Amo v Adu (A2/136/23) [2025] GHADC 175 (10 June 2025)

IN THE DISTRICT COURT (1), MADINA, CORAM HER WORSHIP ROSEMARY ABENA GYIMAH HELD ON TUESDAY, THE 10TH DAY OF JUNE 2025. SUIT NO: A2/136/23 SETH KWADZO AMO …. PLAINTIFF Digital Address GE-280-9161 Haatso, Accra VRS. KWASI ADU …. DEFENDANT Atomic Junction Accra …………………..…………………………………………………………………………… JUDGMENT ………………...……………………………………………………………………………… INTRODUCTION The Case of the Plaintiff By the Plaintiff’s amended writ of summons filed on 13 June 2023, it is his case that sometime in September 2020, he intimated to the Defendant that he needed to buy a used car which was in good-working condition for his personal and family use. Subsequently after negotiations by the parties on the type of car and price involved, the Defendant agreed to sell his used Mercedes Benz saloon car with registration number GE 883-20 to the Plaintiff at a price of Sixty Thousand Ghana Cedis (GHS60,000.00) of which Forty Five Thousand Ghana Cedis (GhC45,000.00) was to 1 be paid upon the delivery of the used Mercedes Benz saloon car with registration number GE 883-20, whilst the remaining balance of Fifteen Thousand Ghana Cedis (GHS15,000.00) was to be settled later by instalment. The Plaintiff states that it was agreed between both parties to use Plaintiff’s used Mercedes Benz saloon car with registration number GW 350-16, at an agreed value of Twenty Thousand Ghana Cedis (GHS20,000.00) to settle part of the purchase price of the used Mercedes Benz saloon car with registration number GE 883-20. In accordance with the oral agreement, in August, 2021, the Plaintiff asserts that he made payment for the said used Mercedes Benz saloon car with registration number GE 883-20 (hereinafter referred to as latter Benz) by transferring to the Defendant his used Mercedes Benz saloon car with registration number GW 350-16 (hereinafter referred to as former Benz) at an agreed value of Twenty Thousand Ghana Cedis (GHS20,000.00) together with a cash sum of Twenty Five Thousand Ghana Cedis (GHS25,000.00). Upon receipt of the former Benz and the money, the Defendant in turn delivered the latter Benz which was then parked at Defendant’s garage to the Plaintiff. Upon delivery of the car to him, the Plaintiff attempted to drive it from the Defendant's garage to his house to assess its performance but he realized that the brake in the car was not functioning and so he called the Defendant who told him to leave it there for the Defendant's mechanic to go and fix the problem, which the Plaintiff did. It however, took more than four (4) months for the car to be returned to him by the Defendant's mechanic who claimed that he identified other latent defects in the car which needed to be rectified before it could be used again. The Plaintiff further asserts that, a day after the Defendant's mechanic returned the car to him, he tried to drive around his area at Haatso but the car suddenly stopped in the middle of the road and could not move again. When the Plaintiff informed the Defendant, the Defendant again sent his mechanic to fix the problem which was unsuccessful causing the mechanic to have to take the car to his workshop. The Plaintiff says the car remained at the workshop for more than three (3) months before it was returned to the Plaintiff. 2 Within a week after the car was returned to the Plaintiff by the Defendant's mechanic and whilst the Plaintiff was driving it some few metres from his house, the car once again stopped abruptly in the middle of the road, after the power in the car went off causing a great deal of inconvenience and embarrassment to the Plaintiff. When the Defendant was notified, he once again sent his mechanic who came and took the car to his workshop. Barely six (6) months after the Plaintiff bought the latter Benz from the Defendant and after Plaintiff’s persistent demand for its replacement, the Defendant finally agreed that the car be returned for a replacement; either for a used Toyota saloon car or a Honda Civic. The latter Benz was then returned to the Defendant in March, 2022 and at the time the car was returned to the Defendant in March, 2022, the Plaintiff had neither used the car to work, nor church nor to any social event, for a continuous period of one (1) week. It is the Plaintiff’s case that despite his repeated