Asamoah v Hitz Car Rentals and Another (A2/55/24) [2024] GHADC 699 (3 December 2024)

CORAM: IN THE ASOFAN DISTRICT COURT HELD ON 3RD DECEMBER, 2024 BEFORE HER WORSHIP NANCY TEIKO SEARYOH (MRS.) SITTING AS MAGISTRATE SUIT NO A2/55/24 BENJAMIN GYAMFI ASAMOAH OF POKUASE - PLAINTIFF VRS: 1. HITZ CAR RENTALS 2. DANIEL MENSAH - DEFENDANTS JUDGEMENT On the 15th January, 2024 by a Writ of Summons, the Plaintiff prayed the Court for the following reliefs: i. Recovery of cash sum of thirteen thousand Ghana cedis (GH¢13,000). ii. Costs iii. Interest on the said amount at prevailing bank rate from date of transaction till the final determination of this suit. iv. Damages for breach of agreement. Page 1 of 8 v. Any further order(s) deemed fit by this Honourable Court. It is the Plaintiffs case that the Defendants are a Company and Chief Operations Officer (C.O.O) respectively at Pokuase ACP within the jurisdiction of the Court. He contended that somewhere in August 2023, he wanted a car to use for work and pay purposes. He saw a facebook sponsored paid advertisement by the Defendants that they were giving out cars for rentals, work and pay purposes and sale respectively. Plaintiff averred that he approached the Defendants and told them he had interest and ability to apply for one of their cars to use as work and pay. He further stated that the Defendants consented and told him they had cars available and so he opted for a Toyota Vitz with a work and pay amount of Seventy Eight Thousand Ghana Cedis (GH¢78,000) which was to be paid within a period of three (3) years and was made to make a deposit of Seven Thousand Ghana Cedis (GH¢7,000) with the understanding that if the car is not released to him ninety (90) days of paying his deposit, any money paid would be refunded to hm. Plaintiff again stated that the ninety (90) days elapsed on the 12th day of November, 2023 and so he went to the Defendants on the 16th day of November, 2023 in anticipation to receive his car but was told that the inflation in the country had increased clearance fees and other charges of the said car so the price of the car had changed from Seventy Eight Thousand to Ninety Thousand Ghana Cedis (90,000). He agreed and was made to pay an Page 2 of 8 additional Six Thousand Ghana Cedis (GH¢6,000) making a total amount Thirteen Thousand Cedis (13,000). He stated that the Defendants asked him to come for the car on the 30th day of November, 2023, a document was signed to that effect by the second Defendant. He said that when the time was due the Defendants failed to release the car to him and so he demanded for a refund of his money. He stated that there is every indication by the Defendants not to pay the money unless compelled by this Court to do so. In their Statement of Defence filed on the 20th February, 2024, the Defendants stated that the payment due would be less registration and inspection fees of GH¢300 as same was non-refundable. They further stated that when the purchase price of the car increased due to the rise in import duties, clearing agent and port handling charges, the Plaintiff’s total deposit increased from Thirteen Thousand Ghana Cedis (13,000) to Twenty Eight Thousand Ghana Cedis (28,000) which the Plaintiff agreed to pay. In view of that, the Parties signed an amended agreement with the supply date of 30th November, 2023 within which the Plaintiff made a promise to pay the outstanding deposit of Fifteen Thousand Seven Hundred Ghana Cedis (15,700) in two weeks but failed to do so. They again stated the Plaintiff subsequently filled a refund form on 8th December, 2023 and his money was to be refunded in two tranches. The first tranche was to be paid on the 16th February, 2024 but he sued on the 15th January, 2024 making the suit premature. They again averred that since the Plaintiff failed to complete the payment of his deposit of Twenty Eight Thousand Seven Hundred Ghana Cedis (GH¢28,700), Plaintiff breached the agreement and the Defendant is entitled to deduct One Thousand Page 3 of 8 and Forty Ghana Cedis (1,040) as administrative charges from his deposit meaning the Defendant only owed Plaintiff the sum of Eleven Thousand Seven Hundred Ghana Cedis (GH¢11,700) and also because the Plaintiff failed to complete the payment of his deposit, the Plaintiff is not entitled to interest, damages for breach of contract and costs as endorsed on the Writ. On the 5th day of April, 2024 the Court referred Parties to attempt settlement with the Court Connected ADR. They complied with the orders and filed terms of settlement on the 16th April, 2024 as follows; (1) The Defendant has agreed to pay to the Plaintiff the sum of Thirteen Thousand Ghana Cedis (GH¢13,000). a) On or before 30th of April, 2024, Four Thousand Three Hundred and Thirty Three Ghana Cedis (GH¢4,333.00). b) On or before 30th June, 2024, Four Thousand Three Hundred and Thirty Three Ghana Cedis (GH¢4,333.00). (2) The Defendant will make payment through the Plaintiffs MOMO number 053401119 registered in the name of Benjamin Gyamfi Asamoah. (3) That Parties are unable to agree on reliefs (b), (c) and (d) so therefore the said reliefs being (b), (c), and (d) stated on the Writ of