ADDO VRS FOSU-HENE (C4/28/2024) [2024] GHADC 159 (21 February 2024)

Toase District Court – Yaw Opare Addo Vrs. Nana Prempeh Fosu-Hene – Suit No. C4/28/2024 IN THE DISTRICT COURT HELD AT TOASE ON WEDNESDAY THE 21ST DAY OF FEBRUARY, 2024 BEFORE HER WORSHIP VICTORIA VERA AKONU ESQ. SITTING AS THE RELIEVING DISTRICT MAGISTRATE YAW OPARE ADDO Mim-Ashanti AND SUIT NO: C4/28/2024 ……… PLAINTIFF NANA PREMPEH FOSU-HENE Of Atwima Mim-Ashanti ……… DEFENDANT PARTIES: Plaintiff present Defendant absent _____________________________________________________________________________________ J U D G M E N T _____________________________________________________________________________________ By his writ of summons issued from this Court’s Registry on the 10th of November, 2023, the Plaintiff claims against the Defendant is for: 1. An order to compel the Defendant to pay GHS4,215.41 being accumulated amount of light bill arrears from November, 2017 to October, 2023 which the Defendant (tenant) has refused to pay till date despite several demands 2. An order to compel the Defendant to pay an amount of GHS9,200 being outstanding balance of rent arrears the Defendant owes the 1 e g a P Toase District Court – Yaw Opare Addo Vrs. Nana Prempeh Fosu-Hene – Suit No. C4/28/2024 Plaintiff from 2021 to November, 2023 which the Defendant has deliberately refused to pay despite several demands, 3. An order to eject and recovery of possession of the two-bedroom apartment the Defendant rented and has now abandoned for Plaintiff’s personal use. 4. An order of the honourable Court to force open Defendant’s door and take inventory of his personal belongings (if any) for safe keeping since he has abandoned his apartment without any knowledge of his whereabouts. 5. Costs. The Plaintiff’s writ of summons together with a Hearing Notice were served on the Defendant by substituted service and a copy served at his work place on his Manager, Enterprise Life Insurance - Adum, Kumasi and also through his WhatsApp No. 0244893596. Hence, on the strength of Order 25 rule 1 (2) of the District Court Rules, 2009 (C.I 59), the Court proceeded to hear the evidence of the Plaintiff. THE CASE OF THE PLAINTIFF The evidence of the Plaintiff is that he is the owner of a building on plot No. 8 located at Takoraso road at Atwima Mim and the Defendant is his tenant occupying two-bedroom self-contained in the said building at a monthly rent of Three Hundred Ghana Cedis (GHS300.00). According to him, the initial tenancy agreement with the Defendant commenced from 1st November, 2017 for a year period ending on 31st 2 e g a P Toase District Court – Yaw Opare Addo Vrs. Nana Prempeh Fosu-Hene – Suit No. C4/28/2024 October, 2018. The Defendant paid Three Thousand, Six Hundred Ghana Cedis (GHS3,600.00) for that year. He tendered in evidence the said agreement as Exhibit “A” and after the expiration of that year, they renewed the agreement orally and from that time the Defendant refused to pay regularly the rent in full. He avers that at the end of December 2021, there was an outstanding debt of Two Thousand Ghana Cedis (GHS2,000.00) as well as rent for 2022 and 2023 all totaling Nine Thousand Two Hundred Ghana Cedis (GHS9,200.00) and all effort to recover the said rent from the Defendant has proven futile. He avers that the other tenants in the house have informed him that for some time now, they have not seen the Defendant and he is also not picking or answering his telephone calls to the extent that he has now blocked his (the Plaintiff’s) number. He avers again that the Defendant is also owing electricity bill amounting to Four Thousand, Two Hundred and Fifteen Ghana Cedis, Forty-One pesewas (GHS4,215.41) as at October, 2023. He tendered in evidence the said bill which was admitted and marked as Exhibit “B”. Burden of Proof/Burden of persuasion By law the Plaintiff has a burden to prove his case to the standard required in civil actions; that is on a balance of probabilities. The relevant provisions of the Evidence Act, 1975 (NRCD 323) as relates to the issues raised are set out below: Section 10 – 3 e g a P Toase District Court – Yaw Opare Addo Vrs. Nana Prempeh Fosu-Hene – Suit No. C4/28/2024 “(1) For the purposes of this Act, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the Court” “(2) The burden of persuasion may require a party to raise a reasonable doubt concerning the existence or non-existence of a fact or that he establishes the existence or non-existence of a fact by a preponderance of the probabilities”. In the case of GIHOC REFRIGERATION V. HANNA ASSI [2005-2006] SCGLR 458 the Supreme Court explained what was meant by burden of persuasion. It said: “Since the enactment of NRCD 323, therefore, except otherwise specified by Statue, the standard of proof (the burden of persuasion) in all civil matters is by a preponderance of the probabilities based on a determination of whether or not the party with the burden of producing evidence on the issue has, on all the evidence, satisfied the judge of the probable existence of the fact in