• IN THE SUPERIOR COURT OF JUDICATURE
  IN THE COURT OF APPEAL
  KUMASI - A.D 2018
  

SAMUEL ADAE – AMOAKO - (Plaintiff/Respondent)

vs.

MR. C.K. ARHIN - (Defendant/Appellant)

JUDGMENT

---

WELBOURNE, JA

This is an appeal from the Commercial Division of the High Court, Kumasi against the judgment of the learned trial judge; dated the 27^thday of January, 2015.

 

BRIEF FACTS:

The Plaintiff’s case was that he entered into a contract with the Defendant for the supply of a complete stainless water filtration system and packaging machines at an agreed cost of US$22,000 which at the time was equivalent to GH₵31,000 which amount the Plaintiff paid to the Defendant.

 

Per his Statement of Claim the Plaintiff stated that subsequently the Defendant called him on phone after some months to inform him that the machine had arrived and that he the Defendant was on his way to the Plaintiff’s house to install same.

 

According to the Plaintiff, he instructed the Defendant not to send the machines to his (the Plaintiff’s) house for installation until same had been inspected by his engineer before he could take delivery of same.

 

However, the Defendant refused to comply with this directive and went ahead to send the machine to the Plaintiff’s house.

 

It is also, the case of the Plaintiff that even though he instructed his gateman not to permit the Defendant to enter his house in his absence, the Defendant managed to dump the machines in his house before the gateman could carry out the order.

 

The Plaintiff stated that on the subsequent inspection of the machines, it came out that the machines were not according to specification and also incomplete.

 

He therefore instituted the instant action to recover the amount he paid to the Defendant after he had returned the machines to the Defendant’s work place.

 

In his Statement of Defence, the Defendant denied the claim of the Plaintiff. He stated categorically that the machine he supplied was what the Plaintiff ordered for.

 

The Defendant did not deny that the Plaintiff returned the machines to his premises save that it took the Plaintiff a year to do so.

 

By his Writ of Summons dated 10^th October, 2012 the Plaintiff claimed the following reliefs against the Defendant.

a. Recovery of the sum of Twenty -Two Thousand dollars ($22,000) or its current cedi equivalent being the amount the Plaintiff paid to the Defendant for the supply of a complete stainless water filtration system and packaging machine but which the Defendant failed to deliver according to specification but rather brought an unacceptable machine which did not conform to the specifications of the Defendant’s machine which the Plaintiff had inspected and approved before the order was placed.

b. Interest on the aforesaid amount at the current bank rate from 1^st January, 2010 till date of final payment.

c. Damages for trespass.

 

The Defendant therefore counter-claimed as follows:

i. An order of the Court compelling the Plaintiff to take delivery of his water filtration machine which he dumped at his work place in his absence.

ii. General damages for the arrest, detention and trial of the Defendant without cause.

 

At the end of the full trial, the learned trial judge therefore entered judgment for the Plaintiff for all his reliefs and dismissed the Defendant’s Counter-Claim; since he failed to prove same. Dissatisfied and aggrieved with the judgment of the trial High Court, the Appellant herein appeal against the judgment of the learned High Court Judge on the following grounds:

a. The Judgment is against the weight of the evidence.

b. The Court erred when it held that the Plaintiff has proved its case on a preponderance of probability.

c. Additional grounds will be filed upon receipt of the records of Appeal.

 

The Appellant subsequently filed the following additional grounds of appeal pursuant to leave of the court:

1. The Court erred when it concluded that even though the action was mounted by an Attorney of the Plaintiff, the failure of the Attorney to testify for and on behalf of the Plaintiff implied that the Power of Attorney was revoked.

2. The Court erred when it dismissed the Defendant’s Counter-Claim on the basis that he (Defendant) failed to prove it.

3. The Court erred when it relied mostly on the pleadings filed by the Parties instead of the evidence left by the Parties in open court.

4.The Court erred when it failed to acknowledge the failure of the Plaintiff to call the watchman/security man as a failure to call material evidence even though he had held that the failure of the Defendant to call the one who fixed the machine as a failure to call material witness.

 

In this instant appeal, the Plaintiffs/Respondents are hereinafter referred to as the Respondents and the Defendant/Appellant is hereinafter referred to as the Appellant. The complete stainless water filtration system and packing machine is hereinafter referred to as the machine. The record of appeal is hereinafter referred to as ROA.

 

CONSIDERATION:

The law is trite that an appeal is by way of rehearing. Since a careful perusal of the ROA indicates that the grounds of appeal in the instant case are mixed law and fact, we yield to the oft cited principle laid down in the case of Tuakwa v Bosom [2001-2002] SCGLR61 that:

“Appeal is by way of rehearing particularly where the appellant alleges in his notice of appeal that the decision of the trial court is against the weight of evidence. In such a case, it is incumbent upon an appellate court, in a civil case, to analyse the entire record of appeal, take into account the testimonies and all documentary evidence adduced at the trial before arriving at its decision, so as to satisfy itself that on a balance of probabilities the conclusions of the trial judge are reasonably or amply supported by the evidence.”

