Amesi v Abed El-Agha (A2/46/20) [2024] GHADC 711 (26 November 2024)

IN THE DISTRICT COURT AT LA HELD ON TUESDAY THE 26TH DAY OF NOVEMBER, 2024. BEFORE HER WORSHIP ADWOA BENASO ASUMADU- SAKYI, SITTING AS MAGISTRATE SUIT NO: A2/46/20 STEPEHN AMESI H/NO. 49/7 BIO ST. LABADI-ACCRA >>> PLAINTIFF VRS. ABED EL-AGHA H/NO. 49/7 BIO ST. LABADI-ACCRA >>> DEFENDANT _______________________________________________________________ PARTIES: Plaintiff present Defendant present LEGAL REPRESENTATION: Andy Effah holding brief of Senanu Asiagbor for the Plaintiff JUDGMENT INTRODUCTION By a writ of summons issued on the 14th of August, 2020, the Plaintiff in this matter claims against the Defendant for the following reliefs; 1. An order for the recovery of GH¢ 15,000.00 being money paid to the Defendant for the purchase of a Toyota Corolla car in August 2019. 2. An order for the recovery of interest charged on the GH¢ 15,000.00 as in relief (a) above from August 2019 till date of final payment. 3. Damages. 4. Cost including Solicitors fee. The Court differently constituted opted to dispense with witness statements and decided to take evidence orally after settlement broke down at the Court Connected ADR on the 18th of September, 2020. The parties gave evidence with the Plaintiff calling one witness. PLAINTIFF’S CASE The crux of the Plaintiff’s case is that he decided to purchase a car and he informed a taxi driver who drove him to various places of this decision. That this taxi driver later informed him that he had seen a vehicle parked in front of Defendant’s house and that upon speaking to the Defendant, the Defendant informed him that he had purchased the said vehicle from an auction sale at the Jubilee House and that he would be able to assist the Plaintiff to get one himself. The Plaintiff states that after the taxi driver had conveyed this information to him the Defendant approached him later and asked whether he was serious about purchasing a vehicle and he answered in the affirmative. He goes to state that the Defendant informed him he was willing to assist him purchase an auctioned car for Twenty Thousand Ghana Cedis (GH¢ 20,000.00) but he relied that he did not have that amount of money. The Plaintiff states that the Defendant came back to him in a weeks-time and asked whether he had been able to raise the GH¢ 20,000.00 but he told him he only had Fifteen Thousand Ghana Cedis (GH¢ 15,000.00). This led the Defendant to say that he would make enquiries as to whether the GH¢ 15,000.00 will be accepted by the auctioneer at Jubilee House and whether he could pay the remaining amount in a week’s time. The Plaintiff went on to state that the Defendant asked him to meet him at Afrikiko with a copy of his ID card and the GH¢ 15,000.00. That on the said agreed date the Defendant was accompanied by Mr. Gafa who he then introduced to the Plaintiff as the auctioneer. The Plaintiff states that he handed over the GH¢ 15,000.00 to the Defendant who then handed same to Mr. Gafa. He also states that two weeks later, the Defendant came to inform him that he could not locate the said Mr. Gafa and that all efforts to get a refund of his money or the vehicle has proved futile. DEFENDANT’S CASE The Defendant also stated that he purchased an auctioned vehicle for his son from a national security officer at the Jubilee House and that the Plaintiff approached him and enquired about the car he purchased for his son. He states that he proceeded to tell him it was an auctioned car and that he purchased same for Twenty Thousand Ghana Cedis (GH¢ 20,000.00) from a national security officer at the Jubilee House. He goes on to state that the Plaintiff asked him to assist him in purchasing a vehicle of his own so he got in touch with Mr Gafa who called him two weeks later and informed him that he had a car available for the Defendant. The Plaintiff asked him to go and inspect the condition of the car which he did but after the inspection he realised that vehicle was in a bad condition and as a result he asked Mr Gafa to look for another one for the Plaintiff. A month later Mr Gafa informed him that he had found a Corolla LS vehicle for the Plaintiff and that when he informed the Plaintiff he once again asked him to go and have a look at it. That he proceeded to inspect the Corrolla LS vehicle and confirmed that it was in good condition. The Defendant states that he and the Plaintiff went to meet Mr Gafa at Afriko and that was where Mr Gafa informed the Plaintiff that he would not accept the GH¢ 15,000.00 as the vehicle was an auctioned car. He states that he was able to persuade Mr Gafa to accept the GH¢ 15,000 as he was willing to lend the remaining amount to the Plaintiff which the Plaintiff promised to repay in two weeks. The Defendant states that the Plaintiff handed the GH¢ 15,000 directly to Mr Gafa and he added an amount of One Thousand US Dollars (1,000 USD) and also stated