IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2018
MALLAM ADAMU - (Plaintiff)
SOLOMON OSEI BOATENG & ANOR - (Defendants)
DATE: 21 ST JUNE, 2018
SUIT NO: P/RPC/38/14
JUDGES: ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
FRANCISCA ADZO AYIVOR FOR YAW ACHEAMPONG BOAFO FOR PLAINTIFF
USTARZ JIBREEL SA-AD FOR MICHAEL KWABENA ATTA AGYEI FOR DEFENDANTS
What started as an ordinary, simple sale/purchase agreement of an excavator has now become the subject matter of the instant protracted legal battle, spanning over three legal years! In this judgment the words ‘excavator’ and ‘machine’ are used interchangeably. The Plaintiff claims against the defendants the reliefs endorsed on his amended writ of summons and statement of claim filed on 26/10/16, as follows:
a) Recovery of cash the sum of One hundred and seventy- seven thousand seven hundred Ghana Cedis (GHC 177, 700.00) being the monies the Plaintiff paid to the Defendants for the purchase of CAT BL 330 excavator from the Defendants which sale agreement was unlawfully abrogated by the Defendants.
b) Interest on the sum in relief (a) supra from 7th February, 2014 till the date of final payment.
c) General damages for breach of contract
d) Costs including solicitor’s fees.
AND/OR IN THE ALTERNATIVE
a) An order of the Honourable Court for the sale of the said CAT BL 330 excavator, the subject matter of the contract to pay off all of the Defendant’s indebtedness to the Plaintiff. The Defendants denied liability to the Plaintiff’s claims and filed an amended statement of defence and counterclaim on 30/07/2014 as follows:
b) A declaration that the Plaintiff’s actions constitute a breach of the contract of sale.
c) An order that the Plaintiff accounts for and pay to the 2nd Defendant the daily sales/income exigible on the machine for all the days the Plaintiff kept illegal possession and/or use of same when he had not paid fully for the machine.
d) An order of specific performance directed at the Plaintiff to pay the outstanding sum on the price of the machine with interest or the difference between what the Plaintiff has paid for, and the open market value of the machine as of now. In the alternative to relief (iii) above, an order that the 2nd Defendant sells the machine at a forced sale price fixed by the Honourable Court and the proceeds used to service the outstanding sum of the price of the machine as sold to the Plaintiff with interest and the “left over” balance (if any) paid to the Plaintiff.
e) Any other relief deemed appropriate by the Honourable Court.
THE PLAINTIFF’S CASE.
A summary of the Plaintiff’s case is that, in pursuit of his earth-moving equipment rental business, he approached the 2nd Defendant for the purchase of a CAT BL 330 excavator (the excavator). The agreed purchase price for an instant full payment was GHC 205,000.00; and GHC 220,000.00 for a credit sale. Initially, the Plaintiff agreed to make an outright payment, paid a deposit of GHC 20,000.00 and a receipt was issued to him by the 2nd Defendant, bearing the name of the 1st defendant. Being unable to raise the balance of GHC 185,000.00, the Plaintiff alleged that the parties varied the agreement to a credit sale. Subsequently, the Plaintiff averred that he paid GHC 100,000.00, GHC 7,000.00 and GHC 23,000.00 to the 2nd Defendant, making a total of GHC 150,000.00.
Later, the Plaintiff handed over the excavator to the 2nd Defendant, upon representations made by the
2nd Defendant that he had found some who wanted to hire the machine which had been idle. The sum of GHS 27,200.00 was realized from this work. Thereafter, the excavator was returned to the plaintiff, but the Defendants, in the company of some military personnel, forcibly took it away from the Plaintiff. At that time, the Plaintiff contended that he had diesel worth of GHC 1,500.00 in the machine. To date, the Plaintiff claims he has no idea about the whereabouts of the excavator.
THE DEFENDANTS’ CASE.
