IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2016
DAVID AMPONSAH - (Plaintiff)
MICHAEL ADU BOAHENE, JOSEPH TWUMASI AND KOJO OKYERE - (Defendant)
DATE: 22ND DECEMBER, 2016
SUIT NO: OCC 73/2014
JUDGES: DR. RICHMOND OSEI-HWERE JUSTICE OF THE HIGH COURT
LAWYERS: FRANCIS KWABENA NYARKO FOR THE PLAINTIFF
On 5 February, 2014 the plaintiff herein instituted the instant action against the 1st Defendant herein. The 1st defendant prayed the court for the 2nd and 3rd Defendants herein to be joined to the suit. The application for joinder was granted and the 2nd and 3rd Defendants were joined to the suit. Subsequently, the Plaintiff amended his writ of summons and statement of claim. The reliefs sought per the amended writ of summons were as follows:
“a. An order for the recovery of GH¢ 11, 070.00 from the Defendant which sum represents the price of the Opel Astra Caravan he purchased from the Defendant and the expenses he has made on the vehicle which has turned to be fraudulent and passed no title to the Plaintiff
b. An order for the Plaintiff to go into account with the Defendant for GH¢ 25.00 the driver was making everyday including Sundays from the time the Opel Astra was seized from the driver up to the time the Defendant will pay him the amount he has spent on the Opel Astra Caravan.
c. Damages for breach of contract.
d. Any other relief deemed appropriate by the Honourable Court.”
The 2nd Defendant herein entered an appearance on 13/08/2014 and filed a statement of defence on 20/08/2014. In the statement of defence, the 1st Defendant denied liability to the plaintiff’s claim on the basis that he bought the vehicle from the 2nd Defendant and that he conducted due diligence to ensure that the documents were genuine before selling same to the plaintiff. He also averred that the 2nd Defendant will be in a position to assist the court determining the authenticity of the documents.
The 2nd Defendant also denied liability to the plaintiff and stated in his statement of defence that he only acted as an intermediary for the 1st Defendant in the sale of the vehicle to the plaintiff. He also emphasised that he had never owned the vehicle in question and said that he is not in a position to ascertain the authenticity of the documents covering the vehicle.
It is important to note that the 3rd Defendant did not enter an appearance in spite of the service of the court processes on him by substituted service.
After unsuccessful attempts at settlement, four issues were set down for trial namely:
Whether or not the documents covering the Opel Astra Caravan with Registration No. GR 1219-12 given to Plaintiff was fake;
Whether the vehicle in issue belonged to 1st Defendant and 2nd Defendant only acted as intermediary for the 1st Defendant for the sale to Plaintiff;
Whether or not the sale agreement was between Plaintiff and the 1st Defendant; and Whether the Plaintiff is entitled to the reliefs endorsed on the Writ.
It is observed that per the Court’s records, counsel for the 1st and 2nd Defendants were duly served with hearing notices to attend court for the trial to commence but both defendants and counsel failed to show up. This is evidenced by some of the affidavits of service sworn on 17/06/2016; 11/11/2016 and 21/11/2016.
With the continuous absence of the Defendants, the court had no option than to proceed with the case under order 36 rule 1(2)(a) of the High Court (Civil Procedure) Rules 2004, CI 47. It states:
Rule 1(2) where an action is called for trial and a party fails to attend, the trial judge may;
a. Where the plaintiff attends and the defendant fails to attend, dismiss the counterclaim, if any, and allow the plaintiff to prove the claim.