that Mr Gafa promised the Plaintiff he would receive the car within 21 days. Unfortunately, Mr Gafa kept on postponing the delivery of the vehicle until he proceeded to the Jubilee House himself only to be informed that this Mr Gafa had defrauded other people in a similar manner. The Defendant then lodged a complaint at the Nima police station against Mr Gafa. ISSUES FOR DETERMINATION I have set down the following issues as issues for determination; a. Whether or not the Defendant promised to purchase a vehicle for the Plaintiff. b. Whether or not the Plaintiff gave the Defendant an amount of GH¢ 15,000.00 for the purchase of a vehicle. LAW AND ANALYSIS OF THE FACTS A party whose pleading raises an issue essential to the success of the case assumes the burden of proving such an issue; it is incumbent on that party to produce admissible and credible evidence so as to avoid a ruling against him and the absence of that proof will attract or even earn such a ruling. See the case of Ababio v. Akwasi II [1994-1995] GBR III 174. 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 for example 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 with the witness box and repeating that averment on oath, or having it repeated on oath by himself or his witnesses, he proves it by producing the evidence of facts and circumstances from which the court can be satisfied not what he avers is true. See the case of Majolagbe v. Larbi and 2 Others [1959] GLR at 192. It is the 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. The methods of producing evidence are varied and it includes testimonies of the party, material witnesses, documentary evidence, admissible hearsay. 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 that its non-existence. See sections 10(1) and (2), Section 11(1) and (4) of the Evidence Act 1975 (NRCD 323). The crux of Plaintiff’s case is that he entered into a binding agreement with Defendant for the purchase of a car and that he represented himself as someone who could assist him to purchase same as he has bought a car on auction. A contract was defined as an agreement constituted by an offer and an acceptance with the mutual intention that it should be binding and enforceable at law in the case of Kobaku Associate v. Owusu (2000) 2MLRG 228 CA. In order to proof that a contract was entered the following requirements must be established; 1. Offer and Acceptance 2. Consideration 3. Capacity 4. Intention to create legal relations On the 18th of September, 2020 the Plaintiff was called upon to prove his case as he bore the burden of persuasion, as it is trite learning that the legal burden of proof will generally lie on the party asserting the affirmative of an issue. In order to succeed the Plaintiff must prove that the Defendant presented himself as a car dealer and in order to do so he must first prove that the Defendant was the one who approached him. The Plaintiff called a witness by name Emmanuel Abel-Adawu to corroborate his story. A portion of the Plaintiff’s witness testimony was expunged as same was hearsay. I will go ahead and repeat the testimony he gave on the 8th of April, 2021 as follows; My name is Emmanuel Abel-Adawu. I live at La. I am a taxi driver. …In 2019 one morning I was going to take Plaintiff to work, when I got in front of Mr. Abed’s house I saw a Toyota Corolla parked there and I asked whether he had bought the car and he said yes and that he bought it at the Jubilee house for GH¢ 20,000. The vehicle has already been registered at that time. I therefore told him that my boss needed a car to buy and he said that was not a problem, he could get one for him so when I was taking the Plaintiff to work, I reminded him of an earlier conversation we had on his desire to buy a car. I then told him that, Defendant had assured him of getting a car for him from the Jubilee House. This evidence only corroborates the beginning of the story of the Plaintiff on what transpired between himself and the Defendant and is silent on whether or not the Defendant was the one who approached him. The Plaintiff testified that his brother was present when the Defendant approached him to start negotiations on the vehicle and yet it comes as a surprise that he failed to call this said brother to testify for him when he is a material witness whose evidence would have been essential to the determination of this case. Counsel for Defendant cross examined the Plaintiff on this fact on 30th December, 2020 as follows; Q. So Defendant is not a car dealer to the best of your knowledge, is that correct A. I do not know him as a car dealer but since my driver told him that I needed a car he came to me straight for the negotiations. Q. I am suggesting to you that Defendant never came to you on his own volition concerning the auction car as you want this court to believe. A. He came to me, and I was then with my brother. The failure