The case of the Defendants/Counterclaimants is that to the knowledge of the Plaintiff, the 1st Defendant is not an incorporated limited liability company, but the receipt bearing the name of the 1st Defendant was issued as a temporary measure. The 2nd Defendant alleged that the machine was being sold outright, and not on credit, at a purchase price of USD 120,000.00 whose cedi equivalent at that time was GHC 220,000.00. The Plaintiff is said to have paid a commitment fee and thereafter pleaded to make full payment within two months. However, he unilaterally resorted to modes of payment which were against the terms of the purchase agreement. Without paying the full price, the Plaintiff put the machine to use and caused it to deteriorate. The 2nd Defendant alleged that he travelled to Obuasi with one Warrant Officer Azumah to assess the situation on the ground. The 2nd Defendant told the Plaintiff that some prospective buyers had expressed interest in the excavator so those prospective buyers financed the return of the excavator from the Plaintiff’s site, and had the same repaired, but after a trial period of ten days, they abandoned the machine as same had been run down by the Plaintiff. Subsequent to this, the Plaintiff clandestinely took possession of the excavator, worked with the same and made monies from it, averagely, GHC 1,500.00 per day. Yet, he misrepresented to the 2nd Defendant that the machine had broken down. It was in the light of the foregoing that the 2nd Defendant retrieved the excavator, and demanded that the Plaintiff pays for the machine in full with interest, and for the days he worked with the machine, before he takes it back. It is the case of the Defendant/Counterclaimant that though he put up the machine for sale in a fairly new state, the Plaintiff has caused it to depreciate to an extent that it cannot be sold for the price it attracted when it was first put up for sale.
ISSUES FOR TRIAL
When the pre-trial settlement broke down, the following issues were set down for trial:
1. Whether or not the 1st Defendant has capacity to do business with the Plaintiff?
2. Whether or not the agreed sale price of the subject excavator was the Ghana Cedi equivalent of USD 120,000.00?
3. Whether the Plaintiff has paid GHC 150,000.00 of the agreed price to the Defendants?
4. Whether or not the transaction was a credit sale agreement or an instant sale agreement?
5. Whether or not the Plaintiff put the excavator to commercial use ahead of its full payment without notice to the Defendants?
6. Whether the commercial use of the excavator ahead of full payment caused it to deteriorate and depreciate in value?
7. Whether the Defendants caused military men to forcibly remove the excavator to an unknown place?
8. Whether or not the Plaintiff is entitled to his claim?
9. Whether or not the Defendants are entitled to their counterclaim?
It is to be noticed that this case was started before the introduction of the filing of witness statements under C.I. 87. Indeed, the Plaintiff’s case was struck out for want of prosecution after numerous adjournments, and when the 2nd Defendant was about to lead evidence on his counterclaim, the Plaintiff woke up from his deep slumber and caused his case to be re-listed, both parties then went to sleep again. The Plaintiff alone changed solicitors at least four times. With this checkered history, there has been an undue delay, the parties could not also take advantage of the filing of witness statements when the C.I. 87 was later introduced, because it was a partly heard matter.
BURDEN OF PROOF.
To determine the issues set down for trial effectively, there is the need to state the nature and degree of proof required in civil suits, and what is expected from each of the parties to the suit. This burden of proof has been provided for in the Evidence Act 1975 N.R.CD. 323. The relevant provisions are sections 11(4);12 (1) (2); 14; and 17 (1), they state as follows:
Sec. 11 (4)
In other circumstances the burden of producing evidence requires a party to produce sufficient evidence which on the totality of the evidence, leads a reasonable mind to conclude that the existence of the fact was more probable than its non-existence.
Sec. 12. Proof by a preponderance of the probabilities
(1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities.
(2) “Preponderance of the probabilities” means that degree of certainty of belief in the mind of the tribunal of fact or the Court by which it is convinced that the existence of a fact is more probable than its non-existence.
Sec. 14 Allocation of burden of persuasion
Except as otherwise provided by law, unless it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence that party is asserting.
Sec. 17 Allocation of burden of producing evidence
Except as otherwise provided by law,
(a) the burden of producing evidence of a particular fact is on the party against whom a finding on that fact would be required in the absence of further proof;
(b) the burden of producing evidence of a particular fact is initially on the party with the burden of persuasion as to that fact.
