Adjetey v Ollenu (A2/53/23) [2024] GHADC 707 (28 November 2024)

IN THE DISTRICT COURT AT LA HELD ON THURSDAY THE 28TH DAY OF NOVEMBER, 2024. BEFORE HER WORSHIP ADWOA BENASO ASUMADU- SAKYI, SITTING AS MAGISTRATE SUIT NO: A2/53/23 CHRISTOPHER ADJEI ADJETEY H/NO. OY/G.324/2 LA ACCRA >>> PLAINTIFF VRS. CHRISTIAN ASHITEI OLLENU LA ACCRA >>> DEFENDANT PARTIES: Plaintiff present Defendant present _______________________________________________________________ JUDGMENT _______________________________________________________________ INTRODUCTION The Plaintiff filed the instant suit by filing a writ of summons against the Defendant on the 8th of June, 2023 prayed for the following reliefs; 1. An order at defendant to refund cash the sum of GH¢ 2,000.00 being cost of a female boerbol Dog which the defendant insisted was fertile but it turned out the dog was not fertile and which plaintiff has return the dog to defendant but he has refused to refund plaintiff’s money to him despite repeated demands 2. Cost Parties were ordered to file their witness statements on the 5th of July, 2023 and the parties complied with the orders of the court and filed their witness statements on the 1st of September, 2023 and the 31st of July, 2023 respectively. Case management conference was conducted on the 5th of September, 2023 and hearing commenced on the 7th of December, 2023 and was completed on the 17th of October, 2024. The case was adjourned to the 28th of November, 2024 for judgment. THE BURDEN OF PROOF IN CIVIL SUITS As in all civil suits, the onus of proof first rests on the party whose positive assertions have been denied by his opponent. Depending on the admissions made, the party on whom the burden of proof lies is enjoined by the provisions of sections 10, 11(4), 12 and 14 of the Evidence Act, 1975 (NRCD 323) to lead cogent evidence such that on the totality of the evidence on record, the court will find that party’s version in relation to the rival accounts to be more probable than its non-existence. Indeed, this basic principle of proof in civil suits expounded in Zambrama v. Segbedzie [1991] 2 GLR 221 has been subsequently applied in numerous cases including Takoradi Floor Mills v. Samir Faris [2005-2006] SCGLR 882; Continental Plastics Limited v. IMC Industries [2009] SCGLR 298 at pages 306 to 307; Abbey v. Antwi [2010] SCGLR 17 at 19. In Ackah v. Pergah Transport Limited and Others [2020] SCGLR 728, Adinyira JSC succinctly summed up the law, at page 736: “It is a basic principle of law of 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… 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 a fact is more reasonable than its non-existence. This is the requirement of the law on evidence under section 10(1) and (2) and 11(1) and (4) of the Evidence Act, 1975 (NRCD 323).” From the above it is clear that the Plaintiff bears the burden of producing evidence and the burden of persuasion on his case which means if he fails to do so the court ought to enter judgment against him. With the above principles in mind, I have set down the following issues down as issues for determination; a. Whether or not the boerbol dog was fertile. b. Whether or not the Plaintiff is entitled to a refund of an amount of GH¢ 2,000.00 PLAINTIFF’S EVIDENCE The Plaintiff mounted the witness box on the 1st of July, 2023 and relied on his witness statement and stated that he is into the business of rearing pigs and foreign dogs for sale. He states that he entered into an oral agreement with the Defendant who is a friend for the purchase of a borebol female dog for the price of Two Thousand Ghana Cedis (GH¢ 2,000.00). He asked the Defendant if the dog was fertile and could produce offspring for the purpose of his business and the Defendant assured him that it was indeed fertile. Plaintiff acting on the assurance of the Defendant went ahead and purchased the dog, unfortunately after rearing the dog for over five months he realised that the dog was not showing any sign of coming on heat. Plaintiff took the dog to the agriculture officer who usually takes care of his pigs for it to be examined and this agriculture officer informed him that the dog was a very old dog and could not produce any offspring. Due to this development on the 3rd of April, 2023 he returned the dog to the Defendant and demanded for a refund of his money but the Defendant refused. DEFENDANT’S EVIDENCE The Defendant testified on the 4th of September, 2024 and stated that on the 28th of September, 2022 he entered into an oral agreement with the Plaintiff for the sale of a female borebol dog for an amount of GH¢ 2,000.00. He also stated that a couple of months after the sale the Plaintiff informed him that he had detected the purchased dog’s heat period and so he promised he would ask his friend by name Charles to who had a male boreboel to cross it for him. He states that due to the friendship he had with Charles the price of the crossing was reduced to Four Hundred Ghana Cedis (GH¢ 400.00). The Defendant states he advised the Plaintiff to visit the veterinary to have a progesterone test conducted to know the exact dates to cross the dog before the crossing could be done and yet he failed to do so. He states that on the 6th of June, 2022 the first crossing session which took three days was conducted without charging any money due to their friendship. The Defendant states that the Plaintiff informed him some days later that he had seen some signs of pregnancy which included the dog having a protruded stomach and was leaking breast milk. Unfortunately, a few days later the Plaintiff called him and requested for a meeting so they could talk and when they met he informed the Defendant that the dog had miscarried and was infertile and then returned the dog back to him. He states he refused to accept the