Doecher v Manfo (A2/07/24) [2025] GHADC 176 (29 May 2025)

IN THE DISTRICT COURT 1, MADINA, HELD ON THURSDAY, 29TH MAY, 2025, BEFORE HER WORSHIP ROSEMARY ABENA GYIMAH AS MAGISTRATE SUIT NO: A2/07/24 PROPHET DOECHER EMMANUEL …. PLAINTIFF Morocco Street, H/N 09 Madina Estate - Accra VRS. REV. KENNETH ADU MANFO …. DEFENDANT Near St. Peter’s High School - Accra …………………..…………………………………………………………………………… JUDGMENT ………………...……………………………………………………………………………… INTRODUCTION The Plaintiff, a building subcontractor by profession states before this Court that he was engaged by the Defendant to complete a building for him which he did but upon completion of the work the Defendant only paid him Twenty Thousand Ghana Cedis (GHS20,000.00) for the block work instead of Twenty-Five Thousand Ghana Cedis (GHS25,000.00) and Thirty Thousand Ghana Cedis (GHS30,000.00) instead of Thirty- Three Thousand Ghana Cedis (GHS 33,000.00) for finishing of the building. Again, the 1 Plaintiff states that the Defendant is yet to pay to him an amount of Five Thousand Four Hundred and Sixty Ghana Cedis (GHS5,460.00) in respect of the Defendant’s further request for a variation to the contract and an amount of Three Thousand Five Hundred Ghana Cedis (GHS3,500.00) in respect of a building plan Plaintiff prepared for the Defendant. The Plaintiff states that several attempts to recover the said outstanding amounts from the Defendant have proven futile and as such the Plaintiff issued a writ of summons on 11th October 2023 claiming against the Defendant for the following reliefs; 1. Recovery of GHC 13,460.00 being the balance of payment for work done 2. Recovery of GHC 3,500.00 being the charge for the preparation of building drawing for the Defendant. 3. An order directed at the Defendant to pay compensation as promised for work done. 4. Interest on claim one and two from 26'h September 2023 till date of final payment 5. Any further order[s] as the Honorable Court may deem fit and costs. The Defendant on 27th October 2022 filed his statement of defence denying all the assertions of the Plaintiff stating that the Plaintiff was fully paid for his services and that neither a building plan nor a variation to the verbal agreement entered into with Plaintiff was ever agreed on. The Defendant states before this Court that the Plaintiff rather did a shoddy roofing work on the Defendant’s building causing heavy leakage in several parts as soon as it rains. The Defendant therefore counterclaims against the Plaintiff for the following reliefs; I. Recovery of GHS8,61 1.02 being cost of construction rain gutter and coping of roof. II. Recovery of GHS22,372.15 being costs incurred in the repair of the roofing leakage 2 III. Recovery of GHS3,940.00 being the cost of ceiling joint repairs IV. Recovery of GHS8,500.00 being the cost of completion of Plaintiff's partially finished plastering work. V. Interest on Claims I, II, III and IV at the prevailing commercial bank rate from September, 2023 till date of final payment VI. General damages for shoddy work, and Costs including legal fees VII. Any further order(s) this Honourable Court may deem fit. Parties were ordered to file their witness statements for trial to commence after parties were unable to settle this matter at Court Connected Alternative Dispute Resolution (CCADR). The Plaintiff filed his witness statement on 29th January 2024 and the Defendant filed two (2) witness statements on 7th March 2024 to call Jerry Tedzinyekpor, his lawful attorney and Joseph Ahadzie to give evidence on his behalf. Trial commenced in this matter on 6th June 2024. On 23rd January 2025 when the Plaintiff was to conclude with his cross examination of the Defendant’s Lawful Attorney, the Plaintiff intimated to the Court his intentions to withdraw his claim against the Defendant so as to relist same after procuring the services of a lawyer. The Defendant on the said date also intimated to the Court his resolve to proceed with his counterclaim. The Court then granted an adjournment to 27th May 2025 for the Plaintiff to procure the services of a lawyer for the continuation of trial, if need be. However on the said 27th May 2025, the Plaintiff withdrew his claims against the Defendant and the Defendant Lawful Attorney also reaffirmed the Defendant’s resolve to proceed with his counterclaim. The case of the Plaintiff was accordingly struck out as withdrawn and the Defendant was to proceed with his counterclaim. The Defendant’s case was also closed as the Plaintiff intimated to the Court that he was no longer interested in further cross examining the Defendant and the Defendant Lawful Attorney also stated that he had brought his case to a close. 