IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVION)
KUMASI - A.D 2018
KWAKU KUMI - (Plaintiff/Appellant)
ASANTE OF CHIRAA AND GORDON AMPONSAH OF SUNYANI - (Defendants/Respondents)
DATE: 27 TH JUNE, 2018
SUIT NO: H1/49/2017
JUDGES: ADUAMA OSEI JA (PRESIDING), DZAMEFE JA, WELBOURNE (MRS) JA
LAWYERS: BRIGHT OBENG-MANU ESQ FOR RESPONDENT
ADUAMA OSEI JA:
In his action commenced in the High Court, Sunyani, on the 22nd of September, 2000, the Plaintiff/Appellant claimed the following reliefs against the Defendants/Respondents jointly and severally:
“1. An order compelling the Defendants to return his tractor MASSEY FERGUSON with Registration No. BA 3235 C to the Plaintiff.
“2. An order of ȼ500,000.00 daily from 18th August, 2000 to 20th September, 2000.
“3. General damages for wrongful detention of the tractor from 21st September, till judgment is given.
“4. An order of perpetual injunction restraining the Defendants, their agents, assigns, workmen, members of their families and their assigns from dealing with or interfering with the said tractor No. BA. 3235 C in any manner whatsoever”
In their statement of defence, the Defendants/Respondents denied the Plaintiff/Appellant’s right to the reliefs claimed by him, and counterclaimed against him for the following reliefs:
“a) An order of the Honourable Court compelling the Plaintiff to accept cash the sum of ȼ8,000,000.00 (Eight Million Cedis) being the purchase price of the Plaintiff’s old and unserviceable Massey Ferguson Tractor with registration No. BA. 3532 C which the 1st Defendant (acting as the lawful agent of the Plaintiff), sold to the 2nd Defendant at Sunyani in or around August, 2000 and which said amount the Plaintiff has unreasonably refused to accept.
“b) An order of the Honourable Court compelling the Plaintiff to release the documents on the said Tractor to the 1st Defendant.
“c) An order of perpetual injunction restraining the Plaintiff, his agents, workers and/or assigns from interfering with the 1st Defendant’s ownership and possession of the said Tractor”.
On the 17th of February, 2007, the trial Court delivered its judgment in which it dismissed the Plaintiff/Appellant’s action and upheld the Defendants/Respondents’ counterclaim. Not satisfied with the decision of the trial Court, the Plaintiff/Appellant filed an appeal to this Court against the same, and this is our judgment in the appeal.
In this judgment, the Plaintiff/Appellant is referred to as “the Plaintiff”, and the Defendants/Respondents are referred to as “the Defendants”. The judgment of the trial Court is found at page 145 to page 156 of the record of appeal, and the notice of appeal is at page 157 of the same record.
The case the Plaintiff set up in his statement of claim was that sometime in the year 1997, he deposited his Massey Ferguson Tractor with registration number BA. 3532 C with one Nana Amoako- Atta, a Sunyani-based vehicles dealer, for the same to be sold for him. Nana Amoako-Atta was unable to get him a good buyer and he therefore withdrew the tractor from his custody. Having coupled the tractor with a trailer, the Plaintiff operated it commercially and while so operating it, he pasted a “for sale” label on it and also informed the 2nd Defendant that he was selling the tractor for ¢11 million and that if he found anyone interested, he should inform him about it.
Sometime in 1999, while the Plaintiff was living in Accra and the tractor was being operated by his brothers, the Plaintiff got information from the 2nd Defendant that he had received an offer of ¢5 million for the tractor. The Plaintiff however rejected that offer and agreed with the 2nd Defendant that the tractor could be sold for ¢8 million. Not long after that, the tractor developed a fault and he asked his brothers to park it at the workshop of the 2nd Defendant.
Subsequently, in August, 2000, while the Plaintiff was on a visit to Sunyani from Accra, the 2nd Defendant gave him estimates for the repair of the tractor. The Plaintiff however returned to Accra without providing money for the repair of the tractor and just about a week after his return to Accra, his junior brother called him on phone to tell him that the 2nd Defendant had sold the tractor. The Plaintiff replied with instructions that the tractor should not be sold and that he was returning soon to have the tractor repaired.
On the Plaintiff’s return to Sunyani from Accra, he learnt that it was the 1st Defendant who had purchased the tractor. The 1st Defendant alleged that he had caused the tractor to be repaired at a cost of ¢11 million, and demanded to be paid ¢11 million if the Plaintiff wanted to have it back. The Plaintiff contended that he had not sold the tractor to the 1st Defendant or any other person or persons, and he prayed the trial Court for an order compelling the Defendants to produce the tractor.
