Antwi v Banson (G/WJ/DG/A2/103/2023) [2025] GHADC 198 (29 May 2025)

IN THE DISTRICT COURT HELD AT WEIJA, ACCRA, ON THURSDAY THE 29TH DAY OF MAY, 2025, BEFORE HER WORSHIP RUBY NTIRI OPOKU (MRS), DISTRICT MAGISTRATE SUIT NO: G/WJ/DG/A2/103/2023 JANET ANTWI PLAINTIFF VRS KOJO BANSON DEFENDANT PLAINTIFF IS PRESENT AND REPRESENTED BY KUUKU WELSING-JONES ESQ. DEFENDANT IS PRESENT AND REPRESENTED BY KWAME APPIAH ODURO WITH WILLIAM ANSAH – OTU HOLDING THE BRIEF OF BOBBY BANSON ESQ. FOR THE DEFENDANT. JUDGMENT The plaintiff filed a writ of summons and particulars of claim at the registry of this court on 7th June 2023 against the defendant for the following reliefs: a. An order directed at defendant to return plaintiff’s ford fiesta car with registration number GY – 1502-21 in good working condition and an amount of GHC4,360.00 being money plaintiff paid to defendant on request to enable him repair the car and expenses incurred by the plaintiff when defendant was repairing the car which car defendant could not repair same and has failed to return it and refund the money and expenses paid to him despite persistent demands since October 2022. b. An order for interest to be calculated on the judgment debt and costs from 1st November 2022 to date of final and full payments, costs and any further order(s) as the court may deem fit. On 31st August 2023, the defendant filed a statement of defence and counterclaim pursuant to an order of the court dated 16th August 2023 for the following; 1 1. An order for the payment of GHC11,970.00 owed by the plaintiff to the defendant. 2. An order for the payment of interests on the sum of GHC11,970.00 at the prevailing Bank of Ghana monetary policy rate from 1st January 2023 until the date of final payment. On 1st November 2023, plaintiff filed a reply to defendant’s statement of defence and counterclaim. THE PLAINTIFF’S CASE It is the case of the plaintiff that in the first week of October 2022 when she turned on the key to her car the subject matter of this dispute, the Ford Fiesta the starter did not respond. She called the defendant and he went to her residence the next day, started the car which to her surprise started and she showed him appreciation by giving him the sum of GHC200.00 It is her further case that she moved the car the following day to town and returned but when she put off the engine and restarted it, it did not respond. She again telephoned the defendant who came to her house and to her surprise again started the car and drove it to his garage to test further again. Two days later, the defendant called her and said the Engine Cylinder head of the car is damaged and that a replacement plus the cost of workmanship will come to GHC3,000.00 She added that when she procured the sum of GHC3,000.00, one Samuel Oppong accompanied her and she went to give the money to defendant at his shop at Ablekuma Fan milk area, Ga West where he informed her that he will repair and restore the car within two weeks. According to her when the defendant did not come as promised, she called him and he said that he bought a wrong part for the car and she answered that she did not ask him to do so and demanded the return of her car and money paid to him. Plaintiff says that a few weeks later, she went to the defendant’s garage but did not see her car and when she called him, he said he had sent the vehicle to another mechanic at Darkuman who had detected an electrical fault. 2 According to her, when parties later met at defendant’s garage, the defendant said the cost of repair of the electrical fault was GHC1,000.00 and she gave same to him and added that he returns the vehicle to her as soon as possible. In the same month of May 2023, defendant collected GHC70.00 and another GHC140.00 for the purchase of petrol to enable him bring her vehicle to her. in order to have a witness, she invited a mechanic by name Master Abeiku who accompanied her to the garage of the defendant. She added that when they arrived, they saw that the seats inside the car had been dismantled and the car looked forlorn. After inspecting the car, Master Abeiku realised that there was no fuel in the car and so they took the car key from the defendant to buy fuel and that is when the defendant gave them two front seats. She stated that on their return, they demanded the extra seats however defendant refused. A complaint was lodged at the Ablekuma Police Station where they were accompanied by a police officer to go back to the workshop of the defendant to collect the extra seats from him. Parties all went back to the police station. Plaintiff says that at the police station she reported that she had been swindled of the sum of GHC4,360.00 but defendant explained that she owed him further sums of money which he had spent on the vehicle. She insisted that he had not sought her consent before he purportedly