Salifu Vrs Akologo [2022] GHADC 306 (3 August 2022)

(DISTRICT CORAM: HIS WORSHIP MR. MAWUKOENYA NUTEKPOR MAGISTRATE), SITTING AT THE DISTRICT COURT, BOLGATANGA IN THE UPPER EAST REGION OF GHANA, ON WEDNESDAY, THE 3RD DAY OF AUGUST, 2022. SUIT NO. UE/BG/DC/A2/35/19 HAWA SALIFU PLAINTIFF VRS. CHARLES AKURUGU AKOLOGO DEFENDANT TIME: 08:41AM PLAINTIFF PRESENT DEFFENDANT PRESENT ISSAHAKU TAHIRU LAWAL ESQ. FOR THE PLAINTIFF PRESENT ROCKSON AKUGRE ESQ. FOR THE DEFENDANT PRESENT Introduction JUDGMENT 1. By a Writ of Summons and Particulars of Claim filed on 16th January 2019, the Plaintiff claims against the Defendant as follows: - a. An order directing the Defendant to pay an amount of four thousand, eight hundred and ninety four Ghana Cedis (GH₵4,894.00) to the plaintiff for being the amount the plaintiff used to complete the store. Page 1 of 14 b. Interest on the said amount of GH₵4,894.00 from February 2015 to date of final payment. c. Cost including solicitors fees. Plaintiff’s case 2. The Plaintiff avers that somewhere in January 2015, she needed a store to rent and was directed to the Defendant. The plaintiff avers that upon meeting the defendant, she was told that the store was not completed so if she was interested she could use her resources to complete the store and the amount involved could be used as rent. The Plaintiff states that the parties agreed on a monthly rent of GH₵80.00 for the store and any amount spent by the plaintiff to complete the store will be spread over the number of months it can cover. The plaintiff states that the Defendant, a carpenter and herself went and bought building materials to the tune of four thousand, seven hundred and four Ghana Cedis (GH₵4,704.00) for same to be used for the completion of the store. The plaintiff further states that the Defendant collected cash to the tune of four Thousand Two Hundred Ghana Cedis (GH₵4,200.00) from her to be used in plastering the store and as advance payment for the store totaling GH₵8,094.00. The plaintiff says that after the store was completed the Defendant locked up the store and refuses to hand over possession to the plaintiff. The plaintiff says she reported the matter to a chief in Bolgatanga and when the Defendant was invited to the palace, he paid an amount of GH₵3,200.00 leaving a balance of GH₵4,894.00. The plaintiff says that the Defendant by his conduct has evinced every intention not to pay the balance of GH₵4,894.00 unless compelled by this Honourable Court. The plaintiff further avers that the Defendant has no defence to her claim and/or any at all. Page 2 of 14 Defendant’s case 3. The Defendant vehemently denied plaintiff’s claim and says that he built, roofed and plastered the store before renting it to plaintiff. The Defendant avers that the only work they agreed to be done on the shop was fixing of the ceiling. The defendant avers that they agreed on a monthly rent of eighty Ghana cedis (GHC80.00). The defendant avers that the plaintiff paid a total amount of GH₵3,200 in four installments as rent for the store as well as spent GHC640 to fix the ceiling of the store including buying of the materials. The Defendant avers that he travelled to the gold mining site after handing over the keys to the plaintiff and returned a year later to notice that plaintiff had stopped operating the store even though she initially sold water and provisions from the store. The defendant avers that the plaintiff made a false claim to the chief of Yarigabisi but for peace to prevail the defendant paid GH₵3,200 to the plaintiff. Defendant says that the keys were in custody of the Plaintiff for eight months and is enough to cover the GHC640 used to fix the ceiling. The Defendant avers that the chief sent his elder to accompany the Plaintiff to the store where Plaintiff packed her belongings out of the store. The Defendant avers further that he does not owe the plaintiff any money at all. Issues 4. The issues for determination in this case are as follows: a. Whether or not the Plaintiff bought building materials in the sum of four Thousand, Seven Hundred and four Ghana Cedis (GH₵4,704.00) for the completion of the store. Page 3 of 14 b. Whether or not the Plaintiff paid cash of Four Thousand Two Hundred Cedis (GHC4,200) to the Defendant as payment for rent in advance and to be used in plastering the shop. c. Whether or not the keys to the store were handed over to the Plaintiff or Plaintiff was given possession of the store. The fundamental principles governing the law of evidence in Ghana. 5. Section 10 of the Evidence Act, 1975 (NRCD 323) provides as follows: (1) For the purposes of this Decree, 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 to raise a reasonable doubt concerning the existence or non-existence of a fact or that he establish the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt. 6. Section 11 of NRCD 323 also provides that: (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. Page 4 of 14 7. Section 12 of NRCD 323 (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. 