 

Again, the general dutyas incumbent on an appellate court was reiterated by the Supreme Court in the case of KoglexLtd. (No. 2) v Field[2000] SCGLR 175, per Acquah JSC (as he then was) at page 185 inter alia that: “…an appeal, whatever stage, is by way of rehearing; and every appellate court has a duty to make its own independent examination of the record of proceedings”

 

This Court therefore intends to independent mindedly examine the evidence as adduced at the trial, both oral and documentary, and come to a conclusion as to whether the correct inferences were drawn and whether the conclusions arrived at by the trial judge were supportable by the evidence on record.

 

Considering the grounds of appeal as filed by the Appellant herein, this Court will address same in seriatim.

 

GROUND ONE (1):

“That the Judgment is against the weight of the evidence.”

The authorities are legion on the legal principle that where an Appellant makes this a ground of appeal, then in other words, he is asking the court to re-hear the matter. This is in consonance with

 

Rule 8 of C.I.19 which states that:

“An appeal to the Court shall be by way of rehearing and shall be brought by a notice of appeal.”

 

The law is trite that where a party is of the view that the judgment is against the weight of evidence, there is a burden imposed upon him to substantiate the allegation. In Conduah, Ex Parte Aaba (Substituted by) Asmah [2013/2014] 2 SCGLR 1032 (Holding 2), the Supreme Court held that:

“ The effect of an appeal on the ground that the judgment is against the weight of evidence was to give jurisdiction to the appellate court to examine the totality of the evidence before it and come to its own conclusion on admitted and undisputed facts. In the instant case, the Appellant, by that ground of appeal, was implying that there were pieces of evidence on record which, if applied properly or correctly, would have changed the decision in his favour; or that certain pieces of evidence have been wrongly applied against him. The onus in such an instant was on the Appellant to clearly demonstrate to the appellate court the lapses in the judgment being appealed against. Akufo-Addo v Catheline [1992] 1 GLR 377; and Djin v Musah Baako[2007-2008] 1 SCGLR 688 cited”.

 

Also, in the case of Tonado Enterprise and Others v Chou Sen Lin[2007-2008] SCGLR 135, the court stated that:

“When a party in a ground of appeal states that the judgment is against the weight of evidence he imposes upon himself the onus of satisfying the appellate court that the evidence led in the trial was not such as to warrant the findings made on it”

 

Therefore, as was held in Tuakwa v Bosom (supra)that;

“Although it is not the function of an appellate court to evaluate the veracity or otherwise of any witness, it is incumbent upon an appellate court in a civil case to analyse the entire record of appeal, take into account the testimonies and all documentary evidence adduced at the trial before arriving at its decision so as to satisfy itself that on a preponderance of the probabilities the conclusion of the trial judge are reasonably or amply supported by the evidence.”

 

It is also the duty of the Appellant to point out lapses in the judgment which when corrected will inure to his benefit.

 

The same legal principle is further demonstrated by the Courts in other legal authorities among which are:

 

Margaret Mary Adjei v The Attorney-General and 2 Others [2012] 50 GMJ 198, CA; Oppong v Anarfi [2011] SCGLR 556; Aye & Akakpo v Ayaa Iddrisu [2010] SCGLR891; and FKA Company

 

Limited v Sarkodie [2009] 22 MLR at Page 98 as per Theodora Wood C.J. (as she then was).

 

In our thorough and careful perusal of the evidence on the ROA, we observed that Counsel for the Appellant has consistently submitted to this court in his Written Submission as to the effect that the judgment is against the weight of evidence on the record. For this reason, This Court shall first start by considering the Written Submission of Counsel of the Appellant to the effect that “the Power of Attorney granted by the Respondent to his attorney was revoked”. This very averment by Counsel for the Defendant in his Written Submission in our candid opinion boil down on the issue of the Plaintiff’s Capacity to give testimony in the instant case.

 

The relevant rule applicable to the instant case is that where the capacity of a party to sue and/or to give evidence in a case as in the instant action is challenged, the onus lies on that person to establish his or her capacity in the case in question, before it can be considered on merit. However, nowhere in the ROA has the Appellant herein expressly challenged the capacity of the Respondent herein in the trial court at the inception of the trial. Nevertheless, this is not to say that the issue on capacity cannot be raised at any stage of the trial.

 

Be that as it may, we therefore opine that, since the Respondent herein is a major party to the case and one who is most informed with the facts of the instant case, the law permits him to do so and there is therefore nothing wrong if he testified in the case after he has given the power of attorney to another person. For the Respondent herein to have done so is a clear indication that the Power of Attorney he has donated to his attorney herein is impliedly revoked.

 

An extract from the Written Submission of Counsel for the Appellant at pages 3 - 4 is relevant in this analysis:

“My Lord, before arguing the omnibus ground which is the first[1^st] ground of Appeal, we will deal with the ground of Appeal that deals with the issue of Power of Attorney donated by the Plaintiff”.

 

This ground of Appeal reads:-

 

‘The Court erred when it concluded that even though the action was mounted by an Attorney of the Plaintiff, the failure of the Attorney to testify implied that the Power of Attorney was REVOKED’

 

My Lord, the title of this case reads:-

 

“SAMUEL ADAE – AMOAKO

 

Per his Lawful Attorney, ALEX KWAME TAKYI  ==  PLAINTIFF

 

VERSUS

 

ABRAHAM OSEI       ==  DEFENDANT”

 

Counsel further submitted that: “My Lord, it is therefore obvious that the one who stood in as a Plaintiff in this case was Alex Kwame Takyi. However when the Plaintiff started this case on the 16^th day of June, 2014 it was ELVIS ADU BLANKSON who testified as PW1”.