There are a plethora of judicial decisions on proof in civil suits where the evidential requirements stated in the foregoing provisions have been applied, starting from the earlier decisions which laid down the principle to the more recent ones, which expanded same. Some of the authorities are:
Majolagbe v Larbi (1959) GLR 190 at 192; Zabrama v. Segbedzie (1991) 2 GLR 221, CA; Yorkwa v Duah (1992/93) GBR 278; Adwubeng v Domfeh (1996/97) SCGLR 660; Takoradi Floor Mills v Samir Faris (2005/06) SCGLR 882; Yaa Kwesi v Arhin Davis(2007/08) SCGLR 580; Sarkodie v FKA Co. Ltd. (2009) SCGLR 65 holding 1 and Abbey v Antwi (2010) SCGLR 17 at 19 (holding 2).
In these cases, their Lordships were guided by the relevant provisions in NRCD 323 as outlined above, and they explained that in all civil suits, a party who makes an averment, which is denied, bears the burden of proof except where provided by law; and that the degree of proof is " by the preponderance of the probabilities". This principle was well explained by Kpegah JA (as he then was) in the Zambrama case, referred to, supra. In reviewing the earlier Majolagbe case, his Lordship stated:
The correct proposition is that, a person who makes an averment or assertion, which is denied by his opponent, has the burden to establish that his averment or assertion is true. And he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of that burden
The above rules of evidence and judicial precedents will guide this court in determining the issues under reference.
WHETHER OR NOT THE 1ST DEFENDANT HAS CAPACITY TO DO BUSINESS WITH THE PLAINTIFF.
On this issue, counsel for the Plaintiff submitted that to the knowledge of the 2nd Defendant, the 1st Defendant has never been registered under the laws of Ghana, and has never come into existence. He said so in his evidence-in-chief and also under cross-examination. Though the Plaintiff was oblivious of this fact, the 2nd Defendant who dealt directly with the Plaintiff was aware of this fact, yet he went ahead to issue a receipt bearing the name of the 1st Defendant. Counsel cited and relied on Morkor v. Kuma (No.1) (1999-2000) 1 GLR 721 in holding thereof that:
Where in fact or law, a person was not a proper party to a suit, then no matter how actively the one had participated in a suit, that person had never been a proper party.
Further, counsel for the Plaintiff argued that irrespective of the fact that the 1st Defendant represented the 2nd Defendant throughout the proceedings, the 2nd Defendant cannot be deemed to have participated in the proceedings since it does not qualify as a natural or juristic person with capacity to defend or maintain an action. The above notwithstanding, it was the argument of counsel for the Plaintiff that since the 1st Defendant was sued jointly and severally with the 2nd Defendant and in particular, since the 2nd Defendant has admitted throughout his pleadings as well as in his evidence before this court that he was the one who dealt with the Plaintiff, he is not absolved of liability. To illustrate her point, counsel made a reference to Kwami Tetteh S. (2011) CIVIL PROCEDURE: A PRACTICAL APPROACH at page 146 that:
two or more promisors are liable jointly and severally. Co-contractor may also make promises that render them jointly and severally liable to the promise. Such liability is usually expressed in agreement between the parties but may be inferred from the facts. Thus, if A and B promise C in an agreement “jointly and severally “to pay GHC 100, A and B would be so liable to C. The joint and several liability of A and B does not obligate each of them to pay GHC 100 to C, Rather, C is entitled to that amount from them together or in the alternative. He may therefore sue either or both of them for payment.
Counsel for the Plaintiff is right in her submissions. In fact, the 2nd Defendant’s explanation that he issued the receipt, exhibit A, which bears the name of the 1st Defendant to the Plaintiff, because the Plaintiff insisted on getting a receipt and there was no other paper to write on, is an afterthought. Exhibit ‘A’ was issued from a printed receipt book, it bears the number 159. It is not in the least probable that the receipt book came into being in a twinkle of an eye when the Plaintiff/Buyer demanded a receipt to evidence the payment made. From all indications, the receipt book was already in existence, and it is reasonable to infer that the 2nd Defendant has been using it to deceive his customers, including the Plaintiff herein, that the 1st Defendant is a Registered Company. All the evidence point to the fact that the 2nd Defendant acted alone in his dealing with the Plaintiff, using the non-existent 1st Defendant as a cover up. Therefore, the 2nd Defendant at all times material dealt with the Plaintiff solely, and personally assumed all the obligations and liabilities under the contract of sale. Whatever the 2nd Defendant wrote on exhibit ‘A’, is evidence of the transactions between him personally and the Plaintiff. The court therefore concludes that the 1st Defendant, being non-existent, could not have contracted with the Plaintiff.
