IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2016
THOMAS YALLEY - (Plaintiff)
MRS. ADUTWUMWAA & OR - (Defendants)
DATE: 24TH MAY, 2016
SUIT NO: OCC/12/15
JUDGES: ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
MARGARET MARY ADJEI TWUM FOR PLAINTIFF
NO LEGAL REPRESENTATIVE FOR DEFENDANTS
The Plaintiff in this case has sued the Defendants herein who have been described as mother and son for the recovery of GH¢16,000.00 and interest thereon paid to them. Alternatively, the Plaintiff is seeking recovery of an unregistered KIA K2700 being the vehicle the Defendants promised to sell to him.
The Plaintiff's case is that sometime in the year 2012 and after he had become acquainted with the Defendants, the defendants agreed to arrange with their relative abroad to purchase a KIA K2700 for him. As a result, the Plaintiff alleged that he paid a total amount of GH¢8,000.00 to the Defendants for the purchase and also paid the clearing charges but the Defendants refused to hand over the vehicle to him after the same had been cleared from the port.
The Defendants' also put up the defence that at the commencement of the transaction, the Plaintiff informed their relative who lives abroad on phone that the price range of the truck in issue was GH¢ 25,000.00 to GH¢40,000.00 in Ghana whereupon the Plaintiff was made to deposit GH¢3000.00. They did not dispute that a total payment of GH¢8000 was made to them towards the purchase of the vehicle but that the Plaintiff delayed in paying for the clearing charges and by the time their relative stepped in to save the situation, additional charges had been incurred by way of rent.
This court has to decide these issues:
1. Whether or not the Plaintiff paid sixteen thousand Ghana Cedis (GH¢16,000.00) to Defendants to purchase a vehicle for him?
2. Whether or not the Defendants engaged a clearing agent to clear the said vehicle?
3. Whether or not the Defendants purchased the vehicle for the Plaintiff?
4. Whether or not the Plaintiff is entitled to his claim?
This being a civil suit, the Plaintiff bears the burden of proof of the assertions contained in his statement of claim which have been denied by the Defendants. He is required to adduce credible evidence, documentary, oral or both to satisfy the mind of the court that his assertions are true. If he is able to do so, the burden of persuasion will shift to the Defendants to introduce evidence to the contrary. In the event that the Defendants fail to introduce credible evidence which outweighs that of the Plaintiff, the Plaintiff will be deemed to have succeeded in proving his assertions. That is because by the provisions of sections 11(4) and 12 of the Evidence Act 1975, NRCD 323, the court is enjoined to assess all the evidence on record on the balance of probabilities and decide whose case is more favourable.
In Takoradi Floor Mills v Samir Faris (2005-2006) SCGLR 882 at page 898, Ansah JSC in delivering the judgment of the court explained the position as follows:
In law, all issues of fact in dispute are proved by evidence. It is a fundamental principle of evidence that he who asserts or claims an entitlement has the onus or proving the basis of that claim. According to the oft-cited case of Majolagbe v Larbi (1959) GLR 190, a party on whom a burden of proof lies proves an averment in his pleadings, capable of proof in a positive way, not merely mounting the witness box and repeating it on oath but by producing corroborative evidence that must necessarily exist if his averment were to be true."
At page 900 of the report, his Lordship made the following powerful pronouncement:
To sum up on this point, 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 preponderance of probabilities, as defined in section 12(2) of the Evidence Decree, 1975( NRCD 323). Our understanding of the rules in the Evidence Decree, 1975 on the burden of proof is that 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 have looked at the pleadings in the case before me and the onus of proof of the issues under consideration first rest on the Plaintiff. Has he been able to discharge that burden?
First, I will consider the issue of whether or not the Plaintiff paid GHS 16,000.00 to the Defendants to purchase a vehicle for him. In his evidence-in -chief, the Plaintiff said he paid an initial payment of GH¢3000 to the Defendants for the purchase of a KIA Frontier vehicle which is used in to carte sachet water. However, the 2nd Defendant requested for further monies because the vehicle they had acquired was bigger so in all, an amount of GH¢8000.00 was paid to the Defendants. After paying the money, the Plaintiff said the 2nd Defendant asked him how he would clear the car and he indicated he would sell his Astra vehicle and he did sell it. Upon the arrival of the vehicle at the Tema port, the Plaintiff testified that the 2nd Defendant told him the documents of the vehicle were with his father's agent who was demanding GH¢7,600.00. Thus, the Plaintiff paid GH¢7000.00 to the 2nd Defendant and four days later, he added GHS 400.00. In all, the Plaintiff said he paid a total amount of GH¢ 16,000.00 for the purchase and clearance of the vehicle. He prayed the court to order the Defendants to give the vehicle to him since the same was purchased and cleared with his money. Concluding, he told the court that the Defendants have refunded GH¢6000 to his lawyer since the commencement of this suit.
