ABABIO VRS NDOMBE (BA/KPO/18/2023) [2023] GHADC 1226 (13 November 2023)

IN THE DISTRICT COURT KINTAMPO HELD ON MONDAY 13TH NOVEMBER 2023 BEFORE HIS WORSHIP KWAME ADJEI MANU ESQ. ABABIO JOSEPH - PLAINTIFF SUIT NO: BA/KPO/18/2023 VRS KWASI MICHAEL NDOMBE - DEFENDANT JUDGMENT 1. BACKGROUND 1.1. Plaintiff commenced this suit against Defendant by a Writ of Summons claiming the following reliefs against Defendant: a. An order for the payment of Three Thousand Eight Hundred and Eighty Three Ghana Cedis (GHS 3,883.00) being balance due and owing as at 10th January, 2022 on account of the supply of 299 bags of charcoal at a rate of GHS 42.00 per bag which said amount the Defendant has refused to pay notwithstanding persistent demands. b. Interest on the said amount. 1.2. Since parties to the suit are illiterates, the Court extended all necessary indulgences to them to achieve substantial justice by limiting the application of strict technicality, and rather ensuring the effective determination of the actual issues in Page 1 of 14 contention. In Mante and Another v. Botwe [1989-90] 2 GLR 479 Taylor J. S. C had this to say of the duty owed to illiterates in proceedings before the Court: “In this connection, it is worthy of note that our judges have traditionally taken the view that some indulgence should be shown to illiterates appearing before our courts as is illustrated by the editorial note of Hayes Redwar J. in his judgment in Bossom v. Attonie (1897) Red. 199 at 201. See also the judgment of the Full Court (coram Sir William Brandford Griffiths C. J. and Francis Smith J.) in Ansah v. Kwesi Essuman (1898) Ren. 136 and the Fiakpoli Concession (1903) Ren. 281.” 1.3. Adade J. S. C. in Nartey v. Mechanical Lloyd Assembly Plant Ltd. [1987-88] 2 G. L. R. 314, S. C. reminded Courts dealing with illiterates of the traditional duty owed to them and I cannot overstate this principle. Cases such as Edun v. Koledoye (1954) 14 W. A. CA. 642. as relied on in Wiafe v. Kom [1973] 1 GLR 240. Explained the need to indulge lay court users. The learned Author Justice S. A. Brobbey (Retired) observed in his book Practice and Procedure in the Trial Courts and Tribunals of Ghana, 2011 concerning the indulgence of lay court users as relates to processes filed by them thus: “Sometimes the task of deciphering the precise claim from "home- made" writs, especially those prepared by letter writers, is no mean one. The best approach is to be guided by the principle enunciated in Atiafu v Dzaka [1962] 1 GLR 280 which concerned actions in the erstwhile native courts. In that case, it was held that in actions where writs have been prepared by semi-literates, one has to look to the issues involved rather than the wording of the writ of summons. Similar views were expressed in Ankrah v Ankrah [1966] GLR 60, SC and Donko rv Nkrumah [1964] GLR 739, SC.” Page 2 of 14 1.4. So, I settled the real issues in contention after careful consideration of the essence of all processes so far filed by parties herein. Parties’ respective cases as made out in their processes are discussed together in the following. Admitted facts 1.5. It is uncontroverted that Plaintiff a farmer at Anyima, who is also a charcoal producer engaged Defendant who is also a farmer and a charcoal loader on 5th December, 2021 to convey Plaintiff’s 299 bags of charcoal from Anyima to Accra, after Defendant approached Plaintiff for this venture. Defendant took custody of these bags of charcoal and transported them to Accra. Between parties, it is admitted that Plaintiff produced charcoal which was carted to Accra for sale by Defendant. 2. PARTIES’ CASES Plaintiff’s case 2.1. According to Plaintiff, as at 5th December, 2021, the price per bag of charcoal was GHS 42.00. Defendant engaged one Akwasi, a truck driver to transport his 299 bags of charcoal to Accra and it was Defendant who volunteered to go with the truck driver to Accra, sell the bags of charcoal and return with the money. 2.2. The agreement was for Defendant to send the 299 bags of charcoal to Accra, sell them and return with GH¢12,558.00 which was the market price of the 299 bags of charcoal then. Defendant took his 299 bags of charcoal to Accra, gave same to buyers on credit and promised to recover the money and hand same to Plaintiff by 14th January,2022. 2.3. On 19th December,2021, Defendant gave him GH¢1,900.00 as the initial amount he had recovered in respect of the 299 bags of charcoal he sent to Accra to be sold. On Page 3 of 14 the same 19th December, 2021 Defendant retained a sum of GHS 175.00 which was supposed to be part of the money Defendant had recovered from debtors to defray his operational cost. 2.4. Plaintiff says on 25th May. 2022 he received an additional sum of GHS 2600.00 from Defendant. 