VOGEL VRS TETTEH (A9/29/23) [2023] GHADC 1181 (13 December 2023)

IN THE DISTRICT COURT AT LA HELD ON WEDNESDAY THE 13TH DAY OF DECEMBER, 2023. BEFORE HER WORSHIP ADWOA BENASO ASUMADU- SAKYI, SITTING AS A MAGISTRATE SUIT NO: A9/29/23 NAOMI VOGEL H/NO. 9 ABOKOBI ROAD CANTOMENT-ACCRA >>> PLAINTIFF VRS. BERYL TETTEH H/NO. CA 11 1ST CR STREET LA ABOMI PAMPLOSHIE ACCRA >>> DEFENDANT _______________________________________________________ JUDGMENT ________________________________________________________ INTRODUCTION The Plaintiff filed this instant suit on 24/2/23 against the Defendant praying for the following reliefs; 1. Order ejecting Defendant from H/No. CA 11 1st CR STREET La Abormi (Pamploshie), Accra. 2. An order directing Defendant to pay the sum of One Thousand Nine Hundred and Fifty-Six Ghana Cedis Ninety-Eight pesewas only (GHC 1,956.98) being the cost of water consumed by Defendant. 3. An order directed at the Defendant to desist from further insulting the Plaintiff and allow Plaintiff quiet enjoyment and possession of her property. 4. Cost including legal fees 5. Any other reliefs which this Honourable Court deems fit. The Court dispensed with the filing of proceedings and although the Defendant was served with a hearing notice she failed to appear. The Court thus ordered the Plaintiff to file her witness statement on 17th of July, 2023. The Plaintiff complied with this order and filed her witness statement on the 25th of July, 2023. The Defendant was granted leave to file her witness statement on 7th of August, 2023 and she filed her witness statement on the 28th of August, 2023. Case Management Conference was conducted on the 6th of September, 2023 and the case was adjourned to12th of October, 2023 for hearing. The case was then adjourned to the 13th of December, 2023 for judgment. PLAINTIFF’S CASE According to the Plaintiff’s witness statement she is the bonafide owner of H/No. CA 11 1ST CR STREET La Abormi (Pamploshie), Accra. The Plaintiff states that the Defendant is her late brother’s daughter thus making her, her niece. The Plaintiff also states that she has supported the Defendant and her siblings over the years and that when the Defendant became pregnant in 2019 and had medical complications, she allowed the Defendant and her elder sister to move into the subject matter so she could be close to the hospital and for her sister to take care of her. The Plaintiff also states that she asked the Defendant and her sister to move out of her property due to their bad conduct in the year 2020. The Defendant’s sister moved out in the year 2021 but the Defendant failed to vacate the said property. While the case was subsisting the Defendant vacated the property but left the water bill unpaid, caused damage to the electrical fittings and the door locks, stole a burner and cooker and an eighty-year-old sofa. DEFENDANT’S CASE The Defendant’s case is to the effect that the Plaintiff built the subject matter for her and her elder sister. The Defendant further states that the Plaintiff asked her and her sister to move into her house and that she subsequently moved into the house with her husband in the year 2019. The Defendant states that in the year 2020 the Plaintiff asked her and her sister to move out of her house and that at a family meeting it was agreed that they were given till the 31st of December, 2020 to move out. The Defendant states that she could not move out by the said date because of financial constraints she was facing. The Defendant went further to state that she incurred a water bill of One Thousand Four Hundred and Twenty-Five Ghana Cedis (GH¢ 1,425.00) which she paid before she left the house. The Defendant also states that she never touched the sofa the Plaintiff gave her, neither did she steal the gas cooker but rather took it for repairs and planned on returning same after it is repaired. DISCUSSION OF THE LAW AND THE EVIDENCE BURDEN OF PROOF It is noteworthy that, the standard of proof in civil matters is proof by the preponderance of the probabilities. The trite evidential test in resolving civil matter if for the person alleging to produce sufficient evidence so that on the balance of probabilities, a reasonable mind will be convince that the existence of a fact is more probable than its non-existence. Thus, the party who asserts the affirmative of an issue has the incidence of the legal burden and is obligated to give such quality evidence that it can be concluded that his/her case is more likely to be the case. The proof prescribed in civil matters is provided under Section 11(4) and 12 of the Evidence Act, 1875 (NRCD 323). The Supreme Court echoed this principle in the case of Bisi vrs. Tabiri alias Asare [1987-88] 1 GLR 360 that: “…Preponderance of evidence became the trier’s belief in the preponderance of probability. But ‘probability’ denoted an element of d doubt or uncertainty and recognised that where there were two choices it was sufficient if the choice selected was more probable that the choice rejected…” Also, in the case of Sagoe and Others vrs. Social Security and National Insurance Trust (SSNIT) (2012) 2 SCGLR 1093 the Court stated that; Proof by a preponderance of probabilities” within the context of the burden of proof as stated in Section 12(2) of the Evidence Act,1975 (NRCD 323) simply means weightier or superior evidence”. See the cases of Bakers-Woode v Nana Fitz (2007-2008) SCGLR 879 at 891 John