Under cross-examination, the Plaintiff denied the Defendants' suggestions that it was his failure to clear the vehicle which resulted in the extra charges by way of rent and he is expected to pay same before the vehicle can be released to him. In his answers, the Plaintiff was emphatic that he paid all the monies the agent demanded for the clearance to the 2nd Defendant on time and that all the documents were with the 2nd Defendant so he was not in any way responsible for any delay in clearing the vehicle. He also stresses that after the Defendants had come to his house to collect the initial GH¢7000 to be given to the agent, he could not tell whether they in fact paid it into the agent's account as being alleged. Again, he denied that the additional GH¢1000 was paid three months later to directly to the agent in Tema.
The sole witness called by the plaintiff described himself as the pastor of Freedom Power Chapel where the Plaintiff worships. He corroborated the Plaintiff's evidence that the defendants had requested for GH¢7600.00 to clear the car. He told the court that he obtained a loan of GH¢7000 and after verification from the Defendants , he gave the GH¢7000 to the Plaintiff who handed it to the 2nd Defendant in his presence. After about four months of the defendants' failure to comply with the agreement, PW1 said he personally approached the 2nd Defendant who confirmed that the car had been cleared but the Plaintiff had to make a top up payment of GH¢40,000.00 . He said the 2nd Defendant did not tell him he was going to give the money to an agent.
From the foregoing, the Plaintiff has established that he paid a total of GH¢16,000.00 to the Defendants for the purchase and clearance of a KIA truck and at this stage, the evidential burden shifts onto the Defendants to lead evidence to the contrary. When the 1st Defendant mounted the witness box, she said among other things as follows:
" The Plaintiff gave me GH¢8000.00 which I gave to my husband to purchase the car. My husband topped it up to buy the car. The Plaintiff also gave GH¢7000 to 2nd Defendant and I to be used to clear the car. The agent could not clear the car and we had to engage another agent to do so. We cannot find the first agent who is in Tema. The money the Plaintiff gave to my son and I for the buying and clearing of the car amounted to GH¢16,000.00. When the Plaintiff summoned us to court, my husband told him tom pay GH¢25,000.00 to us so he could take the car but he refused to do so. We have refunded GH¢7000.00 to the Plaintiff's lawyer. We are to refund a further GH¢1000 to the Plaintiff. The Plaintiff is not entitled to the car."
On the part of the 2nd Defendant, he gave evidence to the effect that the Plaintiff told his father that the price of the vehicle he wanted ranged from GH¢25,000 to GH¢40,000.00 and when the vehicle arrived, the Plaintiff ought to have paid GH¢7,600.00 as duty but he was able to raise GH¢7,000.00 and it took him three months to pay the remaining GH¢600.00. Continuing, the 2 nd Defendant said his father shipped another car so he gave the bill of lading to one person. However, when he gave the bill of lading to the Plaintiff, he said he did not have an agent so the 2nd Defendant's father's agent should go ahead to clear the car on his behalf. He tendered the documents used in clearing the vehicle as exhibit 1. In cross-examination, he told the court that even though the price of the vehicle was not known, they did not demand any money from the Plaintiff after payment of the GH¢8000.00.
The evidence of the 1st Defendant corroborates that of the Plaintiff that the defendants received a total amount of GH¢16,000.00 for the purchase and clearance of the vehicle in issue. It can also be inferred from the evidence of the 2nd Defendant that they received the sum of GH¢8000 from the plaintiff for the purchase of the vehicle in issue and a total amount of GH¢7,600 was paid to them in two tranches for the clearing of the vehicle. These two payments sum up to GH¢ 15,600 as opposed to the GH¢16,000.00 indicated by the Plaintiff and the 1st Defendant.
In paragraph 12 of the statement of defence of the Defendants, they averred that the agent initially charged GH¢7000.00 but later changed it to GH¢8000 due to the exchange rate differential. So it was not by accident that the 1st Defendant testified that the Plaintiff paid GH¢16,000.00 to them for the purchase and clearing of the vehicle.
The Defendants have been unable to discredit the evidence of the Plaintiff as regards the monies paid by the Plaintiff for the purpose referred to above. Having weighed all the evidence adduced by the parties, I find the Plaintiff's version that he paid GH¢8,000 in tranches for the purchase and GH¢8000.00 for clearing to be more probable than not. It is very convincing and I accept the same. I therefore find that the Plaintiff paid the sum of GH¢16,000.00 to the Defendants for the purchase and clearance of the vehicle in issue.
The next issue is whether or not the Defendants engaged a clearing agent to clear the said vehicle?
Exhibit 1 contains the bill of lading in respect of a KIA K2700 Sequoia Truck. The name of the importer corresponds to that of the 2nd Defendant and it can be reasonably inferred that the 2nd Defendant is the importer referred to therein. That being the case, it was only the 2nd Defendant who could engage an agent to clear the vehicle or clear it himself. Therefore, the 2nd Defendant's story that he gave the documents to the Plaintiff and offered him the opportunity to engage a clearing agent is of no consequence. Besides, the defendants have told the court that the agent who demanded GH¢7,600.00 was a person whom they had ever done business with and that the Plaintiff gave his blessing to the appointment of that particular agent.