8. Also in Majolagbe v Larbi & others (1959) GLR 190-195, it was held at page 192 that: “Proof, in law, is the establishment of fact by proper legal means; in other words, the establishment of an averment by admissible evidence. Where a party makes an averment, and his averment is denied, he is unlikely to be held by the Court to have sufficiently proved that averment by his merely going into the witness-box, and repeating the averment on oath, if he does not adduce that corroborative evidence which (if his averment be true) is certain to exist.” See also Klutse v. Nelson [1965] GLR 537 and Air Namibia (Pty) Ltd. V. Micon Travel & Tour & 2 Ors, [2015] 91 G. M. J, @ page 177. Legal Analysis and discussion of issues ISSUES “A" AND “B” a. Whether or not the Plaintiff bought building materials in the sum of four Thousand, Seven Hundred and four Ghana Cedis (GH₵4,704.00) for the completion of the store. Page 5 of 14 b. Whether or not the Plaintiff paid cash of Four Thousand Two Hundred Cedis (GHC4,200.00) to the Defendant as payment for rent in advance and to be used in plastering the shop. 9. The Plaintiff herein is claiming from the defendant the actual amount she spent or incurred regarding completion of Defendant’s store and rent advance. This claim in law is referred to us special damages. The Black’s Law Dictionary (Sixth Edition) defines Special damages as “those which are the actual, but not the necessary result of the injury complained of and which in fact follow it as natural and proximate consequence in the particular case that is by reason of special circumstances or condition. To be recoverable, they must flow directly and immediately from the breach of contract and must be reasonably foreseeable. Special damages must be specially pleaded and proved.” 10. In the case of Royal Dutch Airlines (KLM) and Another v. Farmex Limited (1989- 1990) 2 GLR 263 holding 3, it was held that: “Special damages must be specially pleaded and specifically proved. But the rule did not imply that if one claimed general damages only, one could not lead evidence of specific damages as a foundation for an award of general damages. In coming to a decision as to how much general damages to award, the court would need some guidance as to financial loss…” 11. Also, the Supreme Court speaking through Twum, JSC in Delmas Agency v Food Distribution [2007-2008] 2SCGLR 749, held in holding 3 that: Page 6 of 14 “Special damages are distinct from general damages. General damages are such as the law will presume to be the natural or probable consequences of the Defendant’s act. It arises by inference of the law and therefore need not be proved by evidence. The law implies general damages in every infringement of an absolute right. The catch is that only nominal damages are awarded. Where the Plaintiff has suffered a properly quantifiable loss, he must plead specifically his loss and prove it strictly. If he does not, he is not entitled to anything unless general damages are also appropriate.” 12. From the above-authorities, it is clear that not only must special damages be specifically pleaded and particularized, but it must be strictly proved with sufficient and credible evidence to show what was actually lost or spent. The Plaintiff herein indeed pleaded the special damages or the amount she allegedly gave to the Defendant for the completion of the store as well as for plastering and rent advance. The Plaintiff however did not particularize the special damages. Despite the failure of the Plaintiff to particularize the special damages, a question to ask is whether or not she has succeeded or failed in proving the actual amount spent in respect of the store, the subject matter in this case. It is a settled principle of law that it is the duty of a Plaintiff to prove his case for he who alleges must prove. In Air Namibia (Pty) Ltd. V. Micon Travel & Tour & 2 Ors, [2015] 91 G. M. J, It was held at page 177 that: “It is trite law that it is the duty of a Plaintiff to prove his case for he who alleges must prove. In other words, it is the party who raises an issue essential to the success of his case who assumes the burden of proving such issue. This burden of proof is statutorily defined in sections 10 (1) and (2) 11(1) and (4) and 12(1) and (2) of the Evidence Act, 1975 (NRCD 323) and explained in the case of Adwubeng v. Domfeh [1996-97] S. C. G. L. R. 660. It must be noted that specific pleading of an issue of fact Page 7 of 14 by a plaintiff in the civil case requires a specific denial of that issue of fact by the