SCHOOL OF NURSING VRS ABAZING (C2/14/2022) [2024] GHACC 225 (13 March 2024)

IN THE CIRCUIT COURT HELD AT AMASAMAN – ACCRA ON WEDNESDAY THE 13TH DAY OF MARCH, 2024 BEFORE HER HONOUR ENID MARFUL-SAU, CIRCUIT COURT JUDGE SUIT NO:C2/14/2022 WESTERN HILLS SCHOOL OF NURSING H/NO. GW-0542-5148 ATTA MILLS STREET OFANKOR, ACCRA … PLAINTIFF VRS. MR. WILLIAM ABAZING TRADING UNDER THE NAME AND STYLE A.H.C ENTERPRISE UNITED GARDENS, ASOFAN ROAD OFANKOR, ACCRA … DEFENDANT ___________________________________________________________________________ ___________ PARTIES: PLAINTIFF REPRESENTED BY ISAAC OMAN MENSAH DEFENDANT ABSENT COUNSEL: EDWARD METTLE-NUNOO ESQ. FOR PLAINTIFF PRESENT CHARLES BAWADUAH ESQ. FOR DEFENDANT ABSENT JUDGMENT Page 1 of 11 By an Amended Writ of Summons and Statement of Claim filed on 2nd September, 2022 Plaintiff claims against Defendant the following reliefs: a) “An order for the recovery of an amount of FIFTY-SIX THOUSAND GHANA CEDIS (GHȼ56,000.00) being monies paid to Defendant for the purchase of land. b) Interest on the said sum of FIFTY-SIX THOUSAND GHANA CEDIS (GHȼ56,000.00) from May, 2016 to date of final payment at the commercial bank rate of interest. c) General damages for breach of contract. d) Legal and Solicitors costs.” The facts as disclosed by the Statement of Claim are on or about in May, 2016, Defendant intimated to Plaintiff that he was selling a parcel of land behind Plaintiff at a cost of Seventy Thousand Ghana Cedis (GHȼ70,000.00). Plaintiff says that upon inspection of the land, it expressed interest in acquiring same. Plaintiff says that after further discussions, the parties agreed that the sale price was to be paid by installments. Plaintiff says that it made an initial payment of Twenty Thousand Ghana Cedis (GHȼ20,000.00) and was issued with a receipt dated 20th May, 2015. Plaintiff say that on or about 12th July, 2016, it made a second payment of Thirty Six Thousand Ghana Cedis (GHȼ36,000.00) and was again issued with a receipt. According to Plaintiff, after the second payment, Defendant granted it a right of entry to the land. Plaintiff says that when it tried to develop the land, a third party intimated to it that the land was already encumbered and that the said parcel of land did not belong to Defendant. Plaintiff says that it confronted Defendant and he opted to replace the land with one at a different location but several efforts and reminders for the replacement proved futile. Plaintiff says that Defendant also failed to refund the money to it. Plaintiff says that after the failure of Defendant to replace the land, it caused its lawyer Page 2 of 11 to write to Defendant demanding a refund of the monies advanced to him as well as the cost of materials deposited on the land without success. According to Plaintiff, Defendant per his conduct has evinced an intention not to refund the monies due Plaintiff unless compelled by the court hence the instant action. Defendant entered Conditional Appearance through counsel on 11th March, 2022 and filed a Statement of Defence on 1st March, 2023. He contends that he merely introduced Plaintiff to the Nii Abetia family of Ofankor who are owners of the land. According to him, the family negotiated with Plaintiff and agreed on the price and when payments were to be effected, Defendant was called upon to witness. Defendant contends that because the family did not bring a receipt to be issued to Plaintiff to cover payment, Defendant was requested by both parties to issue a receipt as evidence of payment to the family. Defendant says that even though he issued the receipt, it was understood that the payment was made to the family who actually received the money through Joseph Amon Kotey in the presence of Isaac Mensah, the owner of Plaintiff. Defendant says that he did not receive any money as the money was handed over to the family directly. He says that Plaintiff was issued with an indenture and it took possession of the land but several months after taking possession, Plaintiff claimed it was encountering problems on the land and so requested for a replacement. Defendant says that he got to know later that a different land at Kofi Kwei was replaced for the Plaintiff by the family. Plaintiff filed a Reply on 6th April, 2023. It contends that at all times during the negotiation of the price of land, showing the exact location and payments and receipt of monies, it dealt with Defendant and no other person or family. Plaintiff says that all monies were paid to Defendant who issued receipts personally in