partly for the delay in receiving the vehicle. From the evidence before me, the agreement regarding both the Toyota belta and the Mazda Cx5 were concluded. Regarding the mazda, the plaintiff had some outstanding obligations but those were subject to the performance of some obligations by the defendant. The plaintiff wants the court to order the defendant to either deliver the said Toyota belta or it’s current market value. This claim although justified cannot be granted in the nature claimed. The reason is that it will be impossible for the defendant to comply with the order if made in the nature requested by the plaintiff without reference to the year and make of the vehicle. Vehicles come in years and make. Without the year of the vehicle which the parties agreed, the court cannot order the defendant to deliver any vehicle of that make. Such order will not be specific to attract sanctions for non-compliance. It is also for this reason that I am unable to order that the defendant pays for the current market value of the said vehicle. The prices of vehicles are based on the year of manufacture of the said vehicle among other considerations. Without the year of the vehicle, the defendant will not be able to comply with the order to pay the current market value of the vehicle specifically. The reason the plaintiff made the claim in the nature he presents is so that he does not lose the value of the money he paid to the defendant at the time he did so if it is to be paid to him presently. He wants to ensure that if the defendant is not made to deliver the same vehicle to him, presently, the amount he is made to pay to him is able to enable him get the same vehicle on the open market at the time of payment of the money. In consequence therefore, in order to ensure that justice is served, and in order to put the defendant in a position he would have been if the vehicle had been delivered, I will order the defendant to pay the price of Ghc 34,000.00 which the plaintiff paid to the defendant for the said vehicle with interest at the prevailing bank of Ghana rate of lending to the commercial banks from May, 2022 till date of final date of payment. This I am certain will satisfy the award of damages. The essence of damage is to place the innocent party in a position that he would have been if the breach of the contract had not occurred. In the case of ROYAL DUTCH AIRLINES (KLM) AND ANO V FARMEX LTD [1989-90] GLRD 266, the Supreme Court held that on the measure of damages in breach of contract, the principle adopted by the courts was restititio in integrum, ie, if the plaintiff has suffered damages – not too remote – he must, as far as money could it, be restored to the position he would have been had the particular damage not occurred. General damages for the breach of the contract is assessed at GHc 6,000.00 against the defendant in favour of the plaintiff. With regards to the mazda cx 5, since the parties also concluded on the terms of the agreement save that there was no agreement as to the time the vehicle was to be delivered, I hold that it will be unjust to order the defendant to deliver the said vehicle to the plaintiff or its current market price. If the parties had agreed on the time the vehicle was to be delivered and the defendant had failed to deliver same at the agreed time, then the court would have held the defendant in breach of the terms of the agreement and awarded damages. From the action brought by the plaintiff seeking that the defendant be made to deliver the vehicle or the amount paid for same, I deduce that the plaintiff is no more interested in going ahead with the transaction. Since it is the plaintiff who is no more interested in the purchase of the mazda vehicle and not that the defendant has failed and or refused to deliver the vehicle within an agreed time, the plaintiff shall be held entitled to a return of his money without more. The defendant cannot be held liable for failing to deliver the vehicle unless there is evidence that he has failed to do so contrary to the terms of the contract. As earlier said, there was no agreement as to the time the vehicle was to be delivered. There being so such agreement, the claim by the plaintiff that the defendant has breached the contract for failing to deliver the vehicle cannot be justified. In the circumstance, the plaintiff is justified to receive only the Ghc 60,000.00 he paid to the defendant without more. In the circumstance, I hereby order the defendant to refund the sum of Ghc 60,000.00 to the plaintiff. Judgment is hereby entered for the plaintiff to recover from the defendant the sum of Ghc 34,000.00 with interest at the prevailing bank of Ghana rate from May 2023 till date of final judgment. Damages for the breach of the contract is assessed at Ghc 6,000.00 against the defendant in favour of the plaintiff. Defendant is further ordered to pay to the plaintiff the sum of Ghc 60,000.00 being the sum of money he (defendant) received from the plaintiff to deliver mazda cx 5 to the latter but he failed to do so. Cost of Ghc 5,000.00 in favour of the plaintiff against the defendant. SGD HH SAMUEL DJANIE KOTEY Representation: Plaintiff in person Defendant per lawful attorney