0n 19th July,2022 Plaintiff says Defendant gave him an additional cash sum of GHS 2000.00. The final amount Defendant handed to him through another person as part of the monies recovered from debtors was GHs 2000.00 in February, 2023. So, the total cash sum he had recovered from Defendant in respect of his 299 bags of charcoal is GHC8,788.00 leaving a balance of GH¢3883.00 which Defendant had blatantly told him he would not repay. Defendant’s case 2.5. The germane part of the facts on which Defendant’s insistence that he is not liable are that Plaintiff permitted one Akwasi K who led the sale of all the bags of charcoal to give out Plaintiff’s charcoal on credit, so, he Defendant was not in charge of the sale of Plaintiff’s bags of charcoal since Plaintiff rather instructed the said Kwasi K to sell the charcoal. 2.6. Defendant’s case really is that he only joined the charcoal truck as a loader who loaded and offloaded the charcoal. He contends that there was no valid contract between he and Plaintiff and that the final GHS 200 handed to Plaintiff by him was from Plaintiff’s wife who retrieved the money from the debtor. To him, Plaintiff’s claim against him was not undergirded by any contract between the parties. 3. ISSUES 3.1. The issues raised by this court on the parties’ processes for trial are as follows: Page 4 of 14 i. ii. Whether there was a valid contract between parties. Whether Defendant has breached the contract between parties. iii. Whether Plaintiff is entitled to claim the balance on the sale of the charcoal from Defendant. 4. BURDEN OF PROOF AND EVIDENCE OF THE PARTIES 4.1. The respective cases of the parties reveal that not much is on a cursory look admitted between them regarding the core issues for trial in this suit and accordingly each party therefore bears the burden of proving their respective cases. 4.2. Before proceeding to consider the standard to which parties were expected to lead evidence in this suit, I must set out first that notwithstanding several indulgences given to Defendant to lead evidence and to call witnesses, he failed or refused without any justifiable cause to do this, refusing to file his witness statement or that of any witness. Defendant admitted by his Pleadings through his failure to deny the numerous times he personally delivered payments in respect of the charcoal to Plaintiff. However, in Adjei and Ors. v. Nmai Boi and Ors. [2013-2014] 2 SCGLR 1474 Adinyira JSC stated the law thus: “... It is trite law that pleadings would not constitute evidence. To hold otherwise would negate the requirements of proof as provided in the Evidence Act, 1975 (NRCD 323).” 4.3. At law, when a party to a suit without any legally justifiable reason impeding their ability to present a defense, elects to abandon their opportunity to be heard, the decider is justified in proceeding to render a decision. In the event of an is unfavorable decision against such an individual, they are precluded from subsequently raising objections about the proceedings haven been taken in their Page 5 of 14 absence and invoking the audi alteram partem rule. The Supreme Court in has long settled this point in Republic v. High Court, (Human Rights Division) Accra Ex Parte Josephine Akita (Mancell-Egala, Attorney General Interested Party) [2010] SCGLR 374 and Gifty Addo J in applying it had this to say on the matte in The Republic v. Judicial Service of Ghana & Attorney General & Ex Parte: Mrs. Bannerman Quist (Guardian Ad Litem or Next Friend of Justice Charles Quist) (2021) JELR 107577 (HC): “It is important however to underscore the critical point that where a person’s ability to put up a defence upon invitation is not vitiated by any legally justifiable reason yet the person spurns the opportunity to be heard, the decision maker can proceed to take a decision. Should the decision go against such a person, it will lie ill in his or her mouth to complain afterwards. As was observed by the Court in the case of REPUBLIC VRS. HIGH COURT, (HUMAN RIGHTS DIVISION) ACCRA EX PARTE JOSEPHINE AKITA (MANCELL-EGALA, ATTORNEY GENERAL INTERESTED PARTY) [2010] SCGLR 374:A person who has been given the opportunity to be heard but deliberately spurned that opportunity to satisfy his own decision to boycott proceedings cannot later complain that the proceedings have proceeded without him and then plead in aid the audi alteram partem rule.” Burden of proof 4.4. The law is that a claimant in civil litigation must succeed on the relative strength