On the basis of the rule, the plaintiff was allowed to prove his claim on the 16/11/2016. The Plaintiff gave a detailed account of his encounter with the 1st and 2nd Defendants and the cost incurred in having the vehicle in issue overhauled and put into good condition following the purchase as well as the expenditure involved in registration. The Plaintiff said on the 2/07/2012 he decided to buy a vehicle so he went to Suame Roundabout. There, he met the 1st Defendant who was selling his car- an Opel Astra Caravan type with registration number GR-1219-12. That they bargained and agreed at the price of GHC 9,500 and on 5/07/2012 he made payment to the 1st Defendant. Plaintiff tendered the receipt evidencing sale of the vehicle and same was admitted and marked Exhibit A. Plaintiff stated further that a friend of his by name Michael Amoako signed as his witness to the transaction and that the 2nd Defendant, Joseph Twumasi appended his signature for the 1st Defendant. Plaintiff also stated that the 1st defendant handed the car documents to him. He tendered the documents in evidence and the same were marked Exhibits B, B1-B9.
Plaintiff also led evidence in respect of the cost incurred on the vehicle subsequent to the purchase.
From his evidence, he catalogued the expenditure as follows:
Transfer of Document GHC 150
Painting of Vehicle GHC 450
Changing of Tyres and Rim GHC 250
Changing of Private to Commercial Vehicle GHC 80
Interior Lining GHC 120
Purchase of Jack and Warning Triangle GHC 45
Battery GHC 210
Petrol Tank GHC 250
The plaintiff told the Court that on 9/09/2013 the vehicle was impounded by CEPS officials and that it is parked in their yard at Aboabo, Kumasi. He also stated that the CEPS officials informed him that the documents covering the vehicle were fake. He tendered exhibit C which is the document given to him by the CEPS officials after they had impounded and detained the vehicle.
Plaintiff also told the court that the vehicle was making a daily sale of GHC 25 prior to the impoundment.
After the end of the evidence-in-chief on 16/11/2016 the court ordered hearing notices and the Court notes to be served on the 1st and 2nd Defendants so they may cross examine the plaintiff on the 22/11/2016, the next adjourned date.
On the 22/11/2016, the 1st and 2nd Defendants failed to appear despite the service of hearing notice on their lawyer. Plaintiff was consequently discharged.
Plaintiff called Michael Amoako as his witness. He identified his signature on Exhibit A and confirmed that he served as a witness for the Plaintiff in the transaction. He also confirmed that it was the 1st Defendant who sold the vehicle in dispute to the Plaintiff at the price of GHC9,500.
The crux of the case is that the plaintiff is demanding a refund of the purchase price of the vehicle with interest as well as the consequential cost incurred in the purchase. He is also praying to be compensated for loss of earnings generated by the commercial operations of the vehicle as well as general damages.
To succeed in his claim, the plaintiff is required to prove his case to the required standard in civil suits, that is by the preponderance of probabilities as required by sections 11(4) and 12 of the Evidence Act, 1975 NRCD 323. The Plaintiff’s burden of proof is not dispensed with despite the fact that the Defendants chose not to participate in the trial. In other words, the Plaintiff must demonstrate to the satisfaction of the court that his case is more probable than not, else he loses. Thus, in Takoradi Flour Mills v Samir Faris [2005-2006] SCGLR 882 at 884, the Court held as follows:
“It is sufficient to state that being a civil suit, the rules of evidence require that the Plaintiff produces sufficient evidence to make out his claim on a preponderance of probabilities, as defined in section 12 (2) of the Evidence Decree, 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.”
I shall proceed to discuss the issues to ascertain whether plaintiff has led cogent evidence to establish his claim.In doing so, I shall tackle the second and third issues together since they are intrinsically linked together.
Are the documents covering the vehicle fake?
Plaintiff tendered Exhibits B, B1, B2, B3, B4, B5, B6, B7, B8 and B9, the documents covering Opel Astra with registration No. GR 1219 –12. Apart from his bare assertion that the documents arefake, plaintiff did not lead any cogent evidence to establish that the documents are indeed fake. These are Driver and Vehicle Licensing Authority (DVLA) and Customs, Excise and Preventive Service (CEPS) documents. The documents contain official stamps and signatures of public officials who work for the afore-named institutions. To controvert their authenticity, it would have been prudent for plaintiff to call officials of the institutions involved to testify.