demands for same and since the latter Benz was returned to the Defendant in March 2022, the Defendant has failed to replace same as the Defendant earlier agreed and has also refused to refund the Forty Five Thousand Ghana Cedis (GHS45,000.00) to the Plaintiff. As such, the Plaintiff by his amended writ of summons is seeking the following reliefs from this Honourable Court; 1. Refund of the sum of GHC45,000.00 being the price paid by the Plaintiff to the Defendant for the purchase of his used Mercedes Benz saloon car with Registration No. GE 883-20 in August, 2021 but which turned out to be practically unusable and was returned to the Defendant at his request in March, 2022, yet he has failed to refund the Plaintiff's money to him in spite of his repeated demands 2. Interest on the said sum GHC45,000.00 at the current bank rate from 1st April, 2022 to the date of final payment. 3. Damages for-breach of contract 3 4. Any other relief(s) as this Honourable Court may deem fit The Case of the Defendant The Defendant filed his statement of defence on 17 July 2023 denying Plaintiff’s claims. From his statement of defense, the Defendant admits that there was an agreement between both parties for the Plaintiff to purchase from him the latter Benz at a cost of Sixty Thousand Ghana (GHS60,000.00). It is the Defendant’s case that prior to negotiating the purchase price, the Plaintiff inspected the vehicle and had it thoroughly examined and tested by Plaintiff’s own mechanic. The Defendant says that the agreed payment terms of the purchase price of the said latter Benz was for the Plaintiff to trade in his former Benz (which the Plaintiff earlier purchased from the Defendant) at an agreed value of Twenty Thousand Ghana Cedis (GHS20,000.00) and the balance of Forty Thousand Ghana Cedis (GHS40,000.00) to be paid in cash. That in line with the agreement, the Plaintiff swapped his former Benz for the Defendant's latter Benz and made a cash payment of Ten Thousand Ghana Cedis (GHS10,000.00) to the Defendant, leaving a balance of Thirty Thousand Ghana Cedis (GHS30,000.00) to be paid within two (2) months. The Defendant states that contrary to the promise to pay the balance of the purchase price within two (2) months after taking delivery of the latter Benz, the Plaintiff failed to honour same. The Defendant further states that following his persistent reminders and demands for the payment of the balance of the purchase price, the Plaintiff paid an additional Five Thousand Ghana Cedis (GHS5,000.00). It is the Defendant’s case that although the Plaintiff failed and/or refused to pay the balance of the purchase price, he retained and used the vehicle for an inordinately long period of time without notifying the Defendant of any latent defects. It is the Plaintiff’s further case that the Plaintiff with an intention not to pay the balance of the purchase price for the transaction, resorted to raising complaints of latent defects 4 belatedly, after a long period of retention and use of the vehicle. The Defendant says although the defects complained of never existed at the time of the sale as they would or ought to have been detected from the thorough inspection and examination conducted by the Plaintiff's own professional mechanic at the time of the sale, the Defendant had the defects fixed for the Plaintiff in the interest of friendly business relationship. It is the case of the Defendant that the Plaintiff's action is borne out of bad faith as it is a ploy to avoid the obligation to pay the balance of the purchase price of Twenty Thousand Ghana Cedis (GHS20,000.00) due the Defendant and by so doing the Plaintiff is seeking to unjustly enrich himself by reneging from the valid contract from which he has derived the associated benefits continuously for more than six (6) months without compensating the Defendant. It is also the Defendant’s case that after taking delivery of the vehicle and putting the vehicle to use, the Plaintiff accepted the transfer of the property in the latter Benz and therefore assumed all the risks of defects ordinarily associated with a secondhand vehicle of the nature and description the Plaintiff opted for. The Defendant avers that as the property in the vehicle has long passed to the Plaintiff, it will be unlawful for the Plaintiff to resile from the contract