Larbi v Ayeyi (G/WJ/DG/A1/33/23) [2025] GHADC 199 (29 May 2025)

IN THE DISTRICT COURT HELD AT WEIJA ON THURSDAY THE 29TH DAY OF MAY, 2025 BEFORE HER WORSHIP RUBY NTIRI OPOKU (MRS), DISTRICT MAGISTRATE SUIT NO: G/WJ/DG/A1/33/23 EBENEZER LARBI PLAINTIFF VRS FRANK AYEYI DEFENDANT PLAINTIFF IS PRESENT AND REPRESENTED BY MAXWELL DELALI AMUZU HOLDING BRIEF FOR BRIGITTA OSEI BONSU ESQ. DEFENDANT IS ABSENT JUDGMENT The plaintiff filed a writ of summons at the registry of this court on 23rd August 2023 against the defendant for the following reliefs; 1. Recovery of a total sum of Seven Hundred and Eighty Cedis being the outstanding rent on the land leased to defendant by plaintiff. 2. Interest on the said sum 3. An order for ejectment and recovery of possession of the land 4. Damages for breach of contract 5. Costs including legal cost 6. Any further reliefs as this honourable court may deem meet. The defendant filed a statement of defence on 31st October 2023. Plaintiff filed a reply on 23rd November 2023 THE CASE OF THE PLAINTIFF 1 It is the case of the plaintiff that he is the owner of a piece of land situate and located at Oshei in Accra within the jurisdiction of this court. It is the further case of the plaintiff that by an agreement dated 19th July 2019, Plaintiff leased a piece of the land to defendant for three years commencing on 1st February 2019. Plaintiff added that per the terms of the agreement executed between the parties, the defendant was to pay a monthly rent of GHC130.00. According to plaintiff, defendant paid the sum of GHC4,680.00 as rent for three years receipt of which plaintiff acknowledged. It is the case of the plaintiff that the tenancy expired on 1st January 2022 and at the expiration of the term of the tenancy agreement, he gave the defendant a one-year moratorium to enable defendant mitigate the business losses occasioned by the COVID 19 pandemic. He added that at the commencement of the moratorium, plaintiff notified the defendant that he will require the property for personal use when the one year moratorium elapses on 31st January 2023. According to plaintiff, the one-year moratorium has elapsed and yet the defendant has refused to yield vacant possession of the land to plaintiff despite repeated demands. It is his case that defendant has contracted land guards who continue to harass and physically prevent plaintiff from possessing the land. He contends that defendant will not yield vacant possession of the land and or pay the outstanding rent unless compelled by the court. Plaintiff tendered a photo of the fence wall and one bedroom constructed by the plaintiff on the land, a copy of temporary structure permit obtained from the Ga South Municipal Assembly for the construction of the container store by plaintiff, a photo of the plaintiff’s container store together with a wooden structure and tent constructed on plaintiff’s land 2 by the last tenants on plaintiff’s land and a copy of the tenancy agreement between the parties. same were admitted and marked as Exhibits A, B, C and D respectively. THE CASE OF THE DEFENDANT It is the case of the defendant that he entered into an agreement with the plaintiff where he leased a piece of land located at Oshie to him for three years beginning from 1st February 2019 to 31st January 2022. It is his further case that he paid the sum of GHC4,680.00 to the plaintiff as rent advance for the three years. He added that he obtained the land from the plaintiff for the purpose of using same as parking space for a drinking bar he had previously obtained from some other persons. According to him, prior to the lockdown in the year 2020 due to the COVID 19 pandemic, he requested for a refund from the plaintiff because he intended to sell the drinking bar as a result of low patronage. He stated that the plaintiff advised him against the idea of selling the drinking bar and encouraged him instead to invest more money to revamp the place which made him have a rethink. He averred that he subsequently rescinded his decision to sell the drinking bar and instead invested more money in renovating the place with the hope of increasing patronage. He averred further that before the end of the agreement, plaintiff asked him to vacate from the place he was operating his bar. He resisted and stated that the agreement between the parties only covered the parking space and not the place where the drinking bar was situate. Defendant says that he only agreed to vacate from the land on condition that plaintiff refunds the total sum he had used in renovating the place. Defendant concluded that he 3 lodged a complaint at the Rent Control Department at SCC where the officer in charge ordered plaintiff to refund the money he used in renovating the place if he insists on taking back the entire land including the drinking bar. BURDEN OF PROOF It is trite that he who asserts assumes the burden of proof. Section 10 of the Evidence Act 1975, (NRCD 323) reads; (1) For the purposes of this Decree, the burden of persuasion means 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. (2) The burden of persuasion may require a party to raise a reasonable doubt concerning the existence or non-existence of a fact or that he establishes the existence or non-existence of a fact by the preponderance of the probabilities or by proof beyond reasonable doubt. Section 11 of NRCD 323 reads; (1) For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him 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 existence of the fact was more probable than its non-existence. Section 12 of NRCD 323 reads; (1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities. 4 (2) “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. Section 14 on the allocation of burden of persuasion reads; “Except as otherwise provided by law. Unless and until it is shifted, a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting. In the case of Ackah v Pergah Transport Ltd [2010] SCGLR 728 at page 736, Sophia Adinyira JSC (as she then was) delivered herself as follows; “It is a basic principle of 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.” This position of the law was re-echoed by Benin JSC in the case of Aryee v Shell Ghana Ltd & Fraga Oil Ltd [2017-2020] 1 SCGLR 721 at page 733 as follows; “It must be pointed out that in every civil trial all what the law requires is proof by a preponderance of probabilities. See section 12 of the Evidence Act, 1975 (NRCD 323). The amount of evidence required to sustain the standard of proof would depend on the nature of the issue to be resolved.” On 3rd April 2025, counsel for the defendant filed a notice of withdrawal of representation. On 26th September 2024, for unknown reasons, defendant failed to attend court to continue with cross examination of the plaintiff. The court proceeded pursuant to order 25 rule 1(2)(a) of the District Court Rules 2009, C.I 59 by allowing the plaintiff to prove his claim. 5 The plaintiff was not cross examined on his assertions and again defendant failed to attend court to prosecute his counterclaim. Accordingly, from the totality of the evidence before this court, I am satisfied that plaintiff has been able to prove his claim on a preponderance of probabilities. Judgment is entered in favour of the plaintiff against the defendant as follows; a. Defendant is ordered to pay the sum of GHC780.00 to the plaintiff b. Defendant is ordered to pay interests on the sum of GHC780.00 at the prevailing commercial bank rate from 1st February 2023 to the date of full and final settlement. c. Defendant is ordered to vacate from the land the subject matter of this dispute by 30th June 2025 and yield up vacant possession to the plaintiff d. Defendant is ordered to pay all utility bills outstanding if any prior to vacating from the land e. Costs of GHC2,000.00 is awarded in favour of plaintiff against defendant. ………………………………………… H/W RUBY NTIRI OPOKU (MRS.) MAGISTRATE 6