of their own case to that of their opponent and not by a reliance on the weaknesses in that of their opponent. Sections 10 and 11 of the Evidence Act, 1975 (NRCD 323) provides on the burden of persuasion, that is the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the Court, and the burden on a party to produce evidence in a matter before the Court, that is sufficient to avoid a ruling against him on an issue respectively. In Page 6 of 14 Ackah v. Pergah Transport Ltd. & Ors (2010) SCGLR 728, the Supreme Court stated the law on this evidential burden thus; “It is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim will fail. The method of producing evidence is varied and it includes the testimonies of parties and material witnesses, admissible hearsay, documentary and things (often described as real evidence), without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as a jury. It is trite law 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 the fact is more probable than its non- existence. This is a requirement of the law on evidence under sections 10(1) and (2) and 11(2) and (4) of the Evidence Act, 1975 (NRCD 323)” 4.5. This same rule was applied in Ishack v. Praba (2007) 12 MLRG 172 at 181, where the Court of Appeal explained it thus: “The general principle of law is that it is the duty of a plaintiff to prove his case, ie. he must prove what he alleges. In other words, it is the party who raises in his pleadings an issue essential to the success of his case who assumes the burden of proving it. The burden only shifts to the defendant to lead sufficient evidence to tip the scales in his favour when on a particular issue Plaintiff leads some evidence to prove his claim. If the defendant succeeds in doing this, he wins, if not he loses on that particular issue.” 4.6. In essence, the legal principle asserts that the party making a specific claim holds the responsibility of providing evidence to substantiate it. When the opposing Page 7 of 14 party contests the alleged fact, an issue emerges for judicial resolution. As elucidated in the aforementioned case, the onus of proving the denied fact lies with the party that originally introduced it, having subsequently been met with denial from the opposing party and the balance does not shift in his favour until he has sufficiently persuaded the tribunal. Section 14 of the Evidence Act, 1975 (NRCD 323) provides that: "Except as otherwise provided by law, unless and until 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 defence he is asserting." 4.7. Guided by the foregone, the proper position is that a Defendant need not prove anything and only assumes the responsibility of proof when Plaintiff has provided sufficient reliable evidence of what he claims he is entitled to from Defendant as found in the case of In Re Ashalley Botwe Lands; Adjetey Agbosu & Ors v. Kotey & ORS [2003-2004] 1 SCGLR 420. The burden of producing evidence in any given case is not fixed, shifting from party to party at various stages of the trial, depending on the issue(s), and the facts asserted and or denied.” This legal is supported by section 17 of NRCD 323 particularly subsection (b), but for clarity the entire section reads thus: “17. Allocation of burden of producing evidence Except as otherwise provided by law, (a)the burden of producing evidence of a particular fact is on the party against whom a finding on that fact would be required in the absence of further proof; (b)the burden of producing evidence of a particular fact is initially on the party with the burden of persuasion as to that fact.” Page 8 of 14 4.8. Plaintiff was required in this suit to convince the Court by way of evidence that there was a valid contract between parties, Defendant has breached the contract between parties and Plaintiff is entitled to claim the balance on the contract from Defendant. Plaintiff’s evidence 4.9. In the absence of evidential challenge from Defendant, I am in assessing evidence led by Plaintiff mindful of the settled rule of law in Takoradi Flour Mills v. Samir Faris [2005-2006] SCGLR 882 discussed by Ansah JSC at page 890 referring to Tutu v. Gogo, Civil Appeal No 25/67, dated 28 April 1969, Court of Appeal, unreported; digested in (1969) CC 76, where Ollenu JA said that: “in law, where evidence is led by a party and that evidence is not challenged by his opponent in cross-examination, and the opponent did not tender evidence to the contrary, the facts deposed to in the evidence are deemed to have been admitted by the party against whom it is led, and must be accepted by the court.” 