dog since it had been six 6 months since he took custody of the dog there was still a chance she could get pregnant since she had earlier on gotten pregnant even though she miscarried and that meant she was fertile. He also explained to the Plaintiff that the cause of the miscarriage may have been due to him not buying the necessary drugs a pregnant dog would need so he should try crossing the dog again but the Plaintiff refused. The Defendant states that the Plaintiff resorted to defaming his character by telling everyone that he was a fraudster and also threatened him several times and that he would do anything necessary to get his money back even if he has to hurt him to achieve that result and that he would do that even if it would land him in prison. The Plaintiff asked a number of people to call him to threaten him with arrest as they claimed they were police officers and that he was a fraudster. The Plaintiff then requested to see him and resulted in a scuffle between them which resulted in a police complaint being lodged. On the 3rd of April, 2023 the Plaintiff returned the dog in the company of two men and insisted that he could no longer take care of the dog as it was expensive to feed it daily with gari and chicken. He states that he initially refused to take the dog but he changed his mind when he decided to give it to a friend who needed it and this arrangement was agreed to by the Plaintiff. Despite this the Plaintiff started telling people that he was stupid to take back the dog and that he would institute a court case with the video evidence he had of him receiving the dog. He also states that the Defendant refused to pay Charles for the crossing and this has led to a breakdown of their relationship. There is no dispute that the parties entered into an agreement for the purchase of a fertile boerbol dog and that the purchase price was GH¢ 2,000.00 as same had been admitted by the Defendant. See In Re Asere Stool; Nikoi Olai Amontai IV (Substituted by) Tafo Amon II v. Akotia Owirsika III (Substituted by) Laryea Ayiku III (supra) and Samuel Okudzeto Ablakwa and Another v. Jake Obetsebi Lamptey and Another [2013- 2014] 1 SCGLR. The issue in contention is whether or not the borebol dog was fertile since if the court concludes that the dog was infertile then it means the purpose for purchasing the dog did not come to fruition. The Plaintiff called one witness by name Benjamin Lamptey to testify on his behalf on the 3rd of September, 2024 and he relied on his witness statement. Unfortunately a part of the Plaintiff’s witness testimony is hearsay as provided for under section 117 of the Evidence Act 1975 (NRCD 323). This is what he said in his witness statement which was adopted as his evidence in chief: 1. That Plaintiff told me he bought a dog from Defendant for his business but the dog could not bring offspring after six months of purchasing the dog. The above evidence is inadmissible and will not be considered in this judgment. I will reproduce the relevant portions of his witness statement which will be considered by this court; 4. That Plaintiff asked me to escort him to the Defendant place to give back the dog to him. 5. That when we reached there, Plaintiff told Defendant that, the dog he purchased from him cannot bring offspring and so he should take his dog and give him back the money he paid for the dog. 6. That Defendant took the dog and refused to give him back the money. The testimony of Benjamin Lamptey only corroborates the evidence of the Plaintiff that he returned the dog to the Defendant. It does not corroborate his story that the dog was infertile as he was not present during the entire transaction history but only has personal knowledge of what transpired when the Plaintiff returned the dog to the Defendant. The Defendant also admitted that the dog was returned by the Plaintiff in his evidence in chief and I will reproduce what he said as follows; 24. On the 3rd of April, 2023, I was at home when the Plaintiff came with two men insisting that he could no longer take care of dog as it is expensive to feed it daily with gari and chicken. 25. Initially I refused to take the dog back since I do not have the tie to take care of it and that was the reason for which I sold the dog to the Plaintiff. However, I took it back with the same intention to give it to a friend who needed it and the Plaintiff agreed to same. From the above it is clear that there is no need for the Plaintiff to lead evidence to prove that he returned the dog to the Defendant. The Plaintiff entered the witness box and testified on oath and relied on his witness statement and stated as follows; 6. That I demanded to be sure from Defendant if the female dog was fertile and can produce offspring for the purpose of my business of producing the dog for sale and insisted his Dog was fertile. 7. That I bought defendant’s dog upon his assertion that his Dog was fertile but after buying and rearing the Dog for over five months but the Dog was not showing any sign of coming on heat. 8. That I asked the “Agric” Officer who take care of my Pigs to examine the Dog for me and I was told the Dog was a very old Dog and that cannot produce any offspring. 