Summons is referred back to Court for determination between the Parties. The Court adopted the terms of the Parties as Consent Judgment and awarded interest on the said sum at the prevailing bank rate and also awarded cost of Two Thousand Ghana Cedis (GH¢2,000). Page 4 of 8 Parties were ordered to file Witness Statement in relation to the relief (d) which is damages for breach of contract. Parties complied with the order and the Court proceeded to trial. Counsel for the Defendants was made to cross-examine the Defendant based on the Witness Statement he filed. Damages as defined by the Oxford Dictionary of Law 5th Edition published by Oxford University Press “is a sum of money ordered by a Court as compensation for a tort or breach of contract” Justice Yaw Appau (JSC) in his paper presented on Assessment of Damages at the Judicial Training Institute (JTI) stated “In tort, the purpose of damages is to put the Plaintiff in a position he would have been in if the tort had not been committed (restitutio in integrum). “Damages are not awarded to over enrich a Plaintiff far beyond his actual losses. The reverse is also the case Plaintiff should not get far less than his actual loss” He further stated that the same principle applied to damages in contract. In the case of Royal Dutch Airlines & Anor V. Farmex Ltd [1989-90] 2 GLR 623 @ 625, the Court held that; “On the measure of damages in contract, the principle adopted by the Courts was restitution in integrum i.e. if Plaintiff has suffered damages not too remote, he must as far as money could do it, be restored to the position he would have been in had that particular damage not occurred”. What was required to put the Plaintiffs in the position they would have been in was sufficient money to compensate them for what they had lost. Page 5 of 8 See also the case of Juxon Smith V. KLM Dutch Airlines [2005-2006] SCGLR, 438 @ 442 holding 5 The Defendant in his further Witness Statement to prove damages stated that the initial Seven Thousand Ghana Cedis (GH¢7,000) paid to the Defendants is part of his working capital for Inspire Micro Credit Enterprise where loans were issued at 10% monthly. The value loss of the money in 10 months is 100% face value. He again stated that he borrowed Six Thousand Ghana Cedis (GH¢6,000) from a friend which attracted 10% interest accruing a loss of Three Thousand Ghana Cedis (GH¢3,000) arising from the interest paid. Also, he stated that the Defendants inability to show up at Court has resulted in his visa expiring on the 2nd day of June, 2024 and that he was expected to pay Three Thousand Dirhams (3,000) as expiration cost. That the total estimated losses he incurred arising from costs is totalled over a period of ten (10) months at Twenty five Thousand Ghana Cedis (GH¢25,000). It is trite in Civil suits that a party who makes any allegation which is denied by the opponent must prove his or her averments on the balance of probabilities as per Sections 11 (4) and 12 (1) of the Evidence Act 1975. (NRCD 323) Sarkodie V. F.K.A. Co Ltd [2009] SCGLR 65 and also Yaa Kwasi V. Arhin Davies [2007-2008] SCGLR 580 Page 6 of 8 The Plaintiff in this suit failed to prove to the Court that he incurred any damages as a result of the breach of contract. Thus he failed to tender in Court or attach exhibits to his Witness Statement to prove that indeed he borrowed the initial deposit of Seven Thousand Ghana Cedis (GH¢7,000) from his business at an interest of 10%. He also failed to show that he truly borrowed money from his friend at an interest rate of ten percent (10%). Lastly, the Plaintiff failed to lead evidence to support his claim that his visa expired on the 2nd of June, 2024 and that he was expected to pay Three Thousand Dirhams as expiration costs. In the case of Majolagbe V. Larbi & Anor [1959] GLR 190 at 192, the Court held as follows; “Where a party makes an averment capable of proof in some positive way, example by producing documents, description of things, reference to other facts, instances or circumstances and his averment is denied, he does it by not merely going into the witness box and repeating the 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”. Thus the Plaintiff in this case failed to adduce further evidence or attach exhibits to prove that he suffered damages as a result of the breach of the contract by the Defendants. He made several averments but failed to attach exhibits to prove those them. Furthermore, the Court also noted that per the clause 4 of the agreement between Parties tendered through the Plaintiff and marked as Exhibit ‘A’ which the Plaintiff signed. Page 7 of 8 “The default by the Company Hitz Car and Appliances will come with no fee charges. Applicants or drivers will get full payment” Meaning that at the time of making the agreement the Plaintiff agreed that should there be a breach, he, the Plaintiff is not entitled to any other fee charges except his full deposit. Accordingly, the Court would dismiss the Plaintiff’s claim for damages. (SGD) H/W NANCY TEIKO SEARYOH (MRS.) (MAGISTRATE) PLAINTIFF PRESENT DEFENDANT’S LAWFUL ATTORNEY PRESENT FLORA AGGREY FYNN AMISSAH ESQ FOR THE DEFENDANT PRESENT Page 8 of 8