IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2018
NANA DWAMENA MENSAH - (Plaintiff)
CHRISTIAN AKWETEY - (Defendants)
DATE: 12 TH APRIL, 2018
SUIT NO: OCC/17/17
JUDGES: ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
SARFO GYAMFI FOR PLAINTIFF
LESLIE AMEDIOR FOR AKWASI ARHIN FOR DEFENDANT
This case arose from an excavator rental agreement that the parties herein entered into on 12/02/2016 which has gone bad. The Plaintiff’s case is that the parties mutually agreed that the Defendant shall hire Plaintiff’s wheel loader caterpillar 966 at the total sum of GHC 1200.00 for eight hours per day. The Defendant conveyed the excavator to his site, but complained of some minor mechanical problems which the Plaintiff fixed.
Over the period, the Plaintiff said he spent a total amount of GHC 10,000.00 in fixing the excavator, but apart from the initial deposit of GHC 1200.00, the Defendant has failed to abide by the agreement. It is as a result of these background facts that the Plaintiff is seeking from the Court:
a) An order compelling the Defendant to return the Plaintiff’s caterpillar wheel loader 966 machine that was hired to the Defendant at his instance on 12/02/2016 in a motorable state.
b) An order compelling the Defendant to pay the total sum of GHC 144, 0000 same being the total sums of money in respect of the hiring and usage of Plaintiff’s caterpillar wheel loader 966 between 12/02/2016 and September 2016.
c) Damages for breach of contract.
These claims were denied by the Defendant, who alleged that upon hiring the excavator, he noticed that it had so many mechanical faults and he brought the same to the attention of the Plaintiff. Upon the instructions of the Plaintiff, the Defendant alleged that he expended his own money in fixing some of the mechanical faults but the problems persisted and the machine could not work so as to generate the needed revenue to pay the Plaintiff.
By way of Reply, the Plaintiff denied the Defendant’s assertions that the machine could not be used because of the persistent mechanical faults. He averred that he went to the town where the Defendant was operating and a Beer Bar Keeper confirmed to him that the Defendant parked the machine close to the Bar at the close of work each day and sent same to work on his site every morning. He again averred that another young man informed him that the Defendant was renting out the machine at an hourly rate of GHC 300.00. As a result of these activities, the Plaintiff contended that the tyres of the machine became faulty and he had to buy additional 18 bolts for the repairs. Again, he contended that there was an arbitration before the Defendant’s wife’s father and the Defendant was told to place the machine at the Plaintiff’s disposal and also to pay for the number of days that he had used the machine.
The following issues were set down for trial by the pre-trial judge:
Whether or not the machine was in good working condition at the time the Defendant hired it?
Whether or not the machine developed mechanical fault during the period for which it was hired?
Whether or not the Plaintiff’s machine was parked at the Defendant’s site and was not in operation during the period in dispute to the knowledge of the Plaintiff?
Whether or not the Plaintiff is entitled to his claim?
WHETHER OR NOT THE MACHINE WAS IN GOOD WORKING CONDITION AT THE TIME THE DEFENDANT HIRED IT.
The Plaintiff maintained both in his pleadings and evidence-in-chief that the machine was in a good working condition at the time the same was hired out to the Defendant. This was denied by the Defendant in his statement of defence, and in his evidence before this court, the Defendant said the machine could not be started from the very first time he went to take possession of it. He was emphatic that insecticide spray had to be used to jump start the machine. During cross-examination, the Defendant repeated that the insecticide spray had to be used to start the machine because the engine was weak. The Plaintiff’s evidence on this issue is that the wheel loader’s starter became faulty after the Defendant had conveyed the machine and used the same to work on his site. This came to light during the cross-examination of the Plaintiff on 08/01/2018 as follows:
Q: I suggest to you that there has been several mechanical faults with the wheel loader, is that correct?
A: It is not true.
Q: Such that at a point in time, you asked the Defendant to conduct a complete overhauling of the wheel loader engine?
A: We have not discussed anything of that nature.
Q: You are aware that the wheel loader’s starter had developed some fault, is that correct?
A: The Defendant informed me. It was after he had used the machine that the machine developed a fault, not before he came for the machine.
Q: And as a result, you asked the Defendant to do all he could to procure a starter for the wheel loader, is that not correct?
