KLUTSE VRS. ABDULLAI AND ANOTHER (A2/129/22) [2024] GHADC 497 (24 October 2024)

IN THE DISTRICT COURT B SITTING AT AMASAMAN, THE 24th DAY OF OCTOBER, 2024 BEFORE H/W ANNETTE SOPHIA ESSEL (MRS.) SITTING AS MAGISTRATE SUIT NO. A2/129/22 RAYMOND KLUTSE PLAINTIFF VRS: 1. LEILA ABDULLAI 2. RAHINA SHEKINA DEFENDANTS JUDGEMENT By a writ of summons issued in the Registry of this court the Plaintiff; a businessman resident at Dansoman hauled the Defendants before this Honorable Court praying for the underlisted reliefs: - “(1.) An order of this honourable Court to compel the Defendants to pay outstanding balance of GH¢6,740 being cost of building materials Defendants destroyed at the Plaintiff’s land at Ashalaja but which he has since failed to pay despite persistent demands. (2.) Interest and Cost. The Defendants are the surviving sister and spouse of the late Abdulai Danjumah and residents of Ashalaja in the Ga-West District of the Greater Accra Region of the Republic of Ghana. 1st Defendant spurned the instruction of the court. CASE OF THE PLAINTIFF: - It is the case of Plaintiff that in the year November 2021 he leased a plot of land from the 2nd Defendant at a cost of Fourteen Thousand Cedis (GH¢14,000.00) only. The Plaintiff says that Page 1 of 11 following this purchase, the 2nd Defendant furnished him with all due documentation covering this transaction. Plaintiff says that he subsequently deposited building materials on the land for purposes of developing same. Plaintiff says that to his dismay, the 1st Defendant under the guise of being the next-of-kin of 2nd Defendant’s late husband entered upon this land, laid a rival claim of ownership to same and consequently destroyed all Plaintiff’s building materials on the land. According to the Plaintiff following a report to the Police and their investigations, the 1st Defendant upon arrest, agreed to refund to him Twenty Thousand Seven Hundred and Forty Cedis (GH¢20,740 ) only being the total cost of the land together with the building materials destroyed. In this regard, 1st Defendant paid to Plaintiff the purchase price for the land being Fourteen Thousand Cedis (GH¢14,000.00) only leaving an outstanding balance of Six Thousand Seven Hundred and Forty Cedis (GH¢6,740) only which same she has refused to pay despite the persistent demands of Plaintiff hence the commencement of this suit. DEFENCE OF THE 1st DEFENDANT: It is the contention of 1st Defendant that the 2nd Defendant is not the owner of the said piece of land, hence she lacked the capacity undertake any transaction of any nature in relation to same and also to vest any interest of whatsoever nature in the Plaintiff. According to the 1st Defendant, the land in dispute belonged to her late brother; Abdulai Danjumah. She further added that the 2nd Defendant was not a wife her late brother but rather a girlfriend thus she had no capacity to deal in the land with Plaintiff. She claimed that following the death of her brother, in her position as next of kin she entered upon the land to inspect same and did not destroy any building materials belonging to the Plaintiff. According to the 1st Defendant following payment of the cost of the land by Plaintiff to 2nd Defendant, they both visited the office of Alpha Investment and Properties Limited in an attempt to seek a change of ownership on the title documents covering the land. They paid One Thousand Cedis (GH¢1,000.00) only in this regard. 1st Defendant claims that the office above- mentioned refused their request and returned their payment to them. Subsequently the Plaintiff caused the arrest of Defendants. Page 2 of 11 At the police station it was agreed between parties that the plaintiff be reimbursed the money he had paid for the land being Fourteen Thousand Cedis (GH¢14,000.00) only which was paid to him in full and a police extract issued in support of same. Following this payment, Plaintiff continues to have in his possession the title documents covering the land. She asserted that she was surprised to be hauled before the court for the payment of Six Thousand Seven Hundred and Forty Cedis (GH¢6,740.00) only which same bill had never come up in any conversation between Plaintiff and Defendants at the Police Station. She therefore claimed that the prayer of Plaintiff was unmeritorious and ought to be dismissed. ISSUE FOR DETERMINATION: - In view of the pleadings, evidence led and cross-examination of parties herein. The issue for determination by the court was whether or not the 1st defendant must pay the Plaintiff the amount of Six Thousand Seven Hundred and Forty Cedis (GH¢6,740.00) only for his property destroyed. PROCEDURE OF TRIAL: Parties in the suit were both legally represented. Attempts at mediation at Court -Connected Alternative Dispute Resolution (C.C.A.D.R.) broke down. The court proceeded to hear the matter. Parties went through full Hearing. Plaintiff called one witness and 1st Defendant also called one witness. Parties testified by themselves and thereafter announced the closure of their respective cases. 