 

In his effort to make a solid case against the Respondent, Counsel for the Appellant further submitted at page 3 – 4 of their Written Submission and pointed out that: “On the 18^th of June, 2014, Samuel Addae Amoako himself testified as the Plaintiff. His evidence in chief can be found at pages 40 – 45 of the Records whilst his cross – examination is found at pages 46 – 50 of the Records of Appeal”.

 

Counsel went ahead to say at the same pages that: “The Plaintiff in his evidence never tendered any document to show that the said Power of Attorney has been expressly revoked.

 

What it means is that even though the Plaintiff has given/donated a power of Attorney to the said Alex Kwame Takyi, he; Alex Kwame Takyi did not testify in the case”. 

 

It is against this back ground that this Court is compelled to quote the whole of the section 3 of the Power of Attorney Act (Act 549)in extenso, to ascertain the veracity or otherwise of this averment in the Written Submission of Counsel for the Appellant herein:

 

“Section 3 of the Power of Attorney Act, 1998 (Act 549) – Protection of Donee and Third Persons Where Power is Revoked.

 

(1) A donee of a power of attorney who acts under the power at a time when it has been revoked shall not incur any liability to any person if at any time he did not know that the power had been revoked.

 

(2) Where a power of attorney has been revoked and a person, without knowledge of the revocation, deals with the donee of the power, unless the donor has reasonable grounds to believe that the person was aware of the revocation, the transaction shall be as valid as if the power had been in existence at the time of the transaction.

 

(3) Where a donee who knows that his power has been revoked acts under the power as if it exists and transacts business with a person to the detriment of the donor, the done commits an offence and is liable on summary conviction to a fine of not less than ₵100,000.00 and not more than ₵1million, or imprisonment for a term not exceeding 6 months.

 

(4) Where the power is irrevocable and is given as security, the person dealing with the donee may assume that the power cannot be revoked except by the donor with the consent of the donee unless that person is aware that the power was not given as security or that it has been revoked.”

 

After a thorough scrutiny of Section 3 of Act 549, this Court finds it difficult to identify a single provision which states that a Power of Attorney when granted to a donee must be revoked expressly by the donor. It follows that the Act is indeed silent on the mode of revocation of the Power of Attorney by the donor.

 

Counsel further continued at page 3 of his Written Submission to averred that:

 

“It is our case that the said Plaintiff, Samuel AddaeAmoako as he had donated the said Power of Attorney could not have testified as a Plaintiff.

 

What this means is that the Plaintiff did not testify during the trial, all those who testified for the Plaintiff were witnesses.

 

My Lords, in the case ofEdmund Asante – Appiah v Madam Kate Amponsah alias YaaMansah[2009] SCGLR @ 95, the Supreme Court dealt with a similar issue which related to an invalid Power of Attorney.

 

The ratio in that case relate very much to this case.

 

The Court held among others as follows:-

 

“….The evidence given by Nana Kwasi Twum Barima was inadmissible to the extent that he had no capacity to testify as he did.

 

The Plaintiff himself never testified in the action. In view of the conclusion that the Power of Attorney was invalid and the one who relied on it had no capacity and therefore his evidence was inadmissible, the Plaintiff was left in a situation as if no one represented him. The case of the Plaintiff was thus reduced to mere pleadings filed on his behalf.”

 

In this present case there was only the evidence of PW1 which will not suffice for the Plaintiff’s case”.

 

This Court however disagrees with Counsel on this score and state that the citation, application as well as reliance on the case of Edmund Asante – Appiah v Amponsah alias Yaa Mansah(supra) in this instance is quite misleading. This is because the facts and the bone of contention in the two cases are not similar. One major distinguishing factor between the Asante-Appiah case and the instant case is that; in the Asante-Appiah case, the facts of the case were on litigation over the ownership of a house and an adjoining land and the bone of contention before the court was on the validity of Power of Attorney which was not signed by a witness as per section 2 of Act 549. The most fundamental of the grounds in the case was ground (c) which read as follows:

 

“The appellate court erred in its construction of section 2 of the Power of Attorney Act, 1998 9Act 548)”.Therefore the specific provision of the act to be considered in the Asante – Appiah case is section 2 of Act 549.

 

While in the instant case, the related fundamental ground is that:

 

“The Respondent lacks capacity as the Proper Plaintiff in the case and for him not to testify in the case as he did.” The issue under consideration here in our opinion is rather anchored on the mode of revocation of the Power of Attorney granted to a donee. The provision under Act 549 to be considered here is Section 3.

 

Therefore, there is no issue in the instant case as to the validity of a signature on the Power of Attorney herein.

 

Counsel for the Appellant went on further to submit at pages 4 – 5 of their Written Submission that:

 

“Section 3 of the Power of Attorney Act, 1998 [Act 549] deals with the Revocation of Power of Attorney.

 

This Act does not in anyway contemplate a situation where a Power of Attorney could be revoked by Implication.

 

The Act only deals with situation where the donee acts in the capacity of an Attorney when he/she has no knowledge of the Revocation of the Power of Attorney.