defendant in his statement of defence in order to cast a duty on the plaintiff to adduce credible and sufficient evidence of that issue of fact in order to succeed in his claim. That is the rationale behind the enactment of section 10, 11 and 12 of the Evidence Act, 1975 (NRCD 323). Thus section 11(4) and 12(2) of NRCD 323 has provided in clear and uncertain terms that the standard of proof in the civil case is proof by a preponderance of the probabilities Adwubeng v Domfe (supra). But a bare assertion of the plaintiff in his evidence of the issue of fact he had asserted in his pleadings will not be sufficient to discharge his burden of proof of that assertion if he wants to succeed in his claim. He must go further to produce other evidence of facts and circumstances from which the court can be satisfied that what he has asserted is true. Such other evidence of such facts may include documentary evidence of the issue(s) asserted.” 13. The Plaintiff testified that the Defendant, a carpenter and herself went and bought building materials to the tune of four Thousand, Seven Hundred and four Ghana Cedis (GH₵4,704.00) for same to be used for the completion of the store. The plaintiff further testified that the Defendant collected cash to the tune of four Thousand Two Hundred Ghana Cedis (GH₵4,200.00) from her to be used in plastering the store and advance payment for the store totaling GH₵8,094.00. She added that after the store was completed the Defendant locked up the store and refuses to hand over possession to the plaintiff. The plaintiff concluded that she reported the matter to a chief in Bolgatanga and when the Defendant was invited to the palace, he paid an amount of GH₵3,200.00 leaving a balance of GH₵4,894.00. 14. This evidence was a repetition of her averment in her pleading or the particulars of claim which the Defendant had denied. It is a settled principle of law that a bare Page 8 of 14 assertion or merely repeating a party’s pleadings in the witness box without more does not constitute proof. In Klah V. Phoenix Insurance Co. Ltd [2012] 2 SCGLR 1139, this principle was reiterated: “Where a party makes an averment capable of proof in some positive way e.g. by producing documents, description of things, reference to other facts, instances and his averment is denied, he does not prove it by merely going into the Witness box and repeating that averment on oath or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances from which the Court can be satisfied that what he avers is true.” See also Majolagbe v Larbi & others (1959) GLR 190-195 and Klutse v. Nelson [1965] GLR 537. 15. The Plaintiff under cross examination of by counsel for the Defendant on 15th October, 2015 testified as follows: Q. You claimed in your statement that you bought building material to the tune of GH₵4,704.00? A. Yes, with other materials. Q. You did not tell the court what building materials you bought? A. I never stated that. Q. I put it to you that you never spent GH₵4,704 on building materials? A. I spent that amount. Page 9 of 14 Q. How much did you pay to the defendant in total as rent to the defendant? A. I paid GH₵4,200.00 cash. Q. Was it paid by installment or by cash in a bulk? A. By installment. Q. The first amount you paid as rent was GH₵1,000.00 not so? A. Yes. Q. After that you paid GH₵600.00 as second installment? A. It is not true. Q. You further paid GH₵4,00.00 as the third installment? A. Not true. Q. Your final payment was GH₵1,200.00? A. Not true. Q. I put it to you that you paid him GH₵3, 200.00 in total of (4) installments? A. Not true. Q. So how did you pay him by the installments you claimed? A. Any time he comes to me I give him out something and it is always recorded down, with him having a copy as I will keep one. Q. So you were keeping records each time you paid him money? A. Yes. Q. And yet you came to court without such details? A. I have in court but not tendered. Page 10 of 14 Q. I put it to you that, the only thing you bought for the shop is plywood? A. Yes, but I sponsored the work on the shop. Q. Besides buying the plywood, ceiling buttons and nails, you bought nothing to be worked on the store? A I gave him money to buy other items. Q. You never mentioned any of those items so called to this court? A. He comes to take money to buy them. 16. Also PW1 under cross examination of the layer for the Defendant testified on 22nd January, 2021 as follows: Q. As far as this case is concern you only witnessed the payment of GH₵1,000.00 to be given to the defendant as rent advance? A. Yes. Q. I believe you do not know how much was used to renovate the said store? A. The store was already built before the plaintiff came to rent it. Q. I put it to you that the store was built by the defendant to completion? A. Yes it was already built