FANTASTIC PRICE END VRS AMOAH (A2/103/2023) [2023] GHADC 1204 (3 October 2023)

IN THE DISTRICT COURT HELD AT EJISU ON 3RD OCTOBER, 2023 BEFORE HER HONOUR ROSEMARY EDITH HAYFORD (MRS) SITTING AS AN ADDITIONAL MAGISTRATE TIME: 10.27 AM SUIT NO.: A2/103/2023 - - PLAINTIFF DEFENDANT FANTASTIC PRICE END (Per its Manager, Innocent Viarrah) Of Ejisu Krapa -VRS- ESTHER AMOAH Of Fumesua near Ejisu Parties: Plaintiff Defendant - - Present Absent ------------------------------------------------------------------------------------------------------------- JUDGMENT By a Writ of Summon filed by Plaintiff on the 13th of July, 2023 against Defendant in the instant action, the following reliefs were sought: 1. The recovery of cash the sum of ₵9,250.00, being the balance of part payment of ₵24,250.00 made for the cost of 30 bags of varieties of sugar and 10 boxes of Easy Non- Diary products sold on credit to the Defendant, which the defendant has deliberately refused to pay despite the persistent demands made by the Plaintiff. 2. Interest on the principal sum of ₵9,250.00 at the prevalent bank rate from June 2023 till date of final payment. 3. Cost When the matter came on for trial on the 14th of August, 2023, the Defendant failed to appear in court to defend the action even though there was proof of service on her. The Court being satisfied that the Defendant had been served with all the processes proceeded to hear the matter pursuant to Order 25 r 2 of CI59 which provides as follows: Order 25 rule 1(2) of the District Court Rules, 2019 (C. I. 59), provides that “where an action is called for trial and a party fails to attend the trial the 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” It is trite that a party who fails to appear in court after due service on her is taken to have deliberately failed to take advantage of the opportunity to be heard. In such a situation, the audi alteram partem rule cannot be said to have been breached. See the case of Mence Mensah vrs V. E. Asiama [2011] 38 GMJ 174 The rules of evidence require that the Plaintiff who has dragged the Defendant to court must prove his case on the balance of probabilities so that a reasonable mind can conclude that his claims are more probable than not. The requisite degree and standard of proof are provided for under sections 11(4) and 12 of the Evidence Act, 1975, NRCD 323 as follows: "Section 11 (4) In other circumstances, the burden of producing evidence requires a party to produce sufficient evidence which on the totality of the evidence, leads a reasonable mind to conclude that the existence of the fact was more probable than its non-existence. Section 12. Proof by a preponderance of the probabilities (1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities. (2) “Preponderance of the probabilities” means that degree of certainty of belief in the mind of the tribunal of fact or the Court by which it is convinced that the existence of a fact is more probable than its non-existence." Cases in which the above principles have been explained and applied include (Zambrama V Segbedzie (1991) 2 GLR 221, CA; Yorkwa v Duah (1992 In proving his case the Plaintiff testified himself and tendered two exhibits. It is Plaintiff’s case that sometime in June 2023, the defendant called him on the phone and indicated that she had heard of his business through a radio advertisement and that the items that Plaintiff sells are very moderate so she would like to buy some. According to the Plaintiff, upon further enquiry, it was agreed by the parties that the Plaintiff supplied the defendant with 30 bags of sugar and 10 boxes of Easy Non-Diary milk powder products which came to a total of ₵24,250.00. Plaintiff asserted that Defendant informed him to send the goods to her house opposite Noda Hotel, Fumesua and she promised to pay upon the arrival of the goods which Plaintiff did. However, Defendant has refused to pay the money after receiving 30 bags of sugar on 6/6/2023 and 10 boxes of Easy non-diary on 7/6/2023. Plaintiff further stated that three (3) days after delivering the goods, Defendant brought an amount of ₵15,000.00 to his sales boy in the shop and further requested for extra 50 bags of sugar. The Plaintiff avers that he instructed his sales boy to wait till his return but upon his return, the Defendant had already left his shop. Subsequently, all efforts to get the Plaintiff have proved futile. To support his case, Plaintiff tendered Exhibit “A”. This is a copy of the invoice generated for the Defendant. It is dated 06/06/23. The item stated on same is sugar and the quantity is 30 bags with the unit price quoted as GH₵625.00. This brings the total to GH₵18,750.00. The invoice is in the name of the Defendant. On the face of the document, an amount of GH₵15,000.00 was paid. The balance captured on the same is GH₵3,750.00 Plaintiff further tendered another invoice marked as Exhibit “B”. It is dated 07/06/23 also in the defendant’s name. The items captured were for 10 boxes of Easy Non-Diary milk powder product, the unit price is GH₵550.00 bringing it to a total of GH₵5,500.00. The total of both invoices is GH₵9,250.00. This is the amount that the Plaintiff is seeking from the Defendant. As I indicated earlier, Defendant failed to attend court to cross-examine Plaintiff on his evidence. In essence, the evidence of Plaintiff is uncontested. Generally, where a party makes an averment and his opponent fails to cross-examine on it, the opponent will be deemed to have acknowledged, sub silentio, that averment by his failure to cross- examine. See the case of Quagraine vrs Adams [1989-90] 1 GLR 223. In line with the Evidence Act, where a defendant fails to testify either in person or through a witness, the inference is that he or she is inviting the court to assess the Plaintiff's evidence and to decide the matter before the court based on that evidence alone. This is so because in weighing the evidence on record, the court will be limited to the evidence adduced by the plaintiff. See: Re Ashalley Botwe Lands; Adjetey Agbosu & Ors v Kotey & Ors ( 2003-2004) SCGLR 420 I have analyzed the evidence of the Plaintiff, and I am satisfied that the Plaintiff has led cogent evidence to prove his case therefore the action must succeed. In the circumstance, the Plaintiff is entitled to his claim as endorsed on the Writ. DECISION 1. Defendant is ordered to pay the sum of ₵9,250.00, being the balance of the cost of 30 bags of varieties of sugar and 10 boxes of Easy Non-Diary products sold on credit to Defendant. 2. The Defendant is further ordered to pay interest on the said balance of ₵9,250.00 from June 2023 till the date of final payment 3. I award cost of GH₵ 1500.00 in favour of the plaintiff against the defendant. H/H ROSEMARY EDITH HAYFORD (MRS) SITTING AS ADDITIONAL MAGISTRATE