Wayo Vrs Mkk Farms [2023] GHADC 304 (21 July 2023)

IN THE DISTRICT MAGISTRATE COURT HELD AT NSAWAM N. A. M. A ON FRIDAY 21ST DAY OF JULY, 2023 BEFORE HER HONOUR SARAH NYARKOA NKANSAH CIRCUIT COURT JUDGE SITTING AS ADDITIONAL MAGISTRATE SUIT NO. A2/77/22 ---------- PLAINTIFF JANET TETTEH WAYO OF NO.5 RECCEE ST. COMM. 5 LAKESIDE ESTATES VRS: MKK FARMS PER ITS PROPRIETER ---------DEFENDANT KWABENA KUMA MARFO NSAWAM PARTIES: PLAINTIFF PRESENT. DEFENDANT ABSENT. NO LEGAL REPRESENTATION JUDGMENT The Plaintiff herein commenced this action claiming the following against the Defendant: a. Recovery of an amount of Fifty-five Thousand Two Hundred Ghana Cedis (GH¢55,200.00) being the outstanding balance of bags of maize purchased by the Defendant from the Plaintiff. b. Interest on the amount stated in the above from the date of judgment till final date of payment. c. Costs. Page 1 of 5 The Defendant was duly served with the Writ of Summons, Court notes and Hearing Notices. It is however to be noted that even though Defendant had notice of the pending suit, the Defendant did not file any process to contest the suit or appear in Court personally to be heard. The Court therefore proceeded under Order 25 of the District Court Rules, 2009(C. I 59), and proceeded 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” PLAINTIFF’S CASE The Plaintiff averred that within the months of June and July 2021, she supplied bags of maize to the Defendant totaling the sum of Eighty-six Thousand Two Hundred and Twenty Ghana Cedis (GH¢86,220. 00) which was delivered in two trenches and the delivery was acknowledged by the Defendant. Plaintiff asserted that per the agreement the Defendant was to make full payment within a month after receiving the goods but as at 21st August 2021, the Defendant had only made a total instalment of GH¢31,000.00. The Plaintiff continued that unless this Honorable Court compels the Defendant, he will not pay the remaining balance of GH¢55,200.00. In the circumstance the issue that falls for determination is: Whether or not the Plaintiff is entitled to recover the sum of GH¢55,200.00 from Defendant. Page 2 of 5 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 adduced per her evidence at the trial that the Defendant owes the Plaintiff GH¢55,200.00 resulting from the purchase of Plaintiff’s maize by Defendant. As per the evidence, the said GH¢55, 200.00 is an outstanding debt from a total of GH¢86, 220.00 of which Defendant has paid GH¢31,000.00. That the Plaintiff initiated this action due to Defendant’s refusal to pay the outstanding GH¢55,200.00 despite demands made on him to do so. As noted supra the Defendant he failed to attend the trial. He thereby waived his right to offer contrary evidence and also to cross-examine Plaintiff. 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. Page 3 of 5 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.” The Court decided to send hearing notices to the Defendant even though he did not comply with the orders or attend Court. This decision was made because, according to legal precedents such as BARCLAYS BANK v. GHANA CABLE CO [1998-1999] SCGLR 1 and the earlier case of VASQUEZ v. QUARSHIE [1968] GLR 62, a Court's decision can be considered invalid if it is made without considering a party who was absent from the trial due to being unaware of the hearing date. Meanwhile, it is established at law that, if a party is adequately informed of the hearing date and given the opportunity to appear in Court to defend their case, or if, in this instance, the Defendant was properly served with the hearing notices but chose not to attend, the Court has the right to proceed with determining the case based on the evidence presented during the trial. This principle is supported by the case of IN RE: WEST COAST DYING IND. LTD; ADAMS v TANDOH [1987-88] 2 GLR 561. From the foregoing, I accordingly find that Defendant owes the Plaintiff an unpaid debt GH¢55,200.00 resulting from Plaintiff’s sale of her maize to the Defendant. Plaintiff is entitled to recover same from Defendant. The Court has carefully considered the evidence adduced at the trial. Page 4 of 5 The Court concludes by the foregoing that, the Plaintiff has been able to prove her 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¢55,200.00 from the Defendant. ii. Interest on the sum of GH¢55,200.00 at the commercial bank rate from August, 2021, to date of final payment. iii. Cost of GH¢5,000.00 awarded against the Defendant. ………………..……………………………….. H/W SARAH NYARKOA NKANSAH CIRCUIT COURT JUDGE SITTING AS ADDITIONAL MAGISTRATE 21/07/2023 Page 5 of 5