A: That is so. Whenever you are coming for the machine, you are supposed to make a down payment of twenty days but in this instance, I only collected a day’s money instead of twenty days.
Q: So you agree with me that during all these period, the wheel loader has not been working?
A: It is not so.
Q: I suggest to you that the Defendant even had to effect repairs on the wheel loader at his own expense which you are yet to reimburse him?
A: That is so. What I know is that there was a fault with the starter and two pumps so he used his money to repair them. I never collected any money apart from a day’s deposit.
The Court takes judicial notice of the fact that wheel loaders are not customized equipment which cannot be found on the open market, either for purchase or rental so that a person will not have a Limited choice when it comes to rentals. The Defendant was not under any obligation to rent the Plaintiff’s machine, especially so, if it was faulty. An ordinarily prudent person will not rent a faulty machine and go through the stress of fixing it right from the first day of hire when such machines can readily be rented from other sources. More importantly, the evidence shows that the Defendant is a mechanic. Given his experience, he would have known the state of the machine before renting the same. And since he was to use it to generate income, he certainly would not have agreed to rent a faulty machine. Having assessed the evidence of the parties on this point, the court finds that the Defendant’s evidence that the machine was not in a good working condition at the time he hired it from the Plaintiff is very doubtful, it is indeed an afterthought.
WHETHER OR NOT THE MACHINE DEVELOPED MECHANICAL FAULT DURING THE PERIOD FOR WHICH IT WAS HIRED.
From the evidence of both parties, the machine developed a series of mechanical faults after the Defendant had conveyed it to his site. What is in dispute is the nature and extent of the faults. Whilst the Plaintiff maintains that the starter and tire bolts were the major faults, the Defendant insists that the engine had to be completely overhauled. The following transpired when the Plaintiff was cross-examining the Defendant on 08/02/2018:
Q: Tell the court the nature of the fault?
A: There were three faults in the machine: (i) the pump was not good; (ii) the engine was over heating and (iii) there was a problem with the transmission.
Despite the Plaintiff’s denial of the bad state of the engine after the rental, his own exhibits B and B2 speak to the contrary. Exhibit B is a cash/sales invoice indicating that on 20/02/2016, the Plaintiff purchased 6 pieces of Element; 6 pieces of valves, 6 pieces of injectors, among others. Exhibit B2 is a receipt of payment issued to the Plaintiff for a 3306 engine on 17/03/2016. The machine parts evidenced by the Plaintiff’s exhibits B and B2 are indicative of the fact that his wheel loader rented out to the Defendant developed an engine fault in the course of its operations and those faulty parts had to be replaced for the machine to work effectively. It is not in dispute that the Defendant rented or hired the wheel loader on 12/02/2016, so that if by 20/02/2016 the valves, injectors and other parts had to be replaced, then it becomes obvious that the Defendant could not use the machine for some period. DW1 and DW2 also testified about the faults in the machine as a result of which it could not work on their platforms. It is also on record that the plaintiff agreed that the Defendant should prefinance the repairs to the faulty starter. The Defendant’s oral evidence shows that on at least three occasions, he purchased different starters for the machine. This was what he said:
When I got home, Frimpong (the operator) called and said that the machine cannot work and that they have really tried starting the machine but they experienced great difficulty. I told him to take the machine to the washing bay and wash the radiator because the radiator may be choked. He later called me and told me that the machine could still not work even after washing the radiator. He told me that the starter is no more cranking. I told him to get an electrician to help look at it and he brought an electrician who said the starter was burnt so we must get a new starter. I went to Manso Nkwanta to have a look at it myself and I saw that the starter was truly burnt. The electrician gave us the contact of Abubakar Mohammed as the vendor of the spare parts and an electrician who could help us. Abubakar Mohammed gave us one of the starters and the following day we went to fix it. The operator tried starting the machine and in the process the starter also got burnt. I told the Plaintiff about it and he told me that he does to have money to get a new starter and he told me that if I have money I should get a new starter and go and fix it so when the machine works then he would refund it to me. So I went to see the electrician and got the starter. So we went to fix the starter and that starter also got burnt and I told the Plaintiff of this too. He told me that whatever I can do to make the machine work I should do it and that he will refund my money and so I consulted the electrician again and told him to help me out by providing us with a starter and also to accompany Frimpong and I to Manso-Nkwanta to fix the starter. He went with us and when we were cranking the machine with the mosquito spray, that starter also got burnt…
The Defendant exhibited evidence of the repairs he did as exhibits 1 to 6. From these exhibits, the parts were purchased on 28/02/2016, 01/03/2016, 8/03/2016, 29/03/2016, 01/04/2016 and 20/05/2016. It is reasonable to infer from both the oral and documentary evidence of the Defendant that the machine did not work for a considerable period from 20/02/2016 to on or about the third week of May, 2016, inclusive of the period for servicing. The Plaintiff himself was aware of the mechanical faults which impeded the operations of the machine. Whilst Plaintiff himself was cross-examining the Defendant on 17/01/2018, this was what transpired:
Q: I concede that when you came for the machine it broke down and had to be repaired. And that took about two months?