and that he is lawfully entitled to recover the balance of the purchase price of Twenty Thousand Ghana Cedis (GHS20,000.00) from the Plaintiff. The Defendant therefore counterclaims against the Plaintiff as follows; a. A declaration that the sales agreement between the Plaintiff and the Defendant made in the month of August 2021 is valid; and a consequential order of specific performance directed at the Plaintiff to pay the balance agreed purchase price of the vehicle to the of the Defendant. Or in the Alternative 5 Recovery of costs for the use of the Defendant's vehicle computed at the equivalent of daily hiring charge of GHC400 per day for the period August, 2021 to March 2022. b. Damages for breach of contract, costs, including legal fees. In response to the Defendant’s counterclaim, the Plaintiff filed his reply and defence to counterclaim on 18 August 2023 denying the Defendant’s claims. On 4 July 2023, when parties first appeared before this Court in this matter, the Defendant admitted he was liable to pay Twenty Thousand Ghana Cedis (GHS20,000.00) to the Plaintiff and not Forty Five Thousand Ghana Cedis (GHS45,000.00) as the Plaintiff claims. The Court proceeded to enter judgment in part in favour of the Plaintiff with respect to the Twenty Thousand Ghana Cedis (GHS20,000.00) admitted by the Defendant. This judgment is therefore to make a determination on the following; a. whether the Plaintiff is entitled to recover from the Defendant an amount of Twenty Five Thousand Ghana Cedis (GHS25,000.00) from the Defendant as being the outstanding balance of the purchase price of the latter Benz paid to the Defendant together with all the other reliefs as endorsed on Plaintiff’s amended writ of summons filed before this Court b. whether the Defendant is entitled to his counterclaim APPLICABLE LAWS BURDEN OF PROOF In Fred Reimmer v Pastor Baffour, Suit No.FAL 314/11 dated 23 June 2017, Sittie J, restated the position of the law on burden of proof as follows ; 6 “The position of the law on evidence in civil cases is that a party must win his case on the preponderance of probabilities. Section 11, 12 and 14 of NRCD 323 refers. This position of the law was affirmed by Kpegah JA (as he then was) in the case of Zabrama v Segbedzi [1991] 2 GLR 221 at 224 when he stated as follows; . “a person who makes an averment or assertion, which is denied by his opponent, has the burden to establish that his averment or assertion is true. And he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of that burden.” Proof was defined in Majolagbe v Larbi [1959] GLR 190 at 192 as follows: “Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way, e,g by producing documents, description of things, reference to other facts, instances, or circumstances, and his averment is denied, he does not prove it by merely going into the witness-box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances from which the Court can be satisfied that what he avers is true.” In Eric Opoku (A. B. 57 Abedwan Ashanti) v. Standard Securities Ltd. (Kumasi BranchAhodwo) and African Support Network, Suit no.: INTS 02/2019 dated 6 May 2019, the High Court referred to the time honoured principle established in Ackah v. Pergah Transport Ltd. (2010) SCGLR 728 @736 as follows; 7 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 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, 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 reasonable than its non-existence. It is also trite law as has been established in a number of cases that the balance of probabilities tilts in favour of the person whose case is more probable. See the case of Takoradi Flour Mills v. Samir Faris [2005-2006] SCGLR 882 at 900. Indeed the balance of probabilities connotes the existence of a state of fact which is more probable than its non-existence; Section 12(2) of the Evidence Act, 1975 (NRCD 323). In Gyebu XV v. Mondial Veneer (GH) Ltd. Civil Appeal No. J4/31/2010 dated 11 August 2010, the former Chief Justice, Justice Theodorah Wood, stated as below; “It is only where the party has succeeded in establishing those facts on the balance of probabilities that the party would be entitled to the claim.” EVALUATION OF THE LAW AND ANALYSIS 8 At trial, the Plaintiff gave evidence by himself and called his wife; Louisa Afua Boahemaa