2nd Defendant spurned the invitation of the court. STANDARD OF PROOF: When a court is called upon to resolve conflicting versions of facts, the duty of the court is distilled in a crucial question articulated by her Ladyship Georgina Wood CJ. on page 69 of Sarkodie v F.K.A Co Ltd [2009] SCGLR 65 in these words: “the main issue for the court to determine is simply that, on a preponderance of the probabilities, whose story is more probable than not?” Page 3 of 11 That question put differently is - whose evidence had more weight and credibility? This being a civil suit, Sections 11 (1) & (4), and 12 of the Evidence Act 1975 (NRCD. 323) has well settled the evidential and the persuasive burden that the law casts of parties in a civil matter. The standard of proof required of a party who makes assertions which are denied, is one on a balance of probabilities. This therefore requires a party making assertions to adduce such evidence in proof of the assertions, such that the court is convinced, that the existence of the facts he asserts are more probable than their non-existence. Sections 10, 11(1) & (4) of the Evidence Act, 1975 (NRCD 323) provides that: “Section 10 - Burden of Persuasion Defined (1) For the purposes of this Act, the burden of persuasion means 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. (2) The burden of persuasion may require a party (a) to raise a reasonable doubt concerning the existence or non-existence of a fact, or (b) to establish the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt. Section 11 - Burden of Producing Evidence Defined. (1) For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue. (4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence.” Section 12 of the Evidence Act, 1975 (NRCD 323) provides that: Proof by a preponderance of probabilities 12(1) except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of probabilities. “Preponderance of probabilities” means that degree of certainty of belief in the mind of the tribunal of facts or the court by which it is convinced that the existence of a fact is more probable than its non-existence”. Page 4 of 11 In explaining the principles relating to the duty to produce evidence, S.A Brobbey JSC. states at page 31 of his book Essentials of the Ghana Law of Evidence thus; “This literally means the proof lies upon him who affirms, not on him who denies, since by the nature of things, he who denies a fact cannot produce proof. Where the Plaintiff makes a positive assertion at the start of the trial, he bears the legal burden. At the same time, he bears the evidential burden to adduce evidence at the start of the trial.” In the case of Beatrice Butor Hammond v Adjei Agboh Suit No: LD/0437/2017 Kweku T. Ackaah Boafo J. (as he then was) in his resounding judgement noted that that there is no paucity of case law interpreting the provisions of the Evidence Decree, 1975 (N.R.C.D 323). In Ababio v Akwasi 111 [1994-95] GBR at 774 the Supreme Court reiterated the point of a party proving an issue asserted in his pleadings. Aikins JSC. delivering the lead opinion of the court held thus: “The general principle of law is that it is the duty of the plaintiff to prove his case that is, he must prove what he alleges. In other words, it is the party who raises in his pleadings and issue essential to the success of his case who assumes the burden of proving it. The burden only shifts to the defence to lead sufficient evidence to tip the scales in his favour when on a particular issue the plaintiff leads some evidence to prove his claim. If the defendant succeeds in doing this, he wins, if not he loses on this particular issue. Also, in the case of Barkers-Woode v Nana Fitz [2007-2008] SCGLR 879 at 891 the Supreme Court held per Date-Bah JSC. that: “The common law has also followed the common-sense approach that the burden of persuasion on proving all facts essential to any claim lies on whoever is making the claim.” EVIDENCE ADDUCED BY