AKUAKO VRS ASANTE (AR/ES/DC/A2/13/2025) [2024] GHACC 313 (26 November 2024)

CORAM: HER HONOUR (MRS.) ROSEMARY EDITH HAYFORD, CIRCUIT COURT JUDGE, SITTING AS ADDITIONAL MAGISTRATE, DISTRICT COURT, AGOGO ON THE 26TH OF NOVEMBER, 2024 __________________________________________________________________ SUIT NUMBER AR/ES/DC/A2/13/2025 STEPHEN YAW AKUAKO V KWABENA ASANTE - - PLAINTIFF DEFENDANT ……………………………………………………………………………………………………… TIME: 12.37 PM PLAINTIFF DEFENDANT PARTIES UNREPRESENTED - - PRESENT ABESENT __________________________________________________________________ JUDGMENT The Plaintiff instituted this instant suit against the Defendant on 24/06/2024 for the recovery of cash in the sum of Three Thousand Ghana Cedis (GH₵3,000.00). The Writ of Summons was served on the Defendant by substituted service pursuant to an order of the court granted on 11/07/2024 and the matter was adjourned. By the return date on 5/11/2024, the Defendant had failed to file any process and also failed to appear in court to defend the action. Pursuant to Order 25 rule 1(2) of CI 59 which stipulates that 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 his claim, the court therefore allowed the Plaintiff to prove his case. THE PLAINTIFF’S CASE The Plaintiff’s case per his summary of the subject matter of the claim is that sometime in August 2023, the defendant bought his Opel Astra vehicle with registration number GT-8558-W at the purchase price of Six thousand Ghana Cedis (GH₵6,000.00). According to the Plaintiff, the defendant has made part payment of Three Thousand Ghana Cedis (GH₵3,000.00) leaving a balance of GH₵3,000.00. It is the case of the Plaintiff that the defendant has failed or refused to pay the outstanding balance despite several demands, hence this action. At the end of the trial, the issue below was set down for determination Whether or not Plaintiff is entitled to recover from Defendant the outstanding balance of GH₵3,000.00. APPLICABLE LAW In every civil suit the burden of persuasion and proof lies on the party who asserts the affirmative of his case and the standard of proof required of him is proof by a preponderance of probabilities as provided for under section 12 of the Evidence Act 1975 NRCD 323. Thus, the plaintiff who is making a claim against the defendant is required under section 11 (1) of the Evidence Act to lead sufficient evidence in proof of his case to compel a ruling in his favour. In the case of Ababio v Akwasi IV [1994-95] GBR 774 the court reiterated the nature of the burden on a party required to prove an issue asserted in his pleadings as follows: “The general principle of law is that it is the duty of a plaintiff to prove his case as he must prove what he alleges. In other words, it is the party who raises in his pleadings an issue essential to the success of his case who assumes the burden of proving it. The burden only shifts to the defence to lead sufficient evidence to tip the scales in his favour when on a particular issue the plaintiff leads some evidence to prove his claim. If the defendant succeeds in doing this he wins; if not he loses on that particular issue.” EVALUATION AND ANALYSIS OF THE EVIDENCE AND DECISION OF THE COURT The Plaintiff testified himself and called one witness. No documents were tendered in support of his case. The Plaintiff testified that he had been sick for some time now and needed a driver to work with his Opel Astra vehicle with registration number GT-8558 to earn some income for his necessities of life. Sometime in March 2023, the defendant was introduced to him as someone who could do the job. Subsequently, he sent the car to the mechanic and repaired same. It is the case of the Plaintiff that sometime in August 2023 the defendant showed an interest in purchasing the car. He came with three (3) people to negotiate on the price. He offered to buy the car at Three Thousand Ghana Cedis (GH¢3,000.00) but the Plaintiff said he indicated to him he was selling it at GH¢6,000.00. They then pleaded with him to take GH¢3000.00 as part payment and that the balance of GH¢3,000.00 would be paid within four (4) months which he agreed to. However, the defendant failed to honour the terms that they agreed on. The plaintiff testified that from the beginning of the year 2024 when he contemplated to institute an action against the defendant, some of the defendant’s family members heard about it and subsequently informed the defendant. According to the Plaintiff, the defendant then came to his house and promised to pay the balance of GH¢3,000.00 within a month but failed once again. The plaintiff says that at the time the parties were negotiating for the sale of the car and the time the defendant came to plead for the extension of time, his neighbour, Afia Serwaa was present. The defendant has failed to pay the balance which is why he brought the matter to court. As earlier indicated the defendant failed to appear in court to defend the action therefore, the evidence of the Plaintiff as narrated above stood unchallenged. The effect is that the averments by the Plaintiff have been acknowledged and admitted by the defendant. In the case of QUAGRAINE V ADAMS [1981] GLR 599, CA, it was held that “where a party makes an averment and his opponent fails to cross-examine on it, the opponent will be deemed to have acknowledged, sub silentio, that averment by the failure to cross-examine.” Again in TAKORADI FLOUR MILLS VRS SAMIR (2005-2006) SCGLR 882 the Supreme Court held that “in law where evidence is led by a party and that evidence is not challenged by the opponent in cross-examination and the opponent did not also tender evidence to the contrary, the fact deposed to in the evidence is deemed admitted by the party against whom it is admitted and ought to be accepted by the court.” It is to be noted that the defendant was given the opportunity to be heard but he failed to appear in court. Therefore, he cannot say that the audi alteram pattem rule has been breached. It is trite law that where a party is given the opportunity to be heard and he fails to take it, he cannot complain later that he has not been heard or there is a breach of any rule of natural justice. The plaintiff called his neighbour Afia Serwaa as his witness (PW1). She testified that she shared a boundary with the plaintiff and sold alcohol in front of her house. She averred that she observed that there was a man who normally went to the plaintiff and so she enquired from the Plaintiff who the man was and what he wanted. She averred further that the Plaintiff informed her that the man (defendant) wanted to drive his car. Later, four (4) individuals including the defendant went to see the plaintiff. PW1 averred that the Plaintiff called her to come and be a witness. According to PW1 the plaintiff initially said he would sell the car for GH¢8,000.00 but they (the defendant and the 3 individuals) pleaded with the plaintiff and said they would pay GH¢6,000.00 which was agreed by the Plaintiff. They then paid GH₵3,000.00 and agreed to pay the rest of the money within 4 months. However, to date, the defendant has failed to pay the outstanding balance. The evidence of PW1 which also stool unchallenged, corroborated that of the plaintiff to the effect that the parties agreed on GH₵6,000.00 as the final purchase price of the Plaintiff's car and that an initial amount of GH₵3,000.00 was paid by the defendant to the Plaintiff remaining an outstanding balance of GH₵3,000.00. I find the evidence of Plaintiff and PW1 credible and accordingly hold that the defendant is indebted to Plaintiff in the sum of GH₵3,000.00 being the balance of the cost of Plaintiff's Opel Astra. CONCLUSION Having considered the facts and evidence adduced so far by Plaintiff which is corroborated by PW1, it is my considered view that the evidence of Plaintiff is cogent and credible, accordingly the action must succeed. I, therefore, enter judgment in favour of the plaintiff in the sum of Three Thousand Five Ghana Cedis (GH₵3,000.00) being the outstanding balance of the cost of Plaintiff's Opel Astra sold to Defendant. I award cost of GH₵1,000.00 in favour of the Plaintiff against the defendant. SGD H/H ROSEMARY EDITH HAYFORD (MRS.) (SITTING AS ADDITIONAL MAGISTRATE) 6