as a witness. The Plaintiff tendered in Exhibit A; an official receipt from Adus Motors Ventures received from the Plaintiff with receipt number 00138. On 23 November 2023, when the Plaintiff was cross examined by Counsel for Defendant on Exhibit A the following ensued; Q. The receipt testifying the payment alluded to which you just referred to is Exhibit A tendered by you. Is that not so? A. Yes. Q. Please take a look at the said Exhibit A and tell this Court the transaction date as written by the issuer of the receipt. A. The date written at the top is 10th July 2021 but the date and my name on the receipt were written by me. The Defendant wrote the amount and the figures and brought the receipt to me in my house but in writing he wrote the wrong date so I changed it to the correct month but not on the face of it but at the back because even that 10th July 2021 we had not started discussing issues pertaining to the car. Q.You dated the receipt yourself on presentation to you by the Defendant. Is that not so? A. Yes I did but later on I realized that it was wrong and I wrote the right month. Q. When you were writing the correct date of the transaction was the Defendant present? A. No he was not present. 9 Q. You never drew the Defendant’s attention to this alleged detection of the error regarding the transaction date. Is that correct? A. Yes I did not draw his attention to it. Q. Please take a look at Exhibit A tell this Court the amount of payment as written by the word payment. A. Fifteen Thousand Ghana Cedis (GHS15,000.00). Q. Refer to your own Exhibit A and tell this Court the amount indicated on the receipt you dated as denoting the balance. A. Thirty Thousand Ghana Cedis (GHS30,000,00). But if you take it on the face of the receipt you will get the balance wrong. When I got the receipt the words are written correctly but the figures are messed up on it. For example the sum received from Seth Kojo Amo is written as Forty Five Thousand Ghana Cedis (GHS45,000.00) at the end of the Forty Five Thousand Ghana Cedis (GHS45,000.00) in words he has written the amount in figures Forty Five Thousand Ghana Cedis (GHS45,000.00) being part payment Mercedes Benz payment and he wrote the Forty Five Thousand Ghana Cedis (GHS45,000.00) Counsel mentioned and when he came to the balance he wrote Thirty Thousand Ghana Cedis (GHS30,000.00). So my interpretation of what the Defendant has written the Thirty Thousand Ghana Cedis (GHS30,000.00), there his mind went to the Seventy Thousand Ghana Cedis (GHS70,000.00) which we initially began negotiating on as the price of the car but I bargained and we came to Sixty Thousand Ghana Cedis (GHSS60,000.00). So my payments of Forty Five Thousand Ghana Cedis (GHS45,000.00) if you take it out of the Sixty Thousand Ghana Cedis (GHS60,000.00) then it leaves the balance of Fifteen Thousand Ghana Cedis (GHS15,000.00) which he has written by the word payment as Counsel indicated. So the Thirty Thousand Ghana Cedis (GHS30,000.00) cannot be the balance. 10 The said Exhibit A admits of some inconsistencies as to the date the receipt was issued, the amount paid by the Plaintiff for which the said Exhibit A was issued and the outstanding balance due the Defendant by the Plaintiff. As a result, Exhibit A cannot be relied upon by this Court. The Plaintiff’s witness gave corroborative evidence that the agreed purchase price of the said latter Benz was Sixty Thousand Ghana Cedis (GHS60,000.00). She added that the agreed payment terms of the purchase price of the said latter Benz was for the Plaintiff to trade in his former Benz at an agreed value of Twenty Thousand Ghana Cedis (GHS20,000.00) and the balance of Forty Thousand Ghana Cedis (GHS40,000.00) to be paid in cash out of which the Plaintiff paid an amount of Twenty Five Thousand Ghana Cedis (GHS25,000.00) to the Defendant. The Plaintiff’s witness gave further evidence that due to rampant mechanic fault, she together with the Plaintiff decided that they were no longer interested in the said vehicle and agreed with the Defendant who promised to replace the said vehicle for them. Also, the Plaintiff’s witness on 20 June 2024 during cross examination by Counsel for Defendant admitted that the Plaintiff had not fully paid the purchase price of the latter Benz at the time the documents of the vehicle was handed over to the Plaintiff which was contrary to what parties had agreed on. In fact the Plaintiff at paragraph 8 of his Reply to the Statement of Defence and Counterclaim stated as below; “Plaintiff emphatically denies paragraph 10 of the Statement of Defence and Counterclaim and contends that, the issue of payment of the balance of GHS15,000.00 became moot since the car was not in good working condition for a greater part of the period it was in custody of the Defendant's own mechanic for the repairs of one fault to another upon his direction.” 