Dzigbordi Vrs Vulley And 2 Others (KING, E1/17/2020) [2024] GHAHC 303 (24 May 2024)

INTHESUPERIOR COURT OF JUDICATURE INTHE HIGH COURT OF JUSTICEHELDATHOHOE ONFRIDAY THE24TH DAY OF MAY2024BEFORE HERLADYSHIP JUSTICE JOANEYIKING, HIGH COURT JUDGE SUITNO. E1/17/2020 EVELYNDZIGBORDI ANKU - PLAINTIFF/RESPONDENT VRS 1.TOGBE VULLEY 2.CHARLES PRAH 3.ANTHONY GANDEDZI - 3RD DEFENDANT/APPLICANT (PERHIS LAWFULATTORNEYFELICIA GANDEDZI) RULING–SECURITY FORCOSTS This is an application for and on behalf of the 3rd defendant/lawful attorney hereinafter referred to as applicant praying the court for an order that the plaintiff/respondent provide security for cost and for any other order(s) that the HonourableCourtmay deem fit. Ishall quotethe relevant paragraphsas follows: 2. That plaintiff instituted this action against defendants and stated in her statement of claim paragraph “1” that she is a Ghanaian, resident here in Ghana and works withthe CocoaMarketing Company(Gh) Ltd. inAccra. 3. That plaintiff has continuously been absent from this court leaving defendants in and out of court and ringing untold financial hardship upon defendants while she 1 and her lawyer consistently asset themselves from court by so doing intentionally delayedtrial by abusing he courtprocessforthand back. 4. That the 3rd defendant per the orders of the court has served several hearing notices onplaintiff and orherlawyer toattend court. 5. That on the 16th December 2021 and with abundance of caution the trial Judge ordered that 3rd defendant serve plaintiff personally which 3rd defendant spent money and directed service of the hearing notice on plaintiff at the work address in Accra provided by theplaintiff inparagraph“1”ofher statement ofclaim. 6.That 3rd defendant and the court bailiff went to the work address Cocoa Marketing Gh. Ltd, Accra but Human Resources Direction (HR) told the bailiff and 3rd defendant thatplaintiff is notknowntothe addressand she doesnot workthere. 7. That 3rd defendant is reliably informed that plaintiff does not live and work in Ghana as she wants the courttobelieve. 8. That the conduct of plaintiff and her lawyer is clearly captured by the trial Judge inthe proceedings dated7th September 2021. 9.That costsawarded against plaintiff so far remains unpaid. 10. That 3rd defendant believes that in the event of being the successful party plaintiff would not pay costs since she does not live, work nor have known property within thejurisdiction ofthis court. 11. Wherefore 3rd defendant prays the Honourable Court to compel plaintiff to give security forcostseitherin cash orlanded property. The plaintiff/respondent hereinafter referred to as respondent opposed the application. I shall quotethe relevantparagraphs asfollows: 4. That I am vehemently opposed to the instant application and as I am advised and believing same to be true that the instant application is incompetent and that 2 material depositions in the affidavit in support are not true. Thus at the hearing of the application, my counsel shall seek leave of the Honourable Court to cross examine the deponentonthe depositiontoascertain theveracity asdeposed to. 5. That I am a citizen of Ghana who works and reside in the country. In accordance with the rules of the Honourable Court, I have provided my residential address and also stated in my processes where I work. Thus it is not be true that I do not live and workinGhana. 6. That I am advised and believe same to be true that my lawyer had at all material time been in court except when the case suffered some adjournments during the COVID-19 period. 7. That I am advised and believe same to be true that parties as referred to include my counsel and there is no way I can influence the Honourable Court in the way it managesitscases and in administering ordispensing justice. 8.That I am advised and believe same tobe true thatthe defendant/applicant has not demonstrated that this case has met the litmus test or the requirement necessitating deposit of security and has also satisfied the Honourable Court that this case should be granted inexercise ofthecourt’sdiscretion. The applicant filed a supplementary affidavit in support. I shall quote the relevant paragraphsasfollows: 3. That in response to plaintiff/respondent’s affidavit in opposition paragraphs 5, 6, 7 and 8. 4. Say that service on plaintiff/respondent by the court bailiff failed because she is not known to this address and does not work at Ghana Cocoa Processing Company and this amounts toperjury. 5.That allbuildingsand structuresatHaatso have digitaladdresses. 3 6. That on 26th day of October 2023, I filed Entry of Costs on plaintiff and she has since failed to pay and in the cause of doing due diligence to locate house No. AH577, Haatso, this address was not traceable. It is fake house number and same amountstoperjury. 7. That plaintiff/respondent’s depositions are untrue and misleading to the extent that the work and house addresses and intended to avoid payment of cost and or judgmentdebt. 8. 3rd defendant/applicant say that the plaintiff/respondent does not stay in the jurisdiction nor has any known property movable or non-movable within the jurisdiction. 