before she came to rent it. 17. From the above evidence of Plaintiff and PW1, the Plaintiff claims she paid the money to the Defendant by installment but could not tell the court how much she paid per each installment which sum up to the amount she is claiming. Besides, Plaintiff says they were keeping records for the payments, thus she keeps a copy and the defendant also keeps a copy. She however failed to provide that record of Page 11 of 14 payment she was kept available to the court. Also, Plaintiff’s witness testified that the store was completed before it was rented to the Plaintiff. This confirms Defendant’s evidence that he built the store, roofed and plastered it and the only work Plaintiff did was the ceiling. Plaintiff has therefore failed to satisfy the Court that she actually incurred or spent GHC8,094.00 for rent advance, building materials and plastering of the store for which the Defendant refunded GHC3,200.00 leaving the outstanding balance of GHC4,894.00. Thus the Plaintiff has failed to strictly prove that he spent GHC4,704 to buy materials for the completion of the store as well as paid GHC4,200 to the Defendant as rent advance and plastering of the store. ISSUE “C" c. Whether or not the keys to the store were handed over to the Plaintiff. 18. In the instant case, both parties testified that they agreed on a monthly rent of eighty Ghana Cedis (GHC80.00). The Plaintiff testified that they agreed for her to use her resources to complete the store, which she did and that after the store was completed the Defendant locked up the store and refuses to hand over possession to the plaintiff. The Defendant testified that he handed over the keys to the plaintiff and travelled to a gold mining site. He says when he returned a year later to notice that plaintiff had stopped operating the store even though she initially sold water and provisions from the store. The Plaintiff maintains that she never entered the shop or given possession of the keys to the store but her evidence during cross examination by the counsel for Defendant proved otherwise. Thus, Plaintiff under cross examination of by counsel for the Defendant on 15th October, 2015 testified as follows: Q. Where are the keys to the shop? Page 12 of 14 A. With the chief of the area. Q. Who gave the keys to him? A. I gave the keys to the chief. Q. Before you gave the keys to the chief, how long were you in possession of the keys? A. It was after three (3) months the defendant reported me to the chief. Q. You were in possession of the shop for more than eight (8) months? A. He never handed over the keys to me; the place was locked to protect what was inside the shop. 11. From the above evidence the Plaintiff claims she gave the keys to the store to the chief of the area after three months of being in possession. She also she stated she was never given the keys to the shop. This is a clear contradiction, and the law the law is well settled that a person whose evidence on oath is contradictory of a previous statement made by him, whether sworn or unsworn, is not worthy of credit and his evidence would be of no probative value unless he gives a reasonable explanation for the contradiction. See Odupong v Republic [1992-93] GBR 1038, Gyabaah v Republic [1984-86] 2 GLR 416 and Kuo-den alias Sobti v Republic [1989-90] 2 GLR 203 SC. 19. Besides, the Defendant testified that the chief before whom the matter was reported to send his elder to accompany the Plaintiff to the store where Plaintiff packed her belongings out of the store. This evidence was not challenged by the Plaintiff. Plaintiff is therefore deemed to have admitted that she was in possession Page 13 of 14 of the store and went to pack out her things from the store. In Takoradi Flour Mills V Samir Faris [2005-2006] SCGLR 882, holding (1) the Supreme Court held that: “The law is well-settled (as held by the trial court and affirmed by the Court of Appeal) 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.” This court therefore finds as a fact from the evidence on record that the keys to the store were handed over to the Plaintiff or Plaintiff was given possession of the store. Conclusion 20. Having examined the whole evidence adduced by the parties on record and from the foregoing analysis, the court holds as follows that: a. The Plaintiff failed to prove her case to the satisfaction of this court or she failed establish the existence of the facts contained in her claim by preponderance of the probabilities. Accordingly, Plaintiff’s reliefs are hereby dismissed or Plaintiff’s action is dismissed in its entirety. b. There will be no order as to costs. The parties are to bear their respective costs incurred in pursuing this matter. …………………………………… HIS WORSHIP MAWUKOENYA NUTEKPOR (DISTRICT MAGISTRATE) Page 14 of 14