Adjib v Ofori (A2/13/25) [2025] GHADC 112 (15 July 2025)

IN THE DISTRICT COURT AT LA HELD ON WEDNESDAY THE 27TH DAY OF AUGUST, 2025, BEFORE HER WORSHIP ADWOA BENASO ASUMADU- SAKYI, SITTING AS MAGISTRATE SUIT NO: A2/13/25 SAMI ADJIB 12 2ND KOJO SRO STREET EAST AIRPOT, ACCRA >>> PLAINTIFF VRS. NOBLE JULIUS OFORI ACCRA >>> DEFENDANT PARTIES: Plaintiff present Defendant absent LEGAL REPRESENTATION: Mackean Amenano with DCOP Retired Anderson Fosu Acquah for the Plaintiff JUDGMENT _______________________________________________________________ INTRODUCTION The Plaintiff filed this instant suit on the 28th of November, 2024 against the Defendant and prayed for the following reliefs; 1. An order directed at the Defendant for the recovery of the sum of Five Thousand United States Dollars (5,000.00 USD) being outstanding money invested in a joint agreement which did not materialize. 2. Interest on the above-mentioned sum at the prevailing bank rate from 21st June 2024 till date of final payment. 3. Any other relief(s) that the court may deem just. 4. Cost including solicitor’s fees Despite several hearing notices served on the Defendant through substituted service, he refused to appear and as a result the Plaintiff was ordered to file his witness statement on the 25th of February, 2025. The Plaintiff complied with the orders of the court and filed his witness statement on the 27th of March, 2025. Case management conference was conducted on the 16th of April, 2025 and the Plaintiff was allowed to proof his case on the 30th of April, 2025 pursuant to Order 25 rule 1(2)(a) of the District Court Rules, 2009 (C.I 59). The case was then adjourned to the 8th of May, 2025, 20th of May, 2025 and the 15th of July, 2025 for cross examination but the Defendant refused to show up on all three dates. The Plaintiff closed her case on the 15th of July, 2025 and the case was adjourned for judgment. PLAINTIFF’S CASE The Plaintiffs’ case is that somewhere in 2023 he entered into an agreement with the Defendant to incorporate a company whose primary business was to engage in the purchase of land, real estate development and sale of land and houses. This company was incorporated with the name “Atmosphere Incorporated Development Limited” and he goes on to state that he and the Defendant were shareholders and directors of the said company. The Plaintiff states that he invested an amount of Thirty Thousand United States Dollars (30,000.00 USD) in the company but unfortunately he could not further invest in the company so an agreement was reached that he will leave the company and that his investment would be refunded to him. He states that the Defendant informed him that he had found someone who was interested in partnering with him and that he would be able to refund his investment to him. The Defendant has however only refunded an amount of Twenty Two Thousand Five Hundred United States Dollars (22,500.00 USD) out of the total amount he paid which brings the remaining amount to Seven Thousand Five Hundred United States Dollars (7,500.00 USD). He goes on to state that the Defendant issued a cheque with a face value of Seven Thousand Five Hundred United States Dollars (7,500.00 USD) but same was dishonoured when he presented it to the bank. That when he informed the Defendant that the cheque had been dishonoured the Defendant paid an amount of Two Thousand Five Hundred United States Dollars (2,500.00 USD). The Plaintiff states that despite several demands the Defendant has refused to refund the remaining Five Thousand United States Dollars (5,000.00 USD) to him. He prays the court grants his all his reliefs. DISCUSSION OF THE LAW The law is trite that a party who asserts a fact assumes the responsibility of proving same and thus the burden of producing evidence as well as the burden of persuasion is therefore cast on that party and the standard required is provided for by the virtue of sections 10,11 and 12 of the Evidence Act, 1975 (NRCD 323). The above stated provisions have received judicial blessings by the Supreme Court who has pronounced on them in the past to be the nature and standard of proof in civil cases. This position of the law has been reiterated in the case of Ackah v. Pegrah Transport Ltd And Others [2020] SCGLR 728 where in unanimously dismissing an appeal, the Supreme Court held as follows: “It is a basic principle of the 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 carried 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 the mind of the court or tribunal of fact such as a jury. It is trite law that matters that are capable of proof must be proved by producing 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. This is a requirement of the law on evidence under sections 10(1) and (2) and 11(1) and (4) of the Evidence Act, 1975 (NRCD 323),” See Ababio v. Akwasi IV [1994-1995] GBR 774. This Court has a duty to examine the evidence on record and determine whether the Plaintiff has met the burden of proof. It is settled law that he who alleges must prove his case on the strength of his own case. This principle was enunciated in the case of Owusu v. Tabiri and Another [1987-88] 1 GLRR as follows: “It was a trite principle of law that who asserted must prove and win his case on the strength of his own case and not the weakness of the defence”. It is settled law that a binding contract is a legally enforceable agreement between parties which is formed through either written or oral agreements or through the conducts of the parties involved. A contract is formed when there is an agreement between parties, supported by consideration, and the parties intend to be legally bound. In order to ascertain the existence of a binding contract, an objective test must be conducted by considering what an objective and reasonable bystander would have understood to be the intention of the parties based on their words and conduct, and not merely the intention of the parties. This test is even preferable where there is no written agreement between the parties, which can easily be referred