9. Wherefore 3rd defendant prays the Honourable Court to rule in favour of the 3rd defendant/applicant. SUMMARY OF SUBMISSION BY APPLICANT AND COUNSEL FOR RESPONDENT Upon an application which same was granted, counsel for the applicant cross- examined the applicant, the bailiff and one Francis Wemegah. The court will consider same in the evaluationand analysis oftheevidence before the court. In her address to the court, the applicant rehashed the averments in the affidavit in support. According to the applicant, the application for the respondent to give security for cost was onthe basis that personal service on the respondent at her work place failed. That on 26th October 2023, applicant filed Entry of Cost of Ghc20,000.00 against the respondent out of over Ghc50,000.00 cost against the respondent. According to the applicant, in doing due diligence to locate the house address, same was unsuccessful however, houses in Haatso have digital addresses. She called one witness by name Francis Wemegah who indicated to the court that in 2020 when he entered the land in dispute to erect poles, that was when the respondent called to warn him. That the said Francis Wemegah told her when she asked to find out who 4 the buyer is, he told her the buyer does not live in Ghana and that she lives in the United States of America (USA). For that matter, she wrote a letter which is in evidence in the substantive matter. That, enforcement of payment of money is easier done by writ of fi.fa. of properties of the one to pay that is why the respondent’s house address is important in the instant application. She submitted that as she speaks, the respondent’s digital address is not known therefore the house is not traceable. Commenting on the affidavit in opposition of the respondent, applicant submitted that counsel for the respondent has stated that the respondent is living in the jurisdiction and working but as the instant application is being heard, the respondent is not in court simply because she is not available. Further, per the house address given, the property does not exist and that the respondent’s work address is best served for only hearing notices. That, looking at the circumstance that the respondent is not available for the case to go on, points to the fact that those addresses were intended to evade cost. Applicant concluded by urging the court to grant the application since giving security could be in the form of property documents which will not place any inconvenience on the respondent if it is given and also toserve thecourse ofjustice. On the other hand, counsel for the respondent submitted that the Rules of Court has specified what has to be indorsed as a plaintiff when mounting an action before the court and referred the court to order 2 rule 5 of CI 47. According to counsel, per the writ filed by the respondent, the respondent has her residential address stated and paragraph 1 of the statement of claim states clearly her occupational address which is Cocoa Marketing Company, Ghana in Accra. The writ also has the lawyer’s name, firm address and residential address which are the requirements per the Rules. Counsel submitted that according to the applicant, she conducted a google search which shows that the house does not have such address but however, she failed to provide thesaid googlesearch reportandthat same amounts tobare assertion. 5 Also the applicant under crossexamination in relation toparagraph 6ofher affidavit in support that the applicant and Bailiff went to Cocoa Marketing Board, turned out to be falsehood. She never went there personally but elected someone to go on her behalf and that all she was relying on was a hearsay. Further, there was nothing from the Human Resource to show that they were present at the office to direct service. Counsel furthersubmitted that the 2nd witnessFrancis Wemegahunder cross examination denied ever telling the applicant that the respondent does not work and live in Ghana and contends that if the applicant was speaking the truth to the court, she would have provided the evidence of the communication which can be accessed from the proper telecom company but she failed to do that. Again, the 3rd witness, the Bailiff of the High Court Mr. Adogli under cross examination told the court that he effected the service at Tema and not in Accra and that this position of the Bailiff is confirmed by paragraph 4 of the supplementary affidavit in support filed by the applicant on 1st March 2024. Counsel contends that Cocoa Marketing Company and Cocoa Processing Company are two different entities although they are subsidiaries of Ghana Cocobod and that in effect no service was directed at Cocoa Marketing Companyin Accra, the occupationaladdressprovided by the respondent. Counsel further submitted that when cost is awarded in litigation, which is cost in course, it is after the full trial that cost is calculated and offset before the Entry of Judgment is filed and that the only exception is when the court specifically orders that cost must be paid immediately or forthwith. On the issue that the respondent has not been attending court, counsel submitted that when it comes to the meaning of parties, the Supreme Court Rules C.I.16 makes it clear that the litigant including his lawyer are referred to as a party and so if the respondent is not in court and his lawyeris in court,one cannot say thatthe partyis notpresent. Counsel again contends that the application does not meet the litmus test as per Order 24 of CI 47 and that the applicant could not