dismantled her seats purportedly to tackle problems which were not in existence when he first took the vehicle. Plaintiff adds that after these exchanges she was advised by the police to seek redress at the court. Parties were referred to Court Connected Alternative Dispute Resolution (CCADR) where defendant refused to sit in her vehicle for an assessment of its performance. She tendered in evidence the following; • A picture of the vehicle the subject matter of this dispute together with its registration particulars. same was marked as Exhibit A 3 • Photos of the inside of the car marked as Exhibit B series • A photocopy of the ADR marked as Exhibit C DEFENDANT’S CASE IN ANSWER It is the case of the defendant that he met one Sammy who was driving a vehicle which had broken down by the road around the star oil fuel station in Sowutuom. It is his further case that he assisted the said Sammy by diagnosing the fault at that time as being caused by an overheating of the engine and subsequently put water into the water tank of the car to curtail the fault for free. According to defendant, he was later contacted by the said Sammy who informed him that he had given his telephone number to the plaintiff, the owner of the vehicle so that plaintiff could contact him whenever she needed assistance. A month after the initial contact with the said Sammy, he was later contacted by the plaintiff who requested him to come to her house to fix a fault on the car. He averred that he obliged the plaintiff and went to her house with his diagnostic device to diagnose the fault with the vehicle. He averred further that after the initial diagnostics, he requested that the vehicle be brought to his workshop for extensive diagnostics. A few days after the preliminary diagnostics, he went to plaintiff’s house and drove the vehicle to his shop for extensive diagnostics. Defendant averred that when he got to his workshop with the vehicle, his extensive diagnostics revealed that the fault with the vehicle was as a result of a faulty engine head to which the gasket is affixed and will require a new engine as a permanent and lasting solution. Defendant added that at no point in time did he inform the plaintiff that the fault with the car was the starter. It is the case of defendant that he subsequently informed the plaintiff of the results of his diagnostics and gave the plaintiff the option of buying a completely new engine head. Defendant averred that the plaintiff informed him that she has a daughter in the United States of America who will buy the engine parts and import same to the plaintiff in Ghana. Defendant says that 4 the vehicle was left in his workshop for almost three months awaiting the delivery of the parts from the United States of America. After waiting for a while, plaintiff informed him of her willingness to buy the engine head and gasket locally for him to try and fix the fault without buying a complete engine set. Defendant says he informed the plaintiff that the estimated cost of the engine head and gasket was GHC3,000.00 excluding the cost of oil, workmanship and other ancillary costs. Plaintiff subsequently paid the GHC3,000.00 with the understanding that the other costs will be confirmed once the repairs are successfully completed. Defendant says he subsequently purchased the engine head and gasket but after fixing same in the vehicle, he noticed that the fault could not be fixed permanently. He informed the plaintiff of this development and reiterated the need to buy a complete engine set. He was required to take up the difference between the cost of the complete engine set and the engine head and gasket. According to defendant, the cost of the engine set was GHC7,000.00 excluding the engine oil, spark plugs, oil filter and other parts required to fix the fault as well. He added that the plaintiff was required to pay additional amount of GHC4,000.00 to the defendant to buy the complete set. Defendant averred that the plaintiff pleaded with him to prefinance the cost of acquiring the engine and its accessories and fix them in the car. He averred further that after fixing the engine and the accessories, the control board had to be changed as well by a car electrician. The defendant added that plaintiff agreed to this and gave him the sum of GHC1,000.00 to pay the electrician who would change the control board. He also stated that he changed the starter and following the changes made to the car, the car could now drive without any fault. He concluded that he spent the total sum of GHC11,970.00 on the car and that plaintiff was aware and consented to the repairs and costs thereof effected by him. According to defendant, plaintiff came for the car from his workshop in Ablekuma with an independent mechanic to test the car within the Ablekuma environs to ascertain whether it had been fully repaired. 