acknowledgment without referring to any entity or third party. It says that after buying building materials and placing them on the land, it was challenged by a third party and it immediately informed Defendant who promised to replace same or refund all monies. Page 3 of 11 It says that from Defendants behaviour, it was compelled to institute the instant action. On 10th July, 2023, the following issues were adopted and set down as the issues for trial: a. “Whether or not Defendant sold land to Plaintiff. b. Whether or not Plaintiff paid an amount of GHȼ56,000.00 to Defendant. c. Whether or not Plaintiff had the benefit of the land. d. Whether or not Defendant has refunded the GHȼ56,000.00 paid to him by Defendant. e. Whether or not Plaintiff is entitled to its claim against Defendant.” I am inclined to make preliminary remarks about the record of this case before I proceed to determine the issues as set down. After orders were made for parties to file their Witness Statements and Pre Trial-Checklists, this court found that Defendant had failed to comply with the court’s orders. On 25th October, 2023, counsel for Defendant appeared before the court and prayed for an adjournment to comply with the orders of the court. Defendant was accordingly given the benefit of a long adjournment to 13th December, 2023 to comply. On 13th December, 2023 when the case was called, Defendant together with his counsel were absent and the orders of the court had not been complied with. Accordingly, the court proceeded to struck out Defendant’s Statement of Defence in accordance with Order 32 rule 7A (3)(b) of CI 47 as amended by CI 87 and proceeded with CMC with a date being given for hearing. On 31st January, 2024 when the case was called for hearing, Defendant and his counsel were absent thought Hearing Notice and Court Notes were duly served on the Defendant’s counsel. Hearing proceeded as scheduled with the case being adjourned for Judgment. It is trite learning that a Party who is aware of the hearing of a case but elects to stay away cannot complain that he was not given a hearing and could only appeal upon the merits of the Judgment. Page 4 of 11 (See. THE REPUBLIC V HIGH COURT (FAST TRACK DIVISION) ACCRA; EX PARTE STATE HOUSING CO. (KORANTEN-AMOAKO INTERESTED PARTY)(2009) SCGLR 185, -REPUBLIC V HIGH COURT (HUMAN RIGHTS DIVISION) ACCRA; EX-PARTE JOSEPHINE AKITA (MANCEL-EAGALA & ATTORNEY GENERAL INTERESTED PARTIES) (2010) SCGLR 374), -GHANA CONSOLIDATED DIAMOND LTD V. TANTUO & ORS (2001-2003)2 GLR 150) The Standard of proof required in a Civil action was set out in the case of BISI AND OTHERS v. TABIRI ALIAS ASARE [1987-88] 1 GLR 360; SC “The standard of proof required of a plaintiff in a civil action was to lead such evidence as would tilt in his favour the balance of probabilities on the [p.362] particular issue. The demand for strict proof of pleadings had however never been taken to call for an inflexible proof either beyond reasonable doubt or with mathematical exactitude or with such precision as would fit a jig-saw puzzle. Preponderance of evidence became the trier's belief in the preponderance of probability. But "probability" denoted an element of doubt or uncertainty and recognised that where there were two choices it was sufficient if the choice selected was more probable than the choice rejected. Consequently the trial judge was justified in accepting the case of the plaintiff on the materials and money he had contributed towards the construction of the house, in spite of the discrepancies in the evidence of the first and fourth plaintiff witnesses on the quantities.” Section 12(2) of the EVIDENCE ACT,1975 NRCD 323 defines ‘preponderance of probabilities’ as follows: Page 5 of 11 ““Preponderance of the probabilities” means that 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 Supreme Court case of DALEX FINANCE AND LEASING COMPANY LTD. VRS EBENEZER DENZEL AMANOR & ORS., CIVIL APPEAL NO. J4/02/2020 DATED APRIL 14, 2021; UNREPORTED, the Supreme Court admonished as follows: “We take this opportunity to deprecate the emerging wrong practice where in setting down issues for trial in a civil case “whether or not the plaintiff is entitled to her claim” is put down as an issue for trial. The whole trial is aimed at determining whether or not the plaintiff is entitled to the reliefs claimed so how can that be a distinct issue? This practice is a product of lazy work and a stop must be put to it.” In view of the above decision, issue ‘e’ is hereby struck out. Issue ‘a’ is ‘whether or not