It appears the Plaintiff’s judgment in respect of the Exhibit B series is influenced by Exhibit C, the document evidencing the detention of the vehicle in issues. Be that as it may, it is clear on the face of Exhibit C that the vehicle has been detained on suspicion of being an uncustomed vehicle. It is my considered opinion that mere suspicion does not make the owner culpable.
Who owned the vehicle prior to the sale?
It is clear from the record that the 1st defendant owned the vehicle prior to the sale. Exhibit A shows clearly that the 1st defendant was the vendor of the vehicle and the 2nd defendant only acted as a witness to the sale. The transaction was between the plaintiff and the 1st defendant. The transfer of ownership documents, Exhibits B and B1 were executed between the plaintiff and 3rd defendant. The
2nd defendant only acted as an intermediary in the whole transaction. The issue of ownership of the vehicle and the sale agreement is best addressed by the plaintiff in his testimony as follows:
‘‘On the 2nd day of July, 2012 I decided to buy a car so I went to Suame Roundabout where they sell cars. There, I met Michael Aduboahene who was selling his car. The car was Opel Astra Caravan type. It was a private car with registration number GR 1219 – 12. We bargained and settled the price at GHC 9,500. I had no money so I promised to make payment in three days i.e. 15th July, 2012.’’
Plaintiff’s testimony was corroborated by PW1 who also acted as a witness in the transaction.
It therefore goes without saying that the 2nd Defendant was not party to the transaction and as such can not be liable for any breach.
Is the plaintiff entitled to the reliefs sought?
Counsel for the plaintiff made an allegation of fraud against the 1st defendant in his written submission. He stated as follows:
‘‘In the instant case the Plaintiff maintained that the Defendant sold uncustomed Opel Astra Caravan to him and provided fake documents to him and that is the reason why the vehicle was impounded by CEPS. We humbly pray that the Honourable Court grant the reliefs endorsed on the Writ of Summons and mulct the Defendants with punitive cost since they have made the poor teacher suffer without just cause.’’
Indeed, fraud goes to the root of every transaction. A fraudulent contract is void or at best voidable. In an action, fraud must, however, be specifically pleaded and strictly proven. The criminal nature of fraud requires proof beyond reasonable doubt even in civil cases. Section 13(1) of the Evidence Act, 1975 NRCD 323 provides:
‘‘Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities.’’
In the instant case, the plaintiff failed to plead the allegation of fraud but as rightly pointed out by learned counsel, once fraud is apparent on the face of the record it cannot be ignored by the court. This was affirmed by the Supreme Court in Apea v Asamoah [2003-2004] SCGLR 226, 243 when it held:
‘‘Ordinarily fraud should be pleaded. It was not pleaded in the instant case notwithstanding the rules on pleadings, the law is that where there is clear evidence of fraud on the face of the record the Court cannot ignore it.’’
It is apparent on the face of the record that the Plaintiff did not lead any cogent evidence to establish the allegation of fraud against the defendants. In the absence of any piece of evidence to the contrary, Exhibit B series could aptly be described as authentic documents emanating from state agencies. There is no evidence on record to suggest that the documents were forged by the defendants. In the result, I hold that the defendants’ complicity for fraud is not apparent on the face of the record. Consequently, the contract for the sale of the vehicle cannot be held to be vitiated by fraud.
Now the profound question is: is the 1st defendant liable for any breach of contract?
Section 10(1) of the Sale of Goods Act, 1962 (Act 137) provides:
‘‘In a contract of sale there is an implied warranty on the part of the seller that he will have a right to sell the goods at the time when the property is to pass.’’
Section 49(1) of Act 137 also provides:
‘‘Subject to the provisions of this Act the buyer is entitled to reject the goods and to refuse to pay, or as the case may be, to recover, the price where —
(a) the seller is guilty of a breach of a fundamental obligation; or
(b) the seller is guilty of a breach, not being of a trivial nature, of a condition of the contract, whether the breach is in respect of all of the goods or, subject to subsection (2), of part only; or
(c) the buyer has entered into the contract as a result of fraudulent or innocent misrepresentation on the part of the seller.’’
