Annan v Ablado and Another (G/AC/DG/A2/122/23) [2024] GHADC 754 (18 September 2024)

CORAM: IN THE DISTRICT COURT, ACHIMOTA – ACCRA HELD BEFORE HIS WORSHIP PRINCE OSEI OWUSU SITTING AS DISTRICT MAGISTRATE ON THE 18TH SEPTEMBER, 2024 SUIT NUMBER: G/AC/DG/A2/122/23 COMFORT ANNAN - PLAINTIFF ABELEMKPE VRS. 1. REV. SIMON ABLADO - DEFENDANTS 2. EMMANUEL OSEI ACHIMOTA ……………………………………………………………………………………………………… TIME: 10:21AM PLAINTIFF PRESENT DEFENDANTS PRESENT ............................................................................................................................. JUDGMENT Introduction/Background P age 1 | 7 Per a writ of summons issued by the Plaintiff on 1st September 2023, the Plaintiff claimed against the Defendants the following reliefs; a. An order of the court to compel the Defendants to pay the sum of Sixty Thousand Ghana Cedis (GH¢60,000.00) being the cost of Hyundai 110 Taxi cab. b. Interest on the said amount at the current bank rate running from August 2023 till final date of payment. c. Cost. It is the Plaintiff’s case per the writ of summons with particulars of claim that somewhere February 2023 the 1st Defendant approached her to release her taxi cab to a church member Emmanuel Osei which she obliged. Plaintiff stated that the agreement between them was that the taxi cab was to work from Monday to Saturday with an agreed sales of GH¢450. Plaintiff further stated that on the 1st August 2023, the 2nd Defendant left the taxi cab in the hands of one Mr. Sam to work in the morning and give it to another person called Mr. Ofosu to work in the evening as he was travelling to Obuasi. According to the Plaintiff, the said Mr. Ofosu who was to use it in the evening claimed that he was attacked by armed robbers at dawn around Dzorwulu and the taxi cab has been taken away from him. Plaintiff further stated that Defendants have failed to pay the cost of the taxi hence this action in Court. The Defendants in their statement of defence filed on 23rd November 2023 averred that the Plaintiff approached the 1st Defendant with a request for the car to be given to the 2nd Defendant to drive for commercial services. Issues P age 2 | 7 From the foregoing, it is evident that the main issues for consideration by the court are; a. Whether or not there is any agreement between the Plaintiff and Defendants in respect of the vehicle. b. Whether or not the Defendant is to refund any monies to the Plaintiff. c. Whether or not the Defendant has committed a breach of trust against the Plaintiff. Evaluation of Evidence and Resolution of Issues It is a trite law that in Civil Cases, the general rule is that the party who’s his/her pleadings or writ raises issues essential to the success of his/ her case assumes the onus of proof. The one who alleges be it a Plaintiff or Defendant assumes the initial burden of producing evidence. It is only when he succeeded in producing evidence that the other party will be required to lead rebuttal evidence if need be. Proof lies upon him who affirms or alleges, not upon him who denies since by the nature of things he who denies a fact cannot produce any proof. See the following; Section II (1) & (2), 12 (2) and 14 of The Evidence Act 1975 [NRCD 323] As Well as The Case of Takoradi Flour Mills v. Samir Faris [2005 – 2006] SCGLR 882 at 900. Gihoc Refegeration & Household v. Jean Hanna Assi [2005 – 2006] SCGLR 458, T. Chandriam v. Tetteh [2018] 120 GMJ 112 At 147 CA Per Agnes M.A Dordzie, JA and Air Namibia v. Micron Travel [2015] 91 GMJ 173 at 191 CA per Kanyoke JA. The Plaintiff had the onus of discharging the burden of producing sufficient evidence in respect of her claim on a balance of probabilities. The Plaintiff testied on 8th February 2024. The evidence was the same as the averments in her pleadings. The Plaintiff’s P age 3 | 7 evidence was that she gave her taxi cab to the 1st Defendant for 2nd Defendant to use it for commercial purposes. Plaintiff stated, the 1st Defendant one day called to inform her that the 2nd Defendant has informed him that he gave the taxi to a friend to drive whilst he travels to Obuasi but the driver has been attacked by armed robbers and the taxi has been taken away. This ensued under cross examination of the Plaintiff by the Defendant; Q. Do you remember that you served as a witness when 1st Defendant gave me a car to work on work and pay basis? A. Yes my Lord. The 2nd Defendant came to inform me that you were unemployed so I should help. I told you that I will consult your spiritual father who came for the car from my home. Q. Did I inform you that I have informed the 1st Defendant that I intended to travel to Obuasi? A. No my Lord. Q. Do you recall that I informed you about my travel to Obuasi in the presence of my spiritual father the 1st Defendant? A. No my Lord. The 1st witness of Plaintiff Nii Kwao Mettle testified to support the Plaintiff’s evidence. He relied on his witness statement filed on 18/1/24. His evidence was that on 20th August 2023, the Plaintiff and the driver who was in charge of the vehicle at the time of the alleged robbery called to inform him about the incident. P age 4 | 7 The Plaintiff’s witness stated that the 2nd Defendant for interrogations, someone has whispered into his ears that the 2nd Defendant is using the car by having four (4) drivers who are working on work and pay basis. The following ensued between the Plaintiff’s 1st witness (PW1) and the 1st and 2nd Defendants under cross examination. Q. You stated that you have four (4) evidence that the 2nd Defendant knows the where about of the missing vehicle, is that the case? A. Yes my Lord. Q. Do you still stand by your assertion that 2nd Defendant did not travel in the morning but rather in the evening? A. Yes my Lord. Q. Do you recall that the court asked us to attempt settlement and the 2nd Defendant promised to pay the cost of the car? A. I remember the court ordered parties to attempt settlement but there was no issue of money. Q. Can you tell me the station where I took the car and the dress I was wearing? A. I can’t tell. It was your own spare driver who informed me the time you left. Q. Do you know that we the drivers give spare to our friends? A. You have four (4) drivers. P age 5 | 7 From the above there was a contract between the Plaintiff and Defendant for 2nd Defendant to use the vehicle for work and pay basis. I have no hesitation in concluding on the first issue that the Plaintiff had an agreement with the Defendant in respect of the vehicles. The 1st Defendant acknowledged that the taxi cab was given to the 2nd Defendant for work and pay basis, though his influence over the Plaintiff as the Plaintiff is his church member. This position of admitting facility the taxi cab to 2nd Defendant makes the 1st Defendant liable to refund the cost of the vehicle to the Plaintiff. The last issue in respect of breach of trust. In the instant suit, the one who alleges it ought to prove it beyond reasonable doubt. See thee Section of 13(1) of the Evidence Act 1975 (NRCD 323). The only evidence of Plaintiff in respect of alleges of breach of trust was that the 1st Defendant came for the car for onward transfer to 2nd Defendant for work and pay basis. From the above in resolving the earlier issues and from the evidence led by Plaintiff in respect of breach of trust, I do find that the Plaintiff has been able to establish an act of breach of trust by the 1st and 2nd Defendants. Conclusion Having referred to the evidence adduced, the court holds that the Plaintiff has discharged the burden of proof on her and as such her claim for the reliefs is granted. Cost of GH¢1,000.00 is awarded against each Defendant for Plaintiff. P age 6 | 7 SGD HIS WORSHIP PRINCE OSEI OWUSU DISTRICT MAGISTRATE P age 7 | 7