Ogbenyemita v Agbeve (A2/26/2024) [2025] GHADC 97 (2 July 2025)

IN THE DISTRICT COURT A HELD AT KOFORIDUA THIS WEDNESDAY THE 2ND OF JULY 2025 BEFORE HER WORSHIP NANA AMA DABBAH FYNN NKANSAH(MRS) SUITNOA2/26/2024 ABRAHAMOGBENYEMITA OFADWESO-KOFORIDUA VRS THERESAAGBEVE OFNURSINGTRAININGQUARTERS KOFORIDUA JUDGMENT This suit commenced with the issuance of a writ of summons and statement of claim on18/08/23 in which wasendorsed the following reliefs against the Defendant for: a. ADeclaration by this HonourableCourtthatthe sale agreement in respect ofa metallic container atKoforidua Nurses' Quartersis null and voidas same was based ondeceit onthe partofDefendant which makesitsperformance practically impossible. b.   AnOrderforthe recovery ofcash amount ofGHC9,500.00 being money paid to Defendant in March,2023asaconsideration price forametallic container inclusive ofthe piece ofland onwhich same is situate. c.   Interest onthe said amount at currentBank ofGhana rate fromMarch, 2023till the date offinalpayment. d.   AnOrderdirectedat the Defendant to payareasonable sum as GENERAL DAMAGES toPlaintiff forbreach ofagreement. e. Costoflitigation. PLAINTIFF’S CASE The Plaintiff avers that, in pursuit of his objective to acquire a shop, he identified a container shop located near the exit of the Nurses Training School, which he learned belonged to the Defendant. The Plaintiff states that the Defendant informed him and his friend, Gabriel Adeleke (PW1), that the container belonged to her late daughter, who had previously occupied the bungalow situated immediately behind the container. Despite the bungalow being occupied by another person at the time, the containerremained in itsoriginal position in frontofthe said bungalow. The Plaintiff further asserts that upon enquiring about the possibility of operating a shop on the premises while another individual occupied the bungalow, the Defendant assured him that the current occupant was a friend of her deceased daughterand had noobjection tohisintended use ofthe container. The Plaintiff states that he and the Defendant subsequently agreed upon a consideration of GHS 9,500 for the purchase of both the container and the land upon which it was situated, which amount he fully paid to the Defendant. The Plaintiff contends that although the Defendant thereafter presented him with a written agreement to sign, he discovered that its terms had been unilaterally altered by the Defendant to pertain only to the container, excluding any reference to the land. The Plaintiff objectedtothis alterationand refused tosign theagreement. Subsequently,the occupant ofthe bungalow informed the Plaintiff ofher intention to reclaim the space occupied by the container for her personal use. The Plaintiff avers that this development led him to believe he had been defrauded by the Defendant, prompting him to seek a refund of the consideration paid. The Defendant’s refusal to refund the moneyculminated in theinstitutionofthis suit. DEFENDANT’SCASE The Defendant avers that she offered a container situated in front of a bungalow at the Nurses’ Quarters for sale in or about March 2023 and visibly marked the container with an inscription indicating it was “for sale.” The Defendant states that the Plaintiff subsequently approached her, and they agreed upon a purchase price of GHS 9,500.00forthe container. The Defendant asserts that prior to the Plaintiff making the final payment, he enquired whether he could temporarily leave the container on the land before relocating it.She informed him that she could not guarantee such anarrangement, as the container was located on government land and she had no authority to assure continued placement thereon. The Defendant further states that, following the completion of payment, the occupant of the bungalow objected to the Plaintiff operating his business on the premises, thereby preventing him from using the container at that location. According to the Defendant, the Plaintiff then expressed his disinterest in proceeding with the purchase and requested a refund of the purchase price so that thecontainer could be offeredfor sale again. The Defendant contends that she informed the Plaintiff she was unable to refund the money, as ownership of the container had already transferred to him upon payment. She advised the Plaintiff that he was at liberty to sell the container to a third party if he so wished. BURDENOF PROOF It is without question and quite trite law that the Plaintiff has a burden to prove his case tothestandard required in civil actions; that is, onabalance ofprobabilities. Section11ofthe EvidenceAct, 1975(NRCD 323)statesin part; Section11—BurdenofProducing Evidence Defined. (1) For the purposes of this Decree, the burden of producing evidence means the obligation of aparty tointroduce sufficientevidence to avoid aruling againsthim on the issue. (4) 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 existenceof the factwas moreprobable than its non-existence. Regarding the burden of proof, the dictum of the Supreme Court in the case of KLAH v. PHOENIX INSURANCE CO. LTD [2012] SCGLR 1139, is relevant here. In thatcase, it washeld that; “Where a party makes as averment at capable of proof in some positive way e.g. by producing documents, description of things, reference to other facts, instances