4.10. Parties herein being lay, this Court will indulge them by not holding their failure to cross-examine against them, but evaluate the entire evidence on record minded by the rules of law Edun v Koledoye(supra), Mante v Botwe(supra) and Wiafe v. Kom (supra). A strict application of the rules of cross-examination would defeat the ends of justice in this suit. The Court will rely on positive admissions of facts in issue, contrary evidence from the opposing party, and resolve all issues of fact on the credibility parties. 4.11. Plaintiff gave evidence and called two witnesses who corroborated his case. Defendant cross-examined the first, and elected not to cross-examine the second, and though he made attempts during cross-examination to deny Plaintiff’s case, these statements by Defendant were not admitted by Plaintiff. It is not sufficient to Page 9 of 14 simply deny an allegation without providing any evidence or explanation to support the denial and for this reason, in Hilodjie v. George (2005-2006) SCGLR 974 at 995 Georgina Woode JSC (as she then was) stated as follows: “In any action, cause or matter, a party who disputes an issue does not simply rest the case on formal denials either made in examination-in- chief or ‘put’ or ‘suggested’ to an opponent under cross-examination. If the opponent does not admit those suggestions, then he or she is deemed to have succeeded in establishing a prima facie case on the disputed fact, and the evidentiary burden shifts on to that party to prove contrary facts if he or she is desirous of avoiding a ruling against him or her on that issue.” 4.12. Again, the Supreme Court in Ofori Agyekum v. Madam Akua Bio (2016) JELR 66782 (SC), held per Benin JSC thus: “... Where no evidence is adduced on a fact that has been pleaded, it is treated as having been abandoned by the pleader, the court does not call it into question in its judgment. The court’s only duty is to consider the evidence the party has profferred in determining whether or not he has met the right standard of proof”. 4.13. The effect of these statements of the law is that this court which must determine the issues raised in the suit must do so on legal evidence given at the trial and not mere allegations or assertions in the pleadings. Defendant gave no evidence for the Court to consider, and in respect of the facts alleged by Defendant in his pleadings they are deemed abandoned, so he joined no issues with Plaintiff on his claims as to the facts. 4.14. Under Section 80 of the Evidence Act, NRCD 323 this Court may determine the credibility of a witness and consider same in determining the probative value of Page 10 of 14 the witness’ testimony and I have had no just cause to question the credibility of Plaintiff’s witnesses. I have concluded on all the evidence on record that Plaintiff led sufficient evidence on his reliefs as claimed. 4.15. The test of satisfactoriness or sufficiency of the evidence is the degree of belief that the party by the evidence creates in the mind of the trial court concerning the fact or facts in issue so that at the end of assessment of all that is on record, a reasonable mind should come to conclusion that the existence of a fact in issue is more probable and reasonable than its non-existence, the Courts applied this standard in Ackah v. Pergah Transport Ltd (supra) 728, 731 and Faibi v. State Hotels Corp. [1968] 471 (holding 1). 4.16. Again, Her Ladyship Mrs. Wood, as she then was, in Yeboah vrs. Amofa (1997- 1998) 1 GLR 674 at page 683 stated concerning the sufficiency of evidence that in the light of sections 11(1) and (4) and 12 of NRCD 323 sufficient evidence is such particular evidence as the circumstances of the case would permit, so that on all the evidence a reasonable mind would conclude the probabilities of the existence rather than the non-existence of the fact. Her Ladyship said this: “I notice from section 11 of NRCD 323 that the statute does not attempt any definition of “sufficient evidence”. In other words no attempt is made in disclosing what evidence will be deemed sufficient and what could be classified as insufficient. The reason is not difficult to find. It is definitely a question of fact determinable on the peculiar facts of each particular case. So that what constitutes sufficient evidence in case A may not necessarily be sufficient evidence in case B”. Page 11 of 14 whether or not there was a valid contract between parties and whether Defendant has breached the contract between parties. 