Okaitey Vrs Kutsanedzi [2023] GHADC 686 (12 June 2023)

IN THE DISTRICT COURT HOLDING AT DODOWA, SHAI- OSUDOKU ON MONDAY THE 12TH DAY OF JUNE, 2023 BEFORE HER WORSHIP BRIDGET AKPE AKATTAH SUIT NO: A1/6/2022 SOLOMON AYI OKAITEY … PLAINTIFF VRS PROSPER KWAKU KUTSANEDZI … DEFENDANT JUDGMENT Plaintiff filed this writ out at the registry of this Court on the 14th day of October, 2021 and sought the following reliefs: 1. Recovery of the said land and refund of GH₵6,000.00 to the Defendant with interest. 2. Costs. Defendant upon receipt of Plaintiff’s Writ of Summons and Statement of Claim filed his statement of defence on the 21st day of February, 2022 and counterclaimed against the Plaintiff for the following reliefs: i. An order directed at Plaintiff to receive the GH₵2,000.00 from Defendant which is the balance for the purchase of one plot of land (70ft ×100ft) as agreed by the parties. ii. An order directed at Plaintiff to sign the indenture he asked Defendant to prepare which cost him (Defendant) GH₵1,200.00. iii. Declaration of title to all that piece or parcel of land situate lying and being at Bawaleshie in the Kpone-Katamanso District in the Greater Accra Region of the Republic of Ghana and containing an approximate area of 0.16 Acre(s) or 0.06 Hectare(s) more or less and bounded on the North-East by Lessor’s land Page 1 of 5 measuring 100.8’ feet more or less on the South-East by proposed road measuring 70.1’ feet more or less on the South-West by Lessor’s land measuring 99.8’ feet more or less on the North-West by Lessor’s land measuring 71.0’ feet more or less in favour of the Defendant. It is a settled principle of law captured by the Evidence Act, 1975 (NRCD 323) that the onus of producing evidence of a particular fact in civil cases is on the party against whom a finding of fact would be made in the absence of further proof: see Section 17(a) and (b) of NRCD 323. The authorities are also in harmony that matters that are capable of proof must be proved by producing sufficient evidence so that, on all the evidence, a reasonable mind could conclude that the existence of a fact is more reasonable than its non-existence. This is the requirement of the law on evidence under Sections 10 (1) and (2) and 11(1) and (4) of the Evidence Act, 1975 (NRCD 323). The burden of producing evidence has been defined in Section 11 (1) of the NRCD 323 as follows; “11 (1) For the purpose of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party”. Thus the burden of proof is not static but could shift from party to party at various stages of the trial depending on the obligation that is put on that party on an issue. This provision on the shifting of the burden of proof is contained in Section 14 of NRCD 323 thus: “14 Except as otherwise provided by law, unless it is shifted, a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defense that party is asserting”. This position of the law on evidence is confirmed in the case of In Re Ashalley Botwe Lands, Adjetey Agbosu and others v Kotey and others [2003-2004] SCGLR 420 at page 425 where the Supreme Court per Brobbey JSC held that Page 2 of 5 “5 Under the provisions of the Evidence Decree, 1975 (NRCD 323), the burden of producing evidence in any given case was not fixed but shifted from party to party at various stages of the trial depending on the issues asserted and/or denied”. In this case the burden of proof was therefore on the Plaintiff initially to establish each allegation he had made against the Defendant on a preponderance of probabilities. After he was able to raise a presumption in his favour based on the evidence led, the onus would then shift to the Defendant to rebut that presumption created in the Plaintiff’s favour failing which a ruling shall be made against him on that allegation. The Defendant with a counter claim assumes the same burden of proof of the Plaintiff with regards to the counterclaim. See the following line of cases: In Kwadwo S. Bamfo v. Kwasi Sintim (2012) 14 GMJ I @ 8; (2012) 41 MLRG 188 "A counter claim is a different action in which