ALKABOAT PLUS PRODUCTION LTD vs. RHEMA MOTORS SERVICES LTD AND MR. FRED ADU [2020]DLHC10739

Date	2020-03-20
Suit No.	SUIT NO: GJ/0050/2020
Citation No.	[2020]DLHC10739

HIS LORDSHIP JUDTICE EMMANUEL KWASI MENSAH

ALBERTA BAIDOO FOR THE PLAINTIFF

NANCY AMPOFO FOR THE DEFENDANTS

[2020]DLHC10739
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													<main id="main" class="content" style="min-height: 60rem" >ALKABOAT PLUS PRODUCTION LTD<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>RHEMA MOTORS SERVICES LTD AND MR.
FRED ADU<o:p></o:p>(DEFENDANTS)<o:p></o:p>[HIGH COURT,
ACCRA]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">SUIT
NO: GJ/0050/2020 &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:
20TH MARCH, 2020<o:p></o:p>

</div>COUNSELS:<o:p></o:p>ALBERTA BAIDOO FOR
THE PLAINTIFF<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

<p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;text-align:
justify;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">NANCY
AMPOFO FOR THE DEFENDANTS<o:p></o:p>

</div>CORAM:<o:p></o:p>HIS LORDSHIP
JUDTICE EMMANUEL KWASI MENSAH<o:p></o:p><div style="border-top-width: 1.5pt; border-top-color: windowtext; border-left: none; border-bottom-width: 1.5pt; border-bottom-color: windowtext; border-right: none; padding: 1pt 0cm;">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
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:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">RULING<o:p></o:p>

</div>&nbsp;On the 9th January, 2020, the plaintiff
applicant filed a motion on notice for summary judgment pursuant to the
provisions of order 14 of C.I 47/04. Initially, a sixteen paragraphed affidavit
supports the application but on the 28th January, 2020 the applicant
per Charles Asmah of House No. 10 Believers Lane, mile 11 deposed to another
supplementary sixteen (16) paragraphed affidavit in support upon the orders of
this court. The applicants on the 13th February, 2020, filed written
submissions to further drum home their case. The case of the applicants per the
two affidavits in support and the their written submissions is that per the
applicants Writ of Summons and the accompanying statement of claim, filed at
the Registry of the High Court Accra on the 10th October, 2019, they
claim the reliefs as endorsed on the Writ of Summons against the defendant
jointly and severally.<o:p></o:p>The brief facts as stated by the applicants in
their written submissions filed on the 13th February, 2020 is that
bya conditional sales Agreement dated 24th August, 2018, the 1st
defendant herein referred to as the 1st respondent agreed to sell to
the applicant one (1) unit 6x4 Howo Sino truck (20m3) at a total cost of
USD80,000.00 payable in instalment as stated in the said agreement per an
invoice dated 23rd August, 2018, a copy of which agreement is
attached here as exhibit CA1. That the defendants (herein after referred to as
the respondent) agreed to deliver the said truck to the applicant within 7 days
of receipt of part payment of US30,000.00 and the balance of the purchase price
would be payable in 12 equal instalments over a period of 12 months. That subsequent
to the 1st agreement by a second conditional sales agreement dated
24th August, 2019, the 1st respondent agreed to sell to
the applicant one (1) unit Howo Semitrailer for a total of USD118,300.00 and
that the applicant was subsequently issued with an invoice dated 3rd
September, 2019 which documents are here attached as exhibits CAIA and CAIB.
That in this second Agreement, the parties agreed that the applicant should
also deposit USD30,000.00 and then pay the balance in 12 equal instalments and
further that the Howo semitrailer was to be delivered within 40 days of the
receipt of the deposit of USD30,000.00. That the 1st defendant
received the total sum of USD60,000.00. On the 6th September, 2018,
but the respondent failed to deliver the first Howo Sino truck within 7 days
and so the applicant requested for a refund of his USD30,000.00 which the 2nd
respondent graciously refunded but they breached the terms of the
conditional sales agreement in respect of the Howo semitrailer within the 40
days’ time line despite &nbsp;repeated
demands. That the applicant reported the matter to the Tesano police, Accra,
after which on the 10th October, 2019, the instant writ of summons
was issued against the defendant/respondents jointly and severally for the
reliefs as endorsed thereto. That it is the case of the applicant that the
respondent have breached the conditional sales agreement and so he applicant is
entitled to a refund of its money. That in the instant case the applicant has
made a prima facie case under order 14 rule 1 of C.I. 47/04 for which reason they
are of the view that the instant application should be granted. Per the records,
the defendants/respondents filed an affidavit in opposition on the 20th
January, 2020 and in paragraph 7 thereto raised the question of inadequacy of
deposit and that the defendants/respondents have brought to the attention of
the plaintiff the need to raise the deposit to USD58,000.00 or more. That the
applicant has neglected to top it up and has rather resorted to the police and
the court processes to compel the respondents to refund the money as if it is
still in the custody of the 1st defendant. In paragraph 10 of the
respondents affidavit in opposition filed on the 20th January, 2020,
they prayed to the court to rather advice the applicant to top up the money
rather than expecting a refund which is not practicable to them at this time.
It was therefore prayed that the application be dismissed. <o:p></o:p>The records have it that on the 10th
October, 2019, the plaintiffs/applicants filed a writ of summons accompanied by
a statement of claim at the Registry of the High Court, Accra against the
defendants jointly and severally for the reliefs below:<o:p></o:p>1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
The sum of
USD30,000.00 or its cedi equivalent at the prevailing forex bureau rate of the
cedi to the dollar being a refund of the deposit the plaintiffs paid to the 1st
defendant at the defendants request in respect of one (1) unit Howo semitrailer
pursuant to a conditional sales agreement dated 24th August, 2018,
but which said truck the defendants failed to import and deliver to the
plaintiff despite repeated demands.<o:p></o:p></span</main>