Atobra v Forkuo (A2/117/2023) [2025] GHADC 200 (15 April 2025)

IN THE DISTRICT MAGISTRATE COURT HELD AT GBESE, ACCRA BEFORE HER WORSHIP ANNA AKOSUA APPIAAH GOTTFRIED ANAAFI GYASI (MRS.) ON TUESDAY THE 15TH DAY OF APRIL, 2025. ---------------------------------------------------------------------------------------------------------- SUIT NO: A2/117/2023 ALEX ATOBRA ::: PLAINTIFF (SUING PER LAWFUL ATTORNEY GRACE AMPONG) VRS. FRANK BONNAH FORKUO ::: DEFENDANT (SUING PER LAWFUL ATTORNEY ALFRED ADU ADARKWA) -------------------------------------------------------------------------------------------------------- Time: 8:35 am Parties: Plaintiff’s Lawful Attorney absent. Defendant’s Lawful Attorney present. Legal Representation: Richard Twumasi Ankrah, Esq for Plaintiff absent. David Bondorin Esq., for the Defendant present. JUDGMENT By a Writ of Summons and Statement of Claim dated 18th April, 2023, the Plaintiff per his Lawful Attorney invoked the jurisdiction of this Court for the following reliefs; 1 a. Recovery sum of GH¢41,000.00 from the Defendants b. Interest at prevailing commercial bank rate from June, 2022 till final date of payment. c. Cost The Defendant did not counterclaim against the Plaintiff when he filed his Statement of Defence dated 17th May, 2023. THE CASE OF PLAINTIFF The Plaintiff is domiciled in Italy and his attorney lives in Accra. Defendant is a businessman and deals in spare parts. Sometime in March of 2022 Defendant purchased spare parts from the Plaintiff of different varieties consisting of engines and under parts worth GH¢160,000.00 at the Plaintiff s shop at Abossey Okai in Accra business centre. After Defendant made initial payment of GH¢20,000.00, it was agreed for the Defendant to settle the full amount within three (3) months. Defendant paid GH¢ 109,600.00 by instalment but has since refused to pay the remaining amount of GH¢ 41,400.00 since March 2022. All demands on Defendant to pay the outstanding balance of GH¢ 41,400.00 have fallen on deaf ears hence this action. Plaintiff says that initially he quoted GH¢50,000 as the selling price per set of engines and under parts but the Defendant offered to pay GH¢40,000 per of engine and it’s under parts which was accepted by the Plaintiff amounting in total to GH¢160,000.00 which amount was to be paid immediately. Defendant paid GH¢83,600.00 in 4 instalments consisting of GH¢28,000.00; GH¢35,600.00; GH¢10,000.00 and GH¢10,000.00 respectively amounting in total to GH¢83,600.00. Plaintiff reported the Defendant to the police at the CID Headquarters tor defrauding the Plaintiff. Defendant has made payments of GH¢36,000.00 in 3 instalments of GH¢19,000.00; GH¢10,000.00 and GH¢7,000.00 respectively which has been received by the Plaintiff. Subsequent to the institution of this action the Plaintiff learnt that the Defendant made further payment amounting to GH¢11,000.00 to the police at the ClD Headquarters, Accra. Plaintiff bought 2 pistons and one head from the Defendant assessed at GH¢4,500.00 which could be deducted 2 from the outstanding amount. Plaintiff says that he has received GH¢124,100 (excluding the GH¢11,000.00 paid by the Defendant subsequent to the institution of this action) out of GH¢160,000.00 leaving an outstanding amount of GH¢35,900 to be paid by the Defendant to the Plaintiff. Plaintiff, if the GH¢11,000.00 is so received the balance outstanding amount should be GH¢24,900.00Plaintiff insists that the payment of the GH¢160,000.00 was to be done immediately and the Defendant having failed, neglected or refused to pay same interest shall run on any outstanding amount since if the money had been kept at the bank or invested, the Plaintiff would have gotten interest on same. EVIDENCE IN CHIEF OF PLAINTIFF’S LAWFUL ATTORNEY Plaintiff, being unable to appear in person to testify caused his Lawful Attorney, Grace Ampong and wife to testify on his behalf. Through this case she got to know the defendant. On the instruction of Plaintiff, she caused a Writ of Summons to be issued against the Defendant for the recovery of the sum of GH¢41,400 and interest at the prevailing commercial bank rate from June, 2022 till final