Tsimese Vrs Salma [2022] GHADC 252 (16 August 2022)

IN THE DISTRICT COURT 2, TAMALE HELD ON TUESDAY 16TH AUGUST, 2022 BEFORE HIS WORSHIP D. ANNAN ESQ. MAGISTRATE SUIT NO. A2/57/22 BETWEEN OLIVIA TSIMESE - PLAINTIFF AND SAFURA ABOCHI SALMA - DEFENDANT JUDGMENT INTRODUCTION 1. The plaintiff and defendant describe themselves as traders who deal in corn and cassava dough. Defendant, however, takes her goods from the plaintiff. 2. On 25th May, 2022 plaintiff took out a writ of summons against the defendant for the following: a. The full recovery of an amount of GH3,830.00 being the balance left unpaid out of GH4,730.00 when the defendant bought corn and cassava dough since 2018 but has failed or refused to pay in spite of several demands. b. Costs. - 1 - JUDGMENT ON ADMISSION 3. On 2nd June, 2022 when the plaintiff’s claims were read to the defendant, defendant pleaded partly liable in respect of claim 1 and not liable to claim 2. According to defendant, she had paid part of the debt and what was outstanding was GH2,600.00. Defendant indicated to pay the debt within 3months. 4. This Court then entered judgment on admission in favour of the plaintiff to recover the amount of GH2,600.00. This then leaves an outstanding amount of GH1,230.00 to be determined by this Court. THE FACTS PLAINTIFF’S CASE 5. The plaintiff in her testimony stated that defendant took goods worth GH4,560.00. For over 3years, defendant failed to pay so she reported the matter to defendant’s family. Defendant’s family confirmed the debt with the defendant and caused to be paid GH1,060.oo. The outstanding amount of GH3,500.00 was then written on a wall by one Adishetu Mohammed. On the day when the outstanding amount was written on the wall, plaintiff contends that defendant requested for additional goods worth GH1,230.00 to which she supplied. This increased the debt to GH4,730.00. However, the new debt was not written or updated on the wall. Later, plaintiff received GH900.oo from defendant’s family. Plaintiff claims that the extra goods were witnessed by one Fadila Siba who is defendant’s sister and also trades in the same goods. Plaintiff sought to call Fadila Siba as witness but she failed to come to Court. DEFENDANT’S CASE - 2 - 6. Defendant. on her part, testified that she took goods worth GH4,500.00 and through her family she paid GH1,900.00. All that she recollects is that the outstanding debt is GH2,600.00 and not GH3,830.00. She disputed that the GH3,500.00 was written on the wall. She also disputed taking additional goods from the plaintiff. She also sought to call Fadila Siba and Adishetu Mohammed as witnesses, but both failed to come to Court. THE COURT’S WITNESS 7. On 13th July, 2022 this Court ordered that Fadila Siba and Adishetu Mohammed come to Court to assist the Court unravel the issues in contention. It was only Ms. Fadila Siba who came to Court. Ms. Siba confirmed that it was Ms. Adishetu Mohammed who wrote the GH3,500.00 debt on the wall. She also confirmed that the plaintiff supplied additional goods and was aware that the debt had increased to GH3,830.00. ISSUE 8. The only issue borne of the facts is whether or not the admission of the Court Witness warrants a judgment in favour of the plaintiff? ANALYSIS OF THE SOLE ISSUE 9. The law is settled that where a party makes an averment capable of proof in some positive 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. This is what was said the celebrated case of Majolagbe v. Larbi [1959] GLR 190 per Ollennu J (as he then was) at page 192. See also the statutory requirements of sections - 3 - 11(4), 12(1) and (2) and 14 of the Evidence Act, 1975 [NRCD 323] regarding the standard of proof in civil case. 10. In the case, In re Asere Stool; Nikoi Olai Amontia IV (substituted by Tafo Amon II) v. Akotia Oworsika (substituted by Laryea Ayiku III) [2005-2006] SCGLR 637, it was held that where an adversary has admitted a fact advantageous to the cause of a party, the party does not need any better evidence to establish that fact than by relying on such admission, which is an example of estoppel by conduct. 11. As noted earlier, the parties herein sought to call Ms. Fadila Siba as a witness. Unfortunately, she did not turn up for any of them but as a court witness. When she was being cross-examined by the plaintiff, Ms. Siba confirmed that the GH3,500.00 debt was written on the wall by Ms. Adishetu Mohammed. Also, she became aware that the debt had increased to GH3,830.00. This is what ensued when Ms. Siba was cross-examined by the plaintiff: Q: When your brothers gave me the GH900.00 I informed them that the outstanding debt was GH3,830.00 and that they should write it down and I would also write it down, are you aware of it? A: That is so. Q: That is all. 12. With the above testimony, the plaintiff’s claim has been proved, see the referred case of Majolagbe v. Larbi. Further, In re Asere Stool (supra) the plaintiff does not need any better evidence than to rely on the admission/testimony of the court witness, whom both parties intended to call in the first place to prove their respective case. - 4 - 13. Accordingly, I have not hesitation at all in entering judgment in favour of the plaintiff to recover the outstanding amount of GH1,230.00 since same is part of the confirmed debt of GH3,830.00. 14. I shall now exercise my discretion to award costs of GH500.00 in favour of the plaintiff. CONCLUSION 15. This Court hereby enters judgment in favour of the plaintiff for the following: a. A full recovery of the outstanding debt of GH3,830.00 being the balance left unpaid out of GH4,730.00 when the defendant bought corn and cassava dough since 2018 but failed or refused to pay b. Costs assessed at GH500.00 c. The defendant to pay the judgment debt by 13th October, 2022. H/W D. ANNAN ESQ. [MAGISTRATE] PARTIES APPEARED IN PERSON References: 1. Sections 11(4), 12(1) and (2) and 14 of the Evidence Act, 1975 [NRCD 323] 2. Majolagbe v. Larbi [1959] GLR 190 3. In re Asere Stool; Nikoi Olai Amontia IV (substituted by Tafo Amon II) v. Akotia Oworsika (substituted by Laryea Ayiku III) [2005-2006] SCGLR 637 - 5 -