Acquaye v Kofi (/A11/07/2023) [2025] GHADC 161 (3 June 2025)

IN THE DISTRICT COURT OF GHANA, NGLESHIE AMANFRO DISTRICT COURT HELD ON 3RD JUNE, 2025 BEFORE HER WORSHIP EMELIA K. ABRUQUAH ESQ., (MRS) SUIT NO: /A11/07/2023 SAMUEL TEIKO ACQUAYE PLAINTIFF VRS SAMUEL OSEI KOFI DEFENDANT PLAINTIFF PRESENT DEFENDANT ABSENT JUDGMENT a. A declaration that the Defendant has breached the Work-and-Pay agreement between the parties when he refused to return the vehicle with registration number GS 2532-22 to the Plaintiff. b. An order that the Defendant refund the entire amount received from the Plaintiff under the Work-pay agreement in the sum of Twenty- Thousand and five Hundred Ghana cedis (GH¢20,500.00). c. Interest on the said amount of GH¢20,500 from 28th August, 2023 the date the Defendant breached the Work-and-pay agreement. d. Damages for breach of contract 1 | Page e. Cost including solicitor’s fees. f. Any order(s) this court may deem fit. In his statement of claim, the Plaintiff averred that somewhere in March 2023, he entered into a work and pay agreement with the defendant on a Honda fit car with Registration number, GS2532-22 at an agreed price of GHC 85,000.00 and he was to be making weekly sales of GHC 500.00. That Defendant told him to commence business whiles he prepares the agreement and he complied. Plaintiff contends that he commenced the work on 11th March, 2023 and that he has made a total payment of GHC20,500.00 including security deposit of GHC7,000.00 as at the time of filing this suit. Plaintiff further averred that he spent almost GHC 10,025.00 for repairs and servicing of the car of which the Defendant has refused to acknowledged and refund. That though the defendant reduced the agreement into writing, he refused to sign same despite persistent pressure from the Plaintiff. That on the 10th August, 2023, the Defendant asked him to bring the car for him to install a tracker to help monitor the car which he complied but the Defendant without any just cause seized the car and parked same even though he has not defaulted in the weekly payment to the defendant to warrant the seizure. He stated that it is a calculated attempt by the Defendant to swindle him as that is his normal practice and if not ordered, he may be a victim. The defendant filed his statement of defence and counter -claim on 10th October,2023. He stated that he and the Plaintiff were in talks for credit sales arrangement also known as work and pay and that the weekly sales were subject to variations based on the prevailing economic circumstances. Defendant averred that both parties agreed to use the time tested industry practice where they agreed to sign only after two to three months of test engagement to see if both parties will meet their obligations under the contract. That per the industry practice the security deposit was to be used to repair the car after the test engagement and the plaintiff agreed. That the Plaintiff’s first payment was on 11th March,2023 and the last payment was on 1st of September, 2023 bringing a total amount to GHC 20,OOO.00 including the GHC7,000.00 security deposit and the GHC13,000.00 being sales. That he is unaware of any repairs done on the vehicle as the car was in perfect condition before he assigned it to the Plaintiff and no receipts were produced by the Plaintiff of the expenses incurred. Defendant 2 | Page further averred that the plaintiff, during the test engagement got involved in two separate accidents and that the signing of the agreement was voluntary. When the car was brought by the Plaintiff, he noticed total lack of maintenance as Plaintiff failed to do routine maintenance which compelled him to take it to ensure maintenance is carried out and to also install the tracker. That he has spent considerable amount of money trying to fix the car due to the neglect. Defendant counter-claim for the following against the Plaintiff a. A declaration that the defendant has been defamed by the Plaintiff. b. General damages of GHC100,000.00 for defamation c. An order directed at the Plaintiff to retract the defamatory comments against the defendant. d. Any other order directed at the Plaintiff to apologise within seven days to the Defendant through the same medium. e. Perpetual injunction against the Plaintiff from ever defaming the Defendant. f. Costs including legal fees. g. Any other orders that this court deemed fit In his reply to the defence and counter-claim, the Plaintiff sated that there is no such thing as industry practice where an agreement could only be signed after two to three months and the arrangement was to pay weekly for the GHC85,000.00 plus the GHC7,000.00 initial deposit. That the Plaintiff has so far paid GHC20,500.00 under the arrangement and he has always maintained the vehicle. That the Defendant asked for the vehicle to be brought to fix a tracker but has since refused to return the car and has gone ahead to give it to another driver and indicated that the Defendant was aware of every repairs done including buying of control board, batteries, tyres and other works on the car and that the Defendant took GHC1,700.00 to buy the control board but failed to do so. Plaintiff admitted that the vehicle was only involved in a minor accident. That under work and pay agreement, the defendant /owner has no right to forcibly take the vehicle when the driver has not defaulted in the payment. Plaintiff denies every allegation contained in the counter -claim and says that the defendant is not entitled to any of the reliefs therein Evaluation of Evidence and Resolution of Issue 3 | Page It is trite that in civil cases, the general rule is that the party who in his/her pleadings or writ raises issues essential to the success of his/her case assumes the onus of proof. The one who alleges, whether a Plaintiff or a Defendant, assumes the initial burden of producing evidence. It is only when such a party has succeeded in producing evidence that the other party will be required to lead rebuttal