Barning-Gyimah and Another v Future Christ Builders and Another (A2/64/24) [2025] GHADC 210 (5 June 2025)

IN THE DISTRICT COURT ‘A’ KOFORIDUA HELD ON WEDNE SDAY THE 5TH DAY OF JUNE 2025 BEFORE HER WORSHIP NANA AMA DABBAH FYNN NKANSAH(MRS) SUITNO: A2/64/24 1. GLORIABARNING-GYIMAH PLAINTIFFS 2. ERNESTADU-APPIAH ALLOF PRISONBARRACKS AKUSE-MANYAKROBO VRS 1. FUTURECHRISTBUILDERS DEFENDANTS PERTHE DIRECTOR/MANAGER 2. THOMASASIMENGMILLS OFKOFORIDUA JUDGMENT On the 26/10/23, by a Writ of Summons, the Plaintiffs commenced these proceedings against theDefendants seeking the following reliefs: a. Recovery of the sum of GHS 8,808.00 from the Defendants, being the total amount paid by the Plaintiffs as consideration for a parcel of land situated along the Akwadum stretch, inclusive of documentation costs, which the Defendants, having received in full, have failed and/or refused to convey to thePlaintiffs. b. Interest on the said amount at current Bank of Ghana rate from February 2020 till dateoffinal payment. c. Costoflitigation. PLAINTIFF’S CASE The Plaintiffs state that they are a married couple who were introduced to the 2nd Defendant, who was presented as a representative of the 1st Defendant company, during their search for a parcel of land to purchase. The Plaintiffs contend that, following assurances by the 2nd Defendant regarding the availability of vacant land, they paid a total sum of GHS 8,808.00 as consideration for a parcel of land situated alongtheAkwadumstretch. It is their case that they later discovered that the said parcel of land had been sold to another individual. Upon confronting the Defendants and demanding a refund, the 2nd Defendant allegedly assured them of an alternative parcel of land, on condition that they pay an additional amount of GHS 1,000.00, which the Plaintiffs paid via mobile money. Subsequently,the Plaintiffs claim they discovered thatthis second parcel also did not belong to the Defendants. Their demands for a refund have since gone unheeded, thusforming thefulcrum ofthepresent action. DEFENDANTS’ CASE The Defendants state emphatically that the 1st Defendant is a company limited and the 2nd Defendant is not personally liable for any claims. The Defendants deny the entire amount being sought by the Plaintiffs and state that when the Plaintiffs came to the office of Defendants and raised their complaint, they were asked to make a formal complaint which they refused. In essence, the Defendants pray that Plaintiffs’ suit be dismissed. LAWONTHE STANDARDOF PROOF. The “Standard of Proof” in civil matters is unambiguously stated in the EVIDENCE ACT, 1975 (NRCD 323) to be “proof on the preponderance of probabilities”. It is settled that a party who asserts the occurrence and/or existence of a state of fact has the burden of proof on that assertion and must adduce enough evidence to avoid a ruling against him/her onthat matter. On the authority of ABBEY VRS. ANTWI (2010) SCGLR 16 at holding 2 the HonorableCourtheld that: “It is trite that where a party makes an assertion capable of proof in a certain way e.g. by producing documents, description of things or references to other facts, instances or circumstances and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath, or having it repeated by his witness. He proves it by producing other evidence of facts and circumstances, from which the court can be satisfied that what he aversistrue.” Seethe cases ofMAJOLAGBEVRS. LARBI ANDOTHERS (1957)GLR190and the case of SARKODIE VRS. FKA COMPANY LTD (2009) SCGLR 65, where the Honorable Court reiterated, the relevant portions of the Evidence Act, ACT 323 sections11and12as follows; 11(4) “in other circumstances the burden of producing evidence require a party to producesufficient evidence so thaton alltheevidence a reasonable mind could concludethat theexistenceofthefact wasmoreprobablethanitsnon-existence.” 