Asmahson Venture v Beakam Montessori International School (A2/40/24) [2025] GHADC 144 (29 May 2025)

CORAM: IN THE DISTRICT COURT “B” HELD ON THURSDAY THE 29TH DAY OF MAY 2025 BEFORE HER WORSHIP ANNETTE SOPHIA ESSEL (MRS.) SITTING AS MAGISTRATE SUIT NO: A2/40/24 JACOB ASMAH PLAINTIFF (TRADING UNDER THE NAME ASMAHSON VENTURE) OF AFIAMAN VRS. BEAKAM MONTESSORI INTERNATIONAL SCHOOL DEFENDANT OF AFIAMAN-ACRA JUDGMENT INTRODUCTION: The plaintiff on 23rd November, 2023 commenced this action against the defendant for the following reliefs: (i) “An order for the defendant to pay the plaintiff an amount of Fifteen Thousand Cedis (GH¢15, 000.00) only which is the bill for preparation of books of account for five (5) years. (ii) Interest on the above-mentioned sum at the prevailing bank interest rate from March 2022 till date of full and final payment. (iii) Cost. (iv) Any further orders as the Honourable Court may deem fit.” The defendant is a Montessori School located at Afiaman in the Ga- West District of the Greater Accra Region of Ghana. CASE OF THE PLAINTIFF: The plaintiff stated that he was an accountant trading under the name Asmahson Venture registered under the law of Ghana. He avers that he rendered services as an Accountant as an employee. These services he described as books of recording and computer entries for presentation of work done. He narrated that in 2021, he introduced his business to the defendant. He told Defendant that he helped small businesses to prepare their accounts at a fee. Following this parties negotiated for the defendant’s five (5) years accounts to be prepared by Plaintiff at a cost of Fifteen Thousand Cedis (GH¢15, 000.00) only. Parties further agreed that Plaintiff would be provided with lunch and Twenty Cedis (GH¢20.00) only transportation per visit to the school furtherance of the job mentioned supra. Plaintiff avers that he executed this job between 31st May, 2021 and 14th March, 2022, presented it to the defendant per the proprietress together with a bill of Fifteen Thousand Cedis (GH¢15, 000.00) only. The pith of the case of the Plaintiff is that to date the defendant has failed, refused and neglected to honour her part of the agreement by paying the bill hence this action. In support of his averments he tendered the following exhibits as evidence: i. Exhibit 1: Certificate of Registration of Asmahson Venture. ii. Exhibit B: Copies of the financial statement of Defendant company April 2016- December 2021. CASE OF DEFENDANT: The defendant institution was represented by the proprietress: Beatrice Aboagye. She vehemently denied the claim of Plaintiff. In her defence, she stated on or about April 2021, the defendant introduced himself to her as undergraduate student financially distressed and living with ill father who needed some form of employment for food, transportation and money for school fees. Defendant avers that the plaintiff made no mention of any institution rendering financial services. Defendant asserts that she verbally agreed with Plaintiff to visit the school biweekly to assist with the preparation of the school accounts and reconciliation of payment of school fees only. The defendant asserts that in the presence of her daughter, parties agreed that the plaintiff be paid Twenty Cedis (GH¢20.00) only for transportation with lunch only. In furtherance of this verbal agreement. Defendant paid Plaintiff Fifty Cedis (GH¢50.00) only on each visit since April 2021 together with groceries. Additionally, Defendant supported Plaintiff in his bereavement. According to the defendant in order to regulate and formalize their existing contract, in November, 2021, she offered the plaintiff an appointment as a part-time accountant with a monthly salary of Two Hundred Cedis (GH¢200.00) only. The appointment letter was back- dated to April 2021 following negotiations between parties. Following acceptance of the employment contract, a letter of appointment was issued to Plaintiff and he subsequently accepted same in writing. The defendant maintains that in all of the plaintiff’s employment history at the defendant school, he worked as per his job description without any additional duty or verbal or written contract in respect of the finances of the school. The defendant maintains that no information was provided to Plaintiff to assist him in the preparation of any special accounts or five (5) year financial plan of Defendant company. Defendant recalled however in paragraph nineteen (19) of her witness statement that about 29th June, 2021, the plaintiff “interacted his desire value the school’s building which was then in an incomplete state to which she discouraged him” with explanation that funds for the construction of same was unrelated to the school’s account. Defendant further narrated that in the first quarter of 2022 the school finances ha not much recording to do. There was consequently not much work to be done as payment of school fees by parents took a nose dive. In this regard on 13th March, 2022 she informed Plaintiff to hold on which his services briefly till when required only to receive a