evidence, if need be. Proof lies upon him who affirms or alleges, not upon him who denies since, by the nature of things, he who denies a fact cannot produce any proof. See Sections 11(1) & (2), 12(2) and 14 of the Evidence Act, 1975 (NRCD 323); Tagoe v. Accra Brewery [2016] 93 GMJ 103 S.C; Deliman Oil v. HFC Bank [2016] 92 GMJ 1 C.A. In the case of Takoradi Flour Mills vs. Samir Faris [2005-2006] SCGLR 882, the Supreme Court captured the trite position of the law relating to the burden of proof and stated as follows at page 900: “To sum up this point, it is sufficient to state that this being a civil suit, the rules of evidence require that the Plaintiff produces sufficient evidence to make out his claim on a preponderance of probabilities, as defined in Section 12(2) of the Evidence Decree, 1975 (NRCD 323). Our understanding of the rules in Evidence Decree, 1975 on the burden of proof is that in assessing the balance of probabilities, all the evidence, be it that of the Plaintiff or the defendant, must be considered and the party in whose favour the balance tilts is the person whose case is more probable of the rival versions and is deserving of a favourable verdict.” Similarly, in GIHOC Refrigeration & Household vs. Jean Hanna Assi (2005-2006) SCGLR 458, the Supreme Court held that: 4 | Page “since the enactment therefore, except otherwise specified by statute, the standard of proof (the burden of persuasion) in all civil matters is by a preponderance of the probabilities based on a determination of whether or not the party with the burden of producing evidence on the issue has, on all the evidence, satisfied the judge of the probable existence of the fact in issue... Hence, by virtue of the provisions of NRCD 323, in all civil cases, judgement might be given in favour of a party on the preponderance of the probabilities...” The Plaintiff therefore had the onus of discharging the burden of producing sufficient evidence in respect of his claims. In Plaintiff’s evidence in chief by way of a witness statement which he filed on 28th December, 2023, he testified that the Defendant gave him his vehicle on a hire purchase arrangement also known as ‘work and pay’. Plaintiff testified that, they entered into this agreement of work and pay of the defendant’s Honda Fit car with Registration Number GS2532-22. According to the Plaintiff, the price of the vehicle was agreed at GHC85,000.00 and he was to be making weekly sales at GHC500.00. He testified further that the Defendant asked him to start work whilst the agreement is reduced to writing. So far, he has made a total payment of GHC20,500.00 which included the security deposit of GHC 7,000.00. That he has also spent GHC10,00.00 for repairs and servicing and that he reduced the terms of the agreement into writing but the Defendant refused to sign. Plaintiff indicates that there is nothing like industry practice where an agreement is only signed after two to three months. He said he never defaulted in the weekly payment as he at times pay in advance and has always maintained the vehicle and did all the necessary repairs but the Defendant has been intimidating and threatening to forcefully take the vehicle from him and he did when he asked him to bring the it for a tracker to be fixed on it. According to the Plaintiff the defendant has breached the terms of the agreement and that he did not damage the vehicle and that the Defendant took GHC1,700.00 from him to provide him with a control board but failed to do so. That at all material times the defendant intended to cheat him when he refused to sign the contract and he is 5 | Page reliably informed, that the vehicle has been given to another driver who has not been maintaining it. Plaintiff is demanding as per his reliefs. PW1, Comfort Dadzie also filed her witness statement on 28th December, 2023 which was virtually the same as the plaintiff’s witness statement and nothing more added. The Defendant filed his witness statement on 7th December, 2023 in which he testified that he was in a discussion with the plaintiff for a credit sales arrangement, known as ‘work and pay’. That the weekly instalment payment was based on the prevailing economic circumstances. Defendant further testified that parties agreed to use the time tested industry practice where the agreement is only signed after two to three weeks of test engagement to ascertain whether both parties could meet the terms of their individual obligations. That the security deposit per the industry practice was to be used to repair the vehicle should there be an opting out by the plaintiff after the test engagement. Defendant further testified that the Plaintiff’s first payment was on the 11th of March, 2023 and the last payment was on the 1st of September, 2023 and the total payment made amounted to GHC20,000.00 consisting of GHC7000.00 being the security deposit and GHC13,000.00 as sales. Defendant stated that he is unaware of any repairs done as the Plaintiff did not show him any receipts and the car was in perfect condition before he handed it over to the Plaintiff. He said that during the short period the Plaintiff got involved in two separate accidents which has led to depreciation of the vehicle. The signing of the contract was to be done after the test engagement and the tracker fixed and it was the Plaintiff who pleaded to be allowed to start using the car and to bring it later for the tracking device to be fixed. He added that when he later asked for the car to be brought for the tracker to be fixed, he realised a total neglect of maintenance which compelled him to take the car to ensure the necessary maintenance which he spent considerable amount trying to fix and also to install the tracker. While arranging for the tracker to be fixed, the Plaintiff reported him to the police and also initiated this suit and further soiling his reputation before his business partners including one very important partner by name Samuel Kwesi Owusu. That Plaintiff’s claims are malicious and calculated to make him appear as an ungenuine businessman which reduce his standing as a businessman and CEO of several business entities before right thinking members of society. That the Plaintiff has 6 | Page defamed him causing people in the community including business associates not to trust him. He said Plaintiff told Samuel Kwesi Owusu and other people that he is ‘a swindler’ and not a proper business person which are calculated to injure his hard earned reputation. Plaintiff has caused him to lose business opportunities and possible income. He prays for his counter claim. 