My understanding of the combined effect of these provisionsas well the 1962 Act as a whole is that there is an implied condition as to title of the seller. The provisions also supplement the implied condition as to title by providing for two implied warranties: first, that the goods are, and will remain free from any undisclosed encumbrances and, secondly, that the buyer will enjoy quiet and undisturbed possession. These are statutory implied terms that are characterised as warranties.
In Mason v Burningham  2 KB 545, CA, the plaintiff bought a secondhand typewriter which turned out to have been stolen and had to be returned to its rightful owner. The plaintiff was awarded by way of damages not only a refund of the purchase price, but also a sum which she had reasonably (in the view of the court) paid to have the typewriter overhauled and put into first class condition following the purchase.
In the instant case, there is a breach of statutory warranty by the 1st defendant as the plaintiff’s possession of the vehicle is disturbed by the act of a third party(CEPS) who asserts a right which impairs the plaintiff’s title and his freedom to possess and use the vehicle. In fact, the vehicle has been in the custody of CEPS since 29/04/2014 as evidenced by Exhibit C and the 1st Defendant who happens to be the seller has not retrieved the vehicle for the Plaintiff. I therefore conclude that the 1st Defendant is liable to pay the purchase price of GHC 9500 to the plaintiff plus interest at the prevailing Bank rate from 29/04/2014 when the vehicle was detained by CEPS till the date of final payment.
Is the plaintiff entitled to general and special damages?
Section 55 of the Act 137 makes provision for damages for breach of warranty as follows:
‘‘Where the seller is guilty of a breach of his fundamental obligation or of a condition or warranty of the contract the buyer may maintain an action against the seller for damages for the breach complained of or may set up a claim to such damages in diminution or extinction of the price.’’
The law is that general damages lie for every infringement of an absolute right. The Supreme Court held in the case of Delmas Agency Ghana Ltd v Food Distributors International Ltd [2007/2008] SCGLR 748, 760 thus:
‘‘General damages is such as the law will presume to be the probable or natural consequences of the defendant’s act. It arises by inference of law and therefore need not be proved by evidence. The law implies general damages in every infringement of an absolute right. The catch is that only general damages are awarded …
Where a plaintiff has suffered a properly quantifiable loss, he must plead specifically his loss and prove it strictly. If he does not he is not entitled to anything unless general damages are also appropriate.’’
Also, in AG v Faroe Atlantic Co. Ltd (2005/2006) SCGLR 271, Dr Seth Twum again stressed on the measure of damages for breach of contract in these words:
“A claim for damages for breach of contract would only entitle a plaintiff to nominal damages unless the plaintiff gave particulars of special damages. The court would not order particulars of general damages which were such as the law would presume to be the natural or probable consequences of the defendant’s act, arising by inference of law, and therefore not necessary to be proved by evidence. Hence, general damages might be averred generally…”
In the instant case the plaintiff avers that he is entitled to general damages resulting from the breach. He also pleaded special damages in respect of the cost incurred on the vehicle subsequent to the purchase as well as loss earnings resulting from the breach. Plaintiff made another bare assertion that he was making GHC 25 a day from the commercial operations of the vehicle and prayed the court for compensation. The plaintiff also catalogued the cost incurred in repairing the vehicle for use. He however failed to back his claim with documentary evidence.
By the preponderance of the evidence on record, I hold that the plaintiff is entitled to general damages for breach of contract and nothing more. In deciding the quantum of damages, I am mindful of the fact that I have early on made an award for the refund of the purchase price plus interest. The award of interest in particular ought to be reasonable compensation for the loss suffered by the plaintiff as a result of the breach.
From the foregoing, I award GHC 2000 as damages against the 1st Defendant in favour of the plaintiff.
I have taken into consideration the provisions of order 74 of C.I. 47 on award of cost. I have taken cognisance of the expenses incurred (including lawyer’s fee) in prosecuting this case by the plaintiff.
Accordingly, I award cost of GHC 6000 against the 1stDefendant and in favour of the Plaintiff.