A: That is not correct.
DW2, confirmed that when the machine broke down on the site, the Plaintiff purchased various parts and had same repaired, whilst the Defendant also replaced the starter on about three occasions. At the tail end of the cross-examination of DW2, the following transpired between him and the Plaintiff:
Q: All the problems or faults in the machine were fixed and the machine has been parked at its present location because of the tyre tube and I have even bought a tube for you?
A: That is correct, I have already said in this court that whenever the machine was repaired another fault came up. The last fault that was detected was the faulty tube.
On the totality of the evidence before this court, it is more probable, than not, that the machine rented out to the Defendant suffered constant breakdowns as a result of mechanical faults between February and May, 2016. During that period, the Plaintiff purchased parts and the Defendant assisted in overhauling the engine. The Defendant also pre-financed the replacement and fixing of the starter. The court also finds that because the Defendant had expended money in fixing the machine, he worked with the same ostensibly to recoup his investment. If it were not so, the defendant would have returned the machine to the Plaintiff in terms of the agreement at the initial stages. Therefore, the submissions by counsel for the Defendant that the Plaintiff breached an implied warranty that the machine was fit for purpose will not hold. This is because with his mechanical background, the defendant knew, or ought to have known the status of the machine at the time he took possession of it, and considering the initial frequent breakdowns, he ought to have returned the machine to the Plaintiff. If the Defendant chose to abandon the machine after the same had been fixed without returning it to the same location where he picked it from, the Plaintiff was entitled to presume that the machine was being used in terms of the agreement. The Court concludes that even though the wheel loader developed some mechanical faults in the course of its operations, the faults were fixed as and when they popped up, and considering all the surrounding circumstances, the period that the machine was not put to use did not exceed three (3) months.
WHETHER OR NOT THE PLAINTIFF’S MACHINE WAS PARKED AT THE DEFENDANT’S SITE AND WAS NOT IN OPERATION DURING THE PERIOD IN DISPUTE TO THE KNOWLEDGE OF THE PLAINTIFF.
Having found that the period during which the wheel loader was grounded did not exceed three months from the date it was hired and that the Defendant worked with it to recoup his investments, the issue as to whether it was parked at the Defendant’s site throughout the period of the transaction and was not in operation has been resolved. The Court concludes that to the knowledge of both parties, the wheel loader worked for a considerable period before the same was moved to current location at Manso Atwedie. It was not parked for the entire period.
WHETHER OR NOT THE PLAINTIFF IS ENTITLED TO HIS CLAIMS?
