KWABENA VRS KONAADU (BR/KS/A2/10/2024) [2023] GHADC 1252 (21 November 2023)

IN THE DISRICT COURT HELD AT KENYASI FROM MONDAY THE 21st NOVEMBER, 2023. BEFORE HIS WORSHIP CLEMENT KWASI ASOMAH AS MAGISTRATE SUIT NO: BR/KS/A2/10/2024 MUSAH KWABENA VRS ABENA KONAADU JUDGMENT Plaintiff o the 24/10/23 was issued out of the Registry of this court a writ of civil summon claiming the following relies. (a) Recovery of an amount of H¢2,600.00 from the Defendant. (b) Interest on the said GH¢2,600 PLAINTIFF’S CASE Besides Himself the plaintiff called no witness. According to the plaintiffs he offered financial assistances of GH¢2,600.00 to the Defendant and she promised to settle the debt within a month but has filed to do so, Hence the instant action. THE DEFENDANT CASE The court records indicate that on the 31-10-23 when the case was mentioned the plaintiff was present but the Defendant was absent though served with the Writ of summons. Cost of GH¢300.00 was awarded against the Defendant and hearing notice was ordered to be served on her and the case adjourned to 08/11/23 for definite warning. On the 08/11/23 when the case was called, the plaintiff was present but the defendant was still absent though served with the hearing notice, As a result I closed his case for her after he plaintiff had testified and closed his case as l was of the view THAT THE Defendant was not prepared to come to court to contest the case. And did the court do the right thing when the Defendant’s case was closed for her after the plaintiff had closed his case, Order 25 rule 1 (2) (a) & (b) of case. 2009, district court Rules enacts 2 court where an action is called for trial and the parties fail to attend the trial magistrate may (a) Where the plaintiff attends and Defendant fails to attend, dismiss the courter claim riming, if any and allow the plaintiff to prove the clam, (b) Where the defendant attends and the plaintiff fails to attend, discuss the action and allow the defendant to prove the count claim. (c) Make any other order that is just. In the instance case the defendant was absent when the case was called on the 1st day the court did not call the plaintiff to testify but rather ordered hearing notice to be served on her and the case was adjourned What is worse is that even though she was served with hearing notice she still refused to come to court. my conclusion was that her refusal to participate in the proceedings was deliberate, and that influenced my decision to close her case because l think the case cannot sit on the Couse list indefinably for the only reason that the defendant was either unwilling or prepped to come to court. IN VASQUE V QUARSHIE (1968) GLR 62 the court of Appeal per Amissah J. A stated the rule that a court taking a decision in a case where a party does not appear because he has not been notified is doing an act which is a nullity on the ground of absence of jurisdiction. However, the law is also that where a party has been sufficiency saved with a hearing Notice but refuses to respond he cannot raise that question of defect or irregularity in the proceedings. In the instance case the defendant was not in court on the returning dates the case was adjourned and was served with a hearing notice (there is proof of service) and yet she failed to cone to court. She cannot therefore at any time thereafter raise the issue of irregularity in the in the proceedings. I am of the opinion that the decision I took in closing the case of the defendant and to adjourn the case for judgment was the best in the circumstance of the case. I now come to consider whether in the absence of the defendant’s evidence, the plaintiff has still been able to discharge the burden of persuasion on him in terms of sections 10 and 14 of NRCD 323 (1975). It is the case of the plaintiff that he advanced an amount of GH¢2,600.00 to the defendant as financial assistance to be settle witting month but has refused to do so. Hence the instance action. This piece of evidence was supported by exhibit ’A’ promissory note executed and duly assented to by the defendant and her witness. Havening regard to this evidence of the Plaintiff 1 am satisfied that he has been able to discharge this evidence of plaintiff /am satisfied that he has been able to discharge his legal burden that is the burden of persuasion. I hold that the defendant is indebted to the plaintiff to the tune of GH¢2,600.00. On the question of interest exhibit a shows that the defendant ought to have settle the debt in September 16, 2023. It is therefore unjust for plaintiff to ask for interest from August, 2023. The interest should rather be calculated from September, 2023 and not from August Having considered case as a whole I am satisfied that plaintiff has been able to establish his case on the balanced of probabilities. Judgment is accordingly entered for him. The defendant is indebted to the plaintiff to the tune of GH¢2600.00 Interest is to be calculated on the said GH¢2,600.00 at the prevailing bank lending rate from 16th September, 20023. Cost of GH¢600.00 is awarded against the defendant. ….…………………………… H/W CLEMENT KWASI ASOMAH 01/09/2024