5 Defendant says that the vehicle is presently in the custody of the police and that plaintiff is not entitled to her claims. Defendant tendered the following exhibits to support his claim; • Receipt from Papamaks machine shop dated 20th October 2022 marked as Exhibit 1 • An invoice from reap what you sow lub Co. dated 14th May 2023 marked as Exhibit 1(A) • A receipt from W.O. Akwa Ent. Dated 28th December 2022 marked as Exhibit 1(B) • A receipt from Frankbert Auto parts dated 20th October 2022 marked as Exhibit 1C • A receipt from Sewelle Motors dated 13th January 2023 and marked as Exhibit 1(D) • An invoice from P.K. Boadu Enterprise dated 19th January 2023 marked as Exhibit 1(E) • An invoice from Autocraft Engineering Workshop dated 9th January 2023 marked as Exhibit 1(f) • A repair order / Invoice from Banson Automobile Service Center dated 5th October 2022 and marked as Exhibit 2 ISSUES SET DOWN FOR DETERMINATION BY THE COURT From the records of the Court, the Ford Fiester car with registration number GY 1502-21 the subject matter of this dispute was released to Plaintiff by the Ablekuma Police pursuant to the orders of this Court dated 13th June, 2024. The court therefore set down the following issues for determination 1. Whether or not the plaintiff is entitled to recover from defendant the sum of GHC4,360.00 2. Whether or not defendant is entitled to recover the sum of GHC11,970.00 from plaintiff. BURDEN OF PROOF It is trite that he who asserts a fact assumes the burden of proof. Section 10 of the Evidence Act 1975, (NRCD 323) reads; 6 (1) For the purposes of this Decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court. (2) The burden of persuasion may require a party to raise a reasonable doubt concerning the existence or non-existence of a fact or that he establishes the existence or non-existence of a fact by the preponderance of the probabilities or by proof beyond reasonable doubt. Section 11 of NRCD 323 reads; (1) For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue. (4) in other circumstances, the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence. Section 12 of NRCD 323 reads; (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. Section 14 on the allocation of burden of persuasion reads; “Except as otherwise provided by law. Unless and until it is shifted, a party has the burden of persuasion as to each fact the existence or non existence of which is essential to the claim or defence he is asserting. In the case of Ackah v Pergah Transport Ltd [2010] SCGLR 728 at page 736, Sophia Adinyira JSC (as she then was) delivered herself as follows; 7 “It is a basic principle of 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.” This position of the law was re-echoed by Benin JSC in the case of Aryee v Shell Ghana Ltd & Fraga Oil Ltd [2017-2020] 1 SCGLR 721 at page 733 as follows; “It must be pointed out that in every civil trial all what the law requires is proof by a preponderance of probabilities. See section 12 of the Evidence Act, 1975 (NRCD 323). The amount of evidence required to sustain the standard of proof would depend on the nature of the issue to be resolved.” WRITTEN SUBMISSIONS OF PLAINTIFF AND DEFENDANT The plaintiff filed his written address as directed by the court on 22nd May 2025 whilst the defendant filed his address on 26th May 2025. The court shall refer to the relevant portions of the addresses where necessary in resolving the issues set down for determination. EVALUATION OF THE EVIDENCE ON RECORD AND THE DECISION OF THE COURT ISSUE ONE: Whether or not the Plaintiff is entitled to recover the sum of GHC4,360.00 from the Defendant. At paragraph 6 of plaintiff’s affidavit in support filed on 7th of June 2023, she pleaded that in October 2022 and on agreement with defendant, she made a payment of GHC3,000.00 on request by defendant to enable him repair plaintiff’s Ford Fiester vehicle with registration number GY- 1502-21. This assertion was admitted by defendant when he stated at paragraph 2 of his statement of defence and counterclaim as follows; The defendant admits the depositions contained in paragraph 6 of the affidavit in support. 8 During cross examination of the plaintiff, the following is what she had to say; Q: You claim that the defendant informed you that the total costs to fix the engine problem was GHC3,000.00 not so? A: The defendant told me that it was the engine head cylinder which was faulty and that the cost of the engine head cylinder and workmanship comes to GHC3,000.00 so I went to him with a witness and paid the sum of GHC3,000.00 to defendant. He again called me and told me that there was an electrical problem which will cost GHC1,000.00. I sent the money to him. He again requested for GHC70.00 for fuel and another sum of GHC140.00 and GHC150.00 for fuel. This was despite the fact that he had come for the vehicle when I had fuel in it. The assertion of the plaintiff was admitted by defendant when he stated at paragraphs 18 and 19 of his witness statement as follows; 18. I provided to the plaintiff an estimated cost of GHC3,000.00 for the engine head and gasket excluding the cost of the oil, workmanship and other ancillary costs. 