WHETHER OR NOT THE TRANSACTION WAS A CREDIT SALE AGREEMENT OR AN INSTANT SALE AGREEMENT.
In his pleadings, the Plaintiff averred that he initially agreed to purchase the excavator outright and made an initial payment of GHC 20,000.00, he was issued with a receipt by the 2nd defendant, but later changed his mind. He gave evidence on oath to prove this assertion. In his evidence-in-chief on 15/11/2016, this was what he said:
We discussed the price of the excavator machine… I made an initial payment of GHC 20,000.00. He issued a receipt to that effect. I have the receipt with me and would like to tender it in evidence (exhibit A). After he issued the receipt I was supposed to pay him the outstanding balance of GHC 185,000.00 so that I can take the machine away. I went back to Obuasi. When I went back, I could not raise the GHC 185,000.00. We settled on the credit sales. When he agreed, I raised GHC 100,000.00. I went to him with my witness. When I gave the money to 2nd defendant he issued a receipt to me (exhibit B)…
The Plaintiff continued that:
When I paid the GHC 100,000.00 he gave me photocopies of documents of the machine. Because I was purchasing the machine that is why he gave me the title documents of the machine. I lifted the machine to Obuasi.
The evidence given by the Plaintiff as captured above, was corroborated by his witness, PW1. At this point, the burden of persuasion shifted onto the 2nd Defendant. In his evidence before this court on 08/11/2017, the 2nd Defendant maintained that the transaction was an instant purchase to the Plaintiff at the price of GHC 205,000.00, he made a deposit of GHC 20,000.00 and promised to pay the balance of GHC 185,000.00 within three days. This did not happen, and the Plaintiff, after giving countless excuses, paid GHC 100,000.00, GHC 23,000.00 and GHC 7,000.00, making a total of GHC 150,000.00. According to the 2nd Defendant, he seized the machine from the Plaintiff because it was not sold on credit to the 2nd Defendant, and he had refused to make full payment.
In his closing submissions, counsel for the Plaintiff resorted to the definition of a credit sale in the
Black’s Law Dictionary, 9th edition thus:
A sale of goods to a buyer who is allowed to pay for the goods at a later time.
A sale on credit is a sale accompanied by delivery of possession, but with payment deferred to a later date.
In advancing his point, counsel for the Plaintiff referred the court to paragraphs 6 and 7 of the statement of claim where the Plaintiff averred that the agreed purchase price was GHC 205,000.00 for an outright sale, and GHC 220,000.00 for a credit sale. He argued that the 2nd Defendant did not deny paragraphs 6 and 7 of the Plaintiff’s statement of claim, and did not also lead evidence to contradict the evidence led on these facts. He relied on Kai v. Amarkye (1982-83) GLR 817 (holding 2), that:
A failure to deny either specifically or by implication allegations of facts amounted to admission of them and no further proof of that was required.
In addition, counsel submitted that the Defendant did not cross-examine the Plaintiff on the fact stated that the transaction was a sale on credit, he relied on Fori v Ayeribi (1966) GLR 629 at 647 that:
When a party makes an averment and that averment is not denied, no issue is joined on that averment, and that no evidence need to be led. Again, when a party gives evidence of a material fact and is not cross-examined upon it, he need not call further evidence of that fact.
Counsel argued that from the pleadings, the nature of the sale is not in dispute and as such, no issue is joined on it. Counsel further submitted that the mode of payment in instalments, which DW1 confirmed to this court, is evidence of the credit sale. In effect, the argument of counsel is that the evidence of DW1 supports the case of the Plaintiff that the sale was on credit, and that actually reflects the nature of the transaction between the parties. He referred to Guardian Assurance Co. Ltd v. Khayat Trading Store (1972) 2 GLR 48 at page 55 where Amissah JA stated that:
Evidence in favour of a party’s contention is, as far as I understand the law, no less favourable because it comes from his opponent. If anything, that evidence from the opponent is free from the possible self-serving stigma which that statement from the party might have.