date of payment. Plaintiff’s Lawful Attorney repeated the averments in the statement of claim and added a few details. The Plaintiffs’ storekeepers Osei Antwi and Isaac Frimpong then supplied the items to the Defendant. She states that Plaintiff has received GH¢134,100.00 in total including the GH¢4,500.00 (being the cost of the 2 pistons and the engine head) out of GH¢160,000.00 leaving an outstanding amount of GH¢24,900.00 to be paid by the Defendant to the Plaintiff. The outstanding amount of GH¢24,900.00 is less the admitted amount for which judgment had already been given to the Plaintiff. EVIDENCE IN CHIEF OF PW1 PW1 confirms being instructed to sell four (4) engines and underparts to Defendant at GH¢40,000.00 per engine totalling GH¢160,000.00 due immediately or payment to be made not later than three months. Upon clearance of the engines at the port and same 3 delivered to Plaintiff’s shop, the Defendant and his uncle went to Plaintiff’s shop for the said goods which were supplied to the Defendant in PW1’s presence. THE CASE OF DEFENDANT Defendant is a businessman and deals in spare parts in Tema. The Defendant says he bought varieties of goods (spare parts, engine etc) from Plaintiff amounting to GH¢150,000.00. Defendant claims to have made an initial payment of GH¢83,600.00 (which includes the duty paid on the goods) and not GH¢20,000.00 to Plaintiff. Defendant claims to have the receipts to prove it. The Defendant avers that due to travel to Kumasi he was not able to pay the outstanding balance. This led to Plaintiff’s attorney reporting the matter to the CID Headquarters, Accra alleging that Defendant had defrauded them of their goods. This caused the CID to call and question him which revealed that Plaintiff’s claim was false and instead found the goods at the shop which had not yet been sold. The Defendant says that, as a result of the above incident, the CID asked Defendant to make payment at their office in Room 4 in the presence of plaintiff’s attorney and has since then made payments amounting to GH¢47,700.00. Defendant further avers that, Plaintiff (not the attorney) came for some of the goods to repair his car worth GH¢12,800.00 which was agreed between the parties to be included as part payment made to Plaintiff. The Defendant avers that, he has paid a total amount of GH¢144,100.00 to Plaintiff out of the GH¢150,000.00 leaving an outstanding balance of GH¢5,900.00. The Defendant says he owes GH¢5,900.00 and not GH¢41,400.00 as claimed by Plaintiff. The Defendant believes Plaintiffs actions are ill motivated and prays this Honourable Court to consider his defence and take the necessary action as deem fit. Defendant prays to the Honourable Court to waive the interest which is part of the Plaintiffs reliefs because, when Defendant gave the initial payment of GH¢83.600.00 out of the GH¢150,000.00. He decided to buy the goods amounting to the said amount and leave the rest but Plaintiff pleaded with him to add the rest of the goods and pay in instalments. This being a business agreement, Defendant says for the sake of justice prays for interest to be waived. 4 EVIDENCE IN CHIEF OF DEFENDANT’S LAWFUL ATTORNEY Defendant’s Lawful Attorney states categorically that he does not know who the Plaintiff is however, he being in the trade of spare parts found out that the Plaintiff had brought in some spare parts and informed Defendant of same. The Defendant, being a spare parts dealer, himself expressed interest in purchasing the said spare parts and Plaintiff was contacted. The total cost price was One Hundred and Fifty Thousand Ghana Cedis (GH¢150,000.00) and not One Hundred and Sixty Thousand Ghana Cedis (GH¢160,000.00) as the Plaintiff is alleging. Defendant made an initial payment of Eighty-Three Thousand Six Hundred Ghana Cedis (GH¢83,600.00) to the Plaintiff. The Defendant has subsequently paid an amount of Sixty Thousand Five Hundred Ghana Cedis (GH¢60,500.00) to the Plaintiff through an investigator called Biney subsequent to Plaintiff’s complaint at the CID headquarters. The Defendant therefore paid a total amount of One Hundred and Forty-Four Thousand One Hundred Ghana Cedis (GH¢144,100) to the Plaintiff. Defendant has subsequently paid the outstanding balance of Five Thousand Nine Hundred Ghana Cedis (GHC5,900.00) to the Plaintiff and does not owe the Plaintiff Forty One Thousand Four Hundred Ghana Cedis (GH¢41,400.00) The Plaintiff however also came for some of the spare parts from the Defendant to repair his vehicle and these were one engine head at purchase price of Four Thousand Five Hundred Ghana Cedis (GHC4,500.00), two pistons at a total cost of One Thousand Ghana Cedis.