 

Counsel for the Appellant went further to submit at paragraph 1 of page 5 of their Written Submission that:

 

“Paragraph 6 of the Power of Attorney as found at page 112 of the Records of Appeal reads as follows:-

 

“This Power of Attorney shall remain in force until such time that the donor shall give notice of its revocation in WRITING.”

 

My Lords, by the records of Appeal, the Plaintiff never tendered any document suggesting the least that the Power of Attorney was ever revoked.

 

The content of the Power of Attorney is therefore binding on the Plaintiff”.

 

Counsel for the Appellant averred on the same page of their Written Submission and said that:

 

“As far as the evidence given by the Plaintiff was done without the capacity to which it was done, the whole evidence would be inadmissible and the Court could not have relied on same.

 

Consequently the evidence in support of the Plaintiff’s case as found at pages 31 – 39 of the records of Appeal could not have been relied on by the trial Court or put any weight on same”.

 

This Court after thorough examination of the ROA, is of the view that since the Respondent herein was a major party to the transaction from the beginning to the point of the alleged breached of the contract, he is therefore a credible and a compellable witness in this case. To that effect, the Respondent’s evidence is credible and admissible.

 

It therefore appears to this Court that the Appellant herein is relying more on technicalities to collapse the argument of his adversary on the fact that the Respondent lacked capacity to give evidence in his own case. However, the Supreme Court in recent years leans more towards judgments that go to the merits or roots of a case instead of technicalities.[See: Adomako Anane v Owusu Agyemang [Subs. By Nana Banahene] & 8 Others, Civil Appeal No. J4/42/2013, Dated 26th February, 2014]. Again, in Halleand Sons A. S. v Bank of Ghana & Anor.(2011) 34 G. M. J., the Supreme Court, commented on the need to reject technicism as a judicial approach to case resolution.

 

We are therefore of the candid view that once the Respondent herein is a major party to the contract from the beginning to the end, his evidence is a sine qua non in the instant case.

 

This Court believes that by accepting the argument of Counsel for the Appellant in that regard will sin against the rules of natural justice (audialterampartem i.e. the rule of fair hearing) in the sense that the Respondent will be denied the opportunity to explain to the Court why he thinks he has a right and to adduce evidence to substantiate how same has been violated by the said Appellant as alleged.

 

In his reply, Counsel for the Respondent submitted in his Written Submission at pages 7as follows:

“It has been alleged by the Appellant that the Power of Attorney Act, 1998 (Act 549) does not in any way contemplate a situation where a Power of Attorney could be revoked by implication. With respect, this assertion is erroneous. In fact from Section 3 of the said Act, it is clear that although the Act is silent on the mode for revoking a Power of Attorney, it only requires reasonable notice of the revocation of Power to the Attorney as well as third parties whom the Attorney would have transacted with. This is necessary in order to avoid any consequent liabilities from the attorney and innocent third parties who continue to act on the Power granted. Even then, the law does not require the notice to be prior to the revocation”.

 

Counsel further submitted on the same page as follows:

“It is true that the Respondent did not tender any document to show that he had expressly revoked the given Power. This is however not fatal since the Respondent herein indicated in court when he gave evidence in chief that he had appointed an attorney earlier but was in court to testify personally as Plaintiff. This we believe is enough notice to all affected parties and satisfies the intention of the law maker in Section 3 of the Act”.

 

This Court cannot agree more with the argument of Counsel for the Plaintiff on this. We would further support this position with these extracts at paragraphs 1, 2 and 3 of page 40of the ROA (the Evidence of the Plaintiff). This we believe is apposite for Respondent Counsel’s argument that the Respondent’s inadvertence to expressly revoke his Power of Attorney is not fatal and therefore cannot oust his capacity to give evidence in his own case:

“My name is Samuel Addae Amoako. I normally live in London. I am a retired accountant. In Ghana, I live in Accra and Kumasi. Originally I pointed my nephew, Kwame Takyi as my Attorney but later changed him and appointed my sister Monica Osei Nsafowa as my Attorney.

 

 I am now testifying as the Plaintiff.

The Attorney should have represented me in my absence. My said Attorney had no personal knowledge about the transaction in issue. I know the Defendant. I dealt with him. Sometime in December 2009, I came to Ghana with the intention of finding a possibility of establishing water processing plant for production of pure/clean drinking water as specified by Food and Drugs Authority in the country.”

 

On the face of the ROA, it is true that the Respondent did not adduce any evidence to show that he had expressly revoked the given Power. This Court agrees with both the learned trial judge and Counsel for the Appellant that the failure of the Appellant herein to expressly (but impliedly) revoked the said Power of Attorney is not fatal; since the Respondent herein indicated in Court when he gave evidence in chief that he had appointed an attorney earlier but was in court to testify personally as the Plaintiff.

 

In elucidating the theory of his case, Counsel for the Respondent further argued to the effect that the Power of Attorney Act establishes a Principal – Agency relationship between the donor and the donee. This extract at paragraph 4 of page 7 of the Written Submission of Counsel for the Respondent will suffice this argument:

“It is also important to note that a Power of Attorney establishes an agency relationship between the parties in question. This being so, a principal can by his actions impliedly revoke Power he grants as at when pleases since the agent merely acts in his stead and he in turn ratifies all such actions accordingly. Fortunately, Appellant is not denying the fact that the Respondent was in fact the principal”.

