O.T.R. [GH] LIMITED vs. B.B. MOTORS [2006]DLCA6545

Date	2006-01-27
Suit No.	CIVIL APPEAL NO.H1/228/2005
Citation No.	[2006]DLCA6545

OWUSU-ANSAH J.A. [PRESIDING]

PIESARE J.A.

APALOO J.A.

MR. JOHN MERCER [ANDREW MERCER [BRIEF] FOR PLAINTIFF/APPELLANT

MR. ERICKSON ABAKAH FOR DEFENDANTS/RESPONDENTS

[2006]DLCA6545
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													<main id="main" class="content" style="min-height: 60rem" >O.T.R. [GH] LIMITED<o:p></o:p>(PLAINTIFF/APPELLANT)<o:p></o:p>vs.<o:p></o:p>B.B. MOTORS<o:p></o:p>(DEFENDANT/RESPONDENT)<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CIVIL APPEAL NO.H1/228/2005&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE:&nbsp;
27TH JANUARY, 2006.<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MR. JOHN MERCER [ANDREW
MERCER [BRIEF] FOR PLAINTIFF/APPELLANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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&nbsp;MR. ERICKSON ABAKAH FOR
DEFENDANTS/RESPONDENTS.<o:p></o:p>

</div>CORAM:<o:p></o:p>OWUSU-ANSAH J.A.
[PRESIDING] PIESARE J.A. APALOO J.A.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>&nbsp;PIESARE, J.A. &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>This
is an appeal against the Judgment of the High Court, Sekondi, dated 25th
February, 2005, delivered by Duose [J]. <o:p></o:p>The
plaintiff is a company registered under the Laws of Ghana, doing business of
the sale and repair of earthmover heavy tyres.<o:p></o:p>&nbsp;In about June, 2003 the plaintiff-company
discovered that four [4] of such tyres were missing from their Depot at Tarkwa.
The missing tyres were latter found fitted to a vehicle of the defendant
respondent, and when questioned, the defendant/respondent explained that they
bought the tyres at the plaintiff-appellant's said Depot at Tarkwa, from their
Depot Manager Mr. Sosu Richardson. The Plaintiff/Respondent asked for receipts
covering the sale, but the defendant/respondent explained that the Depot
Manager had promised to go and collect receipts for them at their Takoradi
Office but had not brought them yet.<o:p></o:p>&nbsp;Now, because the defendant/respondent failed
to produce any receipt covering the sale, the plaintiff/appellant denied the
alleged sale, and denounced same as a fraud. And instead of first reporting the
matter to the police to investigate the criminal circumstances as to how the
four tyres, which were under lock and key at the Tarkwa Depot, managed to be
fitted to the defendant/respondent's machine out of the Depot, the
plaintiff/appellant issued a Writ of Summons against the defendant/respondent
claiming:<o:p></o:p>&nbsp;Recovery of the 4 [four] tyres with interest. <o:p></o:p>The
relevant paragraphs of the plaintiff/appellant's statement of claim read as
follows: <o:p></o:p>Paragraph
1: "The plaintiffs are a company registered under the laws of the Republic
of Ghana, and engaged in the business of the sale and repair of earthmover
tyres."<o:p></o:p>&nbsp;2. "In or about June, 2003 the Plaintiffs
discovered that 4 of their earthmover tyres were in the possession of the
Defendants who had converted the same to their own use and thereby wrongfully
deprived and plaintiffs of same". <o:p></o:p>3.
"Waybills of Plaintiff/Company, namely No. 03134 dated 03134 dated
18/10/2001 and No. 1128 dated 3/7/02 " indicated fraudulently that the
said tyres had been supplied to Ghana Manganese Co. Ltd., and Goldfields Ghana
Ltd". <o:p></o:p>4.
"The Plaintiffs confronted the Defendants who alleged that they purchased
the 4 tyres from one Sosu Richardson a former Depot Supervisor in charge of the
Plaintiff’s depot at Tarkwa. The said Sosu Kweku Richardson is a friend to the
Managing Director of Defendant Company by name Bernard Owusu-Ansah. <o:p></o:p>5.
"The Plaintiffs will contend that there was no sale by the
Plaintiff/company of the 4 tyres in issue to the Defendants and there is no
record of payment by Defendants of the 4 tyres to plaintiff/company."<o:p></o:p>&nbsp;6. "The Defendants have also failed to
furnish any prove of payment to the Plaintiff/Company for the said 4
tyres."<o:p></o:p>&nbsp;7. "The Plaintiffs will further contend
that the Defendants came by possession of the said 4 tyres by fraud" as
they knew that or ought to have known that tyres ought to be paid for to the
Plaintiff/company and an official receipt by the Plaintiff/company issued to
cover any sale transaction in respect of the tyres." The Plaintiffs did
not give any particulars of the alleged fraud.<o:p></o:p>&nbsp;Now the defendant/respondents filed their
defence denying any Fraud. They bought the tyres officially, and gave details
of the instalment payments they made. See paragraphs 2-6 of the Statement of
defence. That the Depot Manager promised to go and collect receipts for them at
Takoradi, but they did not have the receipt.<o:p></o:p>&nbsp;At the trial, only the General Manager of the
Plaintiff/Company, gave evidence for the company. No officer of the Tarkwa
Depot was called to give evidence. There was no evidence as to how the
plaintiff/company investigated Sosu Richardson's involvement in the matter. At
the end of the day, the trial Judge dismissed the plaintiff/Company's claim, on
the ground that they had not established their claim well on the balance of
probabilities.<o:p></o:p>&nbsp;Now, it is against that judgment of the court
below, that this appeal has been brought, upon grounds: <o:p></o:p>