Continuing, counsel for the Plaintiff submitted that to the extent that the Defendant failed to lead evidence on the alleged instant full payment, he is deemed to have abandoned that point as was held in Ofori Agyekum v. Madam Akua Bio (2017) 114 GMJ 1 @ 42 per Benin JSC thus:
Be that as it may, where no evidence is adduced on a fact that has been pleaded, it is treated as having been abandoned by the pleader; the court does not call it into question in its judgment. The court’s, only duty is to consider the evidence the party has proffered in determining whether or not he has met the required standard of proof.
Another point raised by counsel in his submissions is that per sections 8(1), 26(1) and 18(1) of the Sale of Goods Act, 1962, Act 137, the property in the excavator in issue passed to the Plaintiff when the Defendant handed over actual physical possession to him. To this end, since the property in the good had passed, and the Plaintiff was allowed to make payments by instalment, counsel invited the court to hold that the sale of the excavator was on credit. Indeed, the evidence of DW1, and his answers under cross-examination point to the irresistible conclusion that even though the defendant intended the transaction to be an instant sale on full cash payment basis, by his conduct, he allowed the Plaintiff to purchase it on credit, and to make payments by instalments. The manner in which the Plaintiff made the payments actually fits into the legal definition of a credit sale quoted by counsel for the Plaintiff, supra. By the preponderance of the evidence on record, the court finds that the excavator in issue was sold to the Plaintiff on credit.
WHETHER OR NOT THE AGREED SALE PRICE OF THE SUBJECT EXCAVATOR WAS THE GHANA CEDI EQUIVALENT OF USD 120,000.00
WHETHER THE PLAINTIFF HAS PAID GHC 150,000.00 OF THE AGREED PRICE TO THE DEFENDANTS.
The evidence of the Plaintiff on this point is that the parties agreed that the price of the excavator on instant sale basis was GHC 205,000.00 and GHC 220,000.00 on credit basis. This piece of evidence is based on paragraph 6 of his amended statement of claim. Counsel for the Plaintiff submitted that the Defendant, in his amended statement of defence, did not specifically deny paragraph 6 of the Plaintiff’s amended statement of claim. Instead, the Defendant stated that the agreed purchase price was the cedi equivalent of US$ 120,000.00, which was then computed as GHC 220,000.00. On the authority of Kai v. Amarkye, supra, counsel submitted that the Defendant is deemed to have admitted the pleaded fact that the agreed purchase price of the subject machine was GHC 205,000.00 if the Plaintiff was to make instant full payment, and GHC 220,000.00 if he was to buy on credit.
Again, counsel argued that DW1, who was a witness for the Plaintiff during the purchase of the excavator, but testified for the Defendant at the trial, introduced vital evidence that supports the Plaintiff’s case about the purchase price.
This was what DW1 said in evidence:
There was a number written on the machine and it was Solo’s number so we quickly called him. When Solo came, we informed him that we wanted to buy the machine. He quoted the price as 2.2 billion (GHC 220,000.00). We asked for a reduction and he reduced it by GHC 150 million (GHC 15,000.00). When he reduced the price, we paid him 200 million cedis (GHC 20,000.00)…Solo said the machine was not sold on credit basis. We could not raise the said amount, we only raised 1 billion (GHC 100,000.00). Solo said the 1 billion was not enough but because of me, he will release the machine to us but we should pay the original price which is 2.2 billion…
The evidence of DW1 on the purchase price is at variance with that of the Defendant, and is also contradictory to the Defendant’s pleaded case on that point. But, the Plaintiff’s evidence on the purchase price accords with his pleading, and it is even supported by the evidence of the Defendant’s own witness, DW1. Indeed, in both exhibits ‘A’ and ‘B’ issued by the Defendant, there is no indication that the purchase price payable was the cedi equivalent of any amount in dollars. Put differently, the price of the excavator was not expressed in any other currency apart from the ‘Cedi’. The actual value of the excavator can again be inferred from the customs documents, which the parties referred to as the title documents, given to the Plaintiff by the Defendant, exhibit ‘C’. On page 5 of exhibit ‘C’, the machine in issue was manufactured in the year 1998, its value as at the time it was imported into the country at the latter part of the year 2012 was US$ 29,000.00. On the same page 5 of exhibit ‘C’, the value of the excavator, including Cost, Insurance and Freight (CIF), was assessed at US$ 32,592.72, and a cedi equivalent of GHC 63,350.48, at the exchange rate of 1.9437. The duties and taxes paid amounted to GHC 1,531.83. In as much as a seller is entitled to determine his sale price, it is highly improbable that a machine worth about US$ 33,000.00 will be sold at US$120,000.00. On the preponderance of the evidence on this point, this court finds that the agreed purchase price for the credit sale was GHC 220,000.00, and that the US$ 120,000.00 quoted by the Defendant in his amended statement of defence as well as in his evidence before this court is a figment of his own imagination. Out of the purchase price of GHC 220,000.00, the court accepts the evidence of the Plaintiff, the 2nd Defendant and DW1 to the effect that the Plaintiff has paid GHC 150,000.00, as the truth and I so find. This excludes the sum of GHC 27,700.00 as accruals from rental charges when the 2nd Defendant took possession of the machine for the first time after the sale.