Dramani Mahama v Electoral Commission and Another, Civil Suit No. H1/05/2021 dated 4th March 2021 What amounts to proof in law has been defined by the Supreme Court speaking through Ansah JSC, in the case of Abbey & Others vrs. Antwi [2010] SCGLR 17, reiterated Ollenu J (as he then was), dictum in Majolagbe vrs. Larbi [1959] GLR 190, @ 192 as follows; “Proof in law is the establishment of facts by proper legal means where a party makes an assertion capable of proof in some way e.g., by producing documents, description of things, reference to other facts, instances or circumstances and his averment is denied, he does not prove by merely going into the witness box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances from which the court can be satisfied that what he avers is true.” DISCUSSION OF THE FACTS Although no issues were set down for trial in order to make a determination, I have set down the following issues down as issues for determination; a) Whether or not the Plaintiff granted the Defendant a license to stay in her apartment b) Whether or not the Defendant and her were gifted the subject matter in dispute by the Plaintiff c) Whether or not the Defendant owes an amount of One Thousand Nine Hundred and Fifty-Six Ghana Cedis Ninety-Eight Pesewas being the cost of the water she consumed. d) Whether or not Defendant caused damage to the Plaintiff’s apartment ANALYSIS OF THE LAW AND FACTS The Plaintiff testified on the 12th of October, 2023 and her witness statement was adopted as her evidence in chief. The Defendant opted not cross examine the Plaintiff when she was given the opportunity to do so. It is trite law that when a party fails to cross examine her opponent then she needs not to call further evidence to that fact and is deemed to be the true state of facts. In Fori vrs Ayerebi (1996) GLR 627 SC it was held as follows; “The law is that when a party made an averment, and that averment is denied, no issue is joined on that averment, and no evidence need be led. Again, when a party gives evidence of a material fact and is not cross examined upon it, he need not call further evidence of that fact.” This principle was further enunciated in the case of Ashanti Goldfields Co. Ltd vrs Weschester Resources Ltd [2013] 56 GMJ 84. C. A, at page 128 by Korbieh, J. A as follows; “The law is that where the evidence of a witness is unchallenged in cross examination, it is deemed to have been admitted by the other side.” See the cases of 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. It can thus be concluded that 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. I will now discuss the 1st and second reliefs together that is; Whether or not the Plaintiff granted the Defendant a license to stay in her apartment and Whether or not the Defendant and her were gifted the subject matter in dispute by the Plaintiff The law is settled that when leave and licence is granted to occupy a portion of property rent free it only makes the presence of the occupant lawful and does not in any way create ownership. This principle was discussed in the case of Mamudu Wangara vrs Gyato Wangara [1982-83] at holding 3 as follows; “The leave and licence granted to the plaintiff to occupy rent free a portion of the disputed house only made his presence in the house lawful. The leave and licence could not under any circumstances have amounted to ownership as he erroneously assumed.” The case of Nuamah vrs Frimpong [1973] 2 GLR 37 also held as follows; “The law presumptively applicable was customary law and in customary law, when a Ghanaian allowed an infirm relation to live rent free in his house it was not his intention to carve out a life interest for him in the property.” The Defendant’s witness statement was admitted into evidence as her evidence in chief on the 12th of October, 2023. The Defendant’s case is to the effect that the subject matter was gifted to her and her sister by the Plaintiff. The Supreme Court in Ackah v Pegah Transport Limited And Others [2010] SCGLR 728 at page 736 per Adinyira JSC held as follows; “It is a basic principle of law on evidence of the facts in issue that has the quality of credibility short of which his claim may fail. The method of producing evidence is varied and it includes the testimonies of the party 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 reasonable that its non-existence.” In the celebrated case of Majolagbe v Larbi [1959] GLR 190 it was also held that when a party makes an averment in his pleading which is capable of proof in a positive way and the averment is denied, the averment cannot be sufficiently proved by just mounting the witness-box and reciting the averment on oath without some corroborative evidence. See the case of Zabrama v Segbedzi [1991] 2 GLR 221 In the instant case all the Defendant did was to mount the witness-box and testified without producing any corroborating evidence in support of her case. It baffles this court that the Defendant failed to call her sister to testify on her behalf as her sister who is a material witness and could have corroborated her evidence. The law is settled that a material witness whose evidence would assist the court immeasurably if not called clearly dealt a big blow to that party’s case. In civil cases, the consequences of a party’s failure to call a material witness depends on the onus of proof place on her by the facts of the case. If a party