On the totality of the evidence before the court, more particularly exhibit 1, the Defendants have failed to show that it was the Plaintiff who engaged the clearing agent. Since the 2nd Defendant was the importer and it was incumbent upon him to have the car cleared from the port, and in the absence of documentary evidence of any amendment to the manifest, I find that it was the 2nd Defendant who engaged the agent to clear the vehicle which he had imported into the country.
Hence, the 2nd defendant is liable for the actions and inactions of his agent. So, if additional charges were incurred by virtue of the delay in clearing the car as evidence by exhibit 1, that was through no fault of the Plaintiff.
Looking at the Manifest which forms part of the exhibit 1 series, the consignment in respect of which the taxes were generated included the vehicle in issue and eight (8) "Used Outer Covers". I believe these were considered in generating the applicable taxes. I proceeded to sum up the taxes and charges which appear on the receipt issued in the name of the 2nd Defendant at a time the consignment was being cleared by Inter cargo services Ltd on 21/03/2014 as per the exhibit 1 series. The total figure arrived at was GH¢7,991.02 and that is close to the GH¢8000 paid by the Plaintiff to the Defendants.
From the Manifest, the consignment arrived on 18/10/2013 and so if the Plaintiff paid GH¢8000.00 to the 2nd Defendant within a reasonable time after having been notified of the arrival, that amount was sufficient to pay for the duty and handling charges at that time.
There is evidence as per the exhibit 1 series that Safebond Car Terminal Ltd, Tema, charged an amount of GH¢4,449.73 as rental charges when the vehicle could not be cleared within the stipulated period. Specifically, those charges covered a period of 120 days from 24/02/14 to 23/06/14. Given that the ship arrived in Ghana on 18/10/13 as per the exhibit 1 series, even if the Plaintiff had made the final payment of GH¢1000 after three months as alleged by the 2nd Defendant, that would have been on or about 18/01/14. Yet, the rental charges started from 24/02/14 by the 2nd Defendant's own showing.
Therefore, if the clearing agent engaged by the 2nd Defendant failed to do his work within a reasonable time and extra expenses have been incurred, how does that become a liability to the Plaintiff? I cannot see my way through to fix any such liability on the Plaintiff.
Was the vehicle purchased for the Plaintiff? That is the third issue to be determined. By the pleadings and evidence of both parties, they agree that the Plaintiff paid monies to the Defendants for the purchase of a KIA truck from abroad. The Defendants' subsequent act in collecting GH¢8000 from the Plaintiff and giving the same to a clearing agent is indicative of the fact that the vehicle was purchased for the Plaintiff and I so find.
Finally, is the Plaintiff entitled to his claims? From the reliefs endorsed on the writ of summons, the plaintiff wants either a refund of the monies paid or the vehicle. The evidence on record shows that an amount of GH¢7000 has already been paid to the Plaintiff's lawyer who has accepted the same. Therefore, the Plaintiff is entitled to a refund of the GH¢9,000.00 difference.
Had the 2nd Defendant's agent cleared the vehicle within a reasonable period, for instance, one month from the date of the ship's arrival at Tema, which is 18/10/13, he would have taken steps to transfer ownership to the Plaintiff. One observation I have made is that the parties to the transaction did not keep record of the dates payments were made. The Defendants have denied the purchase price of GH¢8000.00 was paid to them in the year 2012. The Plaintiff who made the payment is unable to show which months in 2012 the monies were paid. Thus, the Plaintiff's claim that he paid the monies in the year 2012 is doubtful.
In awarding interest for loss of use of the Plaintiff's money, I am unable to use the year 2012 as the starting point. From the exhibit 1 series, the vehicle was released to the 2nd Defendant's agent on 24/06/14 after payment of the rental charges. The Plaintiff was patient enough for the vehicle to be cleared. The Defendants have not been candid in this business transaction with the Plaintiff. Taking into consideration the cordial relationship which existed between the parties prior to the importation of the vehicle in issue and having regard to the fact that GH¢7000.00 out of the GH¢8,000.00 given to the Defendants was a loan which attracted interest, I am inclined to award interest on the sum of GH¢16,000.00 less the GH¢ 7000 paid to counsel, from the end of June, 2014 till date of delivery of judgment. The Plaintiff is also entitled to post judgment interest on the outstanding amount of GH¢ 9,000.00 from the date of delivery of judgment till date of final payment.
Accordingly, judgment is entered in favour of the Plaintiff in the sum of GH¢9,000.00 and interest thereon at the prevailing bank rate from June, 2014 till date of delivery of judgment; and post judgment interest from the date of delivery of judgment till date of final payment. For the avoidance of doubt, the Bank of Ghana 91 days Treasury Bill rate is to be used as the prevailing bank rate.
I further order that the release of the vehicle in issue which was preserved during the pendency of the suit is subject to payment of the judgment debt and interests by the Defendants. If the Defendants fail to pay the judgment debt and interest, the vehicle could be attached and disposed of by judicial sale for payment of the judgment debt.
Cost of GH¢2,500.00 is awarded against the Defendants.