WHETHER OR NOT THE PLAINTIFF PUT THE EXCAVATOR TO COMMERCIAL USE AHEAD OF ITS FULL PAYMENT WITHOUT NOTICE TO THE DEFENDANT.
Per the evidence adduced by the Plaintiff, and which was supported by the answers given by DW1 during cross-examination, the Plaintiff was allowed to use the machine and he paid proceeds from the use of the machine to the Defendant. It is therefore clear from the evidence that the 2nd Defendant who dealt directly with the Plaintiff, consented to the commercial use of the excavator by the Plaintiff even though full payment had not been made. Therefore, the 2nd Defendant had actual notice of the fact that the Plaintiff had put the excavator to commercial use even though full payment had not been made.
WHETHER THE COMMERCIAL USE OF THE EXCAVATOR AHEAD OF FULL PAYMENT CAUSED IT TO DETERIORATE AND DEPRECIATE IN VALUE.
The 2nd Defendant gave contradictory evidence as to the state of the machine at the time it was sold. He described the state in which the excavator was at the time of sale in his evidence-in-chief on 26/07/2017 thus:
At the time I got the machine, it was new so I did not do any work on it…
The above piece of evidence is in sharp contradiction to the 2nd defendant’s answer in cross-examination on 28/02/2018. This was what transpired between the counsel for the Plaintiff and the 2nd Defendant:
Q: How long have you been in the excavator business?
A: I am a mechanic. It is my brother who brings them to me and I started somewhere in 2014. Even though the machine was brought in 2013, I had to carry out some works on it.
As rightly argued by counsel for the Plaintiff in his closing submissions, the 2nd Defendant merely repeated the averments concerning the deterioration in his amended statement of defence, on oath. And without more, this cannot be sufficient proof of this fact. More importantly, when this disputed fact is capable of proof in some positive way. See Majolagbi v. Larbi, (supra); T.K. Serbeh & Co. Ltd. V. Mensah (2005-2006) SCGLR 341 at 360. Again, by the Defendant’s own showing in paragraphs 22 and 23 of his amended statement of defence, the machine was in a working condition at the time the same was retrieved from the Plaintiff. These paragraphs state:
22. Upon repeated demands to know the where about of the machine, the Plaintiff lied that the machine had broken down again somewhere, only for the Defendant to be led by others in search of where the machine was and they found same at work making money for the Plaintiff, and not broken down as he wanted the 2nd Defendant to believe.
23. The 2nd Defendant says that he retrieved the machine, brought same to Kumasi at his expense, and demanded that the Plaintiff pays for the machine in full with interest and for the days he worked with the machine, before he takes back the machine.