9. That having bought the Dog in September 2022 and realising defendant tricked me to dump his old dog who is not fit for the purpose of me buying it on me, I returned the Dog to him on the 3rd day of April, 2023 and informed him his dog does not produce and so he should take it back and refund my money to me which he agreed and accepted the Dog and it is presently in his custody. From the above testimony it is clear that the Plaintiff failed to state that the dog was crossed and got pregnant and that it unfortunately she miscarried. During cross examination his answers gave a different set of facts. On the 11th of January, 2024 this is what happened during the cross examination of the Plaintiff; Q. You said that the said dog was infertile. I want to know how long you got to know this A. The defendant has reared the dog for 6 years and due to that the dog is infertile. Q. Who did the crossing for you and how much did you pay A. We were three in number who did the crossing; myself, the defendant and one other person conducted the crossing. I paid a sum of GH¢ 250.00 Q. You will agree with me that, I told you to get antenatal pills for the dog during the pregnancy stage and what did you tell me. A. You did not tell me anything but you brought me the drugs and I did not say anything to you From the above it is clear that the Plaintiff was aware that there was an attempt to cross the dog and that the Defendant asked him to get antenatal pills for the dog when it got pregnant. In the case of Obeng v. Obrempong [1992-1993] GBR part 3 @ page 1027 the Court of Appeal held that “Inconsistencies, thought individually colorless, may cumulatively discredit the claim of the proponent of the evidence”. Even though the testimony of the Plaintiff was riddled with inconsistencies this would discredit his entire testimony. It must be noted that not every inconsistency makes a witness a stranger to the truth. A minor, immaterial, insignificant, little inconsistencies, conflicts and contradictions from many witnesses should not call for wholesale rejection of evidence. The court, if the evidence is overwhelming, could gloss over it. See Effisah v. Ansah [2005-2006] SCGLR 943. It is clear from the above that the Plaintiff was therefore aware that although there was an attempt to get the dog pregnant, unfortunately it miscarried and I hold as such. The Defendant however denied that the borebol dog was infertile and this is what he said during cross examination on the 4th of September, 2024; Q. You told me that the dog was 6 months but I later found out that the dog was 6 years old and a certain man who works at the veterinary hospital told me you had brought the dog you had brought the dog there. A. This is a lie. The card of the dog I gave you states differently that the dog is 6 months old. Q. You sold a dog which cannot get pregnant and that is the reason why despite crossed 3 times it was unable to get pregnant. A. That is a lie Q. Do you know that on the 3rd of April, 2023, due to the dog’s inability to get pregnant, I returned the dog back to you? A. I agree you returned the dog to me Q. Do you remember on the said day you refused to refund my money and even added that I could send you anywhere I like? A. That is a lie. You told me you were tired of buying chicken and gari for a refund but I told you since I had sold you the dog, the dog was not going to spend even a day in my house. The agreement between the parties was clear and unambiguous, and that was for the purchased borebol dog to be fertile so she could produce offspring for Defendant’s business. The question to be answered is whether or not the contract has been breached. A breach of contract in law is defined by Professor Treitel in his work The Law of Contract as: “A breach of contract is committed when a party without lawful excuse fails to perform what is due from him under the contract, or performs defectively or incapacitates himself from performing”. A dog becomes typically becomes pregnant within 30 days after mating and the gestation period is approximately 63 days from the time of ovulation. A dog does not start to show signs of pregnancy until about 40 days into the pregnancy. The inability of the dog to carry the pregnancy to full term clearly indicates that the dog had fertility problems and thus the dog did not meet the specifications of the contract and thus there was a breach of the contract. A breach is one ground for the discharge of a contract. Where a contract has been repudiated the innocent party may treat the contract as having come to an end and sue for damages. This court is firmly of the view that the failure of the dog to carry the pregnancy to term amounts to a breach of the contract which entitles the Plaintiff to rescind the contract which he did by returning the dog to the Defendant. In Social Security Bank Ltd v. CBAM Services Inc. [2007-2008] SCGLR 894, the court held that: “A breach of fundamental or essential term is one of the grounds upon which a contract may be terminated. Where this is the stated grounds, and the allegation that the term is essential or fundamental is disputed, a court is bound to determine the issue as a primary fact. But a contract may also be determined where, as in this instant case, the innocent party is empowered by the terms to terminate. A breach of the non-offending party to exercise his right of determination in the contract, must fit into any of the following situations: (i) that which goes to the whole root of the contract and not merely to part of it; or (ii) that which makes further performance impossible; or (iii) that which affects the very substance of the contract…In considering the effect of a breach, the court takes into cognizance the consequence of the breach…” Having come to this conclusion it is clear that the Plaintiff had the right to repudiate the contract and the Defendant must refund the purchase price of the borebol dog to the Plaintiff and I hold so. The Plaintiff therefore has been able to prove his case on a preponderance of probabilities and I enter judgment I his favour. CONCLUSION I hereby enter Judgment in favour of the Plaintiff and make the following orders; a. The Defendant is ordered to pay refund an amount of Two Thousand Ghana Cedis (GH¢ 2,000.00). b. Cost of Five Hundred Ghana Cedis (GH¢ 500.00) is awarded in favour of the Plaintiff. SGD H/W ADWOA BENASO ASUMADU-SAKYI MAGISTRATE