Azumah v Xbel-Amenonyoh and Another (.GR/NA/DC/A2/444/2024) [2025] GHADC 151 (11 April 2025)

IN THE DISTRICT COURT OF GHANA, NGLESHIE AMANFRO DISTRICT COURT HELD ON 11TH APRIL, 2025 BEFORE HER WORSHIP EMELIA K. ABRUQUAH ESQ., (MRS) SUIT NO. GR/NA/DC/A2/444/2024 JOSHUA AZUMAH OF WEIJA VRS. PLAINTIFF 1. AKUA XBEL-AMENONYOH 2. XBRIT WORLD TOURS DEFENDANTS OF TUBA ACCRA PLAINTIFF PRESENT DEFENDANT ABSENT ROBERT K. BAFFOE COUNSEL FOR THE PLAINTIFF PRESENT JUDGMENT INTRODUCTION The plaintiff herein instituted this action against the Defendant on 2nd October 2024 claiming the following reliefs): - (1) Recovery of the sum of GH¢50,000.00 being amount paid to the Defendant to provide plaintiff with a United States Visa. (2)Interest on the GH¢50,000.00 at the prevailing commercial bank rate from October, 2023, until the date of final payment. (3)Damages. (4) Costs. THE PLAINTIFF'S CASE The Plaintiff, a factory worker residing in Kasoa, brings this suit against the Defendant, a self- styled travel agent operating in Tuba, for the recovery of GH¢50,000.00, interest, damages, and costs. The Plaintiff claims that in October 2023, the Defendant presented herself as capable of assisting him in obtaining a United States visa for a total fee of GH¢80,000.00. The agreed terms were that the Plaintiff would initially pay GH¢50,000.00, with the remaining GH¢30,000.00 to be paid upon receipt of the visa. However, contrary to their agreement, the Defendant demanded an additional $2,000.00, which the Plaintiff was unwilling to pay, as it was not part of their original contract. When the Plaintiff later requested a refund of the GH¢50,000.00 he had already paid, the Defendant refused. The Plaintiff further alleges that the Defendant claimed to have used the money to procure certain documents, including a land indenture in his name, but upon further verification, these documents were found to be fraudulent or forged. Despite several demands, the Defendant has failed to refund the money, leaving the Plaintiff with no option but to institute the present action to recover his funds. EVALUATION OF EVIDENCE AND RESOLUTION OF ISSUE The Defendants, despite being duly served with the Writ of Summons and multiple hearing notices, failed to appear before this Honourable Court. They willfully refused to attend proceedings to cross-examine the Plaintiff or present their defence before the court. As a result, they have forfeited their opportunity to have their side of the story heard. Under Order 25 Rule 1(2) (a) of the District Court Rules, 2009 (C. I. 59), where an action is called for trial and the Defendant fails to attend, the Plaintiff would be allowed to prove his claim. The Defendants had every opportunity to appear before this Honourable Court to cross- examine the Plaintiff and any witnesses, as well as to adduce evidence in support of their case. However, by their deliberate decision not to attend court, they forfeited their right to challenge the Plaintiff’s claim. Consequently, they cannot, at any stage, contend that they were denied access to justice. It was held in the case of Mence Mensah v E. Asiama [2011] 38 GMJ 174 SC that: “It is a salubrious principle of our jurisdiction that a litigant should have the opportunity of being heard, of telling his side of the story, of being free to present evidence and argument to buttress his case; but it is also settled law, and dictates of common sense require also that once these opportunities have been extended to the litigant but the litigant decides not to avail himself of them within the period of the trial, he would not, on judicial considerations, be permitted to come later and plead for the reactivating of the very opportunities he declined to embrace.” However, the Defendants’ absence from court does not automatically entitle the Plaintiff to the reliefs sought. The Plaintiff must still satisfy the burden of proof by presenting sufficient evidence to substantiate the claims before the court can grant the requested reliefs. It is trite that in civil cases, that the burden of proof lies on the party who in his/her pleadings or writ raises issues essential to the success of his/her case. The one who alleges, whether a plaintiff or a defendant, assumes the initial burden of producing evidence. It is only when such a party has succeeded in producing evidence that the other party will be required to lead rebuttal evidence, if need be. Proof lies upon him who affirms or alleges, not upon him who denies since, by the nature of things, he who denies a fact cannot produce any proof. See Sections 11(1) & (2), 12(2) and 14 of the Evidence Act, 1975 (NRCD 323); Tagoe v. Accra Brewery [2016] 93 GMJ 103 S. C; Deliman Oil v. HFC Bank [2016] 92 GMJ 1 C. A. In the case of Takoradi Flour Mills vs. Samir Faris [2005-2006] SCGLR 882, the Supreme Court captured the trite position of the law relating to the burden of proof and stated as follows at page 900: “To sum up this point, it is sufficient to state that this being a civil suit, the rules of evidence require that the Plaintiff produces sufficient evidence to make out his claim on a preponderance of probabilities, as defined in Section 12(2) of the Evidence Decree, 1975 (NRCD 323). Our understanding of the rules in the Evidence Decree, 1975 on the burden of proof is that in assessing the balance of probabilities, all the evidence, be it that of the Plaintiff or the defendant, must be considered and the party in whose favour the balance tilts is the person whose case is more probable of the rival versions and is deserving of a favorable verdict.” Similarly, in GIHOC Refrigeration & Household vs. Jean Hanna Assi (2005-2006) SCGLR 458, the Supreme Court held that: “since the enactment therefore, except otherwise specified by statute, the standard of proof (the burden of persuasion) in all civil matters is by a preponderance of the probabilities based on a determination of whether or not the party with the burden of producing evidence on the issue has, on all the evidence, satisfied the judge of the probable