N.N EST METALS LTD vs ABDUL RASHID SIBA DORASHED
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT (GENERAL DIVISION 7)
    ACCRA - A.D 2018
EST METALS LTD - (Plaintiff)
ABDUL RASHID SIBA DORASHED - (Defendant)

DATE:  14 TH JUNE, 2018
SUIT NO:  GJ 1058/2017
JUDGES:  ERIC K. BAFFOUR, ESQ. JUSTICE OF THE HIGH COURT
LAWYERS:  PLAINTIFF REPRESENTED BY FELIX NYARKO
COUNSEL FOR PLAINTIFF – DZIFA DADJO FOR EFFIBA AMIHERE PRESENT
JUDGMENT

 

Plaintiff claim the following reliefs endorsed on its writ issued against the Defendant:

An order for the refund of the sum equivalent in cedis of US$21,000 which is the outstanding balance for the fraudulent sale of the Toyota Hilux Pickup, the bona fide property of the Plaintiff.

Interest on the said sum of US$21,000 from the 30th day of December, 2016 till date of final payment.

Damages for the act of fraud perpetuated against the Plaintiff by the Defendant Costs of this action

Plaintiff claim that it delivered its Toyota Hilux Pickup vehicle at the cost of US$29,500 for Defendant to find a buyer to purchase the vehicle. To Plaintiff the vehicle was sold but Defendant has failed to account for the monies realized from the sale of the vehicle notwithstanding several demands made on him to do so.

 

Plaintiff further avers that upon a complaint made to the Police, Defendant admitted that he had sold the vehicle but the buyer had not yet paid for the vehicle. And subsequent checks revealed that Defendant sold the vehicle for US$33,000 and had been fully paid. An amount of US$12,000 was accordingly retrieved from the Defendant leaving an amount of US$21,000 to be paid. Plaintiff again avers that Defendant represented to the purchaser that he was the owner of the vehicle and thereby falsified documents relating to the sale of the vehicle as the DVLA form produced by Defendant show him as the owner of the vehicle. It is on the above facts that Plaintiff claim the reliefs as set in the writ. Defendant in his statement of defence denied the averments made by Plaintiff claiming that he does not owe Plaintiff. And any claim of the existence of a contract was entered into between Plaintiff and a company called Dorashed Automobile company and accordingly contend that Plaintiff has sued the wrong person in court and therefore not entitled to its claim. With the closure of pleadings the following issues were set down for determination:

1. Whether or not Defendant sold Toyota Hilux Pickup with chassis No. MROFR22G000742003, the property of the Plaintiff but failed to pay over the money to the Plaintiff.

2. Whether or not the Defendant falsified the letterhead of Plaintiff company and produced false information on the forms of the DVLA to third parties in order to sell the said vehicle and retain the proceeds at the time

3. Whether or not the Defendant did retain the proceeds of the sale of the Toyota Hilux Pickup.

4. Is the Plaintiff entitled to its claim as per the writ of summons and the statement of claim.

 

EVIDENCE ADDUCED, EVALUATION AND APPLICATION OF THE LAW

Plaintiff testified through its accounts officer, Felix Nyarko and tendered among others, the following as exhibits: a DVLA Form ‘C’ as Ex ‘A’, a transfer of ownership letter as Ex ‘B’, a letter head of the Plaintiff company as Ex ‘C’, a Ghana Revenue Authority customs division documentations on the vehicle as Ex ‘D’. Defendant on the other hand testified in person and did not tender any document.

In determining the first issue set down in the application for directions as to whether Defendant had sold Plaintiff’s vehicle and failed to pay the balance of $21,000.00 it would be necessary to establish if there was any agreement at all between the parties. Plaintiff had claimed in its statement of claim that it had an agreement with Defendant to sell its vehicles by finding buyers for its vehicles. In the evidence of Felix Nyarko he basically repeated the claims made in the statement of claim without producing the corroborative evidence of the existence of an agreement between the parties.

 

However, in the witness statement of Defendant, he admits in paragraphs 5 and 6 that he has had a business dealings with the Plaintiff and even in paragraph 8 claim that the vehicle was sold for $29, 500.00 but not $33,000.00. In that respect the claim by Plaintiff of the business relation would be deemed to be have been established. For in the case of FORI v AYIREBI [1966] GLR 627 SC it was held at holding 6 as follows: “When a party had made an averment and that averment was not denied, no issue was joined and no evidence need be led on that averment. Similarly when a party had given evidence of a material fact and was not cross examined upon, he need not call further evidence of that fact”. See also HAMMOND v AMUAH [1991] 1 GLR 89 @91; ASHANTI GOLDFIELDS CO LTD v WESTCHESTER RESOURCES LTD [2013] 56 GMJ 84 CA.

