Professional Documents
Culture Documents
Fatlas Motors Vrs Zakaria 2023 GHADC 469 (20 June 2023)
Fatlas Motors Vrs Zakaria 2023 GHADC 469 (20 June 2023)
Fatlas Motors Vrs Zakaria 2023 GHADC 469 (20 June 2023)
BETWEEN
AND
JUDGMENT
INTRODUCTION
2. The plaintiff per it’s manager Mr. Hamza Alhassan instituted this action against the
defendant. The plaintiff is a mechanic shop while the defendant is the director of the
3. On 12th January, 2023 the plaintiff took out this action against the defendant for the
following reliefs:
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a. Recovery of GHS16,060.00 being the cost of spare parts and workmanship
on vehicle number GV 1683-14 brought for servicing and repairs and which
c. Costs.
4. The defendant on 20th January, 2023 pleaded not liable to plaintiff’s claim. He
counter-claim filed on 27th January, 2023 the defendant pleaded negligence on the
which is not fit for purpose and taking off its defective engine from
defendant’s vehicle.
5. The plaintiff also filed a reply to the defendant’s defence and counterclaim on 13th
February, 2023 disputing the defendant’s claim. The case of either party is detailed
below.
PLAINTIFF’S CASE
6. According to plaintiff, sometime in July 2021, he received a call that a pickup vehicle
Tamale. He went to Dunyin, met the defendant and then drove the vehicle to his
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shop in Tamale for checks and repairs. After checks, he informed the defendant that
to be purchased from one Mr. Agyenim Boateng, who trades in Kumasi. Plaintiff
stated that the valued of engine at that time was GHS18,000.00, but the defendant
indicated that he could not afford it. Plaintiff added that later in October 2022 the
defendant confirmed that he (defendant) had spoken with Mr. Boateng and procured
the said engine which price had increased to GHS45,000.00. Plaintiff averred that in
addition to fixing the home-used engine, the defendant requested him to also fix the
air condition, replace the car battery, replace the engine oil and other works.
According to plaintiff, the vehicle was repaired and same given to the defendant on
28th October, 2022. However, the defendant failed to pay for his workmanship but
7. Plaintiff stated that on 29th October, 2022 the defendant informed him that the car
was in good condition and that on his next trip to Tamale he would bring a gift.
Plaintiff added that the defendant on his next trip brought 20 tubers of yam, but did
not pay for the workmanship. The plaintiff averred that on 21st November, 2022 the
defendant rather came to his shop with the vehicle this time complaining that the
vehicle had developed a fault (overheating) when he was on his way to Tamale.
45minutes knowing that the vehicle’s temperature was high, but defendant
answered that he just wanted to get to Tamale. Plaintiff explained that on checking
the vehicle, he realised that the head gasket, cylinder head, reserve tank, radiator,
piston and gasket, gasket silicon and gear oil had to be replaced. He added that the
defendant then called Mr. Boateng for the replacement of the said parts. However,
Mr. Boateng called him (plaintiff) to ascertain whether defendant will pay should he
send the parts. Plaintiff then confirmed that since defendant had paid for the earlier
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GHS45,000.00 for the home-used engine, the said parts would be paid. Hence, he
received the parts and fixed the vehicle. However, defendant is yet to pay for his
services for the two occasions and also for the said parts, all totaling GHS16,060.00.
Plaintiff maintained that the defendant is personally liable to the above debt.
Plaintiff’s Witness
9. Plaintiff called Mr. Agyenim Boateng (PW1) as a witness. He corroborated the above
story and added that he was under the believe that the plaintiff had received the
money for the parts but had failed to send same to him. Upon sighting this writ, he
agrees with plaintiff that the defendant owes and that once plaintiff is paid, he will
DEFENDANT’S CASE
10. Defendant in his 64 paragraphed witness statement contended that he is not a proper
party to be sued, rather the Salaga District Health Directorate since the vehicle, the
subject matter of this suit, is a government vehicle. He contended that after the initial
repairs were done, on his return to Salaga on 28th October, 2022 the vehicle was not
‘pulling’ but he managed to send the vehicle to Salaga, a journey that should have
been done in 2hours was done in 4hours. On 29th October, 2022 when he complained
to plaintiff, he was informed that the engine was yet to ‘open’ so there was no need
to worry. He added that plaintiff confirmed that the engine had a warranty for
2weeks. Defendant averred that on 21st November, 2022 on his way from Salaga to
Tamale, at Kpalbe the vehicle developed overheating. He then called the plaintiff and
was informed that when he arrives it would be checked. He added that it took him
about 5hours to arrive in Tamale. On meeting the plaintiff, he was informed that the
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engine needed a replacement. Defendant averred that he was not in the position to
commit further funds and so called Mr. Boateng to express his displeasure about the
engine. He added that he informed the plaintiff not to work on the vehicle if the Mr.
