Amafio v Nyarkoh Yeboah (GR/NGA/DC/A2/05/2025) [2025] GHADC 166 (19 May 2025)

IN THE DISTRICT COURT OF GHANA, NGLESHIE AMANFRO DISTRICT COURT HELD ON 19TH DAY OF MAY, 2025 BEFORE HER WORSHIP EMELIA K. ABRUQUAH ESQ., (MRS) SUIT NO: GR/NGA/DC/A2/05/2025 ERNEST NII AMAFIO PLAINTIFF VRS WENDELL ISAAC NYARKOH YEBOAH DEFENDANT PLAINTIFF PRESENT DEFENDANT ABSENT JUDGMENT The Plaintiff herein instituted this action against the Defendant on 15th November, 2024 claiming GHC 10,000.00 being the number of days Plaintiff’s sound system and cost of Plaintiff’s microphone were in the possession of the defendant. Costs. The Plaintiff averred in his statement of claim that, both he and the Defendant are businessmen and that the Defendant on 20th September, 2024, rented his sound system for four 1 | Page days program. Plaintiff stated that the Defendant called on the 3rd day to tell him that he has been arrested together with the instruments and that though they were later released, the instruments were not given to them by the police and he pleaded for time to bring them. That after the sound system was released to the Defendant, he brought them to him on 1st November, 2024. Plaintiff averred further that, he calculated the money on the sound system from 27th September, 2024 to 27th October, 2024, for the defendant to pay, which he pleaded with him to reduced the amount to GHC 7,500.00. That he realised that the microphone was damaged and the defendant promised to pay for it’s cost at GHC2,500.00. He stated that since then he never heard from the Defendant until he went to him on the 12th of November, 2024, and the Defendant told him that his leaders have not yet said anything about the payment of the money for the instruments used. The Defendant who appeared in person on the first day pleaded not liable to the plaintiff’s reliefs and he was asked by the court to file his defence to the claims and ever since failed to file any process or appear in court again. Evaluation of Evidence and resolution of Issue The Defendant, despite being duly served with multiple hearing notices, failed to appear before this Honourable Court. The wilful refusal to attend court proceedings to cross-examine the Plaintiff or present his defence before the court, meant, he has forfeited the opportunity to have his side of the story heard. Under Order 25 Rule 1(2)(a) of the District Court Rules, 2009 (C.I. 59), where an action is called for trial and the 2 | Page Defendant fails to attend, the Plaintiff would be allowed to prove his claim. The Defendant had every opportunity to appear before this Honourable Court to cross-examine the Plaintiff and any witnesses, as well as to adduce evidence in support of his defence. By his deliberate decision not to attend court, he has waived the right extended to him to challenge the Plaintiff’s claim. Consequently, he cannot, at any stage, contend that he was denied access to justice. It was held in the case of Mence Mensah v E. Asiama [2011] 38 GMJ 174 SC that: “It is a salubrious principle of our jurisdiction that a litigant should have the opportunity of being heard, of telling his side of the story, of being free to present evidence and argument to buttress his case; but it is also settled law, and dictates of common sense require also that once these opportunities have been extended to the litigant but the litigant decides not to avail himself of them within the period of the trial, he would not, on judicial considerations, be permitted to come later and plead for the reactivating of the very opportunities he declined to embrace.” The above notwithstanding, does not automatically entitle the Plaintiff to the reliefs sought. The Plaintiff must still satisfy the burden of proof by presenting sufficient evidence to substantiate the claims, before the court can grant the requested reliefs. It is trite that in civil cases, that the burden of proof lies on the party who in his/her pleadings or writ raises issues essential to the success of his/her case. The one who alleges, whether a plaintiff or a defendant, assumes the initial burden of producing evidence. It is only when such a party has 3 | Page succeeded in producing evidence that the other party will be required to lead rebuttal evidence, if need be. Proof lies upon him who affirms or alleges, not upon him who denies since, by the nature of things, he who denies a fact cannot produce any proof. See Sections 11(1) & (2), 12(2) and 14 of the Evidence Act, 1975 (NRCD 323); Tagoe v. Accra Brewery [2016] 93 GMJ 103 S.C; Deliman Oil v. HFC Bank [2016] 92 GMJ 1 C.A. In the case of Takoradi Flour Mills vs. Samir Faris [2005- 2006] SCGLR 882, the Supreme Court captured the trite position of the law relating to the burden of proof and stated as follows at page 900: “To sum up this point, it is sufficient to state that this being a civil suit, the rules of evidence require that the Plaintiff produces sufficient evidence to make out his claim on a preponderance of