19. Further to the immediately preceding paragraph, plaintiff paid the said GHC3,000.00 with the understanding that the other costs will be confirmed once the repairs are completed. With regard to payment of GHC1,000.00 to defendant, this is what plaintiff had to say at paragraph 12 of her witness statement; Q: when we later met at his garage, Kojo Banson said the cost of repair of the electrical fault was GHC1,000.00 and I gave same to him and added that he returns the car to me as soon as possible. Plaintiff’s assertion was admitted by defendant when he stated at paragraph 29 of his statement of defence and counterclaim as follows; 29. The defendant states that the plaintiff agreed to this and gave the defendant GHC1,000.00 to pay the electrician who would change the control board. 9 In the case of In Re Asere Stool; Nikoi Olai Amontia IV (substituted by Tafo Amon II) v Akotia Oworsika III (Substituted by Laryea Ayiku III) [2005-2006] SCGLR 637, the Supreme Court held as follows; “Where your adversary has admitted a fact advantageous to your cause, what better evidence do you need to establish that fact than relying on his own admission?” The Supreme Court in the case of Opoku & others (No.2) v Axes Co. Ltd (No.2) [2012] 2 SCGLR 1214, observed as follows; “Once there has been such an unequivocal admission before a court in respect of a claim or part thereof as was done in the case before us and not withdrawn, there cannot in principle be any objections to a decision based on them.” In the book, Essentials of the Ghana Law of Evidence by S.A. Brobbey, the learned author on formal admissions stated at page 114 as follows; “Formal admissions cannot be contradicted by the person who made them. That appears to be the rationale for the statements that formal admissions are sometimes considered as conclusive against the person who made them. Formal admissions by solicitors of the party which amounts to concessions are binding on the party on whose behalf the admissions were made” At paragraph 8 of Plaintiff’s affidavit in support, she stated that she incurred an extra expense of GHC360.00. During cross examination she explained “He again requested for GHC70.00 for fuel and another GHC140.00 for fuel and GHC150.00 for fuel. This was despite the fact that he had come for the vehicle when I had fuel in it.” It is curious to note that this material fact was not denied by the defendant neither was plaintiff cross examined on it. In FORI V AYIREBI [1966] GLR 627 it was held by the Supreme Court at page 647 that: 10 “The law is that where a party makes an averment and that averment is not denied, no issue is joined on that averment and no evidence need be led. Again when a party gives evidence of a material fact and is not cross examined upon it, he needs not call further evidence to that fact.” This principle of law was re-echoed in QUAGRAINE V ADAMS [1981] GLR 599, CA, where it was held thus; “Where a party makes an averment and his opponent fails to cross examine on it, the opponent will be deemed to have acknowledged sub silentio, that averment by the failure to cross examine”. Applying the facts of the case to the law cited supra, I am satisfied that plaintiff has proved on the preponderance of probabilities that she paid a total sum of GHC4,360.00 to the defendant. ISSUE TWO I now turn my attention to issue two which is whether or not the defendant is entitled to his counterclaim of GHC11, 970.00. With regard to the counterclaim of the defendant, it is trite that the defendant bears the same burden as a plaintiff in proving his counterclaim which is on the preponderance of probabilities as stated by the authorities cited supra. In Tetteh Ayaa Iddrisu v. Winfred Otuafro & Anor [2010] SCGLR 818, the Supreme court held as follows; “A party who counterclaims bears the burden of proving his counterclaim on the preponderance of probabilities and will not win on that issue only because the original claim failed.” Ansah JSC in Joseph Akonu-Baffoe and 2 others v Lawrence Buaku and Another, Civil Appeal No. J4/6/2012 emphasized the position of the law on counterclaim as follows; 11 “In essence, a defendant’s counterclaim is to be treated in the same way as the plaintiff’s case. The roles are reversed and the defendant as plaintiff in the counterclaim assumes the burden to prove his case.” Paragraphs 20, 21, 22, 23, 24 and 25 of defendant’s statement of defence and counterclaim is reproduced as follows; 20. The defendant states that he purchased the engine head and gasket but after fixing same in the vehicle, he noticed that the fault could not be fixed permanently. 