4.17. Largely speaking, a contract is valid as held in NTHC Limited v. Antwi [2009] SCGLR 117 where it has a form, that is to say there is an offer to sell some good or service, parties to the contract, the capacity of parties to contract, the intention to create legal relations, the obligation of each party that is the terms of the contract, consideration and termination clauses where appropriate. The law is also that once there is definiteness of these terms and other factors, a contract exists as settled by the Supreme Court. I find these all to have been satisfied by Plaintiff’s evidence. The important matter of consideration is proven by the undenied retention by Defendant of his fees for the performance of his obligation. 4.18. Accordingly, regarding the first two issues, whether or not there was a valid contract between parties and whether Defendant has breached the contract between parties, I am compelled to find especially in view of Defendant’s abandonment of his pleadings that there was a valid contract for Defendant to sell Plaintiff’s charcoal on his behalf, and deliver the proceeds to Plaintiff. I find additionally that Defendant has breached the contract between parties. Whether Plaintiff is entitled to claim the balance from Defendant. 4.19. As stated in Tieso Ghana Limited v. Eiroget De-Invest S. A. (2017) JELR 64429 (HC): “A fundamental pillar of the law of contract is the doctrine of sanctity of contracts. This means that when persons with capacity to enter into contractual relations have consciously entered into a contract, the court must enforce the contract. The exception is where there are in existence conditions that, when proven, will prevent the court from indorsing the contract. These conditions include fraud, frustration, and duress.” Page 12 of 14 4.20. Plaintiff’s claim in this suit is in substance for the performance of Defendant’s promise to deliver to him the purchase price of his bags of charcoal. This is a promise that the if Court finds Defendant to have made, it would be inequitable to allow Defendant to renege on. The principle of promissory estoppel as referred to by some as equitable estoppel was explained by Denning J (as he then was) in the case of Central London Property Trust Ltd v. High Trees House Ltd [1947] KB 130 where it was held, as stated in the headnote thus: “... where parties enter into an arrangement which is intended to create legal relations between them and in pursuance of such arrangement one party makes a promise to the other which he knows will be acted on and which is in fact acted on by the promisee, the court will treat the promise as binding on the promisor to the extent that it will not allow him to act inconsistently with it even although the promise may not be supported by consideration in the strict sense ...” 4.21. The necessary elements to be proved by a party whose case relies on promissory estoppel as discussed in Ibm World Trade Corporation v. Hasnem Enterprises Ltd [2001-2002] 2 GLR 248 are a promise made with the intention that the claimant should rely on it and which is in fact relied on by the claimant. These are all to my mind of this Court sufficiently proven. If Akwasi K was the person contracted to sell Plaintiff’s charcoal as Defendant alleged, he would have as common sense requires me to conclude, been the one to deliver Plaintiff’s money to him. However, to the to the contrary, it was Defendant at all times who delivered Plaintiff’s money to him. Again, Defendant’s retention of his operational costs is indicative of his place in the transaction between he and Plaintiff as more than that of a charcoal loader who only loaded Plaintiff’s charcoal on the trucks and offloaded them. Page 13 of 14 4.22. On all the evidence on record, I find that there was a valid contract between parties, for Defendant to sell Plaintiff’s charcoal and deliver his money to him, that Defendant has breached the contract between parties and Plaintiff is entitled to claim the balance on the sale of the charcoal from Defendant. Conclusion In conclusion, Plaintiff’s action succeeds entirely and judgment is entered for him on his reliefs as claimed in the writ of summons thus: a. Defendant is ordered to pay the sum of Three Thousand Eight Hundred and Eighty-Three Ghana Cedis (GHS 3,883.00) to Plaintiff. b. Interest on relief (a) in the sum of GHS 2,220.81 at the prevailing bank rate of 29.84 % per annum as at judgement, from January 2022 till date. c. Interest on the sums mentioned in reliefs a and b from judgment till final payment at the prevailing bank rate of 29.84 % per annum. d. I assess Plaintiff’s costs at One Thousand Five Hundred Ghana Cedis (GHS 1,500). SGD. H. W. KWAME ADJEI MANU ESQ. (DISTRICT MAGISTRATE) Parties present (Unrepresented). Page 14 of 14