In their statement of defence, the Defendants confirmed that the Plaintiff and the 2nd Defendant had settled on ¢8 million as the selling price for the tractor, and they emphasised that ȼ8 million had all along been the amount for which the Plaintiff intended to sell the tractor. The Defendants did not however agree with the Plaintiff that the tractor was brought to the 2nd Defendant’s workshop while the Plaintiff was living in Accra. They contended that the tractor was brought to the 2nd Defendant’s workshop before the Plaintiff left for Accra.
The 2nd Defendant alleged that upon being told that it would cost ¢3 million to repair the tractor, the Plaintiff indicated that he was going to look for money to effect the repairs. He however left the 2nd Defendant with instructions that if anyone came with an offer of ¢8,000,000.00, he should accept it. The Defendants also insisted that, prior to the sale of the tractor to the 1st Defendant, the Plaintiff had not withdrawn his instructions for the sale of the tractor for ¢8,000,000.00.
Among the issues set down for determination by the trial Court were whether or not the Plaintiff authorised the 2nd Defendant to sell the tractor for ¢8 million, whether or not the Plaintiff was entitled to the reliefs claimed by him, and whether or not the Defendants were entitled to their counterclaim. And as observed above, the Plaintiff must have filed his appeal because he was not satisfied with the trial Court’s determination of the issues.
In compliance with the rules of this Court, Counsel for the Plaintiff filed a submission on his behalf, but even though there is indication from the records of the Court that the Defendants were served with the Plaintiff’s submission, they failed to file any submission in response. We note that under rule 20 (4) of the Rules of this Court, CI. 19, a party upon whom an appellant’s written submission has been served and who intends to contest the appeal is obliged to file a written submission in answer within 21 days of being served. We do not however conclude from the Defendants’ default that the Plaintiff is entitled to judgment summarily without the merits of the appeal being gone into. The sole ground of objection in this appeal is that the judgment of the trial Court is against the weight of evidence, and we know from the authorities that this ground calls upon this Court to review the entire record of appeal, and taking into account the testimonies and all documentary evidence adduced at the trial, determine whether on a balance of the probabilities, the conclusions of the trial Court are reasonably supported by the evidence. Among the authorities that may be cited in this respect are Oppong Kofi Vs. Fofie  GLR 174, Boateng Vs. Boateng [1987-88] 2 GLR 81, and Tuakwa Vs. Bosom [2001-2002] SCGLR 61.
But in the case of Bonney Vs. Bonney [1992-93] 2 GBR 779, Aikins JSC, while agreeing, as observed above, that the appeal court is entitled to make up its own mind after reviewing the record, cautioned that “the appeal court should not, under any circumstances, interfere with the findings of fact of the trial judge except where they are clearly shown to be wrong, or that they did not take all the circumstances and evidence into account, or has misapprehended certain of the evidence or has drawn wrong inferences without any evidence to support them or that he has not taken proper advantage of his having seen or heard the witnesses”. It is with this caution in mind that the merits of this appeal will be considered.
Arguing in support of the appeal, Counsel for the Plaintiff noted that the trial Court rightly considered that the only critical issue for determination was whether or not the Plaintiff authorised the 2nd Defendant to sell the tractor in dispute to any interested party or person for ¢8 million (GH¢800.00). Counsel considered that even though the trial Court correctly identified the critical issue, its resolution of the issue was completely unsatisfactory. Counsel contended that the trial Court’s resort to an implied authority from the Plaintiff or ratification by the Plaintiff in an attempt to justify its decision was unacceptable. In the view of Counsel, the evidence of PW.1, which the trial Court seemed to have considered persuasive, did not in any way support the Court’s conclusion. Counsel referred to the testimony of PW.1 at page 67 of the appeal record and contended that that testimony amounted to a positive and final denial of any sale and it could not be inferred from it any conduct on the part of the Plaintiff that he had impliedly authorised the sale.
Regarding the trial Court’s statement that the Plaintiff had ratified the sale, Counsel for the Plaintiff contended that there is no evidence on record to support that. Counsel argued that the fact of the trial Court stating that the Plaintiff ratified the sale is indication of the trial Court’s acknowledgement that no authority to sell had been granted by the Plaintiff in the first place. Counsel contended that this constitutes acceptance of the Plaintiff’s assertion that he never authorised the 2nd Defendant to sell the tractor.
Counsel observed that from the Plaintiff’s evidence, at a point in time, it had been agreed between him and the 2nd Defendant that the tractor should be repaired rather than sold and, towards this end, the 2nd Defendant had estimated the cost of repairs as GH¢300.00. In the view of Counsel, at this point, the agreement to sell had collapsed and what had been decided on was the repair of the tractor.