letter of resignation from Plaintiff the next day accompanied with a bill of Fifteen Thousand Cedis (GH¢15, 000.00) only for work done as mentioned supra. Defendant averred that she called for a meeting with Plaintiff in the company of his witness to discuss the bill presented to which the plaintiff responded that he had no representative for such meeting, thus this the meeting never took place. He subsequently delivered pamphlets or accounting records which were all not received by Defendant as she rejected same. Defendant concluded that following this, the plaintiff has mounted a high-spirited war of raining abuses on the defendant and personnel of the school whilst demanding food and money and also causing his lawyers to demand Fifteen Thousand Cedis (GH¢15, 000.00) only and his reliefs as stated above to which Defendant lawyers duly responded. All told she states that she is not liable to the plaintiff’s claim. In support of her averment she tendered without objection during trial the following exhibits: a. Exhibit 1: Detailed payment made to Plaintiff. b. Exhibit 2: Application letter with Resume, HND Certificate of Plaintiff, National Service Certificate and Introduction letter by Institute of Charted Accountants (Ghana). c. Exhibit 3: Letter of Appointment of Plaintiff by Defendant school. d. Exhibit 4: Acceptance Letter of Plaintiff to offer of appointment by Defendant. e. Exhibit 5: End of work schedule letter. f. Exhibit 6: Copy of Notice of Refusal to Plaintiff Debt correspondences. ISSUE FOR DETERMINATION BY THE COURT: At the close of Hearing, the issue for determination by the court is whether or not the plaintiff was engaged by the defendant for the preparation of a five (5) years accounts of Defendant. BURDEN OF PROOF: The rules of evidence regarding the burden of proof in civil cases are set out by the Evidence Act, 1975 (NRCD 323) to establish who bears the burden of proof of the issues in this case. In the case of Majolagbe v Larbi [1959] GLR 190, Ollennu J (as he then was) noted that: “Proof in law is the establishment of a fact by proper legal means, in other words, the establishment of an averment by admissible evidence.” The law is that a person who institutes an action against another bears the burden of proving his case. The burden of proof as known in the law of evidence is stated in terms of the burden of persuasion and the evidential burden. This was reiterated by Dr. Date Bah JSC. in the case of Sumaila Bielbiel v. Adamu Dramani & AG (NO.3), [2012] 1 SCGLR 370 in the following words; “.... There are two kinds of burden of proof recognized by the common law and which are preserved in Ghanaian law by the Evidence Act. In common law, some cases and text writers have made the distinction between the “legal burden of proof” and “evidential burden of proof”. This distinction is mirrored in the Evidence Act as the ‘burden of persuasion” and “burden of producing evidence....” The burden of producing evidence, also known as the evidential burden is defined in Section 11(1) of the Evidence Act, 1975 (NRCD 323) as follows: 1. For the purpose of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party. In addition, Section 17(1) of the Evidence Act, NRCD 323 provides that: “The burden of producing evidence of a particular fact is on the party against whom a finding on that fact would be required in the absence of further proof, except otherwise provided by law.” The persuasive burden/burden of persuasion on the other hand, is defined in Section 10(1) of the Evidence Act, 1975 (NRCD 323) as: “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.” The burden of persuasion is the obligation imposed on a party by a rule of law to prove (or disprove) a fact in issue to the requisite standard of proof. Thus, a party who fails to discharge a persuasion burden placed on him to the requisite standard of proof will lose on the issue in question. In the case of Adwubeng v Domefeh [1997-98] 1 GLR 282 the court held that that the standard of proof amounting to discharge of the burden of persuasion in civil cases is on the preponderance of probabilities. This is the essence of Section 10(2) of the Evidence Act,1975 (NRCD 323), which is to the effect that; “the burden of persuasion may require a party to establish the existence or non-existence of a fact by preponderance of the probabilities. As a general rule a party who asserts a claim or defence bears the burden of persuasion on its existence or non-existence as stated in Section 14 of the Evidence Act, 1975 (NRCD 323). This section supra also re-states the general rule that the degree of proof normally required to satisfy the burden of persuasion in civil actions is proof by a preponderance of the probabilities. Section 11(4) of the Evidence Act, 1975 (NRCD 323) then provides that the burden of producing evidence, also known as the “the evidentiary burden”, demands of a party the production of adequate evidence that would convince a reasonable mind that “the existence of the fact was more probable than its non-existence.” Section 12 of the Evidence Act, 1975 (NRCD 323) then