Boateng will not replace it. However, on 26th November, 2022 he received a call from
plaintiff indicating that vehicle had been fixed, without replacing the engine. He then
sent his driver to pick the vehicle and when the vehicle was being driven to Salaga
the driver then left the vehicle at a community and asked the plaintiff to go for it.
With this new fault, defendant stated that the apprentice of the plaintiff who checked
the vehicle indicated that the pistons and connecting rod needed to be replaced.
11. Defendant contended that the plaintiff replaced the said radiator tank, reserve tank
and engine head on credit without his knowledge or consent. He admits that the
directorate will pay for the radiator and reserve tanks but will not pay for the engine
head since the office is demanding for change of the engine from Mr. Boateng. He
contended further that the actions of the plaintiff and PW1 are aimed at siphoning
defendant pleaded negligence on the part of the plaintiff stating that plaintiff, “(a)
failed to acquire a fit for purpose engine despite assurances, (b) failed to carry out
proper maintenance and purported replacement of the vehicle engine, and (c) caused
extreme damage to other parts of the vehicle.” He maintained that the vehicle
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Defendant’s Witness
13. Defendant called a witness, Issahaku Tahiru (DW1). According to him, he caused to
be paid the GHS45,000.00 for the home-used engine. He confirmed that the vehicle is
BURDEN OF PROOF
15. It is essential to note that in civil cases, the general rule is that the party who in his
pleadings or his writ raises issues essential to the success of his case assumes the onus
of proof on the balance of probabilities. See the cases of Faibi v State Hotels
Corporation [1968] GLR 471 and In re Ashalley Botwe Lands; Adjetey Agbosu &
Ors. v. Kotey & Ors. [2003-2004] SCGLR 420. The Evidence Act, 1975 (NRCD 323)
uses the expression “burden of persuasion” and in section 14 that expression has been
defined as relating to, “…each fact the existence or non-existence of which is essential
to the claim or defence he is asserting.” See also ss. 11(4) and 12(1) & (2) of NRCD 323.
probabilities that the burden shifts onto the other party, failing which an unfavourable
ruling will be made against him, see s. 14 of NRCD 323 and the case of Ababio v
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ANALYSIS OF THE ISSUES
17. Issue a is whether or not the defendant is a proper party to the suit? Capacity to bring
and/or maintain an action remains a cardinal hurdle that must be jumped if either
party is to remain in a case. The law is trite that a party to an action must have capacity
and that an objection to capacity of a party may be raised at any time, see Sam Jonah
(Ankra Interested Party) [2003-2004] 1 SCGLR 398 the Supreme Court held that, “any
challenge to capacity therefore puts the validity of the writ in issue. It is a proposition
familiar to all lawyers that the question of capacity, like the plea of limitation, is not
concerned with the merits …”. In effect, where it is established that a party does not
have capacity or is not a proper person to a suit, then there is no need to go into the
merits of the case. The suit is to be dismissed, see the cases of Sarkodie v Boateng II
[1982-83] 1 GLR 715 SC, Fosua & Adu Poku v Dufie (Dec’d) v Adu Poku Mensah
[2009] SCGLR 310, Duah v Yorkwah [1992-1993] 1 GBR 278 CA, HFC Bank (Ghana)
Ltd. v Abeka Suit No. J4/5/2018 dated 12th June, 2019, Kasseke Akoto Dugbartey
Sappor & 2 Ors. v Very Rev. Solomon Dugbatey Sappor & 4 Ors. Suit No. J4/46/2020
18. With cases that involve the State or properties of the State, section 9 of the State
Proceedings Act, 1998 (Act 555) provides that State proceedings are to be instituted
whether the action is for or against the State, as the proper party. In recent times, State
institutions have been granted powers by the Attorney-General to act in his/her stead.