to, and even where there is, the test is still used to determine whether the agreement reasonably confers contractual obligations on the parties. It must be noted that the alleged contract entered into between the parties was an oral one and this does not invalidate the agreement. See section 11 of the Contract Act, 1960 (Act 25). The courts look for whether or not the parties were at a consensus where there was no written agreement. In the case of IBM World Trade Corporation v. Hasnem Enterprise Limited [2001- 2002] 2 GLR 248 the court held as follows: “The rule is that where a contract has to find a contract in correspondence, and not in any one particular document, the entire set of correspondence which passed between the parties must be taken into consideration. In Thomas Hussey vrs John-Payne & Anor. (1879) 4 App. Case 311, Earl Carins, the Lord Chancellor said at p. 316:” “The second requisite in this case he proposes to supply through the medium of letters which passed between the parties and it is one of the first principles applicable to a case of the kind that where you have to find your contract, or your note or your memorandum of the terms of the contract in letter, you must take into consideration the whole of the correspondence which has passed. You must not at one particular time draw a line and say ‘we will look at the letters up to this point and find in them a contract or not, but we will look at nothing beyond’. In order to fairly estimate what was arranged, if anything was agreed between the parties you must look at the whole of that which took place and passed between them.” The Plaintiff testified on oath and relied on his witness statement on the 30th of April, 2025 and repeated his assertions against the defendant. It must be stated that the Plaintiff’s testimony was not discredited by the Defendant who refused to appear despite several notices to appear. The position of the law is that when a party is given the opportunity to contest or lead evidence in defence of allegations against him but fails to avail himself of the opportunity, the court will be entitled to proceed with trail to its conclusion and make findings on the basis of the evidence adduced at the trial and proceed to give judgment. In Fori v. Ayirebi (1966) GLR 627 SC it was held that when a party had made an averment and that averment was not denied, no issue was joined and no evidence need be led on that averment. Similarly, when a party had given evidence of a material fact and was not cross examined upon it, he need not call further evidence of that fact. See the cases of Takoradi Flour Mills v. Samir Faris (2005-2006) SCGLR 890, In Re West Coast Dying Industry Ltd; Adam v. Tabdoh (1984-86) 2 GLR 561 SC and Watalah v. Primewood Products Ltd (1973) 2GLR 126. It is also settled law that a party is to suffer the consequences or liabilities for not attending court after he has been duly served with processes and accordingly notified. See cases of Republic v. High Court (Fast Track Division); Ex-parte State Housing Co. Ltd (No. 2) (Koranten -Amoako Interested Party) (2009) SCGLR 185 at 190 and Agbewole v. Abodegbey (2012) 44 GMJ 124 at 129. In civil cases the standard of proof is by a preponderance of probabilities which was defined in the case of GIHOC Refrigeration and Household v. Jean Hanna Assi [2005-2006] SCGLR 458 as a party’s ability to persuade the Honourable Court that the existence of a relevant fact is more probable than not. From the unchallenged testimony adduced by the Plaintiff it is clear that he has been able to meet the objective test to establish the existence of a contract between himself and the Defendant and I hereby hold that the Plaintiff has been able to satisfy the burden on him and is entitled to the reliefs being sought. I will also discuss whether or not the Defendant should be ordered to pay interest on the amount owed. The learned Judge Brobbey J, in the case of Agyei v. Amegbe [1998-90] 1 GLR 351 held as follows: “…whenever interest is to be charged and paid in respect of money, the charge is based on the supposition that the person to pay the interest has had the use of the payee’s money. If the money is no longer with the person to be charged that interest, the basis for the interest will cease to exist. In other words, interest is not chargeable on non-existing indebtedness. Interest itself is regarded as money earned on money. This is why it is related to the specific amount in the possession of the person to pay the interest…” See the case of IBM World Trade Corporation v. Hasnem Enterprise Limited (supra). The amount being claimed by the Plaintiff has been owed since the year 2024 and there is unchallenged testimony that the Defendant has refused to pay same till date. This means the Defendant Company has been in possession of the amount Five Thousand United States Dollars (5,000.00 USD) since 2024 and has deprived the Plaintiff use of same and as such is entitled to be paid interest on the amount owed to mitigate the cost he has incurred in this instant case as established in the case of Agyei v. Amegbe (supra). Having considered the evidence in its entirety and based on my analysis above, I hereby order the Defendant to pay an amount of Five Thousand United States Dollars (5,000.00 USD) or its cedi equivalent and simple interest on the said amount from at the prevailing bank rate from 21st June, 2024 till date of final payment. I also award cost of One Thousand Ghana Cedis (GH¢ 1,000) is awarded against the Defendant. CONCLUSION I hereby enter Judgment in favour of the Plaintiff and make the following orders; a. The Defendant is ordered to pay an amount of Five Thousand US Dollars (5,000.00 USD) to the Plaintiff. b. The Defendant is ordered to pay simple interest on the amount of Five Thousand United States Dollars (5,000.00 USD) at the prevailing bank rate from 21st June, 2024 till the date of final payment. c. Cost of Two Thousand Ghana Cedis (GH¢ 2,000.00) is awarded in favour of the Plaintiff. SGD H/W ADWOA BENASO ASUMADU-SAKYI MAGISTRATE