1.From the claims and evidence adduced before this court, the issues this Court ought to determine are: Whether or not there is an enforceable work and pay agreement between the plaintiff and the Defendant. 2.Whether or not the alleged words are defamatory in nature to have lowered the reputation of the Defendant in the eyes of right thinking members of society. On the first issue of whether or not there is an enforceable work and pay agreement between the Plaintiff and the Defendant. It is not in doubt as both parties have admitted in one way or the other that there was work and pay agreement between them. The issue is whether that agreement is enforceable. Per Section 1(1) (a) of the Hire Purchase Act, 1974 (NRCD292) , Goods let under Hire Purchase which is similar or same as work and pay, the seller can not enforce the agreement unless the agreement is in writing and signed by the hirer, ‘paraphrase’. In this case, the Plaintiff said the defendant asked him to be using the car whilst he reduces the agreement to writing for them to sign which he never did despite several demands. Defendant however said that, their industry practice dictates that the buyer uses the vehicle for two to three months and if all go well, they then sign. Defendant however, never bothered to invite any of these industry players to come and corroborate his evidence that, their industry dictates the contract only to be signed after two to three months. In any case the Statute above states that in order for the agreement to be enforceable, it must be writing and failure on the part of the seller to comply with the statutory provision, the seller is the one who suffers. See the case of Dawa vrs Nyinase (1975) GLR,422. Although the Plaintiff/buyer has rights under oral agreement, from the circumstance and evidence led in this case, he is not entitled to claim because he has enjoyed the use of the car over the period. More so the vehicle has not become a protected good under the Hire Purchase Act as the Plaintiff has not paid up to 50% of the 7 | Page selling price. The Plaintiff is therefore not entitled to recover weekly instalment payment made to the defendant which summed up to be GHC13,000.00. He is however entitled to recover the security deposit of GHC7000.00, and the GHC1,700.00 that he gave to the Defendant to buy the control board and the last week, weekly instalment of GHC500.00 which was taken when the car was not with the Plaintiff. These summed up to GHC 9,200.00 which I so hold the defendant liable. On the second issue which is whether or not the alleged words claimed to have be used by the Plaintiff against the defendant are defamatory in nature The defendant stated that the Plaintiff statement in paragraph 11 of his claim, ‘that the Defendant is a swindler and that it is his normal practice and if not ordered, he may be a victim of circumstance’. According to the Defendant, these words in the court documents are being circulated by the plaintiff, hence published and defamatory. The Plaintiff denied publication of any defamatory words. According to the Plaintiff, he only went to complain to the defendant’s landlord whom the Defendant introduced him to about his behaviour. Being it as it may, or assuming without admitting that the words in paragraph 11 are defamatory, the question is has the Defendant been able to proof that the statement made is false? I say so because from the generality of the evidence on record, the Defendant sold his car to the Plaintiff on work and pay basis, the Plaintiff has never defaulted in the payment terms, the defendant demanded for the car to fix a tracking device, Plaintiff took the car to the Defendant who promised that the car will be returned at the end of the day, the following day and subsequent days, the plaintiff demanded the return of the car but the Defendant refused or failed to return the car and went ahead to hand it over to another driver, I must state that this evidence has never been disputed by the Defendant herein. So looking at all that went on, it is the opinion of the court, the defendant has not led adequate evidence to prove that the statement made by the Plaintiff, if defamatory at all was false and he could also not produce any witness to corroborate his claims. The question is why would the defendant seize the car from the Plaintiff who has not defaulted in the weekly payment with a flimsy excuse that he was not taking care or maintaining the car. Was that the reason he gave to the Plaintiff before Plaintiff took the car back to him? The answer is 8 | Page no, this explains the reason why such words were used by the Plaintiff in describing what took place which in the opinion of the court, the words were not published but would have been justified to have been the actual reflection or narration of the conduct of the Defendant’s behaviour. The Defendant counter-claim therefore fails as he could not prove on the balance of the probability that the words used to describe his conduct were false and therefore defamatory. The counter- claim is therefore dismissed. From the totality of the evidence and on the balance of the probabilities, judgment is entered in favour of the Plaintiff to recover the sum of sum of GHC9,200.00 being monies deposited and spent on the car. I award costs of GHC 1000.00 in Plaintiff’s favour as against the Defendant. (SGD) H/W EMELIA K. ABRUQUAH (MRS) (MAGISTRATE) 9 | Page