and his averment is denied, he does not prove itby merely going into the witness box and repeating that averment on oath or having itrepeated on oath by hiswitness. He proves itby producing other evidence of facts and circumstancesfrom whichthe courtcan satisfy itself thatwhat he avers is true.” (See also OKUDZETO ABLAKWA(NO.2) v.ATTORNEY-GENERAL &ANOR [2012] 2 SCGLR 845 @847 regarding what is expected of a person who goes to court and makesanallegation). (Seealso:ACKAHv.PERGAHTRANSPORTLIMITED &ORS(2010) SCGLR736) By the same measure, the Plaintiff is required to prove his claims against the Defendant onabalance ofprobabilities. In FRABINA LTD v. SHELL GHANA LTD. [2011] 33 GMJ 1SC, (@pages 27-28), the Courtper Brobbey JSCstated; “What must be noted is that, in evaluating evidence in judicial proceedings, a court hasseveralsourcestodraw material evidence from: 1. First are the pleadings. Where the pleadings are not in contention, it is safe for the trial judgeto drawfrom itand make his conclusions…. 2.The second is the oral evidence that has been led in court. The credibility of oral evidenceis normally tested through cross-examination …... 1. . The third is the documentary evidence. This normally takes the form of documents that are tendered during the course of trial and upon which questions are asked during examination in chief and cross-examination. It can also take the form of reports submitted by court appointed expert witnesses such as Surveyors, Accountants, Medical Doctors, etc who testify and tender in reports prepared by them tohelp the judge indetermining the case one way or the other. 4. The fourth are judicial decisions and authorities touching and dealing with principles of law in the subject matter of the case on trial. This is normally done during the closing addressesby Counselof the parties tothe court. Upon a critical evaluation of the evidence led by both parties, the determination of thecase herein shall turnonwhether ornotthe Plaintiff is entitled to his reliefs. To start with, it was Plaintiff’s case throughout the proceedings that he, at all time material, dealt with Defendant in the company of PW1 and the amount he paid to theDefendant wasforthe container andthe land situate thereon. The Defendant throughout the proceedings also insisted that she could not havesold the land together with the container thereon to the Plaintiff since it was government land. Plaintiff called upon his friend whom he alleges was privy to the entire agreement with the Defendant as PW1 to testify and during his cross examination this is what ensued; ‘Q: Do you know that the land on which the container in situate; Nursing Training College Quarters isgovernmentland? A: Yes Q: Do you recall that I told you that the container belongs to my late daughter who had passed on. And I wanted an outright payment to use to complete the building she was constructing. A: Yes,you said so Q:Are you sureI told you Iwas selling the land? A: No, you did notindicate that.’ From the immediate answers from PW1 who was at all times present, he admits that the Defendant did not say she was selling the land as part of the transaction; which assertion corroboratesthe testimony ofthe Defendant. The position ofthe lawissettled insituations wherethe evidence ofaparty'switness supportsthecase ofthe opposing party. Inthecase ofKOGLEX LIMITEDV FIELD1999-2000] 2GLR437,Acquah JSC(as he thenwas) held asfollows: "For ahost of respectable authorities had settledthe principlethat where the evidenceof a party's witnesssupports the other party on an issue, whilethat party's version stands unsupported by his own witness, acourtis duty-bound to acceptthe corroborated version unlessthere are compelling reasons tothe contrary, whichreasons mustbe setout: TsrifoV vrs.Duah VIII (1959)GLR 63;Asante vrs.Bogyabi (1966) GLR232;and Banahene vrs. Adinkra (1976)1GLR 346." Thus, this court shall accept the corroborated version of the evidence on record whichis thatthe offerfor sale wasinrespect ofthe container only. That being established, once the Plaintiff paid for the container itself andindeed took possession of same, then property in same has passed unto Plaintiff making him the bona fide owner of the container. The court takes judicial notice of the fact that a container is movable and the Plaintiff is at liberty to move it and situate it somewhere else. In the alternative if he wants to sell it, he can seek permission from theoccupant ofthe bungalowfor areasonable withinwhichto doso. To the mind of this court, it will be an injustice to order that the Defendant refunds the GHS9500 tothe Plaintiff when the evidence onrecord does notsupport Plaintiff’s assertion that the Defendant acted deceitfully towards him for the purposes of the agreement. The Defendant is not the Lands Commission, neither is she an officer of the Nurses Training College. She is in no way, shape or form seized with the capacity to alienate government land. Therefore, it is preposterous that the Plaintiff would enter into a contract with the Defendant under the misapprehension that he was buying government land. The fact that he claims he is uneducated does not mean he cannot dodue diligence. On the totality of the evidence, the Plaintiff’s claim fail and same accordingly dismissed. Cost ofGHS 1,500in favour ofDefendant.