OWUSU FRIMPONG vs. KWASI POKU ALIAS JAH LIVE [2011]DLHC8224

Date	2011-01-25
Suit No.	SUIT NO. C11/38/10
Citation No.	[2011]DLHC8224

HIS LORDSHIP JUSTICE JACOB B. BOON

FRANK OTOO FOR THE DEFENDANT/APPELLANT

NANA ADWOA KOOMSON FOR THE PLAINTIFF/RESPONDENT

[2011]DLHC8224
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													<main id="main" class="content" style="min-height: 60rem" >OWUSU FRIMPONG<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>KWASI POKU ALIAS JAH LIVE<o:p></o:p>(DEFENDANT/APPELLANT)<o:p></o:p>[HIGH COURT,
KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

SUIT
NO. C11/38/10&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 JANUARY, 2011<o:p></o:p>

</div>COUNSEL:<o:p></o:p>FRANK
OTOO FOR THE DEFENDANT/APPELLANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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NANA
ADWOA KOOMSON FOR THE PLAINTIFF/RESPONDENT&nbsp;&nbsp;&nbsp;
<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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HIS LORDSHIP JUSTICE JACOB B. BOON<o:p></o:p>

</div>This is an appeal from the decision of Konongo District
Court presided over by His Worship (Nana) R.A.K. Kpodo, delivered on 21st
December, 2009. The court gave judgement in favour of the plaintiff/respondent,
to be referred to hereafter simply as the plaintiff, and the
defendant/appellant, to be called the defendant, being dissatisfied with the
judgement, has filed the instant appeal on the ground that the said judgment is
against the weight of evidence. Though it was indicated that other grounds of
appeal would be filed on receipt of the record of proceedings, no other ground
was filed. As the sole ground of appeal before the court, is the omnibus one,
the court is enjoined to carefully study the record so as to assure itself that
the decision of the District Court was supported by the evidence.<o:p></o:p><o:p>&nbsp;</o:p>Thus in Tuakwa v. Bosom (2001-2002) SCGLR 61 at 65 Sophia
JSC said in respect of an appeal that contains the omnibus ground of appeal, as
in the instant case that:<o:p></o:p><o:p>&nbsp;</o:p>“Furthermore,
an appeal is by way of a re-hearing particularly where the appellant, alleges
in his notice of appeal that, the decision of the trial court is against the
weight of evidence. In such a case, although it is not the function of the
appellate court to evaluate the veracity or otherwise of any witness, it is
incumbent upon an appellate court, in a civil case, to analyze the entire
record of appeal, take into account the testimonies and all documentary
evidence adduced at the trial before it arrives at its decision, so as to
satisfy itself that, in a preponderance of the probabilities, the conclusions
of the trial judge are reasonably or amply supported by the evidence.”<o:p></o:p><o:p>&nbsp;</o:p>In the district court, the plaintiff issued a writ of
summons against the defendant for the recovery of an amount of GH¢4,664.00
being expenses he said he incurred on a tipper truck belonging to the
defendant.<o:p></o:p><o:p>&nbsp;</o:p>In a supporting affidavit, the plaintiff asserted that
somewhere in February 2009, the defendant released his tipper truck with
registration number GT 1164 P to him to work with. He averred that he incurred
expenses on the truck amounting to GH¢ 4,664.00, which is the amount he claims
from the defendant. It is also his case that one Frimpong Obeng, who claimed
ownership of the truck, took it from him to Accra, but all his efforts to claim
the expenses he made on it proved futile, necessitating the action at the
Konongo District Court.<o:p></o:p><o:p>&nbsp;</o:p>In the court below, the defendant also filed an affidavit
in opposition. He admitted he bought the tipper truck on the instructions of
Obeng Frimpong, who is his cousin, but was then outside the country. According
to his affidavit, he gave the vehicle to a driver at Konongo to work with, but
advised Obeng Frempong to mandate his younger brother, one George, to join the
driver to operate it as he did not trust that the driver could manage the
vehicle alone. His advice was taken, but he asserted that after three months,
Obeng Frimpong instructed him to retrieve the vehicle from the driver because
George had informed him that it was operating at a loss, and debts were
accumulating. It is also his case that when he attempted to take custody of the
vehicle, he was told by George that there was a debt of GH¢ 400.00 to be paid
before it could be released to him. He averred that George told him he had
discussed the debt with the plaintiff who had undertaken to clear it in two
weeks if the vehicle was given to him to work with. It is his case that the
three of them inspected the vehicle ad discovered that it will need two outer-covers,
and the plaintiff agreed to provide them. He asserted that after three days,
the plaintiff informed him on phone that he had purchased the outer-covers at
GH¢160.00 and started work with the truck; that he again called two weeks later
and said he had made an account of his use of the truck to George. Defendant
ther</main>