PROPHET MARK OWUSU vs. MR. JOE [2010]DLCA3655

Date	2010-03-25
Suit No.	CIVIL APPEAL NO. H1/20/2009
Citation No.	[2010]DLCA3655

MARIAMA OWUSU (MISS) J.A. (PRESIDING)

F.G. KORBIEH J.A.

IRENE C. DANQUAH (MS.) J.A.

[2010]DLCA3655
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													<main id="main" class="content" style="min-height: 60rem" >PROPHET MARK OWUSU<o:p></o:p>vs.<o:p></o:p>MR. JOE<o:p></o:p>&nbsp;[COURT OF APPEAL, KUMASI]<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. H1/20/2009&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;&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: 25TH
MARCH, 2010<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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MARIAMA
OWUSU (MISS), J.A. (PRESIDING), F.G. KORBIEH, J.A. AND IRENE C. DANQUAH (MS.),
J.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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JUDGMENT<o:p></o:p>

</div>The plaintiff/respondent
(hereinafter simply referred to as the respondent) claimed against the
defendant/appellant (hereinafter simply referred to as the appellant) the
following two reliefs:<o:p></o:p>a.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The recovery of ¢41,000,000.00 being
the balance of a penalty in the sum of ¢51,000,000.00 which had been imposed on
Mercedes Benz bus (207) with registration number GR 9021 Q which vehicle the
appellant had sold to the respondent but which had been seized by the C.E.P.S.
for lack of import duties; or in the alternative, the current value of the
vehicle.<o:p></o:p>b.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; General damages for loss of use of
the said vehicle from the 28/4/2005 to the date of the final release of the
vehicle or judgment.<o:p></o:p>The respondent’s claim was grounded
on the averments in his statement of claim which may be summarized as
follows:&nbsp; the appellant sold a Mercedes
Benz bus (207) with registration number GR 9021 Q to the respondent in February
2004 for the sum of ¢33,500,000.00 but almost immediately the respondent had to
replace the vehicle’s engine at the cost of ¢10,000,000.00 plus other costs for
the refurbishment of the same; despite persistent demands by the respondent,
the appellant gave no documents on the vehicle to him save the road worthiness
certificate and insurance certificate; the respondent used the vehicle for
commercial purposes and got an amount of ¢700,000.00 on average from each trip
which was made twice a week thus making an amount of ¢1,400,000.00 per week;
the vehicle was impounded by C.E.P.S. on the 28/4/2005 and detained at Sunyani
and the penalty of ¢51,000,000.00&nbsp; was
imposed on it because it had been unlawfully imported into the country; the
appellant had failed to disclose this fact to him;&nbsp; the respondent therefore reported the
appellant to the police whereupon the appellant agreed to pay the penalty for
the vehicle to be released; the appellant later made part-payment of
¢10,000,000.00&nbsp; leaving a balance of
¢41,000,000.00 which the appellant has refused to pay despite repeated demands;
the vehicle was likely to be auctioned by C.E.P.S. without notice to the
respondent. <o:p></o:p><o:p>&nbsp;</o:p>The appellant responded to these
allegations in a statement of defence which may be summarized as follows: the
cost of the vehicle was ¢35,000,000.00 and the respondent paid only
¢28,500,000.00 and not the full price; the vehicle was sold with a perfect and
durable engine; all documents on the vehicle had been given to the respondent
with the proviso that the transfer of ownership would be effected only when the
full price was paid; from the respondent’s own calculations, he had made an
amount of&nbsp; ¢85,000,000.00 at the time the
vehicle was seized; the appellant had himself bought the vehicle from one Doris
Tetteh of Accra; after the arrest of the appellant he had managed to have the
said Doris Tetteh arrested also and he, the respondent and Doris Tetteh, had
settled the matter whereby Doris Tetteh agreed to pay ¢25,000,000.00 to the
respondent; Doris Tetteh actually paid ¢10,000,000.00 to the respondent through
the police; the appellant was therefore no longer liable and the respondent was
estopped from bringing the action against the appellant. <o:p></o:p><o:p>&nbsp;</o:p>In his reply, the respondent joined
issue with the appellant on his amended statement of defence. He conceded that
upon the arrest of the appellant, the appellant had gotten Doris Tetteh
arrested and taken to Techiman but that the appellant and Doris Tetteh had
agreed to contribute ¢26,000,000.00 and ¢25,000,000.00 respectively for the
respondent to be indemnified; that the appellant was liable to the respondent
who was not privy to any agreement between the appellant and Doris Tetteh; that
the appellant had perpetuated fraud on the respondent by putting registration
number GR 9021 Q (which belonged to a Nissan Primera) on the vehicle sold to
him and by failing to register the vehicle at all. At the close of pleadings
the case went to trial on the&nbsp; ten issues
including the issue whether or not the plaintiff (respondent) was estopped from
pursuing the defendant (appellant) for the due payment of the ¢41,000,000.00.
Before then both the appellant and Doris Tetteh had applied separately but
unsuccessfully for Doris Tetteh to be joined to the suit as co-defendant. <o:p></o:p><o:p>&nbsp;</o:p>At the end of the trial, judgment
was given against the appellant and it is this judgment that he has appealed
against. The grounds of appeal are as follows:<o:p></o:p>1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;