goes on to provide as follows; (1). “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 a fact is more probable than its non-existence. Thus, in the case of GIHOC Refrigeration & Household v. Jean Hanna Assi [2005-2006] SCGLR 458, the Supreme Court held at page 485 as follows: “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......” In both civil and criminal proceedings, the general rule is that the party bearing the persuasive burden will also bear evidential burden. Thus, where a party has an evidential burden, it may be satisfied either by adducing himself or by eliciting evidence from the witnesses of his adversary. In his book, Essential of the Ghana Law of Evidence, the learned jurist S.A Brobbey says of the burden of proof that: “It is the burden on a party to establish from evidence led the requisite degree of belief in the mind of the trier of fact. In other words, a party will not succeed on his claim unless he has led evidence to establish the claim or its basis.” THE COURT’S EVALUATION OF THE EVIDENCE: It is the case of Plaintiff that he is an accountant by profession and owns his own accounting establishment of which he serves as the Chief Executive Officer. The burden consequently was on him to prove his averment. In support of this Plaintiff tendered Exhibit A. A careful glancing of same shows that is no more than a certificate of registration of a business name. This is no way goes to support his averment thus far. He further avers that following the introduction of his business parties verbally agreed to a contract of Fifteen Thousand Cedis (GH¢15, 000.00) only per the preparation of a five (5) year accounts of Defendant. It is unknown to the court from the evidence provided the nature of business of Asmahson Venture nor is any cogent credible evidence led by Plaintiff in respect of any agreement of whatsoever nature, date and time. In the case of Dzaisu and Others V Ghana Breweries Limited [2007-2008]1 SCGLR 539 at page 545, the Supreme Court per Sophia Adinyira stated as follows: “It is a basic principle in the law of evidence that the burden of persuasion on proving all facts essential to any claim lies on whosoever is making the claim. The court consequently holds that in the absence of sufficient evidence in this regard, the plaintiff has woefully failed to establish his case. There is nothing before the court that speak to any contract as described by Plaintiff. In the wise words of Wuaku JSC. in the case of In Re Krah (Decd); Yankyeraah and Others v Osei Tutu and Another [1989-90] 1 GLR 638 he stated that: “there is no principle of law that the plaintiff in a civil suit to succeed must make a cast iron case, and the defendant can say anything and get away with it whether true or false.” In the case of Lamptey alias Nkpa v Fanyie [1989-90] 1 GLR 286 the Supreme Court spoke through Adade JSC. and he had this to say about the burden of proof shifting: “first on general principles it the duty of a plaintiff to prove his case; he must prove what he alleges. However, when on a particular issue he leads evidence, then the burden shifts to the defendant to lead sufficient evidence to tip the scales in his favour. If he is able to do this he wins; if not he loses on that issue.” It is rather the contention of Defendant that indeed he offered and engaged the services of Plaintiff as per his appointment letter. This appointment was to Plaintiff in his personal capacity only for specific duties as detailed in his appointment letter. The court has carefully observed the appointment letter and acceptance letter of Plaintiff. He responds to the offer of Defendant on fixed terms personally and not for Asmahson Venture. It is apparent on the record that Plaintiff applied for the position at Defendant school and was duly appointed. It is not the testimony of Plaintiff that he accepted the offer of appointment at Defendant school as a part-time accountant under duress or misrepresentation. Nor is it his testimony that Defendant failed to pay him his wages when same was due. As at the time he tendered in his letter of acceptance of the job offered, Plaintiff being literate in the English language could have objected to the terms and conditions for the appointment to be credited to Asmahson Venture but he remained silent. Again, during trial all exhibits of Defendant were tendered without objection by Plaintiff. In the case of Zabrama v Segbedzi [1991] 2 GLR 221 @ 224 the apex court speaking through Adinyira JSC (Mrs.) stated that: “a person who makes an averment or assertion which is denied by his opponent, has the burden to establish that his averment 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 be inferred.” On the preponderance of probabilities, the court is inclined to believe the testimony of Defendant against that of the plaintiff as that of the plaintiff though ingenious rather seems far-fetched. Judgement is entered in favour of Defendant against Plaintiff. Cost of Five Hundred Cedis (GH¢500. 00) only is awarded against Plaintiff in favour of Defendant. (SGD) H/W ANNETTE SOPHIA ESSEL (MRS.) MAGISTRATE