Teye Vrs Kwasi and Another [2023] GHADC 243 (28 April 2023)

IN THE DISTRICT MAGISTRATE COURT HELD AT NSAWAM N. A. M. A. ON 28TH APRIL, 2023 BEFORE HER WORSHIP SARAH NYARKOA NKANSAH MAGISTRATE EMMANUEL NARTER TEYE H/NO. 21/DAMS … … … PLAINTIFF SUIT NO. A1/13/21 VRS: 1. 2. BROTHER KWASI BROTHER EVANS … … … DEFENDANTS PARTIES PRESENT EXCEPT 1ST DEFENDANT NO LEGAL REPRESENTATION JUDGMENT The Plaintiff herein commenced this action claiming the following against the Defendants: a. GH¢15,000.00 being cost of land Defendants sold to Plaintiff at Sakyikrom in Nsawam which land Plaintiff later found out that same has does not belong to Defendants but Defendants have refund to refund the said sum since 2017 despite several demands. b. GH¢1,000.00 being cost of preparation of Deed of Conveyance to cover the sale transaction. c. Interest and Cost. The Defendants had notice of the pending Suit. The 1st Defendant did not file any process and the 2nd Defendant although he filed his Statement of Defence and Witness Page 1 of 5 Statement, he chose not to attend the trial to have his Witness Statement adopted. The Court therefore proceeded under Order 25 of the District Court Rules, 2009(C. I 59), to hear the matter without the Defendant. Order 25 r 1(2) (a) provides; “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 counterclaim if any and allow the Plaintiff to prove the claim” In Ankumah v City Investment Co Ltd [2007-2008] 2 SCGLR 1064, Baffoe Bonnie JSC held at page 1076 as follows; “A Court is entitled to give judgment in default as in the instant case, if the party fails to appear after notice of the proceedings has been given to him. For then, it would be justifiable to assume that he does not wish to be heard.” PLAINTIFF’S CASE It is the case of the Plaintiff that somewhere in July 2018, he was introduced to the 1st Defendant by the 2nd defendant as a land owner who wanted to sell his parcel of land at Sakyikrom. Plaintiff continued that he expressed interest and paid an initial amount of GH¢11,000.00 to the 1st Defendant and the remaining by instalment through the 2nd Defendant being the cost of the land after he had inspected the land and further made payment of GH¢1,000.00 for the cost of the land documents. Plaintiff asserts that, he went into possession of the land by developing same but was stopped by someone claiming to be the owner of the land and upon investigations, revealed that the land does not belong to the defendants and also the Defendants who took the land documents for signing could not be found and every effort to get in touch with the Defendants have been futile. The Plaintiff therefore prayed the Court Page 2 of 5 to grant the reliefs endorsed on his Writ of Summons. The Plaintiff closed his case without calling any witness. In the circumstance the issue that falls for determination is; Whether or not the Plaintiff is entitled to recover the sum of GH¢16,000.00 from the Defendants. In the case of Nartey v. Mechanical Lloyd Assembly Press Ltd [1987-1988] 2GLR pg 314 Adade JSC stated that: “A person who comes to Court, no matter what the claim is, must be able to make a good case for the Court to consider, otherwise he must fail.” Sections 11(4) and 12 of the Evidence Act, 1975 (NRCD 323) provides that the burden of proof on a party in a civil Suit should be on a balance of probabilities. In the case of Adwubeng v. Domfeh [1996-97] SCGLR 660, the Supreme Court held that; “in all civil actions, the standard of proof is proof by the preponderance of probabilities, and there is no exception to that rule.” The Plaintiff has so far led evidence telling the Court that, the Defendants owe him an amount of GH¢16,000.00 which the Defendants has willfully refused to settle despite several demands from him. That the Plaintiff had paid the said GH¢16,000.00 to Defendant as purchase price for a piece of land which turned out not to belong to Defendants. It is for this reason the Plaintiff instituted the present action to claim a refund of the money paid to Defendant. Page 3 of 5 As stated supra, the Plaintiff was discharged without being cross-examined by the Defendants because the Defendants opted to be absent although they had notice of the proceedings and they, by their conduct waived the opportunities given to them to come to Court to open their Defence. The position of the law is that, the Court ought to accept the evidence led by a party, where his opponent fails to lead contrary evidence or challenge same under cross- examination by deeming the evidence as having been admitted by his opponent. In Takoradi Flour Mills vrs Samir Faris [2005-06] SCGLR 882, the Supreme Court held that; “where the evidence led by a party is not challenged by his opponent in cross examination and the opponent does not tender evidence to the contrary, the facts deposed to in that evidence are deemed to have been admitted by the opponent and must be accepted by the trial Court.” Considering that the Plaintiff was not cross-examined on his evidence to the Court, I accordingly conclude that the Court has accepted the whole of the evidence of the Plaintiff on record. In Boakye v. Asamoah [1974] 1 GLR 38 @ 45, the Court held that, the legal or persuasive burden is borne by the party who would lose the issue if he does not produce sufficient evidence to establish the facts to the requisite standard imposed under section 10 of the Evidence Act, 1975 NRCD 323 that is, by a preponderance of probabilities. Page 4 of 5 I accordingly conclude that, the Plaintiff has been able to prove his claim by preponderance of probabilities. I hereby enter judgement in favour of the Plaintiff against the Defendants jointly and severally, for the following reliefs; a. Recovery of the sum of GH¢16,000.00 b. Interest on the sum of GH¢16,000.00 at the commercial bank rate from July, 2018 to date of final payment. c. Cost of GH¢2,000.00 awarded against the Defendants. ..………………………………………….. H/W SARAH NYARKOA NKANSAH MAGISTRATE 28/04/2023 Page 5 of 5