( GH¢1,000.00), set of Injectors at a total cost of Six Thousand Five Hundred Ghana Cedis (GH¢6,500.00), and a head gasket at a purchase price of Eight Hundred Ghana Cedis (GH¢800.00) all totalling an amount of Twelve Thousand Eight Hundred Ghana Cedis (GH¢12,800.00). The said amount of Twelve Thousand Eight Hundred Ghana Cedis was factored into the payments Defendant had made to the Plaintiff to reduce Defendants indebtedness to the Plaintiff. ISSUES 5 1. Whether or not the Plaintiff and defendant agreed to the price of GH¢ 150,000 and not GH¢160,000 as the total cost of engines? 2. Whether or not Plaintiff ordered in addition to the one engine head and 2 pistons, a gasket? 3. Whether or not the goods Plaintiff came for from Defendant amounted to GH¢ 12,800? 4. Whether or not the defendant owes the Plaintiff GH¢19,000? THE LAW The Burden and Persuasion of Proof Evidence Act 1975 (N.R.C.D. 323) In examining the case put forward by the parties, the court must be circumspect and deal with facts as well as the evidence adduced and most importantly the law. The law that this Court will be instructed by are as follows: Section 10 (1) For the purposes of this Act, 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. (b) to establish the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt. Section 11 (1) For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party. (4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence which on the totality of the evidence, leads a reasonable mind to conclude that the existence of the fact was more probable than its non-existence. 6 Section 12 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 15 Unless it is shifted, (a) the party claiming that a person has committed a crime or wrongdoing has the burden of persuasion on that issue; Section 17 Except as otherwise provided by law, (a) the burden of producing evidence of a particular fact is on the party against whom a finding on that fact would be required in the absence of further proof; (b) the burden of producing evidence of a particular fact is initially on the party with the burden of persuasion as to that fact. In the case of Mojolagbe v. Larbi and Others (1959) GLR 190, which found favour in the case of Ackah v Pergah Transport Ltd supra the court held as follows: “Proof, in law, is the establishment of fact by proper legal means; in other words, the establishment of an averment by admissible evidence. Where a party makes an averment, and his averment is denied, he is unlikely to be held by the Court to have sufficiently proved that averment by his merely going into the witness-box, and repeating the averment on oath, if he does not adduce that corroborative evidence which (if his averment be true) is certain to exist. … “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 7 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.” …Therefore, the role of a trial judge “in a civil matter is to determine from the evidence available which of the parties adduced credible and sufficient evidence to tilt in his favour the balance of probabilities on an issue.” (my emphasis) In applying the above statute and case, in Ackah v. Pergah Transport Ltd (2010) SCGLR 728 @ 736 the Supreme Court held: “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 a 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.” ANALYSIS Issue 1 The parties herein contend with the agreed cost price; Plaintiff claims it was GH¢160,000.00 whilst Defendant insists that it was GH¢150,000.00. There is no contention about the sale of the engines to the defendant except on the price. The Plaintiff did not attach an invoice to give the court an idea