11 As such, from the said paragraph 8 supra, the Plaintiff does not deny that there was an outstanding balance to be paid by him but only unilaterally declares such payment moot on the basis that the latter Benz was not in good condition. Turning to the Defendant, the Defendant gave evidence by himself and called no additional witness. I must note rather disappointedly, that despite the Defendant’s copious admission in his Statement of Defence that the agreed purchase price of the latter Benz was Sixty Thousand Ghana Cedis (GHS60,000.00), the Defendant in his evidence in chief sought intimate to this Court, rather unconvincingly, that the agreed purchase price of the latter Benz was rather Sixty Five Thousand Ghana Cedis (GHS65,000.00). This evidence was subjected to cross examination by Counsel for Plaintiff on 22 April 2025 as follows; Q: What was the agreed price for the purchase of the Benz GE 883-20 vehicle? A: Sixty Five Thousand Ghana Cedis (GHS65,000.00). Q: In your statement of defence filed on 17th July 2025 in paragraph 7 you stated that (Counsel reads...) A: I have a receipt showing that the vehicle was sold to the Plaintiff at Sixty Five Thousand Ghana Cedis (GHS65,000.00). Q: Kindly show that to the Court. A: I do not have the receipt with me here. Q: As at the time you were filing the defence did you have your receipt? A. Yes I was having the receipt and with what Counsel is saying I did not say the selling price is Sixty Thousand Ghana Cedis (GHS60,000.00). In fact the 12 Plaintiff has a copy of the receipt with the selling price of Sixty Five Thousand Ghana Cedis (GHS65,000.00). Q. I am suggesting to you that you are not being truthful to the Court. A. That is not so and that the receipt I issued to the Plaintiff is what will testify to the transaction between the parties. Having already admitted in his Statement of Defence and Counterclaim that the agreed purchase price was Sixty Thousand Ghana Cedis (GHS60,000.00) and having on oath, in a rather failed attempt, to convince this Court that the purchase price was rather Sixty Five Thousand Ghana Cedis (GHS65,000.00), the onus was on the Defendant to adduce evidence to prove that indeed that was true. The Defendant woefully failed to adduce any such evidence, especially more so, when the Defendant stated on oath that there was a receipt evidencing that the agreed purchase price of the said vehicle was Sixty Five Thousand Ghana Cedis (GHS65,000.00) but failed to produce the said receipt before this Court. As such, the Defendant’s assertion that the purchase price of the subject matter vehicle was Sixty Five Thousand Ghana Cedis (GHS65,000.00) is considered an afterthought, falsehood as plain as a pikestaff and an attempt by the Defendant to throw dust in the eyes of the Court. Again, when the Defendant was under cross examination on 22 April 2025, the following ensued; Q: It is also a fact that car number GW 350-16 and car number GE 88-20 are all in your custody. Is that so? A. Yes. Q.Can you tell this Court when these two (2) cars have been in your custody? 13 A: Plaintiff brought the 2016 registered vehicle first and three (3) months later, he brought the second vehicle. It is about a year since this happened and I can confirm the date from the receipt that I issued. Q: I am suggesting to you that the first car was brought to you in 2021. A : I can only confirm the date from the receipt. I cannot confirm it at this moment. Q: I further suggest to you that the second car which is GE 88-20 was brought to you in March 2022. A: I need to confirm from the receipt but Plaintiff returned the second car three (3) months after he had brought the first car. Q: When Plaintiff test drove the vehicle he was buying he came back to inform you of some