Nonetheless, s. 10 of Act 555 mandates that thirty days’ notice should be given before
an action against the State is commenced. Sections 9 and 10 of Act 555 provide:
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(a) by the Republic shall be instituted and conducted on behalf of the
General;
defendant.
(1) A person who intends to institute civil action against the Republic shall serve
on the Attorney-General a written notice of that intention at least thirty days before
(2) The notice under subsection (1) shall be served by the claimant or by the lawyer
Department, or
(3) The notice shall indicate the cause of action, the name and address of the
19. From the instant case, the defendant stated at paragraph 46 of his defence and
counter-claim that considering the subject matter being a government vehicle, he was
not the proper party to be sued, rather the Salaga Health Directorate. He added that
at all material times he was acting for and on behalf of the Directorate. See also
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maintained that the defendant approached him “…in his private capacity and not in
his capacity as a Health Director of Salaga Health Directorate and so cannot claim he
20. Now, I take judicial notice of the fact that all vehicles with the GV number plates
are government vehicles. With the subject matter being a pick-up vehicle with
government property and that it is the State that bears the cost thereof. Therefore,
save that the defendant was on the frolic of his own, the proper party will be the
21. From the evidence, Exhibit 1 shows that the initial replacement of the engine was paid
by the East Gonja Municipal Health Administration. DW1 confirmed that, as the
accountant of the Salaga District Health Directorate, the defendant drew his attention
to the replacement of the engine and he caused the GHS45,000.00 to be paid. From the
said payment, Exhibit 1, it is clear that the payment was not from the personal account
of the defendant. Also, there is no evidence to the effect the defendant is representing
the Attorney-General or the Salaga Health Directorate in this present suit. I, therefore,
come to the conclusion that the proper party to this action is the Attorney-General or
see s. 9 of Act 555. Having come to this conclusion, there is no need for me to go into
the merits of plaintiff’s case and I so hold, see Sarkodie v Boateng II (supra).
Issues b and c.
22. Issues b and c are whether or not the plaintiff negligently caused damage to the vehicle and
whether or not the plaintiff or defendant is entitled to his respective claim? The law here is
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that where the defendant is not a proper party to be sued, he cannot also maintain an
action against the plaintiff per his counter-claim. The said counter-claim is a nullity,
see the case of Nii Kpobi Tettey Tsuru II (sub. by Nii Obodai Adai IV for and on
behalf of LA Stool) & Ors. v Agric Cattle & Ors. Suit No. J4/15/2019 dated 18th
CONCLUSION
23. I hereby dismiss the plaintiff’s action since the defendant is not a proper party to the
suit. Also, the defendant’s counter-claim is dismissed since he is not a proper party
[MAGISTRATE]
SYLVESTER ISANG ESQ. WITH SAMPSON B. LAMBONG ESQ. FOR THE PLAINTIFF
References:
1. ss. 11(4), 12(1) & (2) and 14 of the Evidence Act, 1975 (NRCD 323)
4. In re Ashalley Botwe Lands; Adjetey Agbosu & Ors. v. Kotey & Ors. [2003-2004] SCGLR
420
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5. Ababio v Akwasi III [1995-1996] GBR 774.
7. R v High Court, Accra, Ex parte Aryeetey (Ankra Interested Party) [2003-2004] SCGLR
8. Fosua & Adu Poku v Dufie (Dec’d) v Adu Poku Mensah [2009] SCGLR 310
10. HFC Bank (Ghana) Ltd. v Abeka Suit No. J4/5/2018 dated 12th June, 2019
11. Kasseke Akoto Dugbartey Sappor & 2 Ors. v Very Rev. Solomon Dugbatey Sappor & 4
14. Nii Kpobi Tettey Tsuru II (sub. by Nii Obodai Adai IV for and on behalf of LA Stool) &
Ors. v Agric Cattle & Ors. Suit No. J4/15/2019 dated 18th March, 2020.
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