ODOI VRS ABROKWAH (A9/07/22) [2023] GHADC 1180 (5 December 2023)

IN THE DISTRICT COURT AT LA HELD ON WEDNESDAY THE 5TH DAY OF DECEMBER, 2023. BEFORE HER WORSHIP ADWOA BENASO ASUMADU- SAKYI, SITTING AS A MAGISTRATE SUIT NO: A9/07/22 BENJAMIN ODOI PER HIS LAWFUL ATTORNEY JOHN LETEYE LARTEY OF H/NO. G 297/6. LA >>> PLAINTIFF VRS. ISAAC ABROKWAH OF H/NO. G 297/6, LA >>> DEFENDANT _______________________________________________________ JUDGMENT ________________________________________________________ INTRODUCTION The Plaintiff filed this instant suit per his lawful attorney on 18/1/22 against the Defendant praying for the following reliefs; 1. An order by this Honourable Court to compel defendant to pay GH¢ 5,500 as rent arrears for 11 months and also vacate possession of plaintiff’s rooms as soon as possible 2. An order to compel defendant to settle the outstanding light bill and empty septic tank 3. Costs The Defendant filed a statement of defence despite no order of the court to do so. The suit was scheduled to came on 28th of February, 2022 but there was no court sitting the case was adjourned to 7th of April, 2022 and the prayer of the Plaintiff to amend his writ of summons which was granted. The case was then adjourned to the 2nd of June, 2022 but the Plaintiff failed to serve the Defendant with his amended writ of summons. The case was then adjourned to 24th of June, 2022 and yet again the Defendant had not been served. The case was adjourned to the 29th of July, 2022 and the court ordered for the writ of summons and a hearing notice to be served through substituted service as same could not be effected by personal service. The case was then adjourned to the 31st of October, 2022 and on the said date the Defendant was absent eventhough the orders of the court on the 29th of July, 2022 were complied with and the case was adjourned to 2nd of December, 2022. There was no sitting on the 2nd of December, 2022 and the case was adjourned to 24th of February, 2023 and although a hearing Notice was served on the Defendant through substituted service he was absent. On the 24th of February, 2023 the court ordered the plaintiff to file his witness statement and the case was adjourned to 28th of March, 2023. The Plaintiff’s attorney complied with the orders of the court and filed his witness statement on 7/3/23. Despite prove of service of the orders of the court and hearing notices through substituted service on the Defendant he failed to comply with the orders of the court. On the 28th of March, 2023 the Defendant was absent and once again the court ordered hearing notice to be served on him. The case was adjourned to 29th of May, 2023. There was no court sitting on the 29th of May, 2023 and the case was adjourned to 10th July, 2023 but both parties were absent and the case was adjourned sine dine. The Plaintiff issued a hearing notice on the Defendant but once again he could not be served and was absent on the 1st of August, 2023. The court ordered for the hearing notice to be served through substituted service and the case was adjourned to the 7th of September, 2023. The orders of the court was complied with and the hearing notice was served through substituted service on 28th of August, 2023. The court extended the period for defendant to comply with the its orders to file witnesses statements and with the persistent failure of the defendant to file the processes the court invoked its powers under Order 25 rule 1 of District Court Rules (2009) C. I 59 to allow the Plaintiff’s attorney to prove his claim on 7th of September, 2023. The case was adjourned to the 23rd of October, 2023 for cross examination and hearing notice was ordered to be served on the Defendant. Hearing notice was ordered to be served on the Defendant and yet again he failed to appear. The case was subsequently adjourned to the 5th of December, 2023 for judgment. Section 10,11,12 and 14 of the Evidence Act, 1975 (NRCD 323) provides the burden of proof placed on a party to discharge in civil trials. The burden of proof is discharged by the party proving the burden of persuasion and the burden of adducing evidence. The burden of persuasion is defined in section 19(1) of the Evidence Act supra as 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. Thus, the burden of persuasion may require a party to establish the existence or non-existence of a fact by a preponderance of probabilities. The burden of producing evidence is also defined in section 11 of the Evidence Act as the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party. This requires a party to produce sufficient evidence which on the totality of the evidence leads a reasonable mind to conclude that the existence of the fact was more probable than its non-existence. Section 14 of the Evidence Act (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. The Plaintiff is therefore required to satisfy this burden on each of the claims he asserted failing which there would be a ruling against him. Section 17(1) of the said Evidence Act supra also states that “Except as otherwise provided by law, the burden of producing evidence of a particular fact on the party against whom a finding on that fact would be required in the absence of further proof.” In Jass Co. Ltd vrs Appau and Another (2009) SCGLR it was held that the burden