 

Counsel continued at page 8 of his Written Submission and further quizzed the Appellant herein as follows:

 

“If the position taken by the Appellant was in fact the case, the simple question to ask would be what then would be the case where the principal become of unsound mind, dies or adjudicated as insolvent by a court or the work of the attorney is completed? Would a Power of Attorney granted by such a person be deemed to remain valid merely by virtue of the fact that the power was not expressly revoked? This would clearly lead to absurdity, which the law would not countenance.

 

The Respondent therefore had capacity to testify for himself and his testimony was admissible during the trial”.

 

This Court noted that, in his judgment the learned trial Judge identified rightly in our opinion that the conduct of the Respondent by personally articulating his case without the participation of the Attorney he had instituted the action through impliedly revoked the said Power.

 

This view of the Court was amply echoed by the learned trial Judge in his Judgment can be found at paragraphs 5 and 6 of page 98 of the ROA.

 

The following extract from the Judgment at page 98 of the ROA is pertinent in this regard:

 

“There is evidence before me that the instant action was instituted by an Attorney of the Plaintiff.

 

However, during the trial the Plaintiff personally articulated his case without the participation of the said Attorney.

 

I hold that the conduct of the Plaintiff impliedly revoked the Power of Attorney he gave to the Attorney to prosecute this case.”

 

In the candid opinion of this Court, the grant of the Power of Attorney by the donor to the donee in the instant case did not oust the capacity of the Plaintiff donor, Mr. Samuel Addae – Amoakoto testify in the case as he rightly did in the trial court. We are also of the opinion that, the Plaintiff is a competent witness and had rightly testified in the case at the High Court. The Appellant has failed to adduce any compelling reason why the Respondent herein should not testify in the case as averred in this ground of appeal. The Appellant has therefore failed to deliver himself of that burden. This ground of appeal therefore fails and is dismissed.

 

Upon a thorough examination of the ROA, we can emphatically say that the judgment of the trial court was not against the weight of the evidence on record. In other words, it is not correct that the court erred when it held that the Plaintiff has proved his case on a preponderance of probabilities.

 

On the issue of who actually bears the burden to adduce credible evidence in the instant case, the

 

Respondent in his Written Submission at page 8 thereon argued as follows:

“It is indeed the case that the Respondent bore the burden of establishing his case on the preponderance of probabilities as provided under Section 12(1) of the Evidence Act, (NRCD 323). The same burden lay on the Appellant in respect of his counterclaim”.

 

Counsel further submits at the same page as follows:

 

“It is the case of the Respondent that he paid the Appellant an amount of US$22,000 after one Kwabena Blankson; PW1, had confirmed that if the machines the Appellant was using currently in his factory were the ones he was going to supply to the Respondent, then they were ideal and good for the pure water business he intended to operate.

 

PW1 testified that he was a technician who installed machines for water sachet business who had been recommended to the Respondent to help him acquire”.

 

This Court is of the view that the following extract from the evidence of PW1 at page 31 – 32 is relevant and a further support the Respondent’s argument:

 

“My name is Elvis Adu Blankson. I live in Tema. I am an electrician. I know the Plaintiff as well as the Defendant.

 

The Plaintiff brought me to Kumasi to inspect the filtration line to see whether it is of a good quality for his water business.

 

On inspection of the machines I told the parties the machines were of good quality. The Plaintiff therefore placed an order for the Defendant to supply him with the machines. The cylinders I saw were of good quality. In fact all the machines the Defendant had at his place were of good quality.

 

After the inspection I went to Accra. Later the Plaintiff called to tell me the Defendant had bought some cylinders so I should come over to inspect same.

 

I came to inspect the machines and realized they were of poor quality since the one I inspected earlier was different from the one Defendant has brought to him.

 

I told him I could not work with same. There were a lot of differences between the one I inspected and the machines the Defendant brought to the Plaintiff. I also saw dismantled machines when I first went to the Defendant’s premises. It was the dismantled machines that the Defendant sent to the Plaintiff and not imported machines.

 

I did not therefore install the machines and left for Accra”.

 

It is important to note that the Appellant herein was not able to adduce evidence to discredit or to challenge the above evidence adduced by PW1. He rather affirms same at paragraph 2 of page 65 of the ROA, when he said in his evidence that:

 

“The engineer has testified in this case as PW1. After the inspection PW1 told the Plaintiff the machines were in good condition for which reason he advised the Plaintiff to pay for the items”.

 

This Court has also observed from the ROA that DW1in his evidence further worsen the plight of the Appellant when he testified at paragraph 2 of page 84 of the ROA that the Appellant herein supplied the equipment that day after the Respondent made payment for same; a fact which Respondent vehemently denied but Appellant led no further evidence on. Neither did he lead further evidence to support his assertion that it was Respondent who showed him his house and instructed him to deliver the machine there.