PLAINTIFF: Plaintiff testified that on 8th November, 2021 at a cost of Fourteen Thousand Cedis (GH¢14,000.00) only, the 2nd Defendant leased one (1) plot of land lying situate at Mmanpehia near Ashifla in the Ga-South District of the Greater Accra Region of Ghana to him. He claimed that when he inquired from 2nd defendant in respect of the type of interest held by her, she told him that her late husband during his lifetime gave the land together with documents covering same to her. 2nd Defendant told him that she was selling the land in dispute to enable Page 5 of 11 her to acquire funds for her upkeep and also that of her dependents. Plaintiff narrated that following payment, he went together with 2nd Defendant to Alpha Investments Limited to pay for the process of a change of ownership of title documents for the land. In this direction Plaintiff paid an additional One Thousand Cedis (GH¢1,000.00) only. Whilst waiting for the title documents, Plaintiff commenced development works on the land and also appointing a caretaker to watch over the land. The Plaintiff alleges that he weeded and cleared the land at a cost of Five Hundred Cedis (GH¢500.00) only, planted eight (8) trees at a cost of Two Hundred and Forty Cedis (GH¢240.00) only and deposited the following building materials on the land: One truck load of gravels valued at Two Thousand Two Hundred Cedis (GH¢2,200.00) only, a truck load of sand valued at One Thousand Cedis (GH¢1,000.00) only and seven hundred (700) pieces of cement blocks costing Two Thousand Eight Hundred Cedis (GH¢2,800.00) only. In his estimation, these expenses together with the land purchased cost him Twenty Thousand Seven Hundred and Forty Cedis (GH¢20,740.00) only. According to the Plaintiff, as at January, 2021, Alpha Investments and Properties Limited had not completed the documentation works although he was directed to commence development works on the land. So, he proceeded to appoint a caretaker over the land, deposit building materials and also plant tree crops on the land. On 22nd January, 2024 Plaintiff was informed by his caretaker (PW1) that someone had come unto the land with a grader to clear the land resulting in a destruction of his building materials and tress. Plaintiff claimed that he reported this state of affairs to 2nd Defendant and Alpha Properties and Investment Limited and also the police which led to the arrest of 1st Defendant as the culprit. It is the testimony of Plaintiff that on 2nd February, 2022, he and 1st Defendant met at the Police Station. Following deliberations, on 9th February, 2022 1st Defendant paid Plaintiff for the cost of the land being Fourteen Thousand Cedis (GH¢14,000.00) only yet failed to pay for the additional expenses which Plaintiff had incurred with respect to the land, hence the commencement of this suit. Plaintiff claims that neither the Police, Legal Aid Commission, meditation at CCADR would compel the 1st Defendant to do the needful. In support of his averments, Plaintiff tendered the following exhibits in support of his case: Exhibit ‘A’: Indenture of Alpha Investment and Properties Limited and Abdulai Danjumah Page 6 of 11 Exhibit ‘B’: Receipt issued to Klutse Raymond dated 8th November, 2021 from Alpha Investment and Properties Limited. Exhibit ‘C’ series: Receipts for building materials C, C1, C2, C3 purchased by Plaintiff and cot of land weeding. Exhibit ‘D’ series D, D1, D2, and D3: Coloured pictures of the land; subject matter of this suit before it was graded. Exhibit ‘E’ series E, E1, E2, and E3: Coloured images of the land; subject matter of this suit after it was graded. Exhibit ‘F’ series F, F1, F2 F3: Court connected ADR mediator on locus visitation coloured image. To buttress his case Plaintiff called one witness who corroborated the case of Plaintiff. EVIDENCE ADDUCED BY 1st DEFENDANT: The 1st Defendant; a sibling of the deceased Abulai Danjumah who bought the land (plot number 34) from Alpha Investment and Properties Limited at Grace City, Ashifla stated that she was the next-of-kin of the deceased. She narrated that following purchase, the Deceased furnished her with copies of documents title covering Plot No. 34 for purposes of safe keeping and future representation. She claimed that following the burial of deceased, at a family meeting for purposes of appointing an administrator to administer the estate of deceased, she produced the copies of document covering the land which formed part of the estate of deceased. The surviving extended relatives of deceased in her company on 15th January, 2022 visited the land under the directions of an official of Alpha Investment and Properties Limited. 