ATIDEY VRS. ANANG (A2/69/22) [2023] GHADC 1097 (13 September 2023)

IN THE DISTRICT COURT “2 “ADENTAN, CORAM HER WORSHIP SOPHIA PRISCILLA YEBOAH HELD ON THURSDAY THE 13TH DAY OF SEPTEMBER 2023. SUIT NO. A2/69/2

MAWULI ATIDEY PLAINTIFF VRS 1 ADJEI ANANG DEFENDANTS 2. FRANCIS NII ADJEI LOMO 3. DANIEL OKPOTI 4. JOSEPH BUEBU ASHIRIFI

JUDGMENT __________________ By an amended statement of claim filed on the 16th of March 2022, the plaintiff sought the following reliefs from the Court.

1. An order for recovery of the sum of forty thousand Ghana cedis (GHC40,000) from the defendants.

2. Interest on the sum claimed from August 2019 to the date of the final payment 3. Cost 4. Any other just orders of this Court. Case Background This is a case of a botched land transaction. The plaintiff an accountant by profession claims that the defendants in 2019 offered to sell a parcel of land situated and lying at Amanfro, Accra which is within the jurisdiction of this Court. According to the plaintiff the negotiated price of the land was ghc55,000 and subject to an agreement by the parties for the defendants to execute a lease agreement in his name before he completes payment, he made a part payment of forty thousand Ghana cedis. (Ghc40,000) by two installments and agreed for the balance to be paid after the execution of the lease agreement. The plaintiff avers that upon receipt of the ghc40,000, the defendants subsequently prepared an indenture covering the land and went to show the plaintiff the land he purchased. According to the plaintiff, he was preparing to develop the land when he noticed that another person was developing the same. His investigations after confronting the developer show that the land belongs to the developer and not the defendants. The plaintiff stated that when he informed the defendants about the development, they opted to replace the land for him which they did. However, the second land was encumbered just as the first one so the only option

left to the plaintiff was for him to demand a refund but because the defendants had failed to do the needful, the instant action was triggered. The 1st and 2nd defendants entered appearance and filed a defense to the action on the 1st of April 2022. The substance of their defense is that the land is a family land and so the transaction was between the plaintiff and the family in whose name the lease agreement was executed. Further, the defendant claims they did not receive ghc40,000 from the plaintiff as the plaintiff paid the money in two tranches. To resolve the issues at stake and also in the interest of Justice the 2nd and 3rd defendants who happened to be brothers to the 1st and 2nd defendants were also joined to the suit by substitution. The 2nd and 3rd defendants did not file a defence but were represented in Court on the 22nd of April 2022 who only came to take an adjournment for 2nd and 3rd defendants. Subsequently on the 1st of August 2022 by virtue of the 1st and 2nd defendant’s plea of liability to ghc20,000 out of plaintiff’s claim, judgment in part was entered for the plaintiff and the balance was set aside for the trial. The Plaintiff through his lawyer filed his witness statement as ordered by the Court and the court adopted the same as his evidence in chief. None of the defendants filed witness their witness statements as ordered nor did they attend sitting on the date of trial. Order 25 of CI 59 makes room for trials in absentia. The rule was invoked and applied to the case at bar and for this reason, this court ought to make a determination.

ISSUES 1. The issues for consideration are whether or not all the defendants ought to pay the outstanding balance of ghc20,000 or 2. Only the 3rd and 4th defendants are liable to pay the outstanding balance of Gh 20,000.

APPLICABLE LAWS Section 12 of the Evidence Act, 1975 (NRCD 323) treats proof in civil cases by a Preponderance of the Probabilities and states: (1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of probabilities. (2) "Preponderance of the probabilities" means the 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. In the celebrated case of Mojolagbe v Larbi & Ors (1959) GLR 190-195; Ollennu, J., said that Proof in law is the establishment of fact by proper legal means; in other words, the establishment of an averment by admissible evidence. He stated in the case thus: “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 doesn’t adduce that corroborative evidence, which if his averment is true, is certain to exist”. Also, in Re Ashalley Botwe lands; Adjetey Agbosu & Ors v Kotey & Ors [2003-2004] 1 SCGLR 420 at holding 5, the Supreme Court held that; “Under the Evidence Act, 1975 (NRCD 323), the burden of producing evidence in any given case was not fixed but shifted from party to party at various stages of the trial depending on the issues

asserted and or denied. In assessing the balance of probabilities, the court will consider all the evidence adduced at the trial, and the party in whose favour the balance tilts is the person whose case is more probable than that of the rival claims.” Thus in accordance with the laws enunciated above, the Petitioner is required to persuade this court that as a matter of proof on the balance of probabilities, the existence of the fact of the case which is that he is entitled to ghc40,000 from the defendants more probable than its non-existence. EVALUATION: By his witness statement filed, the plaintiff testified that after making the payment of Ghc40,000 to the 1st defendant, it was the first defendant who issued him with a receipt which he exhibited as Exhibit ‘A’. Again it was the 1st Defendant who also prepared an indenture covering the land and went to show him the piece of land purporting to be the one described in the indenture. Attached is also marked as Exhibit B. That it was after some time that he went to the land the 1st Defendant showed him to develop the same that he noticed that another person had commenced developing it. According to the plaintiff, he informed the defendants of that development whereupon, the Defendants showed him another plot and offered to replace the earlier one with the second plot which unfortunately also became a botched transaction hence his

request for a refund and subsequent action in Court. The 1st and 2nd defendants filed a statement of defense with the explanation that the land in question is a family land belonging to all the defendants who are siblings. As a result, the indenture was executed by the family. 1st and 2nd defendants admitted liability to ghc20,000 out of the ghc40,000 which the plaintiff paid and informed the Court that the 3rd and 4th defendants are the ones liable for the difference. It was out of caution that the Court joined the 3rd and 4th defendants who never appeared in Court personally or by proxy to admit liability. On the date of hearing all the defendants failed to attend trial even when notified. The rules of evidence impose a duty on the claimant or the person who asserts to prove his claim. The 1st and second defendants failed to establish their claim against the 3rd and 4th defendants as required to convince the mind of the tribunal of fact about the existence of the truth in their assertion. 1st and 2nd defendants also failed to connect the nexus of the ghc20,000 they alleged ought to be paid by 3rd and 4th defendants and the plaintiff since they are alleging so. I have examined the totality of the evidence adduced and I am of the view that the defendants should have brought third-party proceedings against the 3rd and 4th defendants or on their own accord joined them which they

failed to do. Because the facts before me as well as the exhibits do not establish any link with the 3rd and 4th defendants to the claim, I am compelled to non-suit the 3rd and 4th defendants. I therefore enter judgment against 1st and 2nd defendants jointly and severally to refund the full amount of ghc40,000 being the part payment made for the land in question. I also order the defendants to pay interest at the prevailing commercial bank rate counting from the date of the transaction which is 2019 till the final date of payment. Finally, the 1st and 2nd defendants shall jointly and severally pay the cost of ghc6,000 to the plaintiff. SGD:

HER HONOUR

PRISCILLA YEBOAH (SITTING AS ADDITIONAL MAGISTRATE)

ADENTA DISTRICT COURT 2