12(1) “Except as otherwise provided by law, the burden of persuasion requires proofbya preponderanceoftheprobabilities 12(2) “preponderance of the probabilities” means that degree of certainty of belief in themind ofthetribunaloffact or thecourtby which it is conceived that the existence ofa fact is moreprobablethanits non-existence”. The bone of contention in this case is whether or not the Plaintiffs are entitled to the reliefs theyseek. To begin with, it is pertinent to state that the 1st Defendant, being a company, is recognized in law as a legal or artificial person with the capacity to sue and be sued in its corporate name. As established in the locus classicus; SALOMON V SALOMON & CO. LTD[1897]AC 22 and affirmed in MORKOR v KUMA [1998-99] 2 GLR 620, a company is a separate legal entity distinct from its directors, officers, and shareholders. Accordingly, the 2nd Defendant, who is alleged to have acted in a representative capacity onbehalf of the 1st Defendant company,cannot be held personally liable for acts done in the ordinary course of representing the company, absent evidence of fraud, misrepresentation, orconduct outside the scope ofauthority. In the instant case, there is no compelling evidence on record that the 2nd Defendant acted beyond the scope of his representative role or committed any fraudulent misrepresentation in his dealings with the Plaintiffs. Consequently, the 2nd Defendant is improperly joined and is hereby discharged from personal liability in this suit. In proof of Plaintiffs’ case, they tendered in evidence a document commissioning a standing order on the account of 2nd Plaintiff for some amount to be paid to Defendant company as Exhibit A, 4 receipts of payment to the Defendant company as Exhibit B series, and a mobile money transaction record of money paid to the Defendant company representative asExhibit C. During the cross-examination of the 1st Plaintiff, who gave evidence on behalf of the Plaintiffs, the following excerptwasrecorded: ‘Q: Take a look at Exhibit A, are you claiming the standing order was effected at your bank to the accountof FCB? A: Yes Q:Will you show to the courtthe proofof such paymentfromthe bank? A: Ido nothave that proof here, butI canbring iton the nextcourtdate.’ It is worth noting that despite the Plaintiffs’ assertion of having proof to support their claim, no such evidence was presented to the court on the next adjourned date, or at any point before the close of proceedings. This omission is particularly striking, given that the Plaintiff had previously been cautioned by the court to furnish it with all relevant documentation in support of their case. In light of this failure, and in the absence of any credible evidence to corroborate Exhibit A which, notably, bears no acknowledgment or endorsement by the Defendant confirming receipt of the alleged payments ,the court finds itself unable to attach any probative weight to the said exhibit. During the cross-examinationofDefendant, this is what ensued: ‘Q: So, are you saying that the company did not receive the amount indicated on Exhibit A butreceivedall the amounts of ExhibitB seriesand mobile money of GHS 1000.00on Exhibit C inrespectof anewplot of land? A: Yes. Per the receipts issued from the office. A total of GHS 3808 comprising GHS 2500 + GHS208+GHS 100+GHS 1000.’ The amount admitted by the Defendant in the immediate answer is the cumulation of the amounts stated on the receipts tendered by the Plaintiff. Mention must be made that the two receipts showing the payment of GHS 2500 bear the same receipt numberand details and the courtdeems themoneand thesame. To the chagrin of this court, the Defendant who claimed to have had no dealings withthe Plaintiffs, admits toowing the Plaintiffs anamount ofGHS 3808. Inthe case ofINRE ASERE STOOL; NIKOI OLAI AMONTIA IV (SUBSTITUTED BY TAFO AMON II) v AKOTIA OWORSIKA III (SUBSTITUTED BY) LARYEA AYIKU III (2005-2006) SCGLR 637, the Supreme Court, speaking through Dr Seth TwumJSC(as he thenwas)posited as follows; ‘In my view this type of proof is a salutary rule of evidence based on common-sense and expediency. Where your adversary has admitted a fact advantageous to your cause, what better evidence do you need to establish that fact than by relying on his own admission. This is really an example of estoppel by conduct. It is a rule whereby a party is precluded from denying the existenceof some state of facts which he had formerly asserted.’ On the strength of the authorities discussed above, this court can safely say that beyond the admission ofDefendant, the Plaintiffsdid nothavetoadduce any further evidence in proof of their claim in respect of the GHS 3808 and consequently, the court shallenter judgment in favour ofthe Plaintiffs against the Defendant and make thefollowing orders; 1. RecoveryofGHS 3808by Plaintiffs fromDefendant 2. Interest tobe calculated thereonfromFebruary2020till date offinalpayment 3. CostofGHS 3000infavour ofPlaintiffs.