provide the State and address she alleged the respondent lives in the United States of America and also the place 6 where the respondent allegedly works in the United States of America and that the mere fact that cost is awarded against a party is not a ground for security for cost and cited the cases of GATCO CHEMPHARM V PHARMADEX GH. LTD. [1999- 2000] 2 GLR 262 and AMALGAMATED PRESS LTD. VRS INDEPENDENT PRESS LTD AND ANOTHER [1960] GLR 113 to support his assertion and urged thecourt todismiss theapplication withpunitive cost. ANALYSISANDEVALUATION In this application, the applicant is praying the court for an order for the respondent to provide security to cover the applicant’s cost in the matter. The core contention of the applicant is that the respondent is not ordinarily resident in Ghana and does not also work in Ghana and therefore falls within the category of persons against whom thecourt may makean orderfor securityfor costs. According to the applicant, the respondent instituted the instant action against the applicant and stated that she is a Ghanaian, resident here in Ghana and works with the Cocoa Marketing Company (Gh) Ltd. in Accra. That the respondent has continuously been absent from the court and per the orders of the court the applicant has served several hearing notices on the respondent and her lawyer to attend court. On the 16th December 2021, the court ordered that applicant serve the respondent personally which the applicant directed service of the hearing notice on the respondent at the work address in Accra provided by the respondent in her statement of claim. That the applicant and the court bailiff went to the work address Cocoa Marketing Gh. Ltd, Accra but Human Resources Direction (HR) told the bailiff and the applicant that the respondent is not known to the address and she does not work there and that the applicant is reliably informed that the respondent does not live and work in Ghana as she wants the court to believe. The applicant contends that costs awarded against the respondent so far remain unpaid and also believes that in the event of being the successful party the respondent would not pay costs since she does not live, work nor have any known property within the 7 jurisdiction of the court. The applicant further submitted that service on the respondent by the court bailiff failed because she is not known to the address provided and does not work at Ghana Cocoa Processing Company and contends that same amounts to perjury. Further, all buildings and structures at Haatso have digital addresses, however, in the cause of doing due diligence to locate House No. AH577, Haatso, the said address was not traceable. Applicant further contends that, thehouse addressprovided isafake house numberand same amounts toperjury. The respondent on the other hand vehemently opposed the application and denied the averments made by the applicant and insisted that she is a citizen of Ghana who works and reside in the country. That, in accordance with the Rules of the Honourable Court, she has provided her residential address and where she works and thereforeit is nottrue thatshe doesnot liveand workinGhana. Counsel for the respondent, upon an application which same was granted, cross examined the applicant, the Bailiff of the Court and one Francis Wemegah who applicant alleged informed her that the respondent does not live and work in Ghana but ratherresides and worksin the United States ofAmerica. This application is therefore grounded on Order 24 rule 1 of CI 47 which provides as follows: “Rule 1–Security for costs ofproceedings (1) Where,onthe applicationofadefendant, it appearstothe Courtthat (a) The plaintiff isordinarily resident outside Ghana; (b) The plaintiff, not being aplaintiff who is suing in a representative capacity, is anominal plaintiff who is suing for the benefit of some otherpersonand that there is a reason to believe that the plaintiff will not be able to pay the costsofthe defendant ifordered todo so. (c) Subject to subrule (2), the plaintiff’s address is not stated in the originating processoris incorrectly statedinit; or 8 (d)The plaintiff’s address has been changed during the course of the proceedingswith aview toevading the consequences ofthe litigation, The Court may, having regard to all the circumstances of the case, order the plaintiff togive suchsecurity forthe defendant’s costsofthe proceedingsas it thinks just. (2) The court shall not require a plaintiff to give security by reason only of paragraph © of subrule (1) if the plaintiff satisfies the court that the failure to state the address of the plaintiff or the mis-statement of the address was made inadvertentlyand without anintention todeceive, (3) References in this Oder to a plaintiff and a defendant shall be construed as references to the person (howsoever described) who is in the position of plaintiff ordefendant inthe cause ormatter. (4) Where an order is made requiring any party to give security for costs, the security shall be given in such manner, at such time and on such terms as the courtmay direct.” Under the Rules the court may order the plaintiff to provide security for costs. The sole concern in a proceeding for security for cost is the costs of proceedings and not the judgment debt that may be awarded. This power of the court to order a plaintiff to provide security for costs