of proof is always put on the Plaintiff to satisfy the Court in an action for declaration of title to land. In Yaa Kwesi vrs Arhun Davies (2007-2008) Iscglr 580 at B584 it was stated that since the Plaintiff in this appeal sued for not only a declaration of title but also damages for trespass and an order for perpetual injunction, he assumed the onerous burden of proof of title to the disputed land by the preponderance of the probabilities required by sections 11(1) and (4) and 12 of the Evidence Act, 1975 or else risk the prospect of losing his case. The Supreme Court further stated as page 589 that “it is trite law that this suit being essentially for a declaration of title the Plaintiff was bound to establish his root of title… and to succeed the Plaintiff must clearly show his boundaries.” According to the Plaintiff’s witness statement he is the landlord of House No. G297/6, Degaul Park, La and that his deceased younger brother rented his two bedroom self- contain to defendant for a year in February 2020. The Plaintiff further states that the Defendant’s rent has elapsed and he was duly notified to vacate from the said room by March 2021. The Plaintiff states that the Defendant owes rent from March 2021 to January 2022 and upon all indications and all efforts to get defendant to vacate possession of the plaintiff’s room and pay GH¢ 5,500 as rent arrears for 11 months has proven futile. The position of the law is that when a party is given the opportunity to contest or lead evidence in defence of allegations against him but fails to avail himself of the opportunity, the court will be entitled to proceed with trail to its conclusion and make findings on the basis of the evidence adduced at the trial and proceed to give judgment. Having failed to contest the evidence led against him, the court should proceed to deliver judgment. In Fori vrs Ayerebi (1996) GLR 627 SC it was held that when a party had made an averment and that averment was not denied, no issue was joined and no evidence need be led on that averment. Similarly, when a party had given evidence of a material fact and was not cross examined upon it, he need not call further evidence of that fact See the cases of Takoradi Flour Mills vrs Samir Faris (2005-2006) SCGLR 890, In Re West Coast Dying Industry Ltd; Adam vrs Tabdoh (1984-86) 2 GLR 561 SC and Watalah vrs Primewood Products Ltd (1973) 2GLR 126, Hammond vrs Amuah (1991) 1 GLR 89 at 91. The Defendant failed to appear to court despite several hearing notices served on him to attend court. By his own conduct he has shown that he has no defence to the action. A party is to suffer the consequences or liabilities for not attending court after he has been duly served with processes and accordingly notified. See cases of Republic vrs High Court (Fast Track Division); Ex-parte State Housing Co. Ltd (No. 2) (Koranten - Amoako Interested arty) (2009) SCGLR 185 at 190 and Agbewole vrs Abodegbey (2012) 44 GMJ 124 at 129. Where the evidence of a witness is unchallenged in cross examination, it is deemed to have been admitted in evidence. What is not denied is deemed to be admitted. The evidence of the Plaintiff stands unchallenged. On the evidence in general and coupled with the fact that there is no challenge whatsoever of any of them, it is my judgment that the Plaintiff is entitled to judgment against the Defendant. Accordingly, I enter final judgment for the Plaintiff against the Defendant per as reliefs endorsed on the Writ of summons and hold that: 1. The defendant is ordered to pay GH¢ 5,500 as rent arrears for 11 months 2. The Defendant is ordered to vacate plaintiff’s 2 bedroom located in House No. G297/6, Degaul Park, La 3. Cost of One Thousand Ghana Cedis (GHS 1,000.00) is awarded against the Defendant. There was no evidence led on the 2nd relief and as such no orders will be made in respect of that. H/W ADWOA BENASO ASUMADU-SAKYI DISTRICT MAGISTRATE The Plaintiff also stated that the Defendant has refused to vacate from the said room although he had informed the Defendant that it was already rented out to someone else and that the room was rented out to him mistakenly. All efforts given to the Defendant to file his statement of defence and to appear as evidenced by the several hearing notices served through substituted service on 2/11/22, 5/12/22, 21/2/23, 30/3/23, 28/8/23 and 20/9/23. As part of the preparations towards trial the court ordered the parties to file their respective witness statements and documents on 24the February, 2023. It is the rule that the failure by a party to cross examine a witness on vital matters testified to is deemed to be an admission of those matters and a party need not call further evidence on that. See the following cases: FOLI v. AYIREBI [1966] GLR 627; BILLA v. SALIFU [1971] 2 GLR 87; BEDIAKO v. THE STATE [1963] 1 GLR 48; LANQUAYE v. THE REPUBLIC [1976] 1 GLR 1; TAKORADI FLOUR MILL v. SAMIR [2005-2006] SCGLR 882; BANDA v. REPUBLIC [1975] 1 GLR 52 Plaintiff’s testimony and document evidencing its claim to the reliefs were not challenged and examining the documents the court is convinced that the plaintiff has a legitimate claim in law that has not been impeached at all. Judgment is accordingly entered for the plaintiff against the defendant in respect of its claim in respect of the following