has to establish his case and therefore, assumes the onus of proof, he must call witnesses material to establish that case. In that event his failure to call a material witness may result in a ruling being given against him for the reason that he has failed to establish his case. See Section 11(1) of the Evidence Act (supra) and Owusu vrs Tabiri [1987-88] 1 GLR It is also trite law that corroborated evidence is to be preferred to an uncorroborated one. See the case of Tonado Enterprise vrs Chou Sen Lin (2007-08) SCGLR 135, Zenabu vrs Nkrumah (20080 17 MLRG 137, SC Holding (2). Thus, on all the evidence adduced by the Defendant I have come to the conclusion that she was unable to proof her case that the Plaintiff gifted her the subject matter to her and her sister on a preponderance of probabilities. I hereby conclude on the evaluation of the facts and law that the Defendant was granted a licence to occupy the Plaintiff’s house and that this does not amount to ownership or carve out a life interest for her in the said property. I will now move on to the third issue; Whether or not the Defendant owes an amount of One Thousand Nine Hundred and Fifty-Six Ghana Cedis Ninety-Eight Pesewas being the cost of the water she consumed. The Plaintiff also testified that the Defendant owes an amount of One Thousand Nine Hundred and Fifty-Six Ghana Cedis Ninety-Eight Pesewas (GHS 1,956.98) which was the water bill she had refused to pay. The Plaintiff in support of the case tendered into evidence Exhibit A series without any objection from the Defendant. The Defendant in support of her case tendered Exhibit 1 into evidence, a water bill receipt of One Thousand Four Hundred and Twenty-One Ghana Cedis Eighty-One Pesewas she paid on the 15th of February, 2023. Thus, on a careful evaluation of the evidence adduced by both parties it can be concluded that the Defendant owes water bill to the tune of Eight Hundred and Fifty- Eight Ghana Cedis Nine Pesewas (GHS 858.09). I will now move on to the last issue; Whether or not Defendant caused damage to the Plaintiff’s apartment The Plaintiff also testified that the Defendant caused damage to the Plaintiff’s house by destroying 9 locks, a burner and an 80-year-old sofa. This is what ensued during cross examination on the 12th of October, 2023 Q. When you moved into the house how was the house A. It was a nice house Q. You just told this court that the house was nice when you moved in but you left the house so dirty A. I swept the house when I was leaving and I left the rubbish for someone to pick up but he told me it had already been picked up. Q. You will agree with me that, you left the house dirty A. I left the rubbish outside in the dustbin but I swept Q. Were there any wall papers A. No My Lady Q. Did the Plaintiff tell you she wanted wall papers in her house A. No My Lady Q. I put it to you that, you left the house with wall papers because the walls were dirty because you are not a clean person A. I put the wall paper on the wall because she told us that the house was built for us. The wall became dirty because my child touched the walls Q. You will agree with me that, you left the house dirty and wall paper A. Yes My Lady Q. Did the house have locks when you first moved in A. Yes My Lady Q. I put it to you that, you destroyed nine locks in the house before you left because you were asked to leave A. I did not destroy the locks. The locks were very weak so when you open then it breaks in your hands and I lived there for 3 years. Q. You will agree with me that, you broke nine locks within 3 years A. The locks were not of good quality so they break by itself and my kids also break the locks when they open the doors. Q. When you came into the house the electrical fittings were all in place A. Yes My Lady Q. Because of your violent nature you destroyed the electrical fittings too A. I did not destroy it Q. Within 3 years different tenants lived in the apartment but it is only your apartment in which everything is destroyed A. Yes My Lady Q. I put it to you that you have damaged the cabinet in the kitchen A. Yes My Lady It is clear from the above that the extensive damage caused to the Plaintiff’s house was caused through the deliberate action of the Defendant within a short period of three years. It must be noted that the Plaintiff failed to lead evidence to the cost of the items damaged by the Defendant and as such the court is handicapped as to the value of the said items and cannot make a pronouncement on that. CONCLSUION On a careful evaluation of the evidence adduced by the Plaintiff I have come to the conclusion that the Plaintiff has been able to proof her case on a preponderance of probabilities. I enter judgment in favour of the Plaintiff against the Defendant per as reliefs endorsed on the Writ of summons and hold that: 1. The Defendant is ordered to pay an amount of Eight Hundred and Fifty-Eight Ghana Cedis Nine Pesewas (GHS 858.09) being the cost of water consumed by the Defendant. 2. The Defendant is ordered to desist from insulting the Plaintiff and allow the Plaintiff quiet enjoyment and possession of her property. 3. Cost of GHS 3,000 is awarded against the Defendant for the damage she caused in the Plaintiff’s apartment. I will not make any pronouncement on relief one as the Defendant vacated the Plaintiff’s apartment while the case was still pending. H/W ADWOA BENASO ASUMADU-SAKYI DISTRICT MAGISTRATE