The Defendant under cross examination admitted the claim of the Plaintiff of the existence of an agreement for the sale of a Toyota Pickup in the following confrontation:

Q: Kindly tell the court how long you have been in business with the N. N. Est

A: About four (4) years

Q: The agreement between you and the Plaintiff was that you would find buyers for the vehicles owned by the Plaintiff, not so?

A: They brought those vehicles for me to sell

Q: So that is yes

A: Yes they brought vehicles for me to sell.

Q: And under this agreement you kept the vehicles in your garage, not so?

A: Yes.

 

From the above it shows that Defendant fully admitted of an agreement between the parties. The claim made in the pleadings of the Defendant as well as the devotion of virtually the entire address of the counsel for Defendant to the claim that the agreement was between Plaintiff and the company of Defendant in the face of the admissions supra during cross examination cannot therefore be correct. I find as a fact and hold that Plaintiff’s vehicle being Pickup Hilux was given to Defendant for sale. The next question for my consideration is how much the vehicle was to be sold and as a corollary how much of the monies is outstanding for Defendant to pay. According to Plaintiff the vehicle was sold for $33,000.00. So Felix Nyarko claim that Defendant admitted at the Police station. And that with the payment of $12,000 by Defendant, there was an outstanding $21,000 to pay. Defendant has vehemently denied any admission of the sale of the vehicle for $33,000.00. The burden is therefore on Plaintiff to demonstrate its claim of the sale of the vehicle for $33,000.00 and any such admission made by Defendant at the Police Station. There is no corroborative evidence on record to show that Defendant admitted of the sale of the vehicle for that amount. In fact in Plaintiff’s own statement of claim at paragraph 2 he states as follows:

“The Plaintiff says that in September, 2016, it has [sic] an agreement with the Defendant to sell its vehicle for it (find a buyer for its Toyota Hilux Pickup ... at a cost of Twenty Nine Thousand Five Hundred US Dollars)”.

 

If this was the agreement that the vehicle should be sold for $29.500.00 how come Plaintiff is claiming an amount of $33,000 more so when Defendant claim that the vehicle was not sold for that much. I think even if Plaintiff had proved, which he has failed to prove anyway, that the vehicle was sold for $33,000 that would not make him entitled to all the monies, as per its own admission the agreement was for the sale of the vehicle at $29,500. It would not be out of place for me to take judicial notice of the fact that in the vehicle sale business, when an owner hands over his vehicle for sale at a certain price, and a dealer sells the vehicle above the price quoted by the owner, that becomes a windfall for the dealer as not to entitle the owner to claim beyond the quoted amount. I will find as fact that the total amount that the vehicle was sold for was $29,500. And with $12,000 having been paid, what remains is an amount of $17,500. It must also be borne in mind that the facilitation of the sale by Defendant in such contracts is at a fee but not a gratuitous service performed. Defendant however, did not state anywhere in its pleadings or evidence that it was entitled to any fees and having failed to state how much is the commission/charges, I will refrain from putting forth a figure as the amount due Defendant in terms of fees more so when there is no standard fee charge in the industry as whatever fee charged is a matter of agreement. Plaintiff would be entitled to interest at simple rate from the 20th of December, 2016 till date of final payment, as demanded by plaintiff at the ninety one Treasury bill rate.

 

ALLEGATION OF FALSIFICATION OF THE VEHICLE DOCUMENTS

Plaintiff claim that defendant falsified the vehicle documents and succeeded in transferring ownership without its knowledge when the original documents were in its custody. The particulars of falsification it provided are the following:

The Defendant represented to the purchaser that the said Toyota Hilux pickup was his personal property and same was registered in his own name.

The Defendant produced a Driver and Vehicle Licensing Authority application from [sic] which identified that he was the owner.

The Defendant again falsified a letter head of the Plaintiff and wrote a letter to the DVLA notifying it of the transfer of ownership in the said Toyota Hilux Pickup from the Plaintiff.

 

During trial I wondered whether the allegation was one of falsification or forgery. Falsification has been defined by Black’s Law Dictionary (8th Ed., 2004) as: “to make something false, to counterfeit or forge” whereas forgery has been defined as “the act of fraudulently making a false document or altering a real one to be used as if it’s genuine”. For there to be falsification there must be the element of concealment, or hiding or injury of books or documents that the author knew it to be false with intent to cause a person to be defrauded. See sections 140 and 16 of the Criminal and Other Offences Act, 1960, Act 29. Forgery on the other hand, is where a document has been tempered with so as not to speak the truth about itself. So altering a document or a part of it so that it is believed that is has been made or altered by the person who did not in fact do the alteration or that the document or its part has been altered by the authority or consent of a person who did not in fact give the consent or authority for that or that the document or its part has been made at a time different from that which it was made. See section 162 of Act 29 and also ANTWI v REPUBLIC [1971] 2 GLR 412. Be that as it may for allegation of falsification rather than forgery, and in Plaintiff’s quest to prove its claim of falsification of the vehicle documents Plaintiff tendered DVLA Form C as Ex ‘A’, what Plaintiff claim to be the actual letterhead as Ex ‘B’ and a forged one as ‘C’ and a Ghana Revenue Authority Customs Division document covering the vehicle as Ex ‘D’.