existence of the fact in issue... Hence, by virtue of the provisions of NRCD 323, in all civil cases, judgement might be given in favour of a party on the preponderance of the probabilities...” I reference Takoradi Flour Mills v. Samir Faris [2005-2006] SCGLR 882 at page 890 where the Supreme Court held as follows; ’’In law, where evidence is led by a party and that evidence is not challenged by his opponent in cross-examination, and the opponent did not tender evidence to the contrary, the facts deposed to in that evidence are deemed to have been admitted by the party against whom it is led, and must be accepted by the court." THE PLAINTIFF’S WITNESS STATEMENT The Plaintiff, a factory worker in Kasoa, states that in October 2023, the first Defendant, who operated a travel and tour business at Tuba, presented herself as capable of assisting him in obtaining a United States visa within two months. To convince the Plaintiff, the first Defendant, acting as a marketing officer for the business, showed him previous visas allegedly secured for other clients. After several visits to the Defendants office, they agreed on a total fee of GH¢80,000.00 for the visa. Based on this agreement, the Plaintiff made an initial payment of GH¢30,000.00 on 7th October 2023. Followed by an additional GH¢20,000.00 on 18th October 2023, bringing his total payment to GH¢50,000.00. It was agreed that the remaining GH¢30,000.00 would be paid upon receipt of the visa. However, while waiting for the visa, the Defendant demanded an additional GH¢2,000.00, beyond the agreed balance. When the Plaintiff refused, the Defendant threatened that he would not receive the visa unless he complied. Upon this development, the Plaintiff demanded a refund of the GH¢50,000.00 he had already paid, but the Defendant refused, claiming that part of the money had been used to process documents, including a land indenture in the Plaintiff’s name. However, no such indenture was ever shown to him, and he later discovered that the documents were forged and fraudulent. The Plaintiff subsequently reported the matter to the Tuba Police Station, where the Defendant admitted to taking the money. However, after failed attempts to secure a refund, the police advised the Plaintiff to pursue the matter in court, leading to this present suit. ISSUE 1. Whether or not the Plaintiff is entitled to the recovery of GHS 50,000.00 from the Defendants ANALYSIS The parties in this case entered into a contract for services, wherein the Defendants undertook to assist the Plaintiff in acquiring a United States visa. The Plaintiff, in reliance on this agreement, made payments to the Defendants for the provision of this service. The Plaintiff has attached a receipt issued by the 2nd Defendant, which clearly outlines the nature of the service to be provided. By accepting payment, the Defendants assumed a contractual obligation to fulfill their part of the agreement. However, the Defendants failed to perform as agreed, constituting a breach of contract. As stated in AUGUSTINA ENGMANN V. PELICAN GROUP LTD (2018) SUIT NO. CM/BDC/0414/16, a breach of contract occurs when: “A party without lawful excuse fails to perform what is due from him under the contract, or performs defectively or incapacitates himself from performing.” (Professor Treitel, the Law of Contract). In this case, the Defendants, not only failed to secure the visa as promised but also made additional monetary demands beyond the agreed sum, further deviating from the original terms of the contract. This conduct is inconsistent with their contractual obligations LEGAL CONSEQUENCES OF BREACH Under established principles of contract law, where one party defaults in performing their obligations, the non-defaulting party has two primary remedies, as affirmed in CLIPPER LEASING CORPORATION V. THE ATTORNEY-GENERAL & GHANA AIRWAYS IN LIQUIDATION (2016) JELR 66042 (SC): 1. Performance and Enforcement – The innocent party may elect to continue performing its obligations under the contract and insist on performance by the defaulting party. 2. Termination and Damages – Alternatively, the innocent party may terminate the contract and seek recovery of any outstanding payments and damages for the breach. In the present case, the Plaintiff, having already performed his part by making the required payments, reasonably expected the Defendants to fulfill their contractual obligations. Instead, the Defendants have neither provided the agreed service nor given a legitimate account of the funds received. It is well-established that a party cannot unilaterally divert payments received for a specific contractual purpose to another use and then refuse to account for the money. It is trite that a party who receives a benefit under a contract must either perform their obligations or return the consideration received. The Defendants’ failure to perform entitles the Plaintiff to a refund of the amount paid. In the interest of justice and fairness, the Defendants cannot be allowed to unjustly enrich themselves at the Plaintiff’s expense. The law does not permit or allow a party to retain money received to perform a service that was never rendered. Accordingly, the Plaintiff is entitled to a full refund of the payment made, along with any applicable interest and costs incurred in seeking redress. I therefore enter judgment on the preponderance of the probabilities in Plaintiff’s favour as his evidence is cogent and uncontroverted. Plaintiff is therefore to recover an amount of GHC50,000.00 being money paid for United States visa which the defendants failed to procure for the plaintiff and also failed to refund the money. The court will award interest on the amount paid to the defendants because if the money would have been invested and more money generated from it. Interest is therefore awarded on the amount from October 2023 at the current bank rate till date of final payment. I award costs of GHC2000.00 in favour of the Plaintiff as against the Defendant (SGD) H/W EMELIA K. ABRUQUAH (MRS) (MAGISTRATE) 8