issue……Hence, by virtue of the provision of NRCD 323, in all civil cases, judgment might be given in favour of a party on the preponderance of the probabilities”. Section 11 “(1) For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue”. “(4) In other circumstance the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind 4 e g a P Toase District Court – Yaw Opare Addo Vrs. Nana Prempeh Fosu-Hene – Suit No. C4/28/2024 could conclude that the existence of the fact is more probable than its non- existence”. As has been stated already the Defendant failed to avail himself of the opportunity to participate in the trial. It is trite learning that a party in a case may refuse to participate in the proceedings altogether or even fail to lead evidence. The rule therefore is that when a party is given the opportunity to participate in Court proceedings or lead evidence in support of his case or in defence of allegations against him but he deliberately fails to avail himself of that opportunity, the Court will proceed with the trial to it conclusion and make findings on the evidence adduced at the trial. See WATALAH VRS. GHANA PRIME WOOD PRODUCTS LTD. [1973] 2 GLR 126. The absence of the Defendant at the trial does not imply an automatic victory for the Plaintiff. For the Plaintiff to be victorious and successful in his case, the onus lies on him to lead credible and reliable evidence. See the case of IN RE ASHALLEY BOTWE LANDS; ADJETEY AGBOSU & ORS VRS. KOTEY & ORS. [2003-2004] SCGLR 420 The issue for the determination by the Court is: Whether or not the Plaintiff is entitled to the sum he claims from the Defendant? In respect of the above relief, the Plaintiff testified that the Defendant uses separate electricity meter and tendered exhibit B and stated that as the landlord or owner the meter is in his name, however, it is the Defendant who uses it as all the tenants in the house have separate electricity meters. 5 e g a P Toase District Court – Yaw Opare Addo Vrs. Nana Prempeh Fosu-Hene – Suit No. C4/28/2024 According to the Plaintiff the Defendant also owed rent of Two Thousand Ghana Cedis (GHS2,000.00) from 2021, 2022 – Three Thousand Six Hundred (GHS3,600.00) and 2023 -- Three Thousand Six Hundred (GHS3,600.00) which all together amounted to Nine Thousand, Two Hundred Ghana Cedis (GHS9,200.00). According to him, he did not increase the rent from 2017 and that he continued to collect monthly rent of Three Hundred Ghana Cedis (GHS300.00). Since the Defendant failed to participate in the trial, I have no doubt in my mind that the Defendant has no defence to the Plaintiff’s claim and that explains why he failed to participate in this action. I therefore find and hold that the Defendant is indebted to the Plaintiff on his reliefs one and two. The Plaintiff is seeking for the Defendant to be ejected from the two bedroom self-contain he occupies. Section 17 of the Rent Act, Act 220 provides as follows: “(1) Subject to subsection (2) of Section 25 and to Section 28, an order against a tenant for the recovery of the possession of, or for the ejectment from, any premises shall not be made or given by the Rent Magistrate, or any other judge of a Court of competent jurisdiction in accordance with any other enactment except 6 e g a P Toase District Court – Yaw Opare Addo Vrs. Nana Prempeh Fosu-Hene – Suit No. C4/28/2024 (a) where a rent lawfully due from the tenant has not been paid or tendered within one month after the date on which it became lawfully due”. From the evidence of the Plaintiff, the Defendant owed rent from part of 2021, 2022 and 2023. In applying Section 17 of Act 220, I therefore find and hold that the Defendant has defaulted in paying his rent for over a month and for that matter, I have no option than to order for him to be ejected from the rooms he occupies in the Plaintiff’s house. From the totality of the evidence on record the Court is satisfied that the evidence of the Plaintiff is more probable than its non-existent. I therefore find and hold that the Plaintiff has proven his case to the standard required by law and for that reason I hereby enter judgment for the Plaintiff against the Defendant. The Plaintiff is to recover from the Defendant: (a) the electricity bill of Four Thousand, Two Hundred and Fifteen Ghana Cedis, Forty-one pesewas (GHS4,215.41), (b) Rent arrears of Nine Thousand, Two Hundred Ghana Cedis (GHS9,200.00), (c) An order of ejectment and possession of the said two-bedroom self-contained/apartment the Defendant occupies in the Plaintiff’s house, (d) An order to open the said two-bedroom self-contained apartment under the supervision of the Registrar of this Court who will take inventory of any property(ies) of the Defendant (if 7 e g a P Toase District Court – Yaw Opare Addo Vrs. Nana Prempeh Fosu-Hene – Suit No. C4/28/2024 any) and the Plaintiff will provide a secured place where those items or property(ies) will be kept. (e) I award cost of One Thousand Ghana Cedis (GHS1,000.00) in favour of the Plaintiff. VICTORIA VERA AKONU DISTRICT MAGISTRATE 8 e g a P