probabilities, as defined in Section 12(2) of the Evidence Decree, 1975 (NRCD 323). Our understanding of the rules in the Evidence Decree, 1975 on the burden of proof is that in assessing the balance of probabilities, all the evidence, be it that of the Plaintiff or the Defendant, must be considered and the party in whose favour the balance tilts is the person whose case is more probable of the rival versions and is deserving of a favorableverdict.” Similarly, in GIHOC Refrigeration & Household vs. Jean Hanna Assi (2005-2006) SCGLR 458, the Supreme Court held that: “Since the enactment therefore, except otherwise specified by statute, 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 4 | Page probable existence of the fact in issue... Hence, by virtue of the provisions of NRCD 323, in all civil cases, judgement might be given in favour of a party on the preponderance of the probabilities...” I reference Takoradi Flour Mills v. Samir Faris [2005- 2006] SCGLR 882 at page 890 where the Supreme Court held as follows; ’In law, where evidence is led by a party and that evidence is not challenged by his opponent in cross- examination, and the opponent did not tender evidence to the contrary, the facts deposed to in that evidence are deemed to have been admitted by the party against whom it is led, and must be accepted by the court." the Plaintiff’s Witness Statement The Plaintiff, filed his witness statement on 10th October, 2024 which was adopted as his evidence in chief before the court. In it, Plaintiff testified that the Defendant called him on 20th September, 2024 to say that he needed a sound system to rent for a float for four days and they agreed at GHC500.00 per day, and on the third day the defendant called to tell him that the sound system is the possession of the police. He testified further that the Defendant promised the return of the instruments as soon as they were released. That the Defendant later came for them to calculate the number of days but he told him until the instruments were brought before that can be done. Defendant therefore deposited GHC 1,500.00 for the first three days and on 1st November, 2024, the Defendant brought the sound system and all the microphones were damaged. According to the Plaintiff, the Defendant asked for the price of the microphones and 5 | Page promised to replace them but never did. The cost of the microphones is GHC 2,500.00 and that the calculations were done covering the period of 20th September to 1st November, 2024 taking the days of Friday, Saturday and Sundays off from the calculations and they arrived at GHC 7,500.00. Since then, he never heard from the Defendant until he brought the matter to this court. ISSUE 1. Whether or not the Plaintiff is entitled to the recovery of GHS 10,000.00 from the Defendant ANALYSIS The parties in this case entered into a contractual relationship where the defendant rented Plaintiff’s musical instruments at a daily rate of GHC500.00 for four days. Defendant however failed to perform his part of the contract despite the fact that he kept the instrument more than the required period. The Plaintiff, who had performed his part of the obligation which has not been denied by the Defendant as he has always been in the known of every process filed by the Plaintiff in this court through various hearing notices served on him, either by person or by substituted service failed to react. By accepting and taking the Plaintiff’s instruments at a daily rate of GHC500.00, the Defendant assumed a contractual obligation to fulfil his part of the agreement, thus paying for the number of days the instruments were in his possession. However, the Defendants failed to pay as he agreed with the plaintiff, constituting a breach of his obligation. As stated in AUGUSTINA ENGMANN V. PELICAN GROUP LTD (2018) SUIT NO M/BDC/0414/16, a breach of contract occurs when: 6 | Page “A party without lawful excuse fails to perform what is due from him under the contract, or performs defectively or incapacitates himself from performing.” (Professor Treitel, the Law of Contract). In this case, the Defendant, not only failed to pay for the number of days the instruments were kept by him but he has also damaged some of them and promised to pay but never did. The Defendant has therefore breached the contract by failing to perform his obligation, thus to pay the daily rate for the instruments at his possession. The court therefore finds the Plaintiff’s claims more probable than not, as his evidence stood uncontroverted since his evidence was not subjected to cross examination by the Defendant. In the circumstance, I enter judgment in Plaintiff’s favour to recover GHC10, 000.00 from the Defendant being the number of days Plaintiff’s Sound System was in the possession of the Defendant and the cost of the damaged microphones that were in his possession. Cost of GHC800.00 is awarded in favour of the Plaintiff as against the Defendant. H/W EMELIA K. ABRUQUAH (MRS) (MAGISTRATE) 7 | Page