of what the exact cost price was though he had someone testify on his behalf. In the case of Mojolagbe v. Larbi and Others supra the court 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, 8 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.” The burden of proving the positive fact that the cost price of the goods was GH¢160,000.00 lay on the Plaintiff to prove. He did not do so with receipts but PW1 stated that he was instructed by the plaintiff to supply the goods to the defendant at GH¢ 40,000 each which amounted to GH¢ 160,000.00. Under cross examination the following ensued: Q: You have indicated in paragraph 3 of your Witness Statement that the Plaintiff instructed us to give 4 set of engine and underparts to the Defendant, who are the us? A: One Isaac Frimpong, Mr. Osei Antwi and myself that we gave the goods to the Defendant. Q: Osei Antwi and Isaac Frimpong supplied the aforementioned parts and that you never supplied any part as you have indicated in your own paragraph 5, I suggest that to you? A: Because I was working in the company I can say that I was part of the suppliers. Q: So you never supplied the items, it was only done in your presence as you are alleging in paragraph 5? A: I am emphasizing that I was part of the suppliers as the goods were supplied in my presence and I was part of the company. Q: So you are departing from your own Witness Statement, I suggest that to you? A: I do not agree. Q: Was it the Defendant who came for the parts himself? A: He came with his Uncle. The problem with PW1’s testimony is that, though he was instructed to supply the items at GH¢40,000.00 per set, the said instruction was not done in the presence of the 9 Defendant, at least that is not apparent from the evidence on record. It is thus difficult to tell if indeed the price was as Plaintiff claims. In addition, there was no discussion as to whether the defendant confirmed the said cost price before taking delivery of the goods. I therefore find it more probable than not that the cost price of the goods was GH¢150,000.00 and not GH¢160,000.00. Issues 2, 3 and 4 Considering that the resolution of issue 2 shall resolve issues 3 and 4 as well, these issues shall be dealt with together. It is the Defendant’s case that he supplied the Plaintiff with goods worth GH¢12,800.00. The Plaintiff on the other hand contends that whilst the Defendant did supply them with the goods, the value was GH¢4,500.00. It is not in dispute that the cost of the goods supplied to Plaintiff will be deducted from the Defendant’s indebtedness to the Plaintiff. The breakdown of the goods is; one engine head at GH¢4,500.00, two pistons at GH¢1,000.00, a set of injectors at GH¢6,500.00 and a head gasket at GH¢800.00. The Plaintiff’s Lawful Attorney denies ever receiving a set of injectors and a head gasket from the defendant. The following ensued under cross examination on 10th July, 2024 and 21st August, 2024 respectively: Q: The Plaintiff collected one engine head amounts to GH¢4,500.00? A: Yes. One engine head and two pistons amounted to GH¢4500.00 and not just the engine head. Q: Did you go with the Plaintiff to collect the items? A: it was the mechanic who worked on the car who went to pick them up. Q: So it is only the mechanic not you who can testify to the price of items and not you I suggest that to you? A: I was there the car developed fault on the Nkawkaw road and when the mechanic brought the items I was by the car. Q: Being by the car did not mean that you knew the price at which the mechanic got the items from the Defendant. 