OBAK AUTOMOBILE LTD vs NANA KWESI KODUA ENTERPRISE & ANOTHER
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT (COMMERCIAL DIVISION)
    ACCRA - A.D 2018
OBAK AUTOMOBILE LTD - (Plaintiff)
NANA KWESI KODUA ENTERPRISE AND ANOTHER - (Defendants)

DATE:  26 TH MARCH, 2018
SUIT NO:  CM/BDC/0857/16
JUDGES:  GEORGE K. KOOMSON JUSTICE OF THE HIGH COURT
LAWYERS:  K. AMOFA AGYEMANG FOR PLAINTIFF
JUDGMENT

 

A brief background to the procedural history of this case is necessary so as to highlight the conduct of the defendants. On 9th December, 2016, the Plaintiff issued a Writ of Summons against the Defendants asking for the following reliefs:-

A declaration that the refusal or failure of the Defendants to make instalment payments on the buses amount to a breach of the parties Hire Purchase Agreement dated 22nd January, 2014.

An Order compelling the Defendants to pay all outstanding indebtedness on the buses with interest from 30th June, 2014.

An Order for recovery of possession and judicial sale of the buses to defray part of the debt owed by the Defendants to the Plaintiff.

General damages for breach of contract.

Costs

 

On the 13th December, 2016, the Defendants were served with the said Writ of Summons. Then on the 19th December, 2014, the Defendants entered appearance through their solicitor Elvis Ofori Asante.

The Defendants then filed a statement of defence on the 19th January, 2017. The case was then referred to a pre-trial judge for settlement in accordance with the rule of Court, that is, Order 58 rule 4(5) of C.I 47. The parties failed to reach a settlement. The case was accordingly referred to this court for trial. On the 19th June, 2017, the suit was called for the trial process to begin. The parties were absent. Counsel for the Plaintiff was present. Counsel for Defendants was however absent. The court ordered parties to file and exchange documents within 8 days. Parties were further ordered to file their respective witness statements and check-lists within 21 days after exchanging documents within the 8 days.

 

In view of the fact that the Defendants and their counsel were absent from court, an order was made for the Plaintiff to serve a copy of the order on the Defendants for case management to be conducted. Despite being served with a copy of the order requiring them to file and exchange documents and a further order to file witness statements and check-list, the Defendants failed to comply with the said orders of the court. The court adjourned the case on several dates with hearing notice being ordered to be served on the Defendants. The Defendants, having been served with several hearing notices failed to file their witness statements and further failed to attend court for the case management. On the 23rd February, 2018, after satisfying itself that the Defendants were not interested in filing their witness statements and also in attending court for the case management, the court proceeded with the matter and concluded case management. In accordance with the rules of Court, the statement of defence filed by the Defendants was struck out. The Plaintiff was ordered to prove its’ case on the 7th March, 2018 with hearing notice being ordered to be served on the Defendants. Once again, the Defendants, despite being served with hearing notice failed to attend court. The Plaintiff was therefore allowed to state its case.

 

The case of the Plaintiff is that, sometime in January, 2014, the Plaintiff entered into a Hire-Purchase Agreement with the defendants for the purchase of two (2) passenger buses at a price of USD 80,000.00 per a unit bus. The total cost of the two buses was USD 160,000.00. Per the agreement the defendants were to make an initial deposit of USD 50,000.00, which sum the Defendants paid. The parties further agreed that the Defendants were to pay the balance outstanding (USD 110,000.00) over a period of 12 months by monthly instalments. This principal sum was to be paid with interest. It is further the case of the Plaintiff that the Defendants issued post-dated cheques to the Plaintiff for the payment of the outstanding balance and interest. The Plaintiff contended that all the post-dated cheques issued by the Defendants, with the exception of two of them which were stopped by the Defendants, were dishonoured on presentation at the bank. The Plaintiff contends that it brought to the attention of the Defendants the fact that all the cheques issued by them had been dishonoured.

 

It is the case of the Plaintiff further that the Defendants did not take any step to settle their indebtedness to the Plaintiff. By September, 2016, the Plaintiff contended that the Defendants were indebted to the Plaintiff in the sum of USD 128,000.00. The failure of the Defendants to settle this amount is the basis for the present action. The general rule is that 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. This is the essence of Section 14 of the Evidence Act, 1975 (NRCD 323), which provides that:

“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”.

The burden of persuasion has been explained in Section 10(1) of the Act as follows;

‘For the purposes of this Act, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court.”

 

The Supreme Court in applying this principle explained in the case of ACKAH v PERGAH TRANSPORT LTD [2010] SCGR 728 at 736 that”

“It is a basic principle of the 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. The method of producing evidence is varied and it includes the testimonies of the party and material witness, admissible hearsay, documentary and things (often described as real evidence), without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as a jury. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more probable than its non-existence. This is the requirement of the law on evidence under Section 10(1) and (2) and 11(1) and (4) of the Evidence Act, 1975 (NRCD 323).”

 

The Plaintiff in the instant case has the burden to prove that indeed the Defendants defaulted payment of the costs of the buses and that the total debt outstanding is USD 128,000.00. To do this the Plaintiff tendered in evidence exhibit ‘A’ ‘B’ and exhibit ‘C’. Exhibit A’ is the Hire-Purchase Agreement entered into by the parties. Exhibit ‘B’ is the Account Receivables on the Trade Debtors Buses as at 8th September, 2016 and exhibit ‘C’ are the post-dated cheques issued by the Defendants which were dishonoured. I have examined exhibit A’ carefully and I am convinced that the parties entered into a Hire-Purchase Agreement. I am also convinced that, short of any evidence to the contrary, the Defendants defaulted payments. Again, the Plaintiff has convinced this court that indeed the post-dated cheques issued by the Defendants were either dishonoured or stopped. There is evidence adduced by the Plaintiff to establish that the outstanding indebtedness of the Defendants stood at USD 128,000.00 as at September, 2014. In the circumstance, I grant the reliefs being sought by the Plaintiff.

 

The Plaintiff asked for general damages. It is noted that the object of an award of damages is to give the claimant compensation for the damage, loss or injury he has suffered. The statement of the general rule from which one must always start in resolving a problem as to the measure of compensatory damages, as a rule equally applicable in tort and contract, has its origin in the speech of LORD BLACKBURN in LIVINGSTONE v RAWYARDS COAL CO. (1880) 5 APP. CAS 25 at 39 where he stated:-

“That sum of money which will put the party who has been injured or who has suffered, in the same position as he would have been if he had not sustained the wrong for which he is now getting his compensation or reparation.”

 

In the instant case, the Plaintiff has established that the Defendants contrary to the terms and conditions of the Hire-Purchase Agreement are in breach of the Agreement by their failure to pay the balance on the cost of the vehicles. As has been stated earlier, the view of the law is that the innocent party should be entitled to damages and damages for a breach of contract committed by a Defendant are compensation to the claimant for the damage, loss or injury he has suffered through that breach: See also ROBINSON v HARMAN (1848) 1 EXCH. 850 at 855:-

In my view, since the Plaintiff is recovering the balance outstanding, it should be entitled to nominal damages as no actual loss was established by the Plaintiff. A violation of the right of the Plaintiff to its money does not however require any proof of special damages; See ASHBY v WHITE (1704) 2 LD, RYAM 938; CONSTANTINE v IMPERIAL HOTELS LTD (1944) KB 693.

 

Accordingly, I shall award to the Plaintiff damages assessed at GH¢15,000.00. The Plaintiff is to recover its costs against the Defendants assessed at GH¢7,000.00.

 

 

 

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