is discretionary. However, as the authorities have held, it is the duty of the court to consider all the circumstances of the case in order to determine whether to make the order and how much to order, if any. The court is however, enjoined not to discuss the merits of the substantive matter. In the case of GATCO CHEMPHARM V PHARMADEX GH. LTD. (supra) the Court stated as follows: “…..the Court cannot, upon an application for security for costs to be made by a plaintiff, go into the merits of the action. It appears to me that it would be highly inconvenient to do so, and as the reason for giving security for costs is notdependenton the meritsof the action should belooked into at all.” 9 The Rules empowers the court to order the plaintiff or whoever who is in the position of plaintiff or defendant in the cause or matter, to provide security for costs. The security usually takes the form of the execution of a bond by or on behalf of the party. There could also be a deposit of cash or documents on landed property or where the application relates to a company, then the documents relating to a company owned by the personproviding the security. The rule on security for costs is often applied whenever the plaintiff or defendant lives in or is about to move into an area outside the jurisdiction of the court. This is the substantive reason for Order 24 Rule 1 of CI 47, in order for a defendant to apply for security for costs against a non-resident plaintiff to defray the defendant’s costs incase theplaintiff loses thecase orvice versa. The grounds for granting an order for security for costs as stated earlier are under thefollowing circumstances: a. The plaintiff isordinarily resident outside Ghana. b. The plaintiff is a nominal plaintiff who is suing for the benefit of some other person and that there is reason to believe that the plaintiff will not be able to paythe costsofthe defendant if ordered todoso. c. The plaintiff’s address is illusory, either it is not stated in the originating process or it is incorrectly stated in it. But the court will not order the plaintiff to provide security for costs for giving an incorrect address or no address at all if the plaintiff satisfies the court that, the failure to state the address of the plaintiff or the misstatement of the address was made inadvertently and withoutan intentionto deceive; d. The plaintiff’s address has been changed during the course of the proceedings withaview toevading the consequences ofthelitigation. e. On an application of or the registration and enforcement of a foreign judgment,, the court may order the judgment creditor to give security for the 10 costs of the application for registration and of any proceedings which may be broughttoset aside theregistration; f. In certain actions under the Companies Act, 2019 (Act 992), the court may orderthe applicantstogive security forcosts. In the instant application, there is a dispute as to whether indeed the respondent resides and works in Ghana. Inview of the above, the issues for determination are as follows: Whether or not the respondent lives outside the jurisdiction, ie in the United States of America, whether or not the respondent works outside the jurisdiction, ie in the United States of America and whether or not the respondent committed perjury. The first issue to determine is Whether or not the respondent lives outside the jurisdiction, ie United States ofAmerica. The applicant averredasfollows: “7. That 3rd defendant is reliably informed that plaintiff does not live and work in Ghana as she wants the courttobelieve. 5.That allbuildingsand structuresatHaatso have digitaladdresses. 6. That on 26th day of October 2023, I filed Entry of Costs on plaintiff and she has since failed to pay and in the cause of doing due diligence to locate house No. AH577, Haatso, this address was not traceable. It is fake house number and same amountstoperjury. 7. That plaintiff/respondent’s depositions are untrue and misleading to the extent that the work and house addresses and intended to avoid payment of cost and or judgmentdebt. 8. 3rd defendant/applicant say that the plaintiff/respondent does not stay in the jurisdiction nor has any known property movable or non-movable within the jurisdiction.” 11 As in all civil suits, the legal burden of proof is placed on the party who asserts the existence of a fact in issue or any relevant fact. Depending on the admissions made, the party on whom the burden of proof lies is enjoined by the provisions of sections 10, 11(4), 12 and 14 of the Evidence Act, 1975 (NRCD 323) to lead cogent evidence such that on the totality of the evidence on record, the court will find that party’s versioninrelationtothe rivalaccounts tobe moreprobable thanitsnon-existence. The basic principle of the law of evidence is that a party who bears the evidential burden is obligated to produce the required evidence in proof of the facts alleged, that has the quality of credibility, short of which that person will fail if he does not do so on the balance of probabilities. It is also the case that matters that are capable of proof must be proved by producing sufficient evidence, so that, on all the evidence, a reasonable mind would conclude that the existence of the fact is more probable thanits non-existence. Section 10(1) of the Evidence Act, 1975 (NRCD) 323 states as follows: “For the purpose 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 offact orthe court.” Section 11(1) of Evidence Act, 1975 (NRCD) 323 on the burden of producing evidence is defined as follows: “For the purpose of the Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid aruling againsthim onthe issue.” 