 

As a matter of fact Ex ‘B’ should be what Plaintiff claim to be the falsified one whiles Ex ‘C’ is the genuine one. A claim of falsification is an allegation of criminality. The rule in terms of proof under the Evidence Act, NRCD 323 states as follows: Section 13(1) of the Evidence Act, NRCD 323 states as follows:

‘in any civil or criminal action the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt’.

And there seems to be a further emphasis under section 22 of the Act which states that:

‘in a criminal action, a presumption operates against the accused as to a fact which is essential to guilt only if the existence of the basic facts that give rise to the presumption are found or otherwise established beyond reasonable doubt...’

In other words, notwithstanding the purely civil nature of this suit, since an allegation of criminality has been made it ought to be proved beyond reasonable doubt. And did the Plaintiff do that?

 

Plaintiff’s Exhibit ‘B’ is a letter to DVLA for a transfer of ownership to one Alidu Baba Issa purportedly from Plaintiff. The first question is as Plaintiff did not even know about the sale of the vehicle how did it write this letter for transfer of the ownership of the vehicle? A look at the letter head that Ex ‘B’ was written on shows it is from a company called M. N Est Metals Company. This must be compared with Ex ‘C’ from N. N. Est Metals. Surely if Plaintiff authored Ex ‘B’ it would not have gotten its own name wrong on its letter head. Defendant was confronted with this during cross examination in the following:

Q: Look at Ex ‘B’ attached to the witness statement of Plaintiff, could you explain why there is a transfer letter from a company similar to the name of the Plaintiff, if the Plaintiff does not give you a transfer letter

A: They have never given us a transfer letter. We requested for a transfer letter but they said no

Q: Still on Ex ‘B’ can you explain where this letter comes from

A: We do the transfer letter. I have sold about six vehicles, but they have never given us a transfer letter

Q: I suggest to you that if you had asked Plaintiff for their letter head, they would have given it to you but because you were aware that what you were doing was wrong you falsified a letter head bearing the name M. N. Est

A: No my Lord, that is not correct”.

 

From the above Defendant admitted that Plaintiff did not give him the papers on the vehicle and his explanation for Ex ‘B’ and the other documents presented to DVLA was that Plaintiff had refused to give the ownership documents. Plaintiff was the owner of the vehicle and if it had not released the vehicle documents to defendant that does not provide a license to Defendant to coin his own letter head and documents and transfer the vehicle? The only reasonable inference is that it had sold the vehicle and wanted to keep the money without the knowledge of Plaintiff and hence its conduct of producing Ex ,B’ and ‘D’ to transfer ownership, which is a criminal act punishable under the Criminal and Other Offences Act, 1960, Act 29. If ownership of the vehicle was vested in Plaintiff and it had not given its consent for any transfer, how would transfer of same had been possible had not been the presentation of Ex ‘B’ and ‘D’ to DVLA by Defendant. And he made an admission that they emanated from him. In the absence of any authorization from Plaintiff the Defendant was not entitled to have caused a transfer of the vehicle. I find as fact that Defendant forged the documents of the vehicle to transfer same.

 

Plaintiff ask for damages for that falsification. How has Plaintiff been injured or adversely affected save for its monies that were denied him and which this court has held that it was entitled to. The falsification was to enable Defendant hide from Plaintiff the sale of the vehicle but I fail to see the specific harm besides the monies that were denied it that the falsification of the vehicle documents had caused to Plaintiff. Damages that is being sought which I think is in the nature of special damages for fraud will accordingly be dismissed. I however find it just to award general damages which is usually a nominal one and at large to Plaintiff.

 

For the principles governing the award of general damages see ANDREAS BSCHOR v BIRIM WOOD COMPLEX J4/9/2015 dated 22/03/2016 wherein Pwamang JSC noted at page 16 of the judgment as follows:

“The settled position of the law is that General Damages are at large, meaning the court will award a reasonable amount having regard of the circumstances of the case. A court may award nominal damages under General Damages where no real loss has been occasioned by the infringement of a right, or award substantial damages where actual loss has been caused to the plaintiff”.

See also ATTORNEY-GENERAL V. FAROE ATLANTIC CO. LTD [2005-2006] SCGLR 271 Dr. Twum JSC.

 

I will award damages of GH¢8,000.00. And in awarding cost and guided by Order 74 rules 2 and 4, I will award cost of GH¢8,000.00 in favour of Plaintiff.