 

This Court has also noted from the ROA that, DW1 was clearly in court to give evidence in support of his father. Unlike PW1 who was an independent person, present during the transaction and privy to the fact that Appellant was to ship similar machines to what he was currently working with, DW1 only testified as to what his father had told him thereafter; hence Appellant’s story was uncorroborated. It is also vivid to note from the ROA that DW1 was not consistent in his evidence. He practically and consistently contradicted himself throughout his cross – examination as well as the evidence given by the Appellant herein. The following extract on pages 84 to 86 of the ROA is apt in this case:

Q. Which of the 4 occasions that you issued the receipt and invoice?

A. The 1^st time the Plaintiff came to the place.

Q. And it was when the Defendant came to his office that he invited you to issue the receipt and invoice?

A. Yes. I now say I did not issue the invoice to the plaintiff on the 1^st day.

Q. So on which occasion did you do that?

A. On the 3^rdoccasion.

Q. So you saw the Plaintiff the 1^st day he came to the place?

A. Yes.

Q. Was he alone?

A. No.

Q. How many people did he come with?

A. 3 others.

Q. What of the 2^nd occasion?

A. He came with 3 others.

Q. What of the 3^rd occasion?

A. He came with 3 others.

Q. What of the 4^th occasion?

A. He came with 3 others.

Q. You are not being truthful to the Court.

A. I have told the Court the truth.

Q. What was the duration between the issuance of the Exhibits 4 and 2?

A. It took some days. I cannot be specific.

Q. Which means the day on Exhibit 4 does not reflect the date you issue same?

A. I agree with you.

 

We further noted from pages 91- 95 of the ROA that DW2 testified as an engineer. It is true that unlike PW1, he provided a lot of credentials. That notwithstanding, his evidence could not aid the court much. He was emphatic that he was not there to examine the machines in dispute when the parties herein entered into an agreement. Neither was he part of those who allegedly accompanied the machines to the Respondent’s house to fix same. He again could not confirm if the machines the Appellant showed him to examine prior to his testimony were the exact same ones in dispute. His testimony was therefore premised on “if the machine is the one in dispute then it is a good one”. Clearly, such evidence cannot be relied on especially when Respondent had denied Exhibit 6 series being the ones in dispute. Appellant bore the burden of leading further evidence to prove those were the same machines so DW1’s testimony could be relied upon. Sadly, the Respondent failed woefully to discharge this burden.

 

Again, this Court has noted from the ROA that, Appellant as well as DW1 throughout their evidence stated that the machines supplied were stainless steel as ordered by Respondent and could not be of lesser quality nor rust. However, DW2 even though corroborated PW1’s testimony that there were different types of stainless steel, he concluded by saying that some could actually rust.

 

Hence, the Appellant is misleading the court in stating that the issue was whether the machines were capable of working or not, instead of to say as to whether or not it was the same specification as the one Respondent ordered.

 

This Court after thorough examination of the ROA before it, is of the opinion that the Appellant has failed to adduce ample evidence to support the argument that the judgment of the trial court was against the weight of evidence.

 

Accordingly this ground of the appeal cannot stand and is therefore dismissed.

 

GROUND TWO (2):

 

“The Court erred when it held that the Plaintiff has proved his case on a preponderance of probability.”

 

This Court has to some extent dealt with this ground when it was dealing with ground one (1) above. However, we think a little elucidation will give more clarification on this issue. The basic and fundamental underlying principle here is that, he who alleged has the onus to prove his allegation. However, the burden of proof is not fixed; but shifts from one party to another depending on the circumstances and stage of the case.

 

In Majolagbe v Labi [1959] GLR 190 at 192, the immortalized statement of Ollenu J (as he then was) stated that;

“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, e.g. by producing documents, description of things, reference to other facts, instances or circumstances and his averments is denied, he does not prove it by merely going into the witness box and repeating that averment on oath, or having it repeated on oath by his witnesses. He proves it by producing other evidence of facts and circumstances, from which the court can be satisfied that what he avers is true.”

 

Again, in Ackah v Pergah Transport Ltd. [2010] SCGLR 729, holding (1) the Supreme Court per curiam, held that;

 

“It is a 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.”

 

Under the circumstances of the case, it is the Appellant herein who alleges and therefore it is he who must deliver himself of that burden. This court has however observed that, the Appellant herein has failed woefully to discharge this burden.

 

This ground of the appeal is accordingly dismissed.

 

ADDITIONAL GROUNDS:

 

“1. The Court erred when it concluded that even though the action was mounted by an Attorney of the Plaintiff, the failure of the Attorney to testify for and on behalf of the Plaintiff implied that the Power of Attorney was revoked.”

 

We note that, just as the ground two (2) of this appeal, this ground of the appeal was also dealt with thoroughly under the ground one (1) of this appeal.

 

Since we do not want to overstress it, we would therefore conclude by saying that, since the Respondent herein is a party to the case, there is nothing wrong if he testified in the case after he has given the power of attorney to another person.

 

After a thorough scrutiny of Section 3 of Act 549, this Court finds it difficult to identify a single provision which states that a Power of Attorney when granted to a donee must be revoked expressly by the donor. It follows that the Act is indeed silent on the mode of revocation of the Power of Attorney by the donor.

 

We share the same view with the learned trial Judge in his Judgment at page 98 of the ROA that:

“There is evidence before me that the instant action was instituted by an Attorney of the Plaintiff.

However, during the trial the Plaintiff personally articulated his case without the participation of the said Attorney.

I hold that the conduct of the Plaintiff impliedly revoked the Power of Attorney he gave to the Attorney to prosecute this case.”

 

In the candid opinion of this Court, the grant of the Power of Attorney by the donor to the donee in the instant case did not oust the capacity of the Respondent herein.

 

It is our view that, since the Plaintiff is a competent and credible witness he was the right person to have testified in this case.