11(4) of Act 323 states as follows: “In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence.” 12(1) of Act 323 states as follows: “Except as otherwise provided by law, the burden ofpersuasion requires proof by apreponderance of probabilities. 12 (2) 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 afactis moreprobable than its non-existence.” Section 14 of Act 323 provides as follows: “Except as otherwise provided by law, unless it is shifted a party has a burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence that party is asserting.” Having set out the law of evidence and the standard of proof, the court is then to apply the law to find out if the applicant has met the criteria per the evidence before thecourt. On how to discharge the burden of proof, in the case of ACKAH v. PERGAH TRANSPORT LTD & ORS [2010] SCGLR 728, Adinyira JSC stated as follows: “It is a basic principle of law on 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. The method of producing evidence is varied and it includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things often described as real evidence, without which the party might not succeed to establish the requisite degree of credibility concerning a fact in mind of the court or tribunal of fact such as a jury. It is trite 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 thatthe existence of the fact is morereasonable than its non-existence.” Further in the case of MAJOLAGBE v. LARBI (1959) GLR 190, Ollenu J (as he then was) explained the meaning of proof in law as follows: “Proof in law is the establishment of facts by proper legal means where a party makes an assertion capable of proof in some way e.g. by producing documents, description of things reference to other facts, instances or circumstances and his averment is denied, he 13 does not prove it by merely going into the witness box 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 whathe aversis true”. It was also held in the case of ZAMBRAMA v SEGBEDZI (1991) 2 GLR 221 per Kpegah J.A. (as he then was) that: “…..A person who makes an averment or assertion, which is denied by his opponent has the burden to establish that his averment or assertion is true and he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properlyand safely be inferred. Inthe instant application, it is clear thatthe evidential burden is onthe applicant and that even though the respondent has denied her assertions, the applicant’s assertions are true and so will discharge this burden by leading admissible and credible evidence from which the court can properly infer that indeed the assertions of the applicantexists. Under cross examination of the applicant, by counsel for the respondent, this is what ensued in part: “Q.Do younowthe plaintiff EvelynDzigbordithe plaintiffin this suit. A.Yes. Iknowher in this court. Sheborughtme to court. Q. She stated her house number in Haatso on all the court processes that she has served.Isthat notso. A.That is so. Q.Do youknowHaatso in Accra verywell. A.Yes Q.The community called Haatso is ahuge one. I suggesttoyou. 14 A.I knowHaatso is acommunity but I donot knowhowyoucome by the huge. Q.Within thecommunity therearesuburbs thathave beennamed. Are youaware? A.I do notknowofany suburb. Youstated Haatso. Q.Do youknowwhere theHaatso police post is located? A.Yes Ido. Q. It is your case that in doing your due diligence you did not find house number AH/577, Haatso,Accra. A. Yes. All house numbers within the Haatso community are digital and if there is any house number AH/577, youcould havestated it in yourdeposition. Q. Before digital house numbers were introduced, houses were given numbers, is thatnot so. A.Yes. But thosenumbersare notapplicable now. Q. Do you have anything to attest to the fact that a search of house number AH/577 wasnot located. A.Yes Idid. Q.Do youhaveit before this court. A.No. I couldnot havegottenany evidence. Iused googlesearch Q. I am suggesting to you that this particular house is where the plaintiff and her family live inAccra. A. My application has everything to do with this particular house number and if there is such house, you would have shown proof by way of document to the court but sine there is no such house what you aresaying isnot true. Q.It is youwho is asserting thatthere is no house in Haatso like that. Isthatnot so. 15 A. Yes and I have proved that all houses in Haatso community have digital addresses. Thishouse doesnotexist. Q.Sowhere doesthe plaintiff live, which town. A.I do notknowwhere she lives exceptthatshe doesnotlive norworkinGhana. Q.Inwhich countrydoesshe lives. A. I have stated that I am told that she lives in the States. I cannot tell which of the Statesshe livesin theUS.That proofcanonly come throughyoutothecourt. Q.Do youhavethe address ofthehouse in which she livesin the States. A.No. I would not haveknown.” Although the applicant asserts that the respondent does not live in the jurisdiction but lives in the United States of America, she could not produce any evidence to that effect. As held in the case