Court orders man to refund D1.5M to customer

Dec 2, 2021, 1:20 PM | Article By: Ali Jaw

Justice S. Wadda Cisse on Thursday 25th November, tasked Alhagie Samba Bah, defendant, to refund the sum of D1.5 million to Alassan Gent Ceesay, plaintiff in a matter that had dragged for settlement for two years.

The plaintiff and the defendants are both businessmen and they both testified during the trial in support of their respective cases. The plaintiff called Kebba Ceesay, who testified as PW2. The defendant did not call additional witnesses.

The plaintiff’s case is that sometime in April 2019, he had an agreement with the defendant to buy a Range Rover sport Autobiography Hybrid car at the agreed cost of D1, 900, 000. Upon assurance by the defendant that the car was free from all liens, impediments and that it was not stolen, the plaintiff made advance cash payment of D1, 500, 000. The parties agreed that the plaintiff would pay the balance of D400, 000 by the end of July 2019. The plaintiff took possession of the said vehicle.

Some three months later, on the 19th of July 2019, the vehicle engine abruptly shut down as the plaintiff was driving to Banjul. The car was towed to a Range Rover accredited mechanic, who informed the plaintiff of the need to access the Range Rover’s company database in order to repair the vehicle. The mechanic found it impossible to access the Range Rover database for information in respect of the vehicle and suspected that the car was stolen. The plaintiff commissioned a search on the vehicle with the Interpol Unit of the Gambia Police Force, whereupon it was confirmed that the car was stolen from France.

The plaintiff avers that the defendant promised to refund, but efforts to recover his money proved futile, causing him to file the suit. The plaintiff tendered Exhibits AGC1 (e-ASF Vehicle search- Result), AGC2 (demand letter) and AGC3 (fee note).

In his statement of defence, the defendant refuted liability. Nevertheless, he admitted having sold the vehicle to the plaintiff. He also acknowledged receiving D1,500, 000 from the plaintiff as advance payment, leaving an outstanding balance of D400, 000. However, he maintains that the car was in a good condition at the point of sale as outlined in the car sale agreement dated 13th April 2019; executed by the parties, the terms of which are binding on both of them.

The defendant further maintained that the plaintiff only complained after using the vehicle for three months and having damaged it. He opposed that no one had claimed ownership of the vehicle from the plaintiff and that the plaintiff had fabricated and invented evidence to incriminate him and hold him responsible for the damaged vehicle.

“Briefs were ordered, filed and exchanged by Counsels. The plaintiff filed his briefing on the 8th July 2021 and the defendant filed his on the 15th July 2021. Given the nature of the pleadings and evidence on record, the only issue for determination is whether the plaintiff is entitled to the reliefs sought,” Justice Wadda Cisse said.

The Judge added: “In my view, the plaintiff’s claim is anchored on the discovery that the vehicle was stolen and not on the contention that the defendant stole the vehicle. On this point, learned Counsel for the defendant made submissions regarding the threshold of proof for the theft and argues that the allegation of theft is criminal and when raised in civil proceedings, it must be proved beyond reasonable doubt.

“Counsel proceeds to recount the ingredients of the offence of theft and concludes that the plaintiff’s claim must fail given that the defendant is the owner of the vehicle as evidenced by the certificate of ownership of transfer of vehicle issued by the Gambia Police Force.”

“Firstly, let me remark that the defendant did not produce the agreement he has pleaded in his defence. The law as we know it is that facts pleaded but not supported by evidence are to no avail. Furthermore, the defendant did not file the certificate of ownership of the vehicle or any exhibits as alleged by his Counsel in his written address.”

The Judge told the court that the burden of proof, where theft is claimed lies with the plaintiff. She said, therefore, that the claim of theft must be strictly proved by the plaintiff.

“In his attempt to discharge the burden of proof, the plaintiff tendered exhibit AGC1, which is an e-ASF Vehicle search- Result issued by the Interpol Unit of the Gambia Police Force. It is incontrovertible that Exhibit AGC1 bears the details of the said vehicle. Therefore, it is manifestly clear from Exhibit AGC1 that the vehicle was reported stolen in France in 2018 and this evidence remains uncontradicted. In the circumstances, I am satisfied that the vehicle is a stolen vehicle,” the Judge maintained.

She posited that “contract for the sale of a vehicle requires the vendor to be the rightful/ legal owner of the vehicle or an agent of the owner of the vehicle. The vendor’s obligation to convey title as the beneficial owner and to give possession of the vehicle to the purchaser is absolute. The import of Exhibit AGC1 is that the defendant’s title to the vehicle is actually defective, and thus, renders the contract between the parties not void ab initio, but is void ex post facto (invalid). The defendant is incapable to pass title of the vehicle to the plaintiff.”

“In the instant case, the defendant’s title to the vehicle is called into serious question. I expect the defendant to follow up with the police for a thorough investigation into the matter, given that the defendant alleges to have purchased the vehicle from one Mourtalla Secka. This has not been done.”

The Judge adduced that the defendant filed a mere defence that has lacked or that has not been backed by any document as evidence. “The defendant did not produce any document to prove his title and controvert the plaintiff’s evidence. There is no evidence on record that the vehicle ownership is vested in the defendant or that the defendant has caused the ownership of the motor vehicle to be transferred and vested in the plaintiff.”

“In light of the foregoing, I am satisfied that the plaintiff has made out his claims against the defendant. Accordingly, judgment is entered against the defendant for the recovery of the sum of D1, 500,000 being advance payment paid by the plaintiff to the defendant for the sale of a Range Rover Sports Autobiography Hybrid with VIN Number: SALWA2LFXGA542996.” The judge ruled.

She ordered both parties to bear their legal costs.

The plaintiff was represented by Counsel O. Jallow while representing the defendant was Counsel Jallow.