3 The case was accordingly adjourned to 29th May 2025 for judgment on which date Counsel for Defendant was present. Counsel for Defendant prayed to withdraw the witness statement of Joseph Ahiadzie as the Defendant was no longer interested in calling Joseph Ahiadzie as a witness. Counsel for the Defendant therefore prayed the Court to proceed with judgment. As a result the witness statement of Joseph Ahiadzie was struck out as withdrawn. The Plaintiff having withdrawn his claims against the Defendant, I will now proceed to evaluate the evidence adduced before this Court to determine whether or not the Defendant is entitled to his counterclaim. EVALUATION OF THE LAW BURDEN OF PROOF In Fred Reimmer v Pastor Baffour, Suit No.FAL 314/11 dated 23 June 2017, Sittie J, restated the position of the law on burden of proof as follows ; “The position of the law on evidence in civil cases is that a party must win his case on the preponderance of probabilities. Section 11, 12 and 14 of NRCD 323 refers. This position of the law was affirmed by Kpegah JA (as he then was) in the case of Zabrama v Segbedzi [1991] 2 GLR 221 at 224 when he stated as follows; . “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 4 the fact or facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of that burden.” Proof was defined in Majolagbe v Larbi [1959] GLR 190 at 192 as follows: “Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way, e,g by producing documents, description of things, reference 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 on oath by his witness. He proves it by producing other evidence of facts and circumstances from which the Court can be satisfied that what he avers is true.” What is the gravamen of the counterclaim of the Defendant? According to the Defendant, the Plaintiff did a shoddy roofing work on the Defendant’s building causing heavy leakage in several parts as soon as it rains and that in order to protect the lower floors from water damage due to the heavy leakages from the shoddy work done by the Plaintiff on the roofing and ceiling of the newly constructed 3rd floor, the Defendant was forced to incur extra cost to hire Metalex Group which said company was recommended to the Defendant’s Lawful Attorney by Joseph Ahiadzie. The Defendant’s Lawful Attorney asserts that he was informed by Metalex Group that there will be need for re roofing because the roofing and ceiling works were so badly constructed that the roof was found to be full of leakages, the roofing had been destroyed and the said roofing suffered from bad sloping. It is on this basis that the Defendant has filed his counterclaim against the Plaintiff. 5 The Plaintiff however denies this assertion by the Defendant and in evidence before this Court denies having any idea of damage his workmanship has caused to the roof, ceiling and the rest of the Defendant’s building. On 6th August 2024 during cross examination of the Plaintiff by Defendant’s Counsel the following ensued; Q. To round up, you have not been to the site, you have no idea what damage your workmanship caused to the newly installed roof and ceiling and what that damage caused to the rest of the building as you stand here? A. No. Except he proves it to me. The Plaintiff denied the averment by the Defendant, therefore the burden was on the Defendant to adduce cogent evidence to enable this Court infer his claim as true. The Defendant embarked on that journey by filing a witness statement for his Lawful Attorney who gave evidence by repeating his averments on oath that the Defendant as a result of Plaintiff’s bad work done on Defendant’s roof, had to incur extra unbudgeted cost to repair same by engaging the services of Metalex Group which was introduced to the Defendant by Joseph Ahiadzie. The Defendant’s Lawful Attorney again repeated on oath that it was the said Metalex Group that informed the Defendant that that there will be need for re roofing because the roofing and ceiling works were so badly constructed that the roofing had been destroyed, the roof was found to be full of leakages and the said roofing suffered from bad sloping. The Defendant’s Lawful Attorney in support of this claim tendered in Exhibit 3 which is a document headed; “REASONS FOR RE-ROOFING” appearing on a letter head of Metalex Group. The said Exhibit 3 is not signed or endorsed or certified in any way by an officer of the Metalex Group save the fact that the document appears to be on a Metalex Group letterhead. The Defendant’s Lawful Attorney again tendered in 6 evidence Exhibits 1, 2, 4 to 9 series consisting of invoices and receipt from Metalex Group as well as pictures of the Defendant’s roof depicting damage. I find that the Defendant by his Lawful Attorney seeks to convince this Court that the Plaintiff did a ropy work on his roofing but failed to call any other witness such as Metalex Group or Joseph Ahiadzie (the one who recommended the Metalex Group to the Defendant Lawful Attorney and one of the artisans who worked on the extension of the Defendant’s building) to corroborate the Defendant’s claim especially as the Defendant indicates it was the Metalex Group that informed him that the work done on the roof was bad. I find that even though the Defendant tendered into evidence Exhibits 1 to 9 series, same do not establish on the balance of probabilities that the Plaintiff did a shoddy work as described by the Defendant and same do not establish that the Defendant's additional unbudgeted expenses, if any, are as a direct result of Plaintiff’s shoddy work for which reason the Defendant is praying this Court to order the Plaintiff to refund to him. CONCLUSION Having just repeated his averments on oath without more, in clear conflict with the time honoured principles in Majolagbe v Larbi (supra), I am unable based on the evidence adduced before me, to give the Defendant judgment on his counterclaim. 7 In the circumstance, I hold that on the evidence, the Defendant has failed to establish his case against the Plaintiff on the preponderance of probabilities and therefore his counterclaim fails. No award as to cost. SGD H/W ROSEMARY ABENA GYIMAH 8