Gyimah Vrs Comfort [2023] GHADC 91 (3 May 2023)

IN THE DISTRICT COURT, KENYASI HELD ON WEDNESDAY THE 3RD DAY OF MAY, 2023 BEFORE HIS WORSHIP CLEMENT KWASI ASOMAH AS MAGISTRATE BR/KS/A9/08/23 EMMANUEL GYIMAH VES ABENA COMFORT & 1 OR. JUDGMENT Plaintiff on the 3rd of March, 2023 was issued out of the Registry of this Court, a writ of civil summons claiming the following reliefs. a) Recovery of an amount of GH¢7,435.00 from the Defendant. b) Interest on the said amount. THE CASE FOR PLAINTIFF Besides himself. The plaintiff did not call any witness. According to the plaintiff the defendants rented out two bedrooms to him at GH¢100.00 per month. Exhibit A was tendered in evidence to that effect. Plaintiff said after he had moved into the house the 2nd defendant started operating a beer bar and he could not cope with the noise and smoke from cigarette so he left the place. Plaintiff testified that the defendant promised to refund am amount of GH¢7,935.00 to him being an advance for 6 years but they have not. Hence the instant action. THE DEFENDANTS’ CASE The Court records indicate that the Defendants were served the writ of summons but they failed to come to Court on the return date ie. 22/03/2023. As a result cost of GH¢300.00 was awarded against the Defendant and hearing notice was ordered. The case was accordingly adjourned to 05/04/23. On the said 05/04/23 the plaintiff came to Court but the Defendants again failed to come to Court though they were served the hearing notice. I was therefore satisfied that the Defendants were not prepared to come to Court to contest the case so I closed the case of the defendants after the plaintiff had testified. What is the legal implication or effect of the Defendants’ refusal to appear in Court to contest or defend the suit? Order 25 rule 1 (2) (a) of C. I 59 District Court rules 2009 enacts “where an action is called for trial and a party fails to attend, the trial magistrate May, where the plaintiff attends and the Defendant fails to attend dismiss the counter claim if any and allow the plaintiff to prove the claim.” In the instant case even though the Defendants were not in Court when the case was first called, they were given the opportunity to come to Court so the case was adjourned and a hearing notice was served on them but that notwithstanding the defendant did not avail themselves in Court. My conclusion was that their refusal to attend Court to participate in the proceedings was deliberate and that influenced my decision to close their case because I think the case could not sit on the cause list forever or indefinitely for the only reason that the defendants were either unwilling or not prepared to come to Court. I am of the opinion that the decision I took in closing the case of the defendants and to adjourn the case for judgment was the best in the circumstances of the case as same is supported by law. The defendants cannot at any time raise an issue of irregularity in the proceedings. I now come to consider whether in the absence of the Defendants’ evidence the plaintiff has been able to discharge the burden of persuasion on him in terms of sections 10 and 14 of NRCD 323, 1975. It was the case of the plaintiff that when he gave vacant possession of the room he rented from the defendants, they promised to refund his money as stated on his writ of summons but they failed. He tended exhibit A in support of his claim. As I have stated in this judgment, Defendant were given the opportunity to come to contest the suit but they failed. In my view their failure to come to Court to defend the suit clearly showed that they had no defence whatsoever to plaintiff’s claim. I am therefore of the opinion that the plaintiff has been able to prove his claim on the preponderance of probabilities. Judgment is accordingly entered for plaintiff on his claim with costs of GH¢ 2,000.00. H/W CLEMENT KWASI ASOMAH