Again, the 2nd Defendant in his evidence -in-chief on 08/11/2017 was emphatic that he received information from a third party that the machine was working, and he went there to verify. This is sufficient proof of the averments in his pleadings referred to supra, that the machine was in use at all times material. On the state of the machine, the Plaintiff said in his evidence-in-chief on 21/11/2016 that the machine was working and had not broken down. And, PW2 also confirmed in his evidence on 21/03/2017 that the machine was actually in use at the time the 2nd Defendant came to the site to retrieve the same. In as much as any machine is subject to depreciation over a period of time, the extent of deterioration is capable of positive proof, because it varies depending on the peculiar circumstances of each case. In the circumstances of this case, if the 2nd Defendant was of the opinion that the commercial use of the machine had caused it to deteriorate beyond the usual usage, what he ought to have done at the point when he retrieved it, was to cause a thorough valuation of the same to be done. To the extent that no such valuation was done at the time the machine was retrieved from the Plaintiff, or within a reasonable time thereafter, and in the absence of any technical /valuation report on the state of the machine at any time material, it does not lie in the mouth of the 2nd Defendant to say that the commercial use of the machine caused it to deteriorate. Especially so, when the 2nd Defendant retrieved the machine from the Plaintiff in a working condition, and there is also no evidence as to what the 2nd Defendant has done with the machine since the date he forcibly took possession of it.
WHETHER THE DEFENDANTS CAUSED MILITARY MEN TO FORCIBLY REMOVE THE EXCAVATOR TO AN UNKNOWN PLACE.
The burden of proof of this issue rests on the Plaintiff, he said in his evidence-in-chief that he was informed by his boys that the 2nd Defendant came to the site with some soldiers and took the machine away. This piece of evidence was corroborated by PW2 who happened to be present at the time the 2nd Defendant came to the site with soldiers. This was what he said:
…We started the job for the first day and the second day whilst we were working with the machine, 2nd defendant came with some soldiers. On seeing the soldiers some of the boys took to their heels. The 2nd Defendant and the soldiers instructed us to move the machine out, I pleaded with him but he refused… The 2nd defendant brought a lowbed and an operator and moved the machine away.
The 2nd Defendant pleaded, and also repeated in his evidence-in-chief, that due to the non-payment of the outstanding balance of the purchase price, he travelled to Obuasi in the company of a friend of the true owner of the machine who is a military man. The idea was for the said military man to ascertain the truthfulness or otherwise of the 2nd Defendant’s claim that the Plaintiff had sent the machine to Obuasi without full payment.
For the Plaintiff, counsel argued in his closing submissions that the 2nd Defendant had no legal right to take possession of the machine because the property in the machine had passed, he had no lien over the machine and his only remedy was to recover the unpaid balance. From the evidence adduced by both parties, whether it was one military man called Azumah or some soldiers who accompanied the 2nd Defendant to the site, those person(s) were certainly in military attire, otherwise the men working with the machine on the site could not have recognized him or them as military man or military men. The point which is to be stressed is that men in uniform have no business in meddling with the contractual relationships of ordinary civilians, or anybody at all, in their private capacities, and outside the scope of their official duties. The Supreme Court held in Hemans v. Cofie (1997-98) 1 GLR 144, holding 3 that:
Where one obtained goods on credit and defaulted in paying or received money from people to do some work but failed to do the work, the default in each case would be breach of contract, the remedy for which lay in the civil courts, and not the police station.
Certainly, even if the military man or men stood by and merely looked on, their physical presence alone was enough to put a high level of fear in the persons who were working with the machine, and there is a high probability that the presence of the military man or military men aided the 2nd Defendant to move the machine away in the absence of the Plaintiff. By the preponderance of the evidence therefore, the court finds that the 2nd Defendant, aided by some soldiers or military men, forcibly removed or seized the machine from the site where the Plaintiff had put it to use.
WHETHER OR NOT THE PLAINTIFF IS ENTITLED TO HIS CLAIM AND WHETHER THE DEFENDANT IS ENTITLED TO HIS COUNTERCLAIM
For the Plaintiff, counsel submitted that the Plaintiff has been able to prove that he has so far paid GHC 177,700.00, that he had GHC 1,500.00 worth of fuel in the machine when the same was seized and that he was making an average of GHC 1500 per day, thus he is entitled to his reliefs, including loss of earnings which was not expressly asked for. It must be stressed once again that when the Plaintiff defaulted in paying for the machine, the 2nd Defendant, as a seller, was entitled to the applicable remedies and/or rights available to him under the Sale of Goods Act, Act 137. This is so because he falls within the definition of an unpaid seller under sections 34 and 35 of Act 137 as follows:
34. Unpaid seller defined
(1) The seller of goods is an unpaid seller within the meaning of this Part
(a) when the whole of the price has not been paid or tendered…,
(2) In this Part the term “seller” includes a person who is in the position of a seller as, for instance, an agent of the seller to whom the bill of lading has been endorsed, or a consignor or agent who has personally paid or is directly responsible for the price.