10 A: It was the Defendant who informed us that the items amounted to GH¢4,500.00. Q: In addition to the 2 items I mentioned earlier Plaintiff also collected 1 set of injectors at GH¢6,500.00 from Defendant? A: It is not true. Q: He also collected 1 head gasket costing GH¢800.00 from Defendant? A: It is not true. Apart from head and 2 pistons I never collected any other items. Q: The cost of the 2 pistons alone is GH¢1,000.00, I am suggesting to you? A: That is not so the Defendant said the total cost for the head and piston was GH¢500.00. Q: So the total cost of all the items you collected for the items is GH¢12,800.00 and not GH¢4,500.00? A: That is not so. Q: So when we add the GH¢12,800.00 to the GH¢47,700.00 already paid will give us a total of GH¢60,500.00. A: It is not true. The Defendant’s Lawful Attorney was also subjected to a barrage of questions under cross examination on the issue of the goods supplied by the Defendant as follows on 12th December, 2024 and 30th January, 2025 respectively as follows: Q: I am also putting it to you that the 2 pistons and the engine head amounted to GH¢4,500.00 only? A: It is not true. Q: I am putting it to you that the Plaintiff never collected set of injectors from you? A: It is not true. Osei called Frank that they need a car part to fix a car which has been imported else the car cannot be used. The 1st one that was given to Plaintiff was engine head and the 2nd was injectors at the cost of GH¢6,500.00 and 2 pistons at the cost of GH¢1,000.00 and 1 over hauling gasket at the cost of GH¢800.00. 11 Q: I am putting it to you that the Plaintiff never collected head gasket or over hauling gasket from you? A: That is not true. Q: You are saying you never collected head gasket or over hauling gasket? A: They are all the same. Q: I am putting it to you that Plaintiff never collected head gasket which amounted to GH¢800.00 from you? A: That is not true. Q: I am putting it to you that the Plaintiff only bought the head and the two pistons from you? A: That is not true. Q: I am further putting it to you that the total cost of the two pistons and the engine head amounted to GH¢4,500.00 only? A: That is not true. Q: Did you give the Plaintiff an invoice for the purchase of the head and the two pistons? A: No. Q: Did you give him receipt for the purchase and/or collection of the head and the two pistons? A: No because the Plaintiff became our regular customer that is why he was not issued a receipt. Q: You have also not attached any receipt for the collection and payment of the two pistons and the head and/or any other part? A: I don’t know because Osei and the Plaintiff’s Mechanic went to collect it from Tema. Q: And you have also not attached any receipt or invoice for collection of any set of injectors attached to your Witness Statement adopted as your evidence-in-chief? 12 A: No. Once again, I must reiterate the fact that the onus is on the defendant and not the plaintiff to prove that the cost price of the goods he delivered to the plaintiff was as he claims it to be as well as the inclusion of the gaskets. The test in the case of Mojolagbe v. Larbi and Others supra also applies here. Considering especially that Plaintiff’s Lawful Attorney denied that the price was GH¢4,500.00 the onus was on the Defendant to prove that it was GH¢12,800.00 which he failed to do. The amount therefore agreed on was GH¢4,500.00 and not GH¢12,800.00. In addition, the Defendants were unable to prove that anything else was sold to the Plaintiff therefore it was only the two pistons and the engine head that was sold to the Plaintiff. Having thus determined the cost price of the engine, and the fact that the price of the goods sold to Plaintiff by Defendant was GH¢4,500.00, what remains outstanding is how much Defendant owes Plaintiff if at all. From the cost price being determined at GH¢150,000.00, the Plaintiff, having admitted receiving a total of GH¢134,100.00 which considers the GH¢4,500.00 owed to Defendant, there also being evidence on record that the Plaintiff received the GH¢5,900.00 the Defendant admitted to owing, the outstanding balance is thus GH¢10,000.00 that Defendant owes to Plaintiff. In conclusion, the court finds as a fact that the parties agreed to the cost of the engines and underparts at GH¢150,000.00, the goods sold to Plaintiff by defendant was GH¢4,500.00. Therefore, having looked at all the amounts paid, the total owed amount is GH¢10,000.00. FINAL ORDERS a. The Defendant is ordered to pay GH¢10,000.00 to the Plaintiff. b. Interest at prevailing commercial bank rate from 15th April, 2025 till final date of payment. 13 c. There will be no order as to costs. (SGD.) H/W. ANNA AKOSUA APPIAAH GOTTFRIED ANAAFI GYASI (MRS.) (DISTRICT MAGISTRATE) 14