faults he detected and you promised to fix them. Is that not so? A: That is not so. Q: The Plaintiff complained of defects with the car's brake system. Is that not so? A: When the Plaintiff came for the car, he called me two (2) months later to inform me that the brake system was faulty so I directed him to a mechanic to assist him in fixing the problem. We did not have an agreement that I was going to fix the brakes for him. Q. I further put it to you that the car you sold to the Plaintiff had lots of defects which he brought to your attention. A. The only thing that Plaintiff informed me about was the brake system and nothing more. 14 Q: Because of these defects it has made it impossible for Plaintiff to enjoy the use of the car. I put it to you. A: That I cannot tell Q. I am suggesting to you that you deliberately sold a car that was not road worthy to the Plaintiff. A: gave the Plaintiff the car documents which he used to acquire the road worthy certificate and insurance and he was able to use the vehicle. As we speak the car documents are in the Plaintiff's possession. Q: When you say the car documents are in the Plaintiff's possession, what car documents are you referring to? A: The car documents which could be used by the Plaintiff to acquire the road worthy certificate and then the insurance as well as to do a transfer of ownership at DVLA when the Plaintiff wants to. Q: Where is the Benz GE 8883-20 now? A: I have given the car to the car owner. Q. I am suggesting to you that you have sold the car. A. The car owner sold it because I returned it to him. Q: I am further suggesting to you that before the car was sold a new engine was fixed. A: I was not the one who bought the car engine so I cannot tell. It was the car owner who bought the engine by himself. Q: The engine was changed because that was the problem that the Plaintiff was faced with. I am suggesting that to you. 15 A: I cannot agree to that because I did not see that with my own eyes. Q: When was the car sold? A. I was not the one who sold the car. It was the car owner who came for his car and sold it. Q. When did you give the car to the car owner? A. About six months ago. I cannot recall the exact date but roughly about six (6) months ago. When the problem arose with the car the car owner came for his car. Q: Can you tell the year the car owner came for the car? A: Somewhere 2024. As noted earlier, it is the Plaintiff’s case that he paid a total amount of Twenty Five Thousand Ghana Cedis (GHS25,000.00) in cash to the Defendant in addition to trading in his former Benz. The Defendant denies this and states that the Plaintiff paid to him a cash amount of Twenty Thousand Ghana Cedis (GHS20,000.00). The Plaintiff subsequently in his Reply to Defendant’s Statement of Defence and Counterclaim denied Defendant’s assertion and maintained that he paid to the Defendant an amount of Twenty Five Thousand Ghana Cedis (GHS25,000.00) in cash to the Defendant in addition to trading in his former Benz. Both parties having denied each other's assertion on the quantum of cash paid by the Plaintiff to the Defendant, each party had the burden to establish before this Court that his averment or assertion is true. In doing so, the Plaintiff called his wife as his witness. The Plaintiff’s wife on 18 June 2024 in her evidence in chief before this Court stated as below; Q. So after sending the pictures to Plaintiff what happened next? 16 A. He was also happy with the car but asked that I wait till he comes down from his annual leave in August 2021. When he came down in August 2021 both of us went to the Defendant garage to view the car and the Plaintiff asked the Defendant the reason why the owner is selling the car. The Defendant told the Plaintiff that the owner has a new Toyota 4X4 and that he preferred that to the Mercedes Benz then, the purchase agreement of the Mercedes Benz GE 8883- 20 begun and that they both agreed on the Sixty Thousand Ghana Cedis (GHS60,000.00) and the trading of Mercedes Benz GW 350-16 at a price of Twenty Thousand Ghana Cedis (GHS 20,000.00) so an amount of Fifteen Thousand Ghana Cedis (GHS15,000.00) was paid in addition to the Mercedes Benz GW 350-16 and then Five Thousand Ghana Cedis (GHS5,000.00) on each occasion. Q. So the Mercedes Benz vehicle GE 8883-20 was valued at Twenty