35. Unpaid seller’s rights
(1) Subject to this Act, an unpaid seller of goods has by implication of law,
(a) whether or not the property in the goods has passed to the buyer,
(i) a lien on the goods,
(ii) in the case of the insolvency of the buyer, a right of stopping the goods in transit after the seller has parted with the possession of the goods but before the buyer has obtained the possession of the goods, and
(iii) a right of resale;
(b) where the property has not passed to the buyer but the goods have been delivered to the buyer, a right to recover possession of the goods.
But, under section 37 (1) (b) of Act 137, “an unpaid seller loses his lien on the goods when the buyer obtains the possession of the goods with the consent of the seller. Apart from these remedies, an unpaid seller has some personal rights under section 46 of the Act thus:
46. Action for price
(1) Where, under a contract of sale of goods, the property has passed to the buyer, and the buyer wrongfully refuses or neglects to pay for the goods according to the terms of the contract, the seller may maintain an action against the buyer for the price of the goods.
In the instant case, the seller, the 2nd Defendant, who on the face of the record has lost his lien over the machine, failed to exercise any of the remedies available to him under section 35 of the Act. He resorted to self-help, with the assistance of a man or men in uniform! He seized the machine and has kept the same to date. He did not also exercise his personal right to sue to recover the outstanding balance under section 46 of the Act. On the facts and evidence before this court, the 2nd defendant ought to have sued to recover the outstanding balance and not to forcibly take over the machine in the manner he did. However, one of the counterclaims he is seeking is an order directed at the plaintiff to pay the outstanding balance of the purchase price together with interest. Looking at the circumstances of this case, the Plaintiff cannot recover the amount paid to the 2nd Defendant because by his own showing, he rented out the machine at a daily rate of GHC 1500 without accounting to the 2nd Defendant. He also suppressed the evidence on the total number of days the machine worked from the court. It will therefore not be fair for an order to be made for a refund of the total amount paid to the 2nd Defendant, which per the evidence before this court, stands at GHC 177, 700.00.
Both parties have had their hands soiled through their various acts- the Plaintiff refusing to make full payment within a reasonable time; and the 2nd Defendant re-possessing the machine without recourse to the law. The ends of justice will be best served if the 2nd Defendant returns the machine to the Plaintiff in a good working condition as when he seized the machine, and the Plaintiff is made to pay the outstanding balance of the purchase price. In the circumstance, the 2nd Defendant is given a period of 14 days to return the machine to the Plaintiff in the same working condition in which it was at the time it was forcibly removed from the plaintiff’s site. Upon the return, the Plaintiff whose unreasonable default has culminated in this suit is to pay the outstanding balance of GHS 42,300.00 to the 2nd Defendant forthwith (i.e. GHC 220,000 less GHC 177,700.000). The 2nd Defendant will not be entitled to interest on the sum of GHC 42,300.00 because he has had the use of the substantial sum paid by the Plaintiff for at least three years, and the machine has also been in his possession unlawfully. It is highly probable that the 2nd Defendant rented out the machine after seizing the same, and made profit. If the parties fail to comply with these orders within the time given by the court, the Excavator in issue is to be sold at its current market value. Out of the amount to be realized, GHC 42,300.00 is to be given to the 2nd Defendant, and the balance outstanding is to be given to the Plaintiff.
The Plaintiff is not entitled to any damages for breach of contract because he rather defaulted in paying for the machine within a reasonable time. The 2nd defendant is also not entitled to general damages as well for the reasons stated in this judgment. The Plaintiff’s action succeeds to the extent indicated in the judgment. The 2nd Defendant’s counterclaim also succeeds to the extent indicated in the judgment.
The parties are to bear their respective legal expenses given the peculiar nature of this case.