ZAMBRAMA v SEGBEDZI (supra) that “a person who makes an averment or assertion, which is denied by his opponent, has the burden to establish that his averment or assertion is true. And he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely beinferred……..” From the above, it is clear that the applicant has failed to discharge the burden on her. Further, as the applicant testified that she conducted a search of the respondent’s house address by way of google search and could not locate the said house, the applicant could not again, provide any evidence to the fact that indeed there was a google search and the report indicated that the said house number AH/577 was not located. It is a notorious fact and the court takes judicial notice of the fact that any person who conducts a search by way of google search is able to generate the search reportandprint outthe searchreport. 16 The court will therefore conclude that the applicant failed to discharge the burden to prove that indeed the respondent lives or resides outside the jurisdiction and resides inthe United StatesofAmerica. The next issue to determine is whether or not the respondent works outside the jurisdiction, ie in the United States ofAmerica. The applicant averredasfollows; “2. That plaintiff instituted this action against defendants and stated in her statement of claim paragraph “1” that she is a Ghanaian, resident here in Ghana and works withthe CocoaMarketing Company(Gh) Ltd. inAccra. 5. That on the 16th December 2021 and with abundance of caution the trial Judge ordered that 3rd defendant serve plaintiff personally which 3rd defendant spent money and directed service of the hearing notice on plaintiff at the work address in Accra provided by theplaintiff inparagraph“1”ofher statement ofclaim. 6.That 3rd defendant and the court bailiff went to the work address Cocoa Marketing Gh. Ltd, Accra but Human Resources Direction (HR) told the bailiff and 3rd defendant thatplaintiff is notknowntothe addressand she doesnot workthere. 7. That 3rd defendant is reliably informed that plaintiff does not live and work in Ghana as she wants the courttobelieve. 10. That 3rd defendant believes that in the event of being the successful party plaintiff would not pay costs since she does not live, work nor have known property within thejurisdiction ofthis court. 3. That in response to plaintiff/respondent’s affidavit in opposition paragraphs 5, 6, 7 and 8. 4. Say that service on plaintiff/respondent by the court bailiff failed because she is not known to this address and does not work at Ghana Cocoa Processing Company and this amounts toperjury.” 17 Under this issue, the burden is on the applicant to lead admissible and credible evidence from which the court can properly infer that indeed the assertions of the applicant exists that the respondent does not work at Cocoa Marketing Company (Gh) Limited in Accra as provided by the respondent as per her statement of claim. Again, under cross examination of the applicant by counsel for the respondent, this iswhat ensued inpart: “Q. And she also stated in her statement of claim that she works with Cocoa Marketing Companyat the materialtime when this suit was issued. Isthatnot so. A.Yes Q.Youhaveheard ofCocoa Marketing Companybefore. Isthatnot so. A.Yes Q.Do youknowwhere theregionaloffice ofCocoaMarketing Company is in Accra. A.I do notknow. Q. Have you been to that institution Ghana Cocoa Marketing Company head office before. A.Yes Q.It is yourcase thatyoumet theHuman Resource Director. A.Yes. The CourtBailiff went therewithmy representative. Q.It means youyourselfhad neverbeenthere. A.My representative went withhim. Q. Can you tell the court the name of the Human Resource Director of Cocoa Marketing Companythat the bailiff and yourrepresentative met. A.I cannot tell. Itis the courtBailiff who can answer the question. 18 Q. Do you have any document to attest to the fact that the Human Resource Director said the plaintiff is unknown asan employeeofCocoaMarketing Company. A.No. It is the Court bailiff who must dothat Q. Do you also have any document or evidence from the Human Resource Director thatthe plaintiff doesnotworkwith thatorganisation. A.I do not. Q. I am suggesting to you that Cocoa processing Company and Cocoa Marketing Companyare notthe same entities. A. Cocoa Marketing Company is the address that we went to and I have stated it in my application.” The Bailiff Evans Adogli was also cross examined by counsel for the respondent and theapplicant’srepresentative. Thisis what ensued in part: Q. As part of your duties or functions you effect service of court processes on litigantsand parties. Isthat notso. A.Yes. Q. Cast your mind back on the 16th December 2021 were you given any court processes to serve on Evelyn Dzigbordi Anku, the plaintiff in this matter i.e. a Hearing Notice onplaintiff. A. Yes I was given a hearing notice to be served on plaintiff but not on the date you mentioned. Q.Do youknowthe plaintiff EvelynDzigbordipersonally. A.Yes. Q.At what addresswere youtoeffect the service onher. A.There was no addressbut the name EvelynDzigbordiAnku, Acca. 19 Q. And who directed service. Tell the court the name of the person who directed service. A.The 3rddefendant directed the processtobe effected onthe plaintiff. Q.Did yougotoAccra withthe 3rddefendant to effect the service. A. No. But she