21. The defendant repeats the averments contained in the immediately preceding paragraph and states that he informed the plaintiff of this development and reiterated the need to buy a complete engine set. 22. The defendant states that the plaintiff agreed to purchase a complete engine set and instructed him to ascertain the cost. 23. The defendant repeats the averments contained in the immediately preceding paragraph and states that the defendant will be required to take up the difference between the cost of the complete engine set and the engine head and gasket. 24. The defendant states the cost of the engine set was GHC7,000.00 excluding the engine oil, spark plugs, oil filter and other parts required to fix the fault as well. 25. The defendant repeats the averments contained in the immediately preceding paragraph and states that the defendant was required to pay an additional amount of GHC4,000.00 to the defendant to buy a complete engine set. At paragraph 7 of plaintiff’s reply, she stated as follows; 7. The plaintiff vehemently denies paragraphs 13, 14, 15, 16,17, 18, 19, 20, 21, 22, 23, 24,25, 26,27, 28. 12 During cross examination of the plaintiff, the following information was elicited; Q: After detecting the fault with the engine, did the defendant not inform you that for a permanent and lasting solution, it will be best if the entire engine of your car was replaced? A: No. He did not say so to me. Q: Did you not inform the defendant that your daughter who resides outside the country was going to purchase the engine part and ship same to Ghana for your car to be fixed? A: That is not so. Q: And so, after fixing the engine head cylinder for the first time, did the defendant not inform you that the fault still persisted and that the entire engine needed to be replaced? A: That is not true. The defendant called to inform me that he had bought a wrong thing after I had given the GHC3,000.00 to him. I requested him to return my car to me together with the sum of GHC3,000.00 I had paid to him which he failed to do. Q: And so did the defendant never inform you that because you had paid GHC3,000.00 earlier, if you were to purchase a new engine you will have to pay a difference of GHC4,000.00 A: That is not true because my engine was not faulty. Q: Did you also not plead with defendant to prefinance the cost of purchasing the engine and its accessories to fix the car with the understanding that you will pay after? A: That is not true. Q: Also, in paragraph 12 of your witness statement, you stated that you advanced GHC1,000.00 for the repair of electrical fault not so? A: Yes, that is true. After I gave him the GHC3,000.00, he requested for GHC1,000.00 to repair an electrical fault to cut all matters short. 13 Q: And so you are telling this court that even after you had demanded for the return of your car and monies paid to the defendant, you still went ahead to pay an extra GHC1,000.00 without knowing the status of your car A: When I gave him the GHC3,000.00, he promised to finish the work in two weeks. After two weeks, I called the defendant but he kept on giving me excuses. I went to defendant’s shop but I did not see my car. When I enquired from him the whereabouts of my vehicle, he said he had taken it to Darkuman to repair an electrical fault. I proceeded to Darkuman and saw my vehicle there. I paid the GHC1,000.00 to him and demanded him to return the vehicle to me in order not to prolong matters. Q: And so, after he had informed you that it was an electrical fault, you agreed for him to repair same for you not so? A: Yes, I agreed because I wanted him to return my car to me. Q: I put it to you that after the defendant did his diagnosis, he informed you that the engine head was faulty and recommended that you replace the entire engine A: That is not true. He only told me about the engine head cylinder. Q: I further put it to you that you even pleaded that he defendant prefinance the change of engine with the understanding that you will pay him when the engine is fixed A: I do not agree with you. Defendant is not the one to use his money to repair my vehicle. Q: I put it to you that as it stands you owe the defendant a total of GHC11,970.00 being the total cost of a new engine, other parts used in fixing your car as well as his workmanship. A: That is not true. I do not have any such agreement with the defendant. He mentioned this at the police station which I denied. I do not owe defendant any sums of money. During cross examination of defendant, the following information was also elicited; 14 Q: How did you determine that the plaintiff had to buy a complete engine, by what means did you determine that? A: We bought the new head but I realised that the problem persisted. I noticed that the engine block was broken