Kyere Vrs Nyandemoh [2023] GHADC 254 (21 July 2023)

IN THE DISTRICT MAGISTRATE COURT HELD AT N. A. M. A NSAWAM ON FRIDAY, 21ST DAY OF JULY, 2023 BEFORE HER HONOUR SARAH NYARKOA NKANSAH SITTING CIRCUIT COURT JUDGE SITTING AS ADDITIONAL MAGISTRATE ERIC ANNOR KYERE OF NSAWAM-AHODWO VRS: SUIT NO. A2/138/22 ------------ PLAINTIFF MATHEW MENSAH NYANDEMOH ------------ OF NSAWAM-AHODWO DEFENDANT PARTIES: ABSENT. NO LEGAL REPRESENTATION JUDGMENT The Plaintiff herein commenced this action claiming the following against the Defendant: a. Payment of an amount of Nine Hundred Ghana Cedis (GH¢900.00) or refund of Royal Motor 125 which Plaintiff sold to the Defendant and has refused payment. b. Interest on the said amount for six (6) months and until final payment. c. Cost. Page 1 of 4 The Defendant was duly served with the Writ of Summons Defendant was absent for no just cause known to the Court. In view of same, the Court proceeded under Order 25 of the District Court Rules, 2009(C. I 59), to take the Plaintiff’s evidence. 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” PLAINTIFF’S CASE It is Plaintiff’s case that in February 2022 he entered into an agreement with the Defendant to sell his motor vehicle to the Defendant at a price of GH¢2,500.00. The Plaintiff added that, although the Defendant was supposed to make full payment by the 2nd week in March 2022, the Defendant has only paid GH¢1,300.00 out of the total leaving a balance of GH¢900.00. The Plaintiff concluded that unless compelled by this Court the Defendant will not pay the remaining balance. In the circumstance the issue that falls for determination is; Whether or not the Plaintiff is entitled to recover the sum of GH¢900.00 from the Defendant. In the case of Nartey v. Mechanical Lloyd Assembly Press Ltd [1987-1988] 2GLR pg 314 Adade JSC stated that: Page 2 of 4 ‘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. It has been established by the Plaintiff that Defendant has failed to pay the full purchase price of the motorcycle sold to Defendant by Plaintiff. Per the evidence the Defendant has refused to pay the outstanding balance of GH¢900.00 As noted supra the Defendant was not present to contradict or challenge Plaintiff’s evidence since he failed to attend the trial despite having notice of same. 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. I accordingly find that, Defendant is liable to pay the outstanding GH¢900.00 to the Plaintiff. Page 3 of 4 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. 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 for the following reliefs; i. Recovery of the sum of GH¢900.00 from the Defendant. ii. Interest on the sum of GH¢900.00 at the commercial bank rate from the date the writ was issued, 15th July, 2022, to date of final payment. iii. Cost of GH¢300.00 awarded against the Defendant. ………………..……………………………….. H/W SARAH NYARKOA NKANSAH CIRCUIT COURT JUDGE SITTING AS ADDITIONAL MAGISTRATE 21/07/2023 Page 4 of 4