To determine whether the Plaintiff is entitled to his claims, the court must weigh all the evidence on record and to decide whether the Plaintiff has made out his case on the balance of probabilities, else he loses. In Takoradi Flour Mills v. Samir Faris (2005-2006) SCGLR 882 (holding 5), the court stated the burden of proof in civil suit as follows:
It is sufficient to state that this being a civil suit, the rules of evidence require that the Plaintiff produces sufficient evidence to make out his claim on a balance of probabilities, as defined under section 12(2) of the Evidence Decree (Act), 1975 NRCD 323. In assessing the balance of probabilities, all the evidence, be it that of the Plaintiff or the Defendant, must be considered and the party in whose favour the balance tilts is the person whose case is the more probable of the rival versions and is deserving of a favourable verdict…
Whilst assessing the evidence, it is not the quantity of witnesses that matter, but the quality of their evidence and how credible the evidence is. Thus, in the Takoradi Flour Mills case referred to above, the Supreme Court after reviewing cases such as Republic v Asafu-Adjaye (No. 2) (1968) GLR 567, CA; and J Saba & Co Ltd v. Williams (1969) CC 52, came to the conclusion that:
Witnesses are weighed but not counted. Therefore, a tribunal of fact can decide an issue on the evidence of only one party. A bare assertion on oath by a single witness might in the proper circumstances of a case be enough to form the basis of a judicial adjudication. The essential thing is that the witness is credible by the standards set in section 80(2) of the Evidence Decree 1975. Therefore, when a party has named certain persons in his evidence-in-chief, the fact that he did not call all, or any of them, even though they were available, per se, would not prove fatal to the case of the party. The adjudicator has the whole of the oral evidence of the party and the documents tendered in evidence, if any, to consider for his decision…
In the case at hand, even though the Plaintiff mentioned in his evidence-in-chief that a Bar keeper informed him the Defendant normally parked the machine in issue by the beer bar and moved the same to his site to work on daily basis, the said bar keeper was not called as a witness. The Plaintiff did not also call any other witness but the Defendant called two witnesses. That notwithstanding, the Plaintiff has led credible evidence from which the assertions in his pleadings can be reasonable and safely inferred. Therefore, the failure to call other witnesses of fact is not fatal to the Plaintiff’s case.
From the evidence before this court, it has been established that the Defendant rented or hired the Plaintiff’s wheel loader on 12/02/2016 and moved the same on a low bed to a mining site; the rental charge was GHC 1200.00 per day; the Defendant was to use it for six days in a week excluding Fridays, which according to him were taboo days in the area; the Defendant was required to convey the machine away and to return it or pay a deposit; the Defendant only paid GHC 1200.00 being the rental charge for one day; and the Defendant has not returned the wheel loader to the Plaintiff’s premises in Kumasi where he took it from. The instant suit was commenced on 28/09/2016, and per the evidence, the machine had been parked at Manso Atwedie as of that time. However, both parties have not been forthcoming with the actual date the wheel loader was parked at its present location, but they are aware of the fact that at the time the Plaintiff came to court, the machine had been parked at its present location and it was not being used.
Even though the Defendant breached the agreement by not returning the wheel loader to the same place he took possession of it, the Plaintiff was also under an obligation to mitigate his losses when it came to his attention that the machine had been parked. One way of mitigating his losses was to remove the wheel loader from its present location and to surcharge the Defendant with the cost. That way, the deterioration that the Plaintiff now complains of would have been minimized, or avoided. Under the circumstance, the Plaintiff cannot claim rental charges for the entire period. He will be entitled to rental charges from 12/02/2016 to 19/02/2016; and 01/06/2016 to 28/09/2016 at GHS 1200.00 per day excluding Fridays; less the total expenses of GHC 5,830.00 incurred by the Defendant and the GHC 1200.00 rental charge paid at the commencement of the agreement. Therefore, the total number of days will be 109 days. When the 109 days are multiplied by GHC 1200.00 daily rental charge, the resultant figure is GHC 130,800. And when the GHC 5,830.00 and GHC 1200 are deducted from the GHC 130,800.00, the difference to be paid by the defendant is GHC 123,770.00. Accordingly, judgment is entered against the Defendant in favour of the Plaintiff in the sum of GHC 123,770.00.
It was the conduct of the Defendant that pushed the Plaintiff to come to Court. That apart, if the Plaintiff had been paid all the monies due him, he would certainly have made some profit out of it. Considering the circumstances of this case and guided by the Court (award of Interest and Post Judgment Interest) Rules 2005, C.I. 52, I award interest on the sum of GHC 123,770.00 from the date of the issuance of the writ of summons, 28/09/2016, to the date of delivery of judgment; and post judgment interest up to the date of final payment. The rate of interest shall be the prevailing bank rate and at simple interest. For the avoidance of doubt, the Bank of Ghana 91- Days Treasury Bill Rate shall be used as the prevailing bank rate.
Further, the Defendant is ordered to convey the wheel loader from its present location to the Plaintiff’s premises where he took it from within a period of seven (7) days from the date of this judgment. Costs of GHC 10,000.00 is awarded against the Defendant in favour of the Plaintiff.