MUSAH VRS. AKROFI (A2/107/24) [2024] GHADC 574 (17 December 2024)

1 CORAM: HER WORSHIP BIANCA GYAMERA-BEEKO SITTING AT THE DISTRICT COURT MAMPONG-AKWAPIM ON THE 17TH DAY OF DECEMBER, 2024. ----------------------------------------------------------------------------------------------------------------- SUIT NO. A2/107/24 GIBRIL AMINU MUSAH ……………… PLAINTIFF VRS, OHENE AKROFI ……………... DEFENDANT Parties present. JUDGMENT The Plaintiff in this matter is seeking the following reliefs: 1. Recovery of an amount of GHS25,000 being the price paid for a Hyundai H200 with registration number GT5349-11 that Plaintiff bought from the Defendant but later returned because the car was not in good condition. 2. Interest on said amount at the current bank rate from March 2024 till date of final payment. The Defendant pleaded not liable to both claims. The sole issue for determination by this court is whether there was an agreement between the parties that the Plaintiff could return the vehicle for his money within three months if dissatisfied. This is a question of fact rather than law. The law is that he who alleges must prove. Section 14 of the Evidence Act, 1975 (Act 323) states that 2 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. This was affirmed by the Supreme Court in Serwah v Kesse (1960) GLR 227 where they stated that “the general rule, of course, is that that the onus probandi lies on the party who substantially asserts the affirmative of the issue”. The Plaintiff therefore bears the burden of proving his case. Since this is a civil matter, the Plaintiff must prove his case upon a preponderance of probabilities as required by section 12 of the Evidence Act 1975 (NRCD 323). This matter was tried by oral testimonies. The Plaintiff’s testified that he is currently an unemployed young man who had tried to make a life for himself in Dubai but had unfortunately been deported back to Ghana. Upon his return he decided to invest the little money he brought back in the transportation business. He decided to purchase a used vehicle for this purpose. He met the Defendant, a chief driver with whom he was already acquainted, at a barbering shop and sought his professional opinion on a taxi he had seen and intended to buy. According to Plaintiff, Defendant discouraged him from purchasing that vehicle with the explanation that that type of vehicle was prone to electrical problems. Defendant then offered to sell him a vehicle he owned. As Plaintiff was already acquainted with Defendant, he trusted the Defendant. The Plaintiff subsequently visited the Defendant’s home in the company of his nephew to inspect the vehicle. Parties eventually agreed on a price of GHS 25,000 for a Hyundai Van. Defendant undertook to change the windscreen and the vehicle’s starter. Defendant insisted on full payment so Plaintiff on 30th January, 2024 paid him GHS15,000 and on 7th February, 2024 paid the remaining GHS10,000. Defendant then gave the vehicle to Plaintiff with a starter and and directed him to an electrician to fix it. The Plaintiff says that the starter was changed but to date the vehicle cannot start unless pushed. While the vehicle was en route to Koforidua for the windscreen 3 to be changed, the car’s long shaft fell off. Plaintiff complained to Defendant who assured him that these were problems with old vehicles and that he could try out the vehicle for 3 months and if he was still dissatisfied, he would return his money. Subsequently. The tappers and engine belt of the vehicle kept breaking and tearing. The wipers and other electronic features had to be repaired. At this point, Defendant told Plaintiff that it was the hilly nature of Larteh that was causing the vehicle to consistently have issues and advised that Plaintiff operate the vehicle on a plain level land. Plaintiff took this advice in good faith and moved the vehicle to Kaneshie but even there, the problems persisted. After two months, Plaintiff informed the Defendant that he was no longer interested in the vehicle so he was returning it. Defendant agreed. When Plaintiff got to the Defendant’s home, he called the Defendant who asked him to park it and hand the key to his daughter. The following morning, Plaintiff sent back the starter as well. Defendant tried to offer him a taxi as a replacement but Plaintiff declined. Defendant then told Plaintiff he had no money to give him so he should put a ‘for sale’ poster on the vehicle to sell sell it and get his money. This led to an argument after which the Plaintiff left the Defendants premises. Plaintiff subsequently reported the issue to the Assemblyman but when invited, the Defendant did not go. The MCE also tried to settle the issue and ordered that the parties should go and inspect the vehicle but the Defendant did not comply. Not knowing what else to do, the Plaintiff initiated this action. In support of his case, the Plaintiff called two witnesses. The