1st Defendant stated that they entered upon vacant land and cleared the land. They found sand and stones chippings, coconuts and mango tree planted on the boundaries of the land and an unspecified number of cement blocks. They did not know who the encroacher was. According to 1st Defendant to preserve the estate of Deceased, his family decided to construct a fence wall around the land. Thus, on 21st January, 2022, the land was graded to pave way for the construction works. In view of this, the trip of gravel, sand and cement blocks were relocated by 1st Defendant and family to the side of the land and tree plantings left untouched. Page 7 of 11 1st Defendant narrated that she received a call from Police on 27th January, 2022 which invitation she honored on 28th January, 2022 and gave a statement in respect of trespass on this land; Plot No. 34. 1st Defendant narrated that subsequent investigation revealed that 2nd Defendant had clandestinely sold the land to Plaintiff when she had no capacity so to do. A visit by parties to the land also revealed that Plaintiff’s building materials were still on the land. The Police compelled 2nd Defendant to refund the money which Plaintiff paid for the purchase of the land. However, knowing full well that 2nd Defendant was not in a position to do so, 1st Defendant paid Plaintiff Fourteen Thousand Cedis (GH¢14,000.00) only and same was receipted by the Police on 9th February, 2022. The Police consequently directed Plaintiff to hand over the original documents covering the land which were in his custody; yet to date he failed to comply with this directive. According to 1st Defendant she should have paid the Plaintiff an amount of Thirteen Thousand Cedis (GH¢13,000.00) only as following purchase of the land to Plaintiff by 2nd Defendant, they paid One Thousand Cedis(GH¢1000) only out of this amount for processing fee of change of ownership at Alpha Investment and Properties Limited. However, Alpha Investment and Properties Limited upon realizing the fraudulent transaction declined to register the land in the name of Plaintiff and consequently refunded this money back to Plaintiff. 1st Defendant concluded that the police had processed an extract in respect of this matter. She stated that the Plaintiff simply sought to reap where he had not sown as she had offered Plaintiff an additional Three Thousand Cedis (GH¢3,000.00) only for moving his building materials which same the Plaintiff found unacceptable and consequently caused this action. Thus, all told the Plaintiff’s case was unmeritorious. She narrated that during deliberations at mediation and site inspection, the Plaintiff attempted to bully her to succumb to his demand which she resisted. In support of her testimony, she tendered exhibits in support of her case. Additionally, she called on D/Cpl. Stephen Ametepe (DW1) who corroborated her testimony that the sale of the land was wrongful and also that no building materials of Plaintiff was damaged. In support of his testimony’ he tendered a Police Extract 16th March 2022 which went in as evidence. During trial this witness was present in court. DETERMINATION OF THE ISSUE BY THE COURT: Page 8 of 11 It is the testimony of plaintiff that 1st Defendant had destroyed his building materials. Plaintiff vehemently maintained that the cost of these materials, was Six Thousand Seven Hundred and Eighty Cedis (GH¢6,780) only he tendered exhibits in support of same which went in as evidence without objection. Additionally, his witness corroborated his testimony and also that of the Defendant’s witness. It is trite learning that a person who makes an averment or assertion, which is denied by his opponent has the burden to establish that his averment or assertion is true. And he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. In the case of Lydia Akwandua Quarcoo Ahele (Suing as Administratix of The Estate of Jama Ahele Zinabu) and Abiba Awudu Adjonako v Alhaji Baba Salifu and Solomon Kwabena Tetteh Suit No FAL/191/14, decided on 20th June, 2019 Barbara Tetteh-Charway J. (Mrs.) cited with approval, the following proposition from the case of Zabrama v. Segbedzi (1991) 2 GLR 221: “The correct proposition is that a person who makes an averment or assertion, which is denied by his opponent has the burden to establish that his averment or assertion is true. And