to call his brother who is a material witness is fatal to his case as decided in the case of Tetteh v. The Republic [2001-2002] and Gligah and Atitso v. The Republic [2010] SCGLR 870. Thus, the story of the Plaintiff that it was the Defendant who approached him in respect of the vehicle has not been proved as all he did was to enter the witness box and repeat his assertions against the Defendant. Unfortunately, a careful perusal of the evidence adduced clearly shows that the Defendant never presented himself as a car dealer or as the one who would procure the vehicle for the Plaintiff and this was admitted by the Plaintiff during cross examination on 30th December, 2020 as follows; Q. Did the Defendant give you the impression that he was a car dealer? A. No, but Defendant came to park his vehicle and I asked him about it and he said it was an auctioned car Q. So Defendant is not a car dealer to the best of your knowledge, is that correct A. I don’t know him as a car dealer but since my driver told him that I needed a car he came to me straight for negotiations. The Plaintiff’s evidence above supports the case of the Defendant that he never presented himself as a car dealer to the Plaintiff. The well-established rule as espoused in Manu v. Nsiah [2005-06] SCGLR 25 at 33, by Lartey JSC is as follows: “The well-established rule as espoused in Banahene v. Adinkra [1976] 1 GLR 346 at 350, CA is that where the evidence of a party on a point in a suit is corroborated by witnesses of his opponent, whilst that of his opponent on the same issue stands uncorroborated even by his own witnesses, a court ought not to accept the uncorroborated version in preference to the corroborated one unless for some good reason and apparent reason the court finds the corroborated version incredible, impossible or unacceptable”. See Manukure v. Agyekum [1992-93] GBR 888 CA and Osei Yaw v. Dumfeh [1965] G.L.R 418. The admission of the Plaintiff is enough to support the Defendant’s case that he never presented himself as a car dealer and I hereby conclude as such. The Defendant also testified that it was the Plaintiff who showed interest in purchasing a vehicle and his evidence was not discredited during cross examination on the 20th of March, 2023 as follows; Q. Would you agree that if you did not instruct Plaintiff assuming that is the case he would not make payment to anybody A. The word interest I don’t agree since the Plaintiff showed interest in getting an auctioned car. I told him I had bought a car from Gafa since he showed interest, I don’t believe I instructed him because I did not take any money from the Plaintiff. Both of us went to meet him and made payment to him. The Plaintiff failed to corroborate this story as all he did was to mount the witness box and repeated his story which falls short of burden placed on him. The Plaintiff also testified that he handed an amount of GH¢ 15,000 to the Defendant who then handed same to Mr Gafa. The Plaintiff was cross examined on this fact on 18th September, 2020 as follows; Q. Did you pay the money directly to me or the National Security person who came to Afrikiko in his uniform? A. Yes I paid the money directly to you since I don’t know any National security Person Q. I am suggesting to you that you never gave any money to me A. I gave the money to you. I don’t know any National security Officer. You invited him there in the first place The Defendant on the other hand never wavered in his answers during cross examination on the 14th of February, 2023. I will reproduce what he said as follows: Q. Can you also confirm to the court that when you met with the Plaintiff and he handed over the GH¢ 15,000.00 you topped up with USD 1,000.00 which is equivalent to GH¢ 5,200.00 A. No the GH¢ 15,000.00 was given to Mr Baba by the Plaintiff and I also gave the USD 1,000.00 to the said Mr. Baba. The money was not given to me direct. Cross examination continued on the 20th of March, 2023 and this is what ensued: Q. And in August 2019, he gave you money to purchase the car for him A. No he did not. He and I met Mr. Baba and he made his payment I added some. I did not receive any money from Plaintiff The only person who witnessed what transpired on that day was Mr. Gafa and unfortunately, the Defendant denies the story of the Plaintiff and his repetition of this story in the witness box is not enough to meet the burden placed on him. As such I hereby hold that the Defendant’s claim is more probable than that of the Plaintiff and I conclude that the Plaintiff handed the money to the auctioneer and not the Defendant as he claims. The Plaintiff in support of his case also testified that the officer in charge of the criminal complaint at Nima police station informed him that the Defendant had agreed to refund the money to him and this fact was denied by the Defendant. The Plaintiff failed to call this police inspector to testify