directed me to meet one of her relatives in Accra called David Koranteng to send me to where we can locate her at Cocobod, community three (3), Tema. Q. So does it mean that you did not go to Cocoa Marketing Company located in Accra, the head office ofCocobod. A.No. Q.Do youknowGhana Cocobod, the locationin Accra. A.Yes. Q.I amsuggesting toyouthatthat is where CocoaMarketing Companyis located. A.The defendant directed me toTema Community3that I canlocate her overthere. Q. So it is the case that whilst the hearing notice says Evelyn Dzigbordi, Accra, the 3rddefendant took youtoTema toeffect theservice. A. Yes. We found it very difficult to locate her so the 3rd defendant made her own homework and realised she was working at Tema Community 3, that is why we went there. Q. I am suggesting to you that by the command of the court to serve a hearing notice in Accra, you and the 3rd defendant/attorney chose to serve the process at Cocoa Processing Company inTema. A. Yes. But she did not go herself she directed me to meet her family member to take me toCocobod atTema Community 3. 20 This is also what ensued in part under cross examination of the bailiff by the representative oftheapplicant. Q. It was the court that ordered that the plaintiff is served personally and not the 3rd defendant insisting thatyouservethe plaintiffpersonally. A. Yes. It is an order from the court to issue hearing notice to be served on the plaintiff. After that the 3rd defendant directed service that I can locate her at Tema Community3,Cocobod. Q.Is it Tema thatyouwent toorAccra. A.Tema Community 3,Cocobod.That is the Hearing Notice. Q.When youwent there what were youtold. A.There is no name called EvelynDzigbordi.” .Although the applicant asserts that the respondent does not work with the Cocoa Marketing Company (Gh) Ltd. in Accra and that the applicant and the court bailiff went to the work address Cocoa Marketing Gh. Ltd, Accra but Human Resources Direction (HR) told the bailiff and applicant that the respondent is not known to the address and she does not work there, the applicant could not produce any evidence to support that allegation. It turned out that the applicant rather directed service on the respondent at a different location instead of the address provided by the respondent as per her statement of claim. The applicant again failed to adduce evidence to support the assertion that the respondent works in the United States of America. As held in the case ZAMBRAMA v SEGBEDZI (supra) that “a person who makes an averment or assertion, which is denied by his opponent, has the burden to establish that his averment or assertion is true. And he does not discharge this burden unless he leads admissible and credible evidence from which the fact orfacts heasserts can properly andsafely be inferred……..” 21 The court will therefore conclude that the applicant failed to discharge the burden to prove that indeed the respondent does not work with the Cocoa Marketing Company (Gh) Ltd. in Accra and that the applicant and the court bailiff went to the work address Cocoa Marketing Gh. Ltd, Accra but Human Resources Direction (HR) told the bailiff and applicant that the respondent is not known to the address and she does not work there. The applicant also failed to prove that the respondent worksinthe United StatesofAmerica, which isoutside thejurisdiction. The nextissue todetermine is whether or notthe respondent committed perjury. The applicant averredinher supplementaryaffidavit insupport that: 4. Say that service on plaintiff/respondent by the court bailiff failed because she is not known to this address and does not work at Ghana Cocoa Processing Company and this amounts toperjury. 6. That on 26th day of October 2023, I filed Entry of Costs on plaintiff and she has since failed to pay and in the cause of doing due diligence to locate house No. AH577, Haatso, this address was not traceable. It is fake house number and same amountstoperjury. 7. That plaintiff/respondent’s depositions are untrue and misleading to the extent that the work and house addresses are intended to avoid payment of cost and or judgmentdebt. 8. 3rd defendant/applicant say that the plaintiff/respondent does not stay in the jurisdiction nor has any known property movable or non-movable within the jurisdiction. It is well established that there are two standards of proof recognized in law. In criminal cases, the prosecution must prove the guilt of the accused beyond reasonable doubt and in civil cases, the standard is the balance of probabilities or preponderance of probabilities. However, the only exception to the rule on proof by 22 the preponderance of probabilities as the standard of proof in civil cases is found in section 13(1) of NRCD 323 which provides that “In any civil or criminal action the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proofbeyond reasonable doubt”. Thus, in a civil action, an allegation that a crime has been committed must be proved beyond reasonable doubt. This therefore raises the standard of proof to the levelof proof required in criminal cases. This also means that the allegation has to be proved to the same degree as proof in a criminal case as held in the case of FENUKU v JOHN TEYE [2001-2002] SCGLR 985 where it was held by the Supreme Court in holding 5 as follows: “The law regarding proof of forgery or any allegation