Thousand Ghana Cedis (GHc20,000.00). Is that not so? A. No it was not that vehicle but rather the GW 350-16 was valued at Twenty Thousand Ghana Cedis (GHS20,000.00). Q. And you also paid cash of Fifteen Thousand Ghana Cedis (GHS15,000.00) to the Defendant in different instalments. Is that not so? A: As for the Fifteen Thousand Ghana Cedis (GHS15,000.00) we paid it outright in cash but the Ten Thousand Ghana Cedis (GHS10,000.00) we paid Five Thousand Ghana Cedis (GHS5,000.00) each on different occasions. Again, during cross examination of the Plaintiff’s witness on 20 June 2024 by Counsel for the Defendant on the payment of the purchase price of the said latter Benz, this is what ensued; 17 Q. As you stand before this Court you are aware that the purchase price has not been fully paid. Are you not? A. Yes I am aware. After making the Fifteen Thousand Ghana Cedis (GHS15,000.00) instalment, subsequent to that Plaintiff made payment of Ten Thousand Ghana Cedis (GHS10,000.00) but paid it in two (2) equal instalments which the Defendant told me that if the car stays there for a long time before using it, it will develop some mechanical fault. From the foregoing, the Plaintiff’s witness gave corroborative evidence in support of Plaintiff’s assertion that a cash amount of Twenty Five Thousand Ghana Cedis (GHS25,000.00) was paid to the Defendant. On the other hand, on 22 April 2025 when the Defendant was cross examined on the subject of the cash component the Plaintiff paid to him, the Defendant answered as follows; Q: In total the Plaintiff gave you cash of Twenty Five Thousand Ghana Cedis (GHS25,000.00) in respect of the purchase of the new car with car number GE 88-20. Is that not so? A: That is not so. It was Twenty Thousand Ghana Cedis (GHS20,000.00) and not Twenty Five Thousand Ghana Cedis (GHS25,000.00) which I issued a receipt for. The Defendant did not produce the said receipt he claimed to have issued to the Plaintiff in support of his assertion and the Defendant did not also call any other witness to buttress his claim. I find that the Defendant therefore failed to discharge the burden of leading admissible and credible evidence from which the fact which he asserts that the Plaintiff paid to 18 him, cash of Twenty Thousand Ghana Cedis (GHS20,000.00) and not Twenty Five Thousand Ghana Cedis (GHS25,000.00), can properly and safely be inferred. As a result, on the balance of probabilities, I find that the Plaintiff has indeed established that he paid a total amount of Twenty Five Thousand Ghana Cedis (GHS25,000.00) in cash to the Defendant in addition to trading in his former Benz, as I find the Plaintiff and his witness’s account of the total amount of cash paid to the Defendant to be more probable than that of the Defendant’s account of same. Considering the evidence adduced by both parties during trial, I hold as a fact the following; a. The Plaintiff and the Defendant entered into an agreement for the Plaintiff to purchase from the Defendant the latter Benz. b. That both parties agreed the purchase price of the latter Benz was Sixty Thousand Ghana Cedis (GHS60,000.00) c. That the agreed payment terms of the purchase price of the latter Benz was for the Plaintiff to trade in his former Benz at an agreed value of Twenty Thousand Ghana Cedis (GHS20,000.00) and the balance of Forty Thousand Ghana Cedis (GHS40,000.00) to be paid in cash. d. That the Defendant handed over to the Plaintiff the latter Benz together with the documents of the said vehicle despite the fact that the Plaintiff had not yet paid for the full purchase price of the said vehicle. e. The latter Benz developed some defects which were communicated to the Defendant by the Plaintiff for which the Defendant caused his mechanic to fix same. f. That the Plaintiff has till date not paid the full purchase price of the latter Benz. g. That the Plaintiff returned the latter Benz to the Defendant in March 2022, after the Plaintiff had earlier handed over to the Defendant his former Benz. h. The two (2) vehicles; the latter Benz and the Plaintiff’s former Benz were placed in the Defendant’s custody by March 2022. 