In further support of his contention that the Plaintiff never authorised the 2nd Defendant to sell the tractor to the 1st Defendant, Counsel referred to Exhibit A, which is a statement made by the 1st Defendant to the Police on the matter. In the view of Counsel, Exhibit A contained an admission by the 1st Defendant that upon approaching the 2nd Defendant, he gave money to the 2nd Defendant to enable him call the Plaintiff on the phone and communicate his interest in purchasing the tractor to him. The 2nd Defendant however told him that he was unable to get through to the Plaintiff. Counsel complained that instead of according Exhibit A its proper probative value, the trial Court watered it down by stating that it was made “in an intimidating atmosphere of a police station”. In respect of this statement by the trial Court, Counsel for the Plaintiff drew attention to the fact that the 1st Defendant never stated anywhere in his testimony that he was intimidated to make the statement contained in Exhibit A.
Counsel also contended that the statement made by the 2nd Defendant to the Police which was rejected by the trial Court and marked “R”, was wrongly rejected. In his view, the said document supports the Plaintiff’s claim that he never authorised the 2nd Defendant to sell the tractor to the 1st Defendant and that if it had been admitted into evidence and not wrongly rejected, it would have exposed the 2nd Defendant’s evidence before the trial Court as an afterthought. Counsel accordingly invited this Court to set aside the order of the trial Court rejecting the statement and admit same into evidence for its proper effect.
Counsel also submitted that in so far as the Plaintiff never authorised the 2nd Defendant to sell the tractor to the 1st Defendant, any detention of the tractor by the Defendants was wrongful and notwithstanding that the tractor was faulty, the Plaintiff was entitled to the loss of its daily use. Counsel noted that the testimony of the Plaintiff that he was earning an amount of GH¢50.00 from the use of the tractor to cart wood had not been controverted by the Defendants. Counsel contended that the Plaintiff was in the circumstance entitled to be awarded loss of use of the tractor at the rate of GH¢50.00 per day from September, 2000. Counsel concluded his submissions by inviting this Court to uphold the appeal and set aside the judgment entered by the trial Court in favour of the Defendants and rather enter judgment for the Plaintiff.
As has been noted above, the substantive issues set down for determination by the trial Court were the issues whether the Plaintiff gave the 2nd Defendant authority to sell the tractor, whether the Plaintiff was entitled to the reliefs claimed by him, and whether the Defendants were entitled to their counterclaim. Obviously, whether or not the Plaintiff or the Defendants were entitled to their respective claims depended on the trial Court’s decision as to whether or not the 2nd Defendant had the Plaintiff’s authority to sell the tractor. The trial Court was therefore right when it identified the issue whether or not the 2nd Defendant had authority to sell the tractor as the crucial issue for determination in the case. Now, the question is, on this crucial issue, does the decision of the trial Court have reasonable support from the evidence on record?
The evidence on record regarding the 2nd Defendant’s authority, or lack of it, to sell the tractor may be gathered from the testimonies of the Plaintiff’s attorney, Kofi Adu Gyamfi; PW. 1, Takyi Ebenezer; PW. 2, Amoateng Patrick; the 2nd Defendant, Gordon Amponsah; the 1st Defendant, Kwasi Asante, and DW. 1, Kwaku Osei.
In his testimony, the Attorney, Kofi Adu Gyamfi told the trial Court that in 1997, the Plaintiff told him about an unsuccessful attempt he made to have his tractor sold for him by one Nana Amoako-Atta, a vehicles dealer in Sunyani. The Attorney said the tractor remained in Nana Amoako-Atta’s garage for about a year and when the Plaintiff did not get the price he wanted, he withdrew it from the garage and took it back to Dormaa Ahenkro from where it was operated for carting foodstuffs. The Attorney said there was a “for sale” label on the tractor but the label was removed while the tractor was being used to cart foodstuffs. The Plaintiff subsequently entrusted the operation of the tractor to his cousins, Kofi and Amoateng and left to live in Accra.
According to the Attorney, while the tractor was being operated by Kofi and Amoateng, its fuel injection pump developed a fault and the Plaintiff, with the intention of subsequently deciding what to do about it, directed them to take it to the workshop of the 2nd Defendant. The Attorney testified that the Plaintiff asked the 2nd Defendant to look for a buyer on his behalf. The witness said by phone, the Plaintiff instructed the 2nd Defendant to sell the tractor for ¢11 million, which he later brought down to ¢8 million. He said the best offer they got was ¢5 million, which the Plaintiff rejected. According to the Attorney, when the ¢5 million offer was rejected by the Plaintiff, he decided not to sell the tractor any longer. The witness said in spite of this, on one occasion when the Plaintiff returned from Accra and visited the 2nd Defendant’s workshop, he was told by the 2nd Defendant that he had sold the tractor. The Plaintiff then queried why the 2nd Defendant should sell the tractor when he had previously told him he was no longer going to sell it.