first witness was Kamal Osman, the barber at whose shop the Plaintiff and Defendant had the conversation that led to their business transaction. He corroborated the testimony of the Plaintiff about how he approached the Defendant for an opinion and ended up agreeing to consider purchasing the Defendant’s vehicle. The second witness was Jennifer Abena Amoah, an administrator at the Akuapem North Municipal Assembly. She corroborated the Plaintiff’s claims that the matter had been before the MCE and that the Defendant had been asked to test drive the vehicle to ascertain the 4 state it had been returned in. They were to return with findings so the proceedings would be concluded but never did. She made a copy of the minutes available to the court. When the Defendant cross examined the Plaintiff, he attempted to repudiate Plaintiff’s claim that there was an agreement for the car to be returned within three months if Plaintiff was not satisfied with the vehicle. The following exchange was recorded. Q. Did I tell you when you picked the car that I was giving you three months to try it? A. Yes, you told me you had not even done the change of ownership so in 3 months, if I still wanted the vehicle you would work on the papers for me. The Defendant abandoned this line of questioning after this answer was given. For his part, the Defendant confirmed most of the narration of the facts by the Plaintiff. Accordingly, the Plaintiff is relieved of the burden to prove the admitted facts; see the Supreme Court decision of Re Asere Stool; Nikoi Olai Amontia iv (substituted by Tafo Amon ii v. Akotia Oworsika 111 substituted by Laryea Ayiku iii (2005-2006) SCGLR 637 where it was held as follows; Where an adversary has admitted a fact advantageous to the cause of a party, the party does not need any better evidence to establish that fact than by relying on such admission, which is an example of estoppel by conduct”. The Defendant however denied agreeing that he asked the Plaintiff to return the vehicle. According to him, he was away when he received a call from his daughter that the Plaintiff had returned the vehicle. The following day, when Plaintiff came to see him, he explained that he was experiencing financial difficulties and that was why he had sold the vehicle in the first place. He therefore asked the Plaintiff to sell the vehicle as he did not have any money to give him. He also explained that the reason why he did not follow through with the instructions of the MCE was because he had to go to work on the date agreed upon for the inspection. Defendant did not call on any witnesses. 5 Under cross-examination by the Plaintiff, the following questions and answers were recorded. Q. Do you recall that you said after 3 months of using the car and there were no problems, then you would give me the papers? A. I didn’t say that to him. Q. Do you recall that you said you had not even done the transfer of ownership into your name? A. I didn’t tell you that. I bought the car in 2011. I haven’t done it but I did not tell you that. How could the Plaintiff have known that the Defendant had not effected the transfer of ownership of the vehicle into his name unless the Defendant himself told the Plaintiff this? Also, why did the Defendant not give the Plaintiff the car papers at the time he purchased the vehicle unless the parties acknowledged that there was the possibility that the Plaintiff could return the vehicle? The Plaintiff’s continuous reports of challenges he was experiencing with the vehicle would not make sense if it was an outright purchase with no such condition. To my mind, the Defendant’s conduct of accepting the vehicle, explaining to the Plaintiff his financial challenges, and requesting that the Plaintiff sells the vehicle to recoup his money instead of outrightly refusing to accept the vehicle is a clear indication that he knew he had promised to take the vehicle and return the money within the three month period. Consequently, I find the Plaintiff’s case that there was an agreement to return the vehicle within 3 months more probable than the Defendant’s case that there was no such agreement. The Plaintiff accordingly succeeds on his first claim. Since the Defendant has deprived Plaintiff of the use of his money from the time it became due, it follows that the Plaintiff should succeed on his second claim as well, and I so hold. It emerged under cross-examination that the vehicle was returned with one of the tyres damaged. I think it fair that the Plaintiff reimburses the Defendant for the cost of said tyre. 6 In conclusion, I order as follows: 1. The Defendant is to pay the Plaintiff GHS 25,000 with interest at the prevailing bank rate from March 2024 till date of final payment. 2. The Plaintiff is to reimburse the Defendant for the cost of the damaged tyre. 3. Cost of 1000 is awarded against the Defendant. SGD. H/W BIANCA GYAMERA-BEEKO MAGISTRATE