on his behalf which would have gone a long way to establish the story of the Plaintiff. This is what ensued during cross examination of the Plaintiff by Counsel for the Defendant on 1st February, 2021: Q. Given the opportunity can you get any witness to testify to that fact Defendant at Nima Police Station agreed to pay the money to you A. I informed my brother who is a Police Officer and Defendant himself came to knock on my door and pleaded with me that he would pay the money. The Plaintiff also failed to call his brother who he claimed was a police officer to corroborate his story and the failure to call these material witnesses did not help the case of the Plaintiff. See the case of Manu v. Nsiah (supra). The Plaintiff’s testimony was also riddled with inconsistencies in his answers during cross examination. 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”. On the 13th January, 2021, Plaintiff changed his story and agreed that the money was handed to Mr Gafa and not the Defendant as follows; Q. So you would agree with me that eventually that the GH¢ 15,000.00 went to another person in your presence and not the Defendant A. Yes, I agree but Defendant took it with the promise that he would give me the car. Q. And as of the time of releasing this money you knew that the person who took the money was the one who would get you the car, correct A. That is what Defendant told me During cross examination he agreed with Counsel for the Defendant that it was the Defendant who took the money and promised to give him the car. 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 the case of Effisah v. Ansah [2005-2006] SCGLR 943 It is crucial to evaluate the evidence adduced as a whole and consider the presence of a critical mass of evidence or corroborative evidence on crucial or vital matters. Not much weight would be attached to this uncorroborated evidence. In the absence of any other evidence from the Plaintiff’s in prove of his assertion that the Defendant led the negotiations and that he handed the money for the purchase of the car to him, this court will not accept his version of the story. It is settled law that the Plaintiff must succeed on the strength of his own case and not on the weakness of the Defendant’s case. The Supreme Court speaking through Taylor J.S.C in the case of Odametey v. Clocuh and Another (1989-90) 1 GLR 14 SC, holding one stated as follows: “The present position was that if the plaintiff in a civil suit failed to discharge the onus on him and thus completely failed to make a case for the claim for which he sought relief, then he could not rely on the weakness in the defendant’s case to ask for relief…” From the discussion above it is clear that the Plaintiff failed to establish the requirements of a binding contract, as it has been established that the Defendant merely offered to assist the Plaintiff to purchase an auctioned car which he has done earlier on. At no point did he offer to lead negotiations but rather he led the Plaintiff to the auctioneer he bought the vehicle he purchased for his son from. Thus, there was no offer to purchase the car for the Plaintiff. It must also be noted that the payment of the GH¢ 15,000 which was the purchase price of the car was handed to Mr Gafa as the evidence of the Plaintiff that he handed same to the Defendant stands uncorroborated. With the two requirements not having been proved by the Plaintiff it is clear that the remaining two requirements will not come into play. In my opinion, it is also clear from the evidence on record that the Plaintiff did not pass the test of credibility within the meaning of section 80 of the Evidence Act, 1975 (NRCD 323). At best, I can describe his evidence as a concoction to make a good story out of non-existing facts. This fabricated story creates a real doubt as to whether the Defendant presented himself as a car dealer who promised to get a car for the Plaintiff. Once doubt has been created, I must reject the evidence adduced by the Plaintiff and hold that it was the Plaintiff who approached the Defendant to enquire about the Defendant’s vehicle and asked whether he could help him get one for himself. At no point did the Defendant present himself as a car dealer but it is clear that all he did was to help the Defendant by introducing the person he purchased his vehicle from. I also conclude that there was no exchange of money between the Plaintiff and the Defendant as the money was handed to Mr Baba Gafa who run away and has not been located till date. The Plaintiff’s case should against the said Mr Gafa and not the Defendant. This case would have been different if there was evidence on record that the Defendant was Mr Gafa’s agent which he clearly was not in this case. For the foregoing reasons, I resolve that the Plaintiff failed to prove his case and I enter judgment against him. SGD H/W ADWOA BENASO ASUMADU-SAKYI MAGISTRATE