Ayikpa Vrs Dziwornu [2023] GHADC 346 (17 April 2023)

IN THE DISTRICT COURT /KASOA CENTRAL REGION SUIT No: CR/DG/A2/662023 HOPE AYIKPA ) PLAINTIFF AND SIMON DZIWORNU ) DEFENDANT ………………………………………………………………………………………………………………………. JUDGMENT GIVEN BY H/W STEPHEN OFORI AKRASI ESQ (DISTRICT MAGISTRATE) DATED 17/4/2023. IN THE DISTRICT COURT HELD AT AFLAO ON MONDAY, THE 17TH DAY OF APRIL, 2023 BEFORE: HIS WORSHIP STEPHEN OFORI AKRASI ESQ. DISTRICT MAGISTRATE SUIT No: CR/DG/A2/662023 HOPE AYIKPA ) PLAINTIFF AND SIMON DZIWORNU ) DEFENDANT ................................................................................................................................... JUDGMENT ……………………………………………………………………………………………………………………………... BACKGROUND In the month of May, 20219 the Plaintiff herein acquired a building plot from the Defendant at Fan Milk, a suburb of Kasoa at the cost of GHc 13,000.00as a part payment to the Defendant. That the Plaintiff constructed a single room with roof on it with the view to secure the land. Plaintiff visited the land in the month of November,2020 and met someone developing the land. That when he questioned the Defendant he could not give any legitimate answer. All efforts made by Plaintiff to retrieve his money has been in vain even though the Defendant has accepted liability to refund his money together with the expenses to Plaintiff. Aggrieved by Plaintiff on 12/2/2021 Plaintiff/Applicant herein issued out of this court a writ of summons with affidavit in support seeking : 1. Recovery of GHc13,000.00 being the cost of one plot of land he bought from the Defendant. since May, 2019 which transaction could not materialize. 2. Payment of an amount of GHc9,000.00. 3. Interest thereon. 4. Cost. The legal issues for determination is : i. ii. Whether or not Defendant is liable. Whether or not Defendant is entitled to the reliefs sought. The evidential rule in civil cases is that the burden of proof rests upon the party who substantially asserts the affirmative of his case. In the case of Lamptey alias Nkpa vrs. Fanyie and Others (1989-90) 1 GLR 286 the Supreme court held that on general principles, it was the duty of the Plaintiff to prove his case. However, when on a particular issue he had led some evidence, then the burden will shift to the Defendant to lead sufficient evidence to tilt the scale in his favour. This is clearly covered in section 10,11,12 and 14 of the Evidence Act, 1975, NRCD 323. In Majolagbe v Larbi (1959) GLR190 @ 192, Ollennu J (As he then was) had this to say on what constitutes proof in Law: “ Proof in law is the establishment of facts by proper legal means where a party makes an assertion capable of proof in some way, e.g. by producing documents, description of things, reference to other facts, instances or circumstances, 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’. Adinyira JSC expatiating on the cardinal principle of Audi alteram paterm in In re: Kumi (dc’d); Kumi v Nartey (2007-2008) SCGLR 623 @ 632-633 held inter alia as follows: “………………….. it is trite law that a person cannot be found guilty or liable on order or judgment unless he had been given fair notice of the trial or proceedings to enable him to prepare and defend himself. This is the essence of justice. Failure by a court or tribunal to do so would be a breach of the rules of civil procedure and natural justice. A judgment or order procured under such circumstances is in our view, a nullity. in the instant case the Defendant However, to attend court notwithstanding the service of hearing notice on him on three occasions Defendants failed to take advantage of the law to make his side of the story to be heard. In the case of The Rep v High Court ( Human Rights Division ) , Accra, Ex Parte Akita( Mancell Egala & . A . G, Interested party) .(2010) SC GLR 372. At page 146. failed Agbewole v Agbodogbey (2012) 44 GMJ124 C. A AT PAGE 146 Per Kusi Appiah J . A it was held that a person who had an opportunity to be heard but deliberately spurred it to satisfy his decision to boycott the proceedings is deemed to have waived the right to be heard. Accordingly, such a person cannot rely on the principle of Audi alteram paterm. See also the case of Rep v Fast Track High Court, Accra Ex parte State Housing Corporation Ltd. (2009) 21 MLRG 163,S. C, Per Wood C J In the circumstance the court has no alternative than to proceed with the matter to determine the rights of the parties. Judgment is accordingly entered in favour of Plaintiff. Defendant is to refund the plaintiff’s purchase money, the sum of GHc 13,000.00. In addition Defendant should refund the sum of GHc9, 000.00 being the expenses Plaintiff incurred in constructing a single room with roof on the land. Interest on the amount from the transaction till the last date of payment. Cost is assessed at GHc6,000.00. Final date of payment is ending of June, 2023. (SGD) STEPHEN OFORI AKRASI (DISTRICT MAGISTRATE) 5 6