According to the witness, the 2nd Defendant led the Plaintiff and other persons to the house of the 1st Defendant, who had been mentioned as the purchaser of the tractor, and the 1st Defendant told the Plaintiff that he had effected repairs on the tractor at a cost of ¢11 million and the Plaintiff should pay him that amount if he wanted his tractor back. The witness said when the Plaintiff saw that he could not realise his intention of retrieving the tractor from the 1st Defendant, he instituted the present suit.
Takyi Ebenezer, PW. 1, also testified that the Plaintiff had told the 2nd Defendant the tractor was no longer for sale and yet he had sold it. He also testified that at the 1st Defendant’s house, the Plaintiff made it clear to him that the tractor which he had caused to be repaired was his and that he had told the 2nd Defendant that he was not selling it. He said the 1st Defendant also insisted that if the Plaintiff wanted the tractor back he should pay him the sum of ¢11 million he had spent in repairing it.
Amoateng Patrick, PW. 2, testified similarly in respect of the mandate to sell the tractor. He told the trial Court that at a point in time, the Plaintiff wanted to sell the tractor and he told the 2nd Defendant that if he got a prospective purchaser he should let him know about it. He said when after some time the Plaintiff did not get the price he wanted, he changed his mind about selling it. The witness said following the Plaintiff’s change of mind, he (the witness) removed the tractor from the 2nd Defendant’s workshop and used it to cart maize in the surrounding villages. Subsequently, however, the tractor developed a fuel pump problem and he took it back to the 2nd Defendant’s workshop and informed the Plaintiff, who was living in Accra, about it. The witness said when later he got to know that the tractor had been repaired, he asked the 2nd Defendant if the Plaintiff knew about it and his response was that he did not. In that instance, according to the witness, he tried to get the Plaintiff on his phone and when he did not succeed, he went to a communication centre with the 2nd Defendant where he called the Plaintiff for the 2nd Defendant to talk to him. He said he did not participate in the conversation between the Plaintiff and the 2nd Defendant but he could see that the two of them did not come to terms on the issue.
While the Plaintiff’s Attorney and his witnesses maintained that the Plaintiff decided not to sell the tractor any longer and made that decision known to the 2nd Defendant, the Defendants and their witness insisted that the 2nd Defendant sold the tractor with the Plaintiff’s mandate. According to the 2nd Defendant, after the tractor had been brought to his workshop in respect of the defective fuel injection pump, the Plaintiff came to the workshop on one occasion and asked him to sell it for him since it was giving him too many problems. He said there was a “for sale” label on the tractor and the Plaintiff asked him to sell it for ¢8 million. He said from that time, any time the Plaintiff came to his workshop he enquired whether anybody had come to purchase the tractor and in view of this, when the 1st Defendant expressed interest in buying it, he communicated it to the Plaintiff, who was then living in Accra, and the Plaintiff agreed that he should repair and sell it. The 1st Defendant also testified that throughout the transaction, he dealt with the 2nd Defendant and the 2nd Defendant made him to understand that the Plaintiff had accepted his offer of ¢8 million for the tractor.
As noted above, the crucial issue for determination by the trial Court was whether the 2nd Defendant sold the tractor with the Plaintiff’s mandate. Regarding that issue, the trial Court observed that “while the Plaintiff is denying expressly authorising the 2nd Defendant to sell the tractor, his conduct after the sale was not only impliedly authorising the sale, but he also ratified the sale”.
A thing implied is a thing suggested without being said directly. Also, ratification takes place where a principal gives approval to an act of his agent which, at the time it took place, lacked the authority of the principal and was therefore not legally binding on him.
When, therefore, the Trial Court states that the 2nd Defendant had the Plaintiff’s authority by implication or ratification, one expects to find from the record evidence of an act, conduct or event on which that statement could be based. This seems to be the basis of the contention by Counsel for the Plaintiff that in the absence of evidence from the record, that statement by the trial Court can only amount to its acknowledgment of the absence of authority on the part of the 2nd Defendant at the time he purported to sell the tractor.
And in my view the pleadings, being the processes containing the factual bases of the parties’ respective claims and defences, constitute an appropriate starting point for an enquiry into the question whether or not the 2nd Defendant acted with authority, whether by implication, ratification or otherwise.