Defendant sold land to Plaintiff’. Plaintiff testified through its Director, Isaac Oman-Mensah. He testified that sometime in the year 2016, Plaintiff was in need of a parcel of land for the construction of student hostels and the Defendant who is known to him approached him and stated that he had a parcel of land for sale, so he expressed interest and requested that he shows him where the land was situated. He testified that as requested Defendant took him to a parcel of land situate at Ofankor which is a walking distance from Plaintiff. He stated that he inspected the land and realized it was suitable for purpose, so he negotiated with Defendant and agreed on the purchase price of Seventy Thousand Ghana Cedis (GHȼ70,000.00) for the land which measured 70 feet by 100 feet. Though hearing notice and court notes were served on counsel for Defendant to appear at the trial, they failed to appear. Accordingly, the evidence of Plaintiff stands uncontradicted. Defendant is sued personally and per the writ of Summons trades under the name and style of A.H.C Enterprise. This fact was never denied by Defendant in pleadings. Page 6 of 11 In the case of BARCLAYS BANK OF GHANA LTD. v. LARTEY AND OTHERS [1978] GLR 282 it was held as follows: “A business name registered under the Registration of Business Names Act, 1962 (Act 151), did not by the act of registration acquire any legal personality distinct from the person registering it. A registration of business name merely protected the exclusive use and the right of the person registering the name. Consequently the registered name Scarts did not acquire any legal personality distinct from L. who carried on business under that name.” It follows then that the registered business name A.H.C Enterprise does not acquire a distinct status from Defendant herein who carries on business under the said name. I therefore find that on a balance of probabilities, Defendant sold land to Plaintiff. Issue ‘b’ is ‘whether or not Plaintiff paid an amount of GHȼ56,000.00 to Defendant.’ Plaintiff’s representative testified that after he negotiated with the Defendant and agreed on an amount of Seventy Thousand Ghana Cedis (GHȼ70,000.00) for the land, on 20th May, 2016 he invited the Defendant to his office at the Plaintiff school and made the first payment of Twenty Thousand Ghana Cedis (GHȼ20,000.00) to him. He testified that he was issued with a receipt in acknowledgment of the amount. He stated that the receipt was that belonging to Defendant and not that of any chief, family or third party. He tendered as ‘Exhibit A’ the said receipt. He testified that a second payment of Thirty-Six Thousand Ghana Cedis (GHȼ36,000.00) was made to the Defendant at his (Plaintiff’s) Office and on making payment, he was issued with a receipt for an amount of Fifty-Six Thousand Ghana Cedis (GHȼ56,000.00) thereby consolidating the two payments made. He attached as Exhibit B a copy of the said receipt. I note that both Exhibits A and B have been stamped in accordance with the law. Exhibits A & B bear the name A.H.C Enterprise which is the business name of Defendant. Exhibit A is for the payment of an amount of Twenty Thousand Ghana Page 7 of 11 Cedis (GHȼ20,000.00) with the balance indicated as being Fifty Thousand Ghana Cedis (GHȼ50,000.00). Exhibit B indicates an amount of Fifty-Six Thousand Ghana Cedis (GHȼ56,000.00) with a balance indicated as Fourteen Thousand Ghana Cedis (GHȼ14,000.00). In the absence of any credible evidence to the contrary, I find that on a balance of probabilities Plaintiff paid an amount of GHȼ56,000.00 to Defendant Issue ‘c’ is ‘whether or not Plaintiff had the benefit of the land’. Plaintiff testified that after the second payment, he purchased a trip of chippings and deposited on the land. He stated that at that point, a neighbour close to the land alerted him that the land did not belong to Defendant. He stated that he confronted the Defendant and he said he would replace the land, but he was not able to do so. He testified that it was at this point that he demanded the Defendant to refund the amount paid. As already indicated, Plaintiff acquired the land for the purpose of constructing a hostel for Plaintiff’s students. There is no evidence before this court to show that indeed the said hostel was successfully constructed on the land sold to Plaintiff. The evidence is unopposed that just at the point of depositing chippings on the land, Plaintiff was made aware of an encumbrance on the land which he brought to Defendant’s attention. I therefore find that Plaintiff did not have the benefit of the said land. Issue ‘d’ is ‘whether or not Defendant has refunded the GHȼ56,000.00 paid to him by Defendant.’ The evidence of Plaintiff is that after he realized that the land did not belong to Defendant, he asked for a refund of the money paid but Defendant kept giving promises and failed. He testified that he caused his lawyers to write to Defendant demanding a refund of the amount paid for the land. The letter was tendered as Exhibit C. He stated that Defendant owes Plaintiff Fifty-Six Thousand Ghana Cedis (GHȼ56,000.00). Exhibit C is a letter dated 4th February, 2022 addressed to Defendant from counsel for Plaintiff. The said letter is titled “Demand for Refund of Monies Advanced for Page 8 of 11 Purchase of land”. The letter is a demand for the payment of an amount of Fifty-Six Thousand Ghana Cedis (GHȼ56,000.00) by Defendant with a deadline of 21st February, 2022. When Plaintiff gave his evidence in chief on 30th January, 2024, he indicated that Defendant was owing him the said sum. As earlier stated, though Defendants were notified of the hearing, they together with counsel failed to appear before the court to cross examine Plaintiff on his evidence. In the case of SAFO AND ANOTHER v. BADU [1977] 2 GLR 63 it was held as follows: “Natural justice required that no condemnation should be pronounced behind the back of a man who had had no opportunity to appear and defend his interest, either personally or by his proper representative, but the court would not hold a judgment to be contrary to natural justice where the trial court had jurisdiction over the subject- matter of the suit and the parties thereto, and where the parties had duly and in accordance with common law ideas of natural justice been summoned to the trial so as to have had a hearing or an opportunity of being heard. In the present case, the defendant was summoned to the trial court, she had an opportunity of being heard and would have been heard if she had exhibited vigilance comparable to that of the plaintiff. There was therefore no breach of the audi alteram partem rule which would render the judgment of the trial court void.” The Supreme Court stated in the case of DON ACKAH VRS PERGAH TRANSPORT [2011] 31 GMJ 174 as follows: ‘It is a basic principle of the law of evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more probable than its non- existence’. Page 9 of 11 It is a well-known rule of evidence that although proof in a civil case rested on the plaintiff, that burden is discharged when the Plaintiff introduces sufficient evidence of the probability of his case. (see. ACQUAYE v. AWOTWI AND ANOTHER [1982-83] GLR 1110). I find that credible evidence has been adduced in proof of the claim of Plaintiff. On the entirety of the evidence before this court, I find that on a preponderance of probabilities, the Plaintiff’s claim should succeed. I therefore enter judgment in favour of Plaintiff against the Defendant as follows: a) Plaintiff is hereby to recover the amount of Fifty-Six Thousand Ghana Cedis (GHȼ56,000.00) from the Defendant. I find from the evidence that there was an understanding between the parties that the said land would be replaced after Plaintiff found that it was encumbered and when this was not done, Plaintiff sought a refund of his money. It was when Defenant failed to refund the said sum that Plaintiff says he caused his lawyer to write to Defendant to demand the said sum. I consider that there is a need to prevent the unjust enrichment of Plaintiff and causing interest to run on the said amount from May, 2016 would be unjust. (See. CITY & COUNTRY WASTE LTD V ACCRA METROPOLITAN ASSEMBLY [2007-2008] SCGLR 409). I shall therefore award interest on the sum running from 4th February, 2022 being the date as indicated on the Demand letter (Exhibit C). b) Plaintiff is awarded interest on the said sum of Fifty-Six Thousand Ghana Cedis (GHȼ56,000.00) from 4th February, 2022 to date of final payment at the commercial bank rate of interest. c) General damages of Three Thousand Ghana Cedis (GHȼ3,000.00) is awarded in favour of Plaintiff against Defenant. Page 10 of 11 d) Costs of Three Thousand Ghana Cedis (GHȼ3000.00) is awarded in favour of Plaintiff against Defendant. Though Plaintiff claims Legal and Solicitors costs, there is no evidence of the said costs before the court. In the absence of credible evidence in proof of this relief, relief “d” as endorsed on the Writ of Summons fails and I so hold. H/H ENID MARFUL-SAU CIRCUIT JUDGE AMASAMAN Page 11 of 11