of a criminal act in a civil trial was governed by section 13(1) of the Evidence Decree, 1975 (NRCD 323) which provided that the burden of persuasion required proof beyondreasonable doubt.” Also in the case of SASU BAMFO v SINTIM [2012] 1 SCGLR 136, the Supreme Court held that though the matter is a civil case, the allegation made being about fraud, or allegation of a criminal act, were required to be proved on the criminal standard. Section 15(1) of Act 323 provides as follows: “Unless and until it is shifted, the party claiming that a person is guilty of a crime or wrongdoing has the burden of persuasion onthat issue.” The Osborn’s Concise Law Dictionary (8th Ed.) defines perjury as follows: “False swearing. The making on oath by a witness in a judicial proceedings of a statement material in that proceeding, which he knows to be false or which he doesnotbelieve to be true.” Section211ofthe Criminal and OtherOffences Act (Act 29)provides as follows: “A person commits perjury if in a written or verbal statement made or verified by that person on oath before a Court, or a public officer, or before the President or 23 before a Commission or Committee states anything knowing that the statement is false in a material particular, or which that person does not have a reason to believe is true.” It also refers to knowingly making a false statement under oath or knowingly signing alegaldocument thatis false orincludes false statements. Therefore, under this issue, the burden is on the applicant to prove beyond reasonable doubt that the house number provided by the respondent is fake and the respondent does not work at Ghana Cocoa Processing Company, Accra, and has thereby committed perjury. That the respondent knowingly made false statements in her statement of claim that she is resident here in Ghana and works with the Cocoa Marketing Company(Gh) Limited in Accra. In the case of KWAME v THE STATE [1964] GLR 612 the Court held that for a person to be charged with the offence of perjury three essential conditions must be fulfilled, namely: “(1) that he took an oath; (2) he made or verified an statement upon the oath; and (3) that he made or verified the statement knowing it to be false in amaterialparticular, orhad noreason to believe it to be true.” The question is whether or not the respondent has made a false statement as to the house address she provided, whether or not the statement made by the respondent was made or verified on oath, whether or not the statement was made before a court and whether or not the statement was intentionally false to the knowledge of the respondent? From the evidence adduced, it is clear that the statement made by the respondent wasmade onoathand before acourtas perher affidavit inopposition andstatement of claim. Therefore the substantive question to ask is whether the respondent made a false statement as to the house address she provided and also whether the statement she made in paragraph1 ofher statement of claim is false andalso intentionally false toherknowledge? 24 From the evidence adduced and the findings on the previous issues, the court found that the applicant failed to discharge the burden to prove that indeed the respondent lives or resides outside the jurisdiction and resides in the United States of America and also failed to prove that the respondent does not work with the Cocoa Marketing Company (Gh) Ltd. in Accra. The applicant also failed to prove that the respondentworksinthe United StatesofAmerica, which is outside the jurisdiction. Therefore under this issue, in the opinion of this court, the applicant has not been able to discharge this burden of producing cogent and probative evidence to establish that the respondent made false statements in the court documents and also under oath for the court to conclude that the respondent indeed committed perjury. The applicant thereby made bare allegation that the respondent committed perjury or made false statements under oath. The court cannot infer from the evidence adduced that the respondent indeed made false statements under oath. The applicanttherefore fails under this issue. CONCLUSION In the instant suit, it is clear that the respondent provided her residential address and place of work. Per the findings of the court, the applicant has failed to discharge the burden placed on her to prove that the respondent resides and works outside the jurisdiction, i.e. the United States of America. The applicant further failed to prove that the respondent made false statements under oath as to her residential address and her place of work. The respondent cannot therefore be said to reside and work outside the jurisdiction. It is therefore my humble opinion, without going into the merits of the substantive case, that the grounds for granting an order for security for costs in favour of the applicant or the elements for the grant of security for costs or the major factors for ordering security for costs has not been satisfied by the applicant. Having failed to satisfy the criterion for the grant of such applications, the application must necessarily fail. I therefore dismiss the application as misconceived. 25 Cost of Two Thousand Five Hundred Ghana Cedis (GHC2,500.00) is awarded in favouroftherespondent. H/LJOAN E.KING JUSTICEOF THE HIGH COURT APPLICANTINPERSON VICTORKWADJOGA ADAWUDU FORTHE RESPONDENT 26