Court orders release of articulated truck … Following unfair seizure by plaintiff
8/31/2009 6:41:20 PM -
A KUMASI Circuit Court One (1), presided over by Mr. Justice E. Amo-Yartey, last Friday ordered the immediate release of an articulated truck, with registration number WR 1899 X, owned by the defendant, and which was confiscated by P & A Construction and Wood Industries Ltd, plaintiff in the suit.
While P & A Construction and Wood Industries Ltd, plaintiff in the suit, is asking the court to dismiss the defendant's affidavit in support of claims said to be incompetent, the defendant J. Owusu Ansah Enterprise, per its Chief Executive Officer (CEO), Mr. James Owusu Ansah, wants to take possession of his vehicle.
In an affidavit in opposition to the defendant's claims, Mr. Samuel Asare, manager of the plaintiff company, said the application by the defendant was misconceived and unmeritorious, and that since the application was filed in bad faith, it must be dismissed.
According to the deponent, the damage caused to the property of the plaintiff was enormous, and that the plaintiff would incur further cost if the court allowed the defendant to tow away the articulated truck which caused damage to the walls, gate and rails.
Opposing application for the release of the vehicle, the plaintiff claimed that it would take between five to six months for the reconstructed concrete to be properly cured, before the gate could be opened to allow the defendant's truck to be towed away.
According to the plaintiff, the defendant cannot ask for the release of the vehicle if he has not paid for the losses as he promised to
The plaintiff is seeking special damages involving GH¢3,500 and GH¢1,200, being cost of repair of a broken wall and iron gate respectively, as well as GH¢240 used to hire a watchman since March 18 this year, till payment is effected.
The plaintiff construction firm avers that on March 18, 2009, the defendant, who is the owner of an articulated truck with registration number WR 1899 X duly registered and insured with the Metropolitan Insurance Company Limited, “negligently” drove and ran into the plaintiff's wall, causing damage to wall, gate and security.
As a result, the plaintiff claims it has suffered loss, damage and inconvenience, and therefore entitled to special damages and interest.
But the defendant, J. Owusu Ansah Enterprise, per its CEO, Mr. James Owusu Ansah, says the plaintiff's claim is baseless and misconceived, and has accordingly made counter claims.
He denied that the driver drove the said vehicle negligently to cause damage to the plaintiff's property, as claimed by the plaintiff. The defendant company explained that the driver encountered a problem changing his gears, causing the vehicle to move backwards, and to avoid a fatal collusion with drivers behind it, the driver cautiously steered the vehicle onto the side of the road and into a ditch.
It was explained that because the plaintiff's wall runs into the road reserve, the trailer of the truck grazed the gate causing its removal and the collapse of a portion of the wall.
The defendant, apart from asking his security men to guard the plaintiff's warehouse, approached the plaintiff for an amicable settlement, after reporting the incident to the police and his insurers, but the plaintiff refused and decided to keep the vehicle unreasonably, by preventing him from towing it away, against the advice of the police.
Defence counsel further countered the claim of GH¢3,500 by the plaintiff as the cost of the repair of the wall, saying “the plaintiff could not have spent more than GH¢300 in reconstructing the wall, straightening and repainting the gate, which was slightly dented.
The defendant said the vehicle was a commercial one purchased with a bank loan, which is still attracting repayment by installment and insurance premium.
According to the statement of defence, in spite of the willingness of the defendant's insurers to pay for the repairs, the plaintiff failed to contact them.
The defendant company claims it earns GH¢1,300 every week from the use of the vehicle for the repayment of the bank loan, and that he had to pay other drivers to cart his goods at great expense.
He also claims that he had been to the plaintiff's site on four occasions with a towing vehicle to tow his vehicle away, but the plaintiff would not allow him, irrespective of police advice to allow it.
As a result of the plaintiff's actions, the defendant claims he has suffered great financial loss besides his incapacitation to repay his loan, while the interest is soaring by the day. The particulars of losses were explained in the GH¢1,300 income a week, accumulated interest, towing vehicle fees, and cost incurred in carting the defendant's goods.
Giving a ruling in the face of the claims and counter-claims by the parties, Justice Amo-Yartey said it was only fair that the vehicle is released with immediate effect, while the suit took its normal course, to enable the court consider the merits of the suit. He noted that it was an established fact that damage had been caused to plaintiff's property, for which he is claiming GH¢4,700 as cost of repairs, and which amount the plaintiff insisted must be paid before the vehicle is released.
The judge also noted that considering the claim by the defendant that GH¢1,300 was earned every week from the use of the vehicle for the repayment of a loan, it meant that the defendant had suffered GH¢31,200 in the six months (March-August), during which period the vehicle had been seized, and that he (defendant) might suffer further losses of GH¢31,200, if it is held for another six months, as being sought by the plaintiff.
In the face of the huge loss of a total of GH¢62,400 against GH¢4,700 allegedly owed by the defendant if plaintiff's relief was upheld, the court ruled that the vehicle should be released to the defendant with immediate effect.
P & A Construction and Wood Industries Ltd. was represented in court by lawyer Poku Nyamaa of Poku and Associates Law firm in Kumasi, while Mrs. Sarah Aryee of Adu-Gyamfi and Associates, was defence counsel.