 

This Court is a Court of record and for the Respondent herein to have made that public declaration in his evidence in court that he has come to testify in the case as the Plaintiff therein because his Attorney did not have full knowledge of the facts of the case is an indication of how crucial the testimony of the Respondent herein in the successful determination of the case. There was also no evidence on the ROA before us which indicates that the said Attorney has at any time testified in the instant case before the trial court. This in our opinion and as evident on the ROA is a palpable indication that the Power granted to the Attorney was impliedly revoked as rightly decided by the learned trial judge. Indeed, there is no doubt that the evidence of the Plaintiff is very fundamental in the successful and fair adjudication of the case. To oust the capacity of the Plaintiff under the circumstance of this case would be a travesty of justice and a serious sin against the principles of natural justice (the audipartem rule).

 

We would therefore not hesitate to believe that the Appellant herein is making every necessary effort to clutch at every possible ‘straw’ so as to win his case on technical point. This the supreme court in its recent judgments frowns on.[See the cases of Adomako Anane v Owusu Agyemang [Subs. By Nana Banahene] & 8 Others, (supra)and Halle and Sons A. S. v Bank of Ghana & Anor (supra).

 

This ground is also dismissed for want of merit.

 

“2. The Court erred when it dismissed the Defendant’s Counter-Claim on the basis that he (Defendant) failed to prove it.”

 

In his submission Counsel for Appellant cited and relied on Sagoe & Ors v Social Security and National Insurance Trust (No. 2) [2013 – 2014] 1 SCGLR 703 where the Court held that by balance of probabilities, the Court mean that:

 

“Proof by a preponderance of probabilities” within the context of the burden of proof as stated in Section 12(2) of Evidence Act, 1975[NRCD 323], simply means weightier or superior evidence…”

 

According to Counsel, the trial Judge dismissed the Defendant’s Counter – Claim but did not give any justification for the dismissal.

 

The Counter-Claim was as follows:-

(1) An Order of the Court compelling the Plaintiff to take delivery of his water filtration machine which he dumped our work place in his absence.

(2) General damages for the arrest, detention and trial of the Defendant without cause.

 

In dismissing the Counter-Claim this is what the trial Court wrote, at page 101 of the records of

 

Appeal:

“So you did not offer the Plaintiff any GH₵5,000.00…I say so because the Defendant’s Counter – claimed in this case and was therefore bound to prove his assertion but he failed to do so.”

 

Counsel further averred that the issue discussed prior to the dismissal of the Defendant’s Counter-claim had nothing to do with the Counter-claim.

 

According to Counsel the issue of the Plaintiff’s arrest, detention and prosecution at the Circuit Court was never denied.

 

Whilst the Defendant Counter – claimed for an Order compelling the Plaintiff to take delivery of his water filtration and damages for his lawful arrest and detention, the trial Court was discussing the refund of Five Thousand Ghana Cedis (GH₵5,000.00) and others which did not border on the Counter-Claim.

 

Counsel for the Appellant argued at page15 of their Written Submission that:

“Defendant at page 67 of the Records of Appeal testified as to his arrest, detention and prosecution and gave evidence about the things that he suffered as a result.

This was not denied by the Plaintiff not even under cross-examination. It is trite learning that a Counter-Claim is as good as a claim and that the Defendant who Counter-Claim becomes a Plaintiff for his Counter-Claim”.

 

According to Counsel, the Defendant in his Counter-Claim discharged the onus on him when his evidence was not challenged. [See: Ackah v Pergah Transport Ltd. (supra)].

 

As stated earlier, the Appellant herein is asking the Court to grant him damages in the form of counterclaim for some injuries he allegedly suffered.

 

As rightly provided by the counsel for the Appellant that there is the need for the Appellant herein to be compensated for the injuries that the Respondents action has caused him. This Court would want to rely on the case of Bradford v Pickels(1895) AC 587which states that:

“The heads or elements are two, pecuniary and non-pecuniary loss. Non-pecuniary comprises all losses which do not represent an inroad upon a person’s financial or material assets, such as physical pain or injury to feelings “whilst” pecuniary loss comprises all financial and material loss incurred such as loss of business profits or expense of medical treatment…”

 

It is therefore trite that assessment of damages for injuries, inter alia, can be categorized under pecuniary and non-pecuniary damages.

 

Pecuniary losses or injuries thereby cover medical expenses, travelling in and out of hospital, or the like. Hence, an actual loss of earning capacity and other gains or benefits which, but for the injury, the plaintiff would have had and any other expenses he had been put to as a result of the accident would also be added.

 

Non-pecuniary losses, on the other hand, cover loss of amenities, pain and suffering, and loss of expectation of life.

 

Considering the definitions of pecuniary and non-pecuniary damages, and what both entail, it can be said that pecuniary awards are amenable to arithmetic calculation to a fair degree, whilst non-pecuniary awards are more inclined to the usage of discretion. But in consonance with good conscience, and what is fair and just, determination must be adequate, fair and reasonable for the loss arising out of the injury.

 

This serves as a guide to the court in determining the degree of award in relation to damages.

 

We are of the candid view that since the Appellant herein was not able to prove to the court the actual losses that he suffered by particularizing same, the trial judge was right in refusing to grant them. This ground of the appeal is therefore declined.