The matters pleaded by the parties have been set out above and a feature of the Plaintiff’s pleadings which I do not consider helpful to his case is that, though he avers that after he had rejected the ¢5 million offer he agreed to sell the tractor for ¢8 million, he does not aver anywhere that prior to the sale, he had informed the 2nd Defendant that he no longer intended to sell the tractor. He makes no such averment in spite of paragraph 21 of the Defendants’ statement of defence and counterclaim, where they allege that “the Plaintiff duly authorised the 2nd Defendant to sell the tractor to any interested party for ¢8,000,000.00 and this was precisely the price at which the 2nd Defendant sold the tractor to the 1st Defendant”. It is evident from the statement of claim that it was after he had been informed that the 2nd Defendant had sold the tractor that the Plaintiff gave instructions that the tractor should not be sold.
A further weakness in the Plaintiff’s case is exposed when the respective testimonies of his Attorney and the 2nd Defendant are considered in the light of the pleadings. While the 2nd Defendant’s testimony that he had the Plaintiff’s authority to sell the tractor for ¢8 million is consistent with the Defendants’ pleadings, the same cannot be said about the testimony of the Plaintiff’s Attorney on that issue. In testifying that by phone, the Plaintiff instructed the 2nd Defendant to sell the tractor for ¢11 million and later brought that figure down to ¢8 million, the Plaintiff’s Attorney was confirming the Defendants’ contention that the Plaintiff had mandated the 2nd Defendant to sell the tractor for ¢8 million. However, in testifying that when the ¢5 million offer was rejected by the Plaintiff, he decided not to sell the tractor any longer, the Attorney was introducing a material fact which had not been pleaded and was thereby making a departure from the Plaintiff’s pleadings. As observed above, nowhere in his pleadings did the Plaintiff aver that prior to being informed about the sale, the Plaintiff had informed the 2nd Defendant that he no longer intended to sell the tractor.
Some light may be thrown on the weakness in the Plaintiff’s case by reading the case of Appiah Vs. Takyi [1982-83] GLR 1, where the plaintiff, a lessee of an estate house from the State Housing Corporation, had agreed to sell his interest in the estate house to the defendant. The defendant had paid the sum of ¢3,200 to the plaintiff in pursuance of the agreement, and the plaintiff had issued a receipt in that sum to the defendant. Subsequently, the plaintiff had sought to resile from the sale by refusing to execute the lease or yield possession to the defendant and after the defendant had, by extra judicial means obtained possession of the house, the plaintiff had sued the defendant for, among others, a declaration of title and recovery of possession of the house on the ground that even though he had been negotiating with defendant for the sale of the house, that contract had not been completed.
The defendant on the other hand had contended that the sale contract had been concluded and that he had paid the agreed sale price of ¢3,200 to the Plaintiff. The defendant had therefore counterclaimed for a declaration that the house lawfully belonged to him by purchase, and the plaintiff had then filed a reply contending that the agreed sale price was ¢5,000, not ¢3,200, and that after paying the ¢3,200 as a deposit, the defendant had failed to pay the balance of ¢1,800 within two weeks as specified. The trial judge had found in favour of the plaintiff but on appeal to this court, this Court had considered the plaintiff’s contention that the agreed sale price was ¢5,000.00 as a departure from the case he had set out earlier. Per Mensah-Boison JA, as he then was, this Court had held that where there was a departure from pleadings at a trial by one party whereas the other's evidence accorded with his pleadings, the latter's was as a rule preferable.
On this issue of departure, mention may also be made of two Ugandan cases. In Mohan Musisi Kiwanuka Vs. Asha Chand, SCCA 14/2002, it was observed that a party’s departure from his pleadings is a good ground for rejecting the evidence, and such a witness may be taken to be lying. Then in Sebughingiriza Vs. Attorney-General, HCCS 251/2012, it was held that a party who departs from his pleadings and gives evidence contrary thereto would be deemed to be lying.
It is noted that Counsel for the Plaintiff criticised a number of statements and observations made by the trial Court in the judgment appealed against. Particularly, Counsel considered the trial Court’s explanation of its rejection of the Plaintiff’s claim in terms of authorisation of the sale by implication or ratification unsatisfactory. It is obvious from the above discussion however that on the issue whether or not the Plaintiff authorised the 2nd Defendant to sell the tractor for ¢8 million, the probabilities tilt heavily in favour of the Defendants’ position. This shows the trial Court’s conclusion on the issue to be right and it demands affirmation by this Court.
The decision of this Court therefore is that the appeal has failed and the same is hereby dismissed. The judgment of the trial Court dated the 17th of July, 2007 and the orders made thereunder are hereby affirmed.