so I advised that she should buy a new engine to avoid unnecessary cost. Q: I put it to you that the plaintiff denies this assertion of yours that plaintiff agreed to buy a new engine. A: That is false In Re Ashalley Botwe Lands: Adjetey Agbosu v Kotei [2003-2004] SCGLR 420, Georgina Woode JSC (as she then was) held as follows; “It is trite learning that by the statutory provisions of the Evidence Decree, 1975 (NRCD 323) the burden of producing evidence in any given case is not fixed but shifts from party to party at the various stages of the trial depending on the issues asserted and or denied.” It is a general rule of law that if a negative averment is made by one party which is peculiarly within the knowledge of the other, the party within whose knowledge it lies and who asserts the affirmative is to prove it and not the one who asserts the negative. See the case of Republic v The Vice Chancellor Kwame Nkrumah University of Science and Technology Exparte: Nnambi Nnakwadoro Enekwa & 4 Ors, Civil Appeal No. J4/7/2008 dated 12th November 2008 In Majolagbe v Larbi [1959] GLR 190-195, Ollenu J held 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 15 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.” This principle of law was reiterated in the case of Zabrama v. Segbedzi [1991] 2 GLR 221 at 224, where the Court of Appeal held as follows; “A person who makes an averment or assertion which is denied by his opponent has the burden to establish that his averment is true and he does not discharge this burden unless he leads admissible and credible evidence from which the facts or facts he asserts can be properly and safely inferred.” From the pleadings and evidence reproduced supra, it is evident that plaintiff denied that she ever entered into an agreement with defendant for the purchase of a new engine or for the prefinancing of the purchase of a new engine by defendant. The burden was therefore cast on the defendant to lead evidence to show the existence of an agreement to purchase a new engine and to prefinance same. The testimony of defendant was fraught with so many inconsistencies. The following exchanges lends credence to this fact; Q: By your paragraph 12 of your witness statement, you stated that the fault was rather a faulty engine head to which a gasket is affixed and will require a new engine is that not so? A: It is so and not so and I want to explain. It is true that I used machine and saw that fault. The machine determines the sensors in the car and that is why I saw that the problem was the engine head. Q: A few minutes ago, you mentioned that you opened the car and realised that the engine block was broken and now at paragraph 13 you have indicated that you used a diagnostic machine to reveal that fault. Which version should the court take? A: The court should take both versions. 16 Q: You have given two contradictory statements to this court this morning before the cock crowed A: When I went to the shop the problem I saw was an engine block after I had used the diagnostic machine. Q: Are you aware that paragraph 30 of your statement of defence contradicts your paragraph 13 of the same statement of defence? A: When I diagnosed the fault, I did not detect a faulty charger. It was at the workshop when I fixed the new head that I started the engine several times until the charger got faulty. In Odupong v The Republic [1992-1993] 3 GBR 1028 – 1048 CA, Brobbey J.A (as he then was) delivered himself as follows; “The law is now settled that a person whose evidence on oath is contradictory of a previous statement made by him whether sworn or unsworn is not worthy of credit and his evidence cannot be regarded as being of any probative value in the light of his previous contradictory statement unless he is able to give a reasonable explanation for the contradiction.” The defendant failed to explain the contradictions in his evidence and pleadings and applying the law cited supra, I find that defendant is not worthy of credit and his evidence cannot be regarded as having any probative value. Defendant claims that plaintiff agreed that he should prefinance the cost of a new engine yet under cross examination with regard to his assertion, this is what he had to say; Q: Per paragraph 26 of your witness statement, you stated that you prefinanced the cost of purchasing the engine set and accessories to the vehicle A: Yes Q: How much was the complete engine? 