 

“3. The Court erred when it relied mostly on the pleadings filed by the Parties instead of the evidence led by the Parties in open court.”

 

Pleadings are the nucleus around which the whole case revolves. It is in fact the facts which have been pleaded that the court allows evidence to be led on same. A judge can therefore make a finding against any party who gives evidence contrary to his pleadings.

 

A careful scrutiny of the ROA indicates that Counsel for the Appellant averred at page 11 of their written submission as follows:

 

“My Lords, in his final judgment, the trial Court copiously referred to the pleadings and relied upon same to determine the issues. At page 101 of the records of Appeal, the trial Court in an effort to determine issue two (2) referred to paragraph 18 of the Statement of Defence to arrive at a conclusion.He said: “The position of the law is that pleadings are not evidence”.

 

Counsel relied on the case of Aryitey v Ayele(1962) 1 GLR 225 per Ollenu J, where it was held in the headnote inter alia that:

 

“Pleadings do not constitute evidence in the case in which they are filed neither do they become evidence in the case because the party who filed them proclaims reliance on them on Oath.”

 

“Statement of claim does not become evidence merely because a party says on oath that he relies on it.”

 

According to Counsel for Appellant, a pleading of averment in proof of which no evidence is offered virtually serves no useful purpose in a case. A mere averment without proof of the aforesaid facts pleaded in the Statement of Claim is no proof of the aforesaid facts if they are not admitted in the Statement of Defence.

 

In simple terms the Court cannot rely on the pleadings to determine a matter. It can only rely on the evidence adduced during the trial.

 

Counsel further argued at page 11 thereon of their Written Submission that “This being the case, the Court erred when it relied on paragraph 18 of the Statement of Defence to conclude that the Defendant paid Thirty-One Thousand Ghana Cedis (GH₵31,000.00).

 

Counsel expressed surprise that even though the Court had held that the Plaintiff paid an amount of Thirty–One Thousand Ghana Cedis (GH₵31,000.00) to the Defendant, it went ahead to give Judgment for the Plaintiff for all his reliefs including a relief for the Plaintiff to recover an amount of Twenty-Two Thousand US Dollars (US$22,000)”.

 

According to Counsel, this clearly is a contradiction of the Court’s own finding.

 

This Court however disagrees with Counsel to the effect that the Twenty- Two Thousand US Dollars (US$22,000) which at the time was equivalent to Thirty-One Thousand Ghana Cedis (GH₵31,000)which amount the Plaintiff paid to the Defendant.

 

A thorough examination of the ROA brought to bear the findings of the trial judge to the effect that the defendant had admitted receiving GH₵31,000.00 per the calculations he made from paragraph 18 of his Statement of Defence and same had been challenged by the Respondent in his reply mainly because he paid the Respondent US$22,000 for specific machines with a certain cedi equivalent in mind; a fact the Appellant does not dispute. The Appellant was rather in a better position to state the actual amount he converted the money for at the forex bureau since Respondent did not accompany him. Hence, the court relied on Appellant’s own pleadings to make a finding of fact against him although the Appellant had testified otherwise during the trial considering the several inconsistencies even in the his evidence itself on crucial matters such as the consideration he received, the currency it was paid in, the issuance of two (2) different invoices in respect of same transaction that bore same date but different amounts, among others. The judge had the right to make such a finding against the Appellant and same should not be disturbed on appeal.

 

This ground of the appeal is therefore declined.

 

“4. The Court erred when it failed to acknowledge the failure of the Plaintiff to call the watchman/security man as a failure to call material evidence even though he had held that the failure of the Defendant to call the one who fixed the machine as a failure to call material witness.”

 

Counsel for the Appellant submitted that the trial Judge seems to have used different measures to determine this case:

 

“Whilst the Plaintiff mentioned a watchman in his evidence as the one he called and instructed to stop the Defendant from entering his premises to fix the cylinder, he failed to call him to corroborate that piece of evidence. The Court however found nothing wrong with that and accepted the Plaintiff’s evidence in that wise.

 

However, when it got to the Defendant, the Court held that he should have called the one who fixed the machine. That is unfair and an affront to justice.

 

The Plaintiff who has the initial responsibility to prove his case of this averment failed to corroborate same, the Court ignored that piece of evidence since same was challenged by the Defendant.

 

The evidence of the watchman was very material to determine whether or not it was the Plaintiff who instructed and directed the Defendant to install the machine”.

 

This Court does not agree with the Defendant on the score that the trial judge erred when he failed to acknowledged the failure of the Respondent herein to call his gateman to testify in the case. A careful examination of the ROA, revealed that the gateman did not have any factual knowledge about the transactions that went on between the parties during and after the payment and delivery of the machine. However, if the Appellant herein sees the Respondent’s gateman as a credible witness who could help his case, what then prevents him from inviting him through the court as his witness.

 

We think that the evidence of the Respondent’s gateman is not material to the successful, expeditious and fair determination of the case.

 

This ground of the appeal is dismissed.

 

CONCLUSION:

 

After thorough and careful examination of the ROA as well as the Written Submissions of both counsel this Court has come to the conclusion that there is no overwhelming evidence or compelling reason why this appeal should be allowed. This is because the Appellant herein has failed in toto to reasonably convince this Court to the extent that the judgment by the trial judge was indeed against the evidence on record. This appeal is therefore dismissed in its entirety.