the defendant counter/claimant is the plaintiff and the plaintiff in the action becomes a defendant." - Per Owusu JSC Op. Kwasi Asamoah v. Kwadwo Appea (2003-04) SC GLR 226 @ "The position with regards to proof of the defendant's case was that since they made a counterclaim, they assumed the same onus of proof as lay on the plaintiff." Messrs Van Kirksey & Associates v. Adjeso & Others [2013-2015] 1 GLR 24 Holding 3: “A counterclaim was an action by itself and a defendant needed to prove evry claim asserted in that counterclaim. Section 14 of NRCD 323 provided that unless the burden shifted, a party asserting a claim was to proffer proof by a preponderance of probabilities. “ - Per Welbourne J. A. Nortey v. African Institute of Journalism & Communication (2014) 77 GMJ 1 @ 40 Page 3 of 5 “Without any doubt a defendant who files a counterclaim assumes the same burden as the plaintiff in the substantive action if he/she is to succeed. This is because a counter-claim is a distinct and separate claim on its own which must also be proved according to the same standard of proved prescribed by Sectors 11 and 14 of NRCD 323 the Evidence Act (1975)” Nii Odoi Kwao Asumang & 2 Ors v. William Sowah Charwey & 14 Ors (2014) 75 GMJ 108 @ 135 “it is trite law that a party who counterclaims becomes a plaintiff as far as that counterclaim is concerned. The burden of persuasion shifts onto that defendant to establish that claim as if he was a plaintiff” – Per Dzamefe JA. The Defendant filed a counter claim to the Plaintiff’s writ. The parties were referred to ADR and settlement could not be reached by the parties whereupon the case was tabled for trials. Along the line, Plaintiff discontinued with the action against the Defendant and then the Defendant decided to proceed with his counter claim. This judgment is based on the counter claim of the Defendant herein. Per the evidence of the Plaintiff in defence to the counterclaim filed by the Defendant, Plaintiff admitted that he sold land to the Defendant, Defendant however paid for the land with an outstanding balance of GH₵2,000. Plaintiff admitted everything the Defendant said in his evidence. He prayed the Court to order the Defendant to pay the outstanding GH₵2,000 with interest at the prevailing bank rate. The Defendant counter claimant led evidence that he purchased one plot of land from the Plaintiff sometime in November, 2016 at the costs of GH₵8,000 and Plaintiff asked him to pay for the indenture and site plan. Defendant averred that he paid GH₵6,700 to the Plaintiff for the one plot of land. Defendant tendered the said indenture which he paid for to the Surveyor marked as Exhibit ‘2’ which is yet to be signed by the Plaintiff. Plaintiff asked that the Defendant pay some extra money for the cost of the land because the value had appreciated which the Defendant said he declined. Page 4 of 5 Plaintiff then took the Defendant to the Oyibi Police Station to demand for GH₵2,000 which Plaintiff claimed as the outstanding balance owed him by the Defendant and when that failed, Plaintiff subsequently filed out this writ. Defendant also led evidence that he has paid the GH₵2,000 outstanding balance to the Court during the pendency of this suit. Defendant therefore prays the Court to order the Plaintiff to sign the indenture which he the Plaintiff detailed him to pay an amount of GH₵1,200 for at the time. From the evidence before the Court, it is clear the Defendant counter claimant has succeeded in establishing his claim as the Plaintiff simply admitted all the evidence of the Defendant/Counter-claimant. Judgment is hereby entered for the Defendant per his counterclaim. Defendant however is to pay interest on the outstanding GH₵2000 from November, 2016 to the date he paid the GH₵2,000 into Court. This is so because when Plaintiff was offered the GH₵2,000 in open Court by the Defendant, he rejected same at the time claiming until interest is paid on the said amount, he will not accept it. No order as to costs. (SGD) HER WORSHIP BRIGDET AKPE AKATTAH DISTRICT MAGISTRATE Page 5 of 5