he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of that burden.” The 1st defendant did not deny the existence of these materials on the land, neither did she state that she did not tamper with the said materials. Below is a snippet of what transpired during cross examination of 1st Defendant: Q. You have stated that you saw trips of chippings and sand, cement blocks and trees which were planted on the boundaries of the land not so? A. Yes my Lady. Q. Now when you were grading the land to pave way for construction, you caused damage to the items on the land which were placed by the Plaintiff. A. That is not true my Lady. Q. So you want this court to believe that in grading the land, the driver graded around the trips of sand, cement blocks and chippings on the land. That he maneuvered around the items on the land. A. No my Lady. Page 9 of 11 Q. You have stated in paragraph 9 and 10 of your witness statement that “Read in court” so you will agree with me that in actual fact, you moved the trip of sand and cement blocks from where they were placed, according to your own witness statement. A. Yes, my Lady it was relocated. Q. Can you tell this court how you moved the trip of sand from where it was placed originally by the Plaintiff? A. No my Lady. Because as at then I was in school so it was my family who did the grading. Q. I am putting it to you that damage was caused to the material on the land unknown to you but you have denied this because you were not present at the time the land was being graded and when the items were being moved from their original location. A. That is not so my Lady, my family and I visited the land following the grading process when I was on break and Plaintiff items were not damaged but relocated. Q. I am putting it to you that in your own witness statement which you have just denied, you stated that “read in court” paragraph 20 of 1st Defendant Witness Statement. So, you did offer GH¢3000. I am putting that to you. A. My Lady the case was referred to ADR and the Arbitrator requested that we visit the land. So, I and Arbitrator visited the land and the Arbitrator saw for himself that the items were not damaged. On our return the Arbitrator spoke with Plaintiff and I to negotiate which I decided to buy his materials placed on the land for GH¢3000 and that will be paid in instalments. I also stated that the land in question is a new estate which people are building so if he is not ok with my offer then he can see those around who are building to sell to them. Q. I put it to you that the reason why you offered less than half of what the material on the land are worth in total is because you had caused excessive damage to those materials and you know that they were no more worth the GH¢6,740 which the Plaintiff originally purchased them for. A. That is not true my Lady. It is the respectful opinion of the court that the plaintiff has discharged his burden on the balance of probabilities and is consequently entitled to his relief. The court finds fortitude in its position Page 10 of 11 in the case of Ackah v Pergah Limited & Others [2010] SCGLR 728 the Supreme Court per H/L Sophia Adinyira (Mrs.) JSC.: “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 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 than its non-existence.” Also, in the case Domfeh v Adu [1984 – 86] 1 GLR 653, the court held that: “The primary facts which a trial judge might find as having been proved to his satisfaction were those necessary to establish the claim of a party or in some cases the defence which had ben alleged on one side and controverted on the other. The trial judge was not required to make findings of fact in respect of irrelevant matters on which the parties have led evidence when such findings would not assist in the determination of the issues involved in the case.” The response of the 1st Defendant to the claim of plaintiff is not cogent and credible enough to the satisfaction of the court to be absolved of blame. It is this witness who set out to put the plaintiff in his original state which resulted in the building materials nature being altered. On the totality of evidence before the Court, the court proceeds to enter judgement in favour of Plaintiff against 1st Defendant on his relief for the recovery of Six Thousand Seven Hundred and Forty Cedis (GH¢ 6,740.00) only. Cost of Five Hundred Cedis (GH¢ 500.00) only is awarded against 1st defendant in favour of the plaintiff. (SGD) H/W ANNETTE SOPHIA ESSEL (MRS.) MAGISTRATE Page 11 of 11