17 A: GHC7,000.00 Q: Did you have the physical cash to prefinance the purchase of an engine? A: No The question is, if defendant did not have physical cash to prefinance the purchase of a new engine, how did he incur the sum indicated in his counterclaim? When defendant was cross examined on the exhibits he tendered in support of his counterclaim, the following information was elicited; Q: I put it to you that they have written receipt and there is no invoice on Exhibit 1. We have a name on Exhibit 1 that is Master Junior, Is that the name of the plaintiff? A: No Q: Who is Master Junior? A: I don’t know him Q: And you claim that to be your receipt before this court when you don’t know Master Junior A: It is a mistake Q: Take a look at the 3rd receipt Exhibit 1(b), what name is on it? A: There is no name on the 3rd receipt. Q: So, you bring a receipt which has no name and you want the court to adopt this? A: Yes Q: Take a look at Exhibit 1(c) tell the court the name of the customer on that receipt A: There is no name on it Q: There is no name on it and you want the court the court to accept that? 18 A: Yes Q: Take a look at Exhibit 1(e) P.K. Boadu Enterprise, tell the court the name of the customer on that receipt or invoice A: There is no name on the receipt Q: There is no name on the receipt but you are telling the court to accept it not so? A: That is so Q: Take a look at Exhibit 1(f) is there a signature there? A: No Q: Can you tell the court why there is no signature on that receipt especially when it bears the biggest amount? A: It was because I wanted to show the receipt to the plaintiff and claim my money from her. Q: In your previous answer, you stated that Exhibit 1(f) has not been paid by the plaintiff and so the seller did not sign, not so? A: I said I wanted to show the receipt to the plaintiff Q: Exhibit 1(f) cannot be a receipt because the plaintiff had not paid for it. It can at best be an invoice. A: I agree Q: Where is the evidence to support the fee of GHC300.00 which you claim has been paid for towing? A: I did not take receipt 19 Q: Look at Exhibit 2, you say there was GHC900.00 charged for oil filter and engine oil not so? Where is the receipt? A: It is not there Q: Please point to the court the receipt for GHC900.00 A: It is Exhibit 1(d) Q: Exhibit 1(d), the amount is GHC1,050.00 and it is different from the GHC900.00 not so? A: That is so Q: So, you agree with me that you are lying under oath because Exbibit 1(d) is not the same as Exhibit 2 A: It is a mistake. The one who wrote GHC900.00 should have written GHC1,050.00 Q: As we speak, plaintiff’s original engine is not working and what you claimed you bought is also not working, what do you want the plaintiff to do? A: I do not know what you should do. After a careful consideration of the exhibits tendered by the defendant in proof of his claim, the court makes the following findings; 1. That there is nothing on the face of Exhibit 1(A) to show that the sum of GHC450 has been paid and that it was paid by the defendant or the plaintiff. 2. That even though Exhibits 1(B) and 1(C) has the word “paid” on the face of it, it does not disclose the name of the payee. 3. That Exhibit 1(D) bears the name Joe. Even though defendant claims the name Joe is referrable to him, there is nothing on the face of the said exhibit to show that the name Joe and Kojo Banson refers to one and the same person. 20 4. That Exhibit 1(E), bears the name Ford Fiesta which certainly cannot be the name of the defendant or the plaintiff. 5. That Exhibit 1(f) which bears the name Joe has the sum of GHC7,000.00 stated on the face of it. There is nothing on the face of Exhibit 1(f) to show that the said sum has been paid. Again, it does not indicate the name or signature of the issuer of the said exhibit and there is nothing on the face of the said exhibit which links either the plaintiff or the defendant to same. 6. That Exhibit 2 which is purported to be a repair order / invoice emanating from Banson Automobile Service Centre does not bear any name and address of the customer who authorised the repair works totalling the sum of GHC11,970.00. It is therefore difficult to link Exhibit 2 to the plaintiff as the one who authorised the said repair order. Certainly, I find that Exhibit 2 does not by any shred of imagination prove that plaintiff agreed or authorised the said repair order / invoice (Exhibit 2) totalling the sum of GHC11,970. From the totality of the evidence before this court, I find that plaintiff has been able to prove her claim on the preponderance of probabilities against the defendant. The defendant on the other hand has been unable to lead credible evidence to show that plaintiff agreed to buy a completely new engine for her car and also agreed for defendant to prefinance the purchase of the said engine. His counterclaim therefore fails and same is dismissed. DECISION 1. The defendant is hereby ordered to pay the sum of GHC4,360.00 to the plaintiff 2. Defendant is ordered to pay interests on the sum of GHC4,360.00 at the prevailing commercial bank rate from 1st November 2022 to the date of full and final settlement. 3. Costs of GHC3,000.00 is awarded in favour of the plaintiff against the defendant. 21 …………(SGD)………………… H/W. RUBY NTIRI OPOKU (MRS) MAGISTRATE 22