19 i. The Defendant admits that somewhere 2024, the latter Benz was sold. The said latter Benz being a used or second hand vehicle, the Court is minded to take into account the fact that such a vehicle may come with its own issues, defects or faults be it major or minor depending on the state the purchaser acquires the said vehicle. However, this Court is not in the position to ascertain the state of the said latter Benz at the time the Plaintiff purchased same as such the Court is unable to state emphatically that the said defects the Plaintiff complains of before this Court were beyond the incidental issues or faults or defects that come with any used or second hand vehicle, particularly, a used Mercedes Benz saloon car for same to be described practically unusable as to warrant a breach of contract. The Plaintiff has also not satisfied this Court that indeed there was an agreement between both parties to return the latter Benz to the Defendant for a replacement with either a Toyota vehicle or Honda Civic vehicle. For if indeed that was the case why is the Plaintiff before this Court requesting for a refund of money and not the replacement of the said vehicle? However, the Plaintiff’s former Benz is still in the custody of the Defendant and the said latter Benz has since sometime in 2024 been sold whilst same was in the custody of the Defendant. In Dora Sarpong v. Commercial Investment Ltd., Suit No.: CM/TOCC/002/2017 dated 17 May 2018, my older sister Doreen G. Boakye Agyei (Mrs) J defined unjust enrichment as follows; Unjust enrichment is when a person unfairly gets a benefit by chance, mistake or another’s misfortune for which the one enriched has not paid or worked and morally and ethically should not keep. A person who has been unjustly enriched at the expense of another must legally return the unfairly kept money or benefits. 20 Having already settled as a fact that; the Plaintiff failed to pay the full purchase price of the latter Benz to the Defendant, the two (2) vehicles; the latter Benz and the Plaintiff’s former Benz were in the Defendant’s custody by March 2022, the Defendant admitting that the latter Benz has already been sold to another person and the Court finding that the Plaintiff has proved on the balance of probabilities that he paid an amount of Twenty Five Thousand Ghana Cedis (GHS25,000.00) in cash to the Defendant in addition to trading in his former Benz at a value of Twenty Thousand Ghana Cedis (GHS20,000.00), on the principles of unjust enrichment it is my considered view that the Plaintiff is entitled to a recover the amount of Forty Five thousand Ghana Cedis (GHS45,000.00) (comprising cash and kind) paid to the Defendant together with interest from March 2022 till date of final payment. However the Court has since 4 July 2023 entered judgment in part of an amount of Twenty Thousand Ghana Cedis (GHS20,000.00), in favour of Plaintiff, based on Defendant’s admission of liability in that regard. As a result, the Plaintiff is entitled to recover the balance of Twenty Five Thousand Ghana Cedis (GHS25,000.00) from the Defendant. The Court also finds that the Defendant is not entitled to his claim for enforcement of the contract, that is, for the Plaintiff to pay the outstanding purchase price to the Defendant as the said latter Benz has already been sold. In the circumstance, it will be against justiciable conscience to order the Plaintiff to pay in full for a vehicle that has already been sold to another person. Again, the Defendant is also not entitled to his claim for the Plaintiff to pay an amount of Four Hundred Ghana Cedis (GHS400.00) per day for the period within which the latter Benz was in the possession of the Plaintiff. Why Four Hundred Ghana Cedis (GHS400.00)? And not One Hundred Ghana Cedis (GHS100.00) or Two Hundred Ghana Cedis (GHS200.00) or any other amount?. There is simply no evidence on record justifying same. 21 CONCLUSION In conclusion the Plaintiff’s claim is upheld in part as follows; a. Plaintiff to recover from the Defendant an outstanding balance of Twenty Five Thousand Ghana Cedis (GHS25,000.00) paid to the Defendant. b. Plaintiff to recover the said Twenty Five Thousand Ghana Cedis (GHS25,000.00) together with interest from March 2022 till date of final payment. c. No award as to damages for breach of contract. d. Cost of Two Thousand Ghana Cedis (GHS2,000.00) awarded in favour of Plaintiff The Defendant’s counterclaim wholly fails and it is entirely dismissed. SGD H/W ROSEMARY ABENA GYIMAH 22