Kyeremeh v Yawson and Others (A2/19/23) [2025] GHADC 121 (14 May 2025)

IN THE DISTRICT COURT AT LA HELD ON WEDNESDAY THE 14TH DAY OF MAY, 2025. BEFORE HER WORSHIP ADWOA BENASO ASUMADU-SAKYI, SITTING AS MAGISTRATE SUIT NO: A2/19/23 DAVID KWADWO KYEREMEH H/NO. BLOCK D ROOM 30 DUALA BURMA CAMP >>> PLAINTIFF VRS. 1. SAMUEL KOFI YAWSON 2. KWASI BOHAM SADIQ 3. VICTOR AGBENORKA ALL OF TESHIE, ACCRA >>> DEFENDANTS _______________________________________________________________ PARTIES: Plaintiff present Defendants present except 2nd and 3rd Defendant LEGAL REPRESENTATION: Abigail Aidoo for the Plaintiff JUDGMENT _______________________________________________________________ INTRODUCTION The Plaintiff filed this instant suit on the 1st of December, 2022 against the Defendants and prayed for the following reliefs; 1. An order of the honourable court at defendants jointly and severally to refund to plaintiff cash sum of Thirty Four Thousand Five Hundred Ghana Cedis (GH¢34,500.00) being balance unpaid of financial assistance of GH¢ 40,000.00 given to defendants which they have refunded GH¢ 5,500.00 through the police but has refused to pay the remaining balance since July, 2021 despite repeated demands. 2. Interest calculated on the GH¢ 34,500.00 from June 2021 till final payment. 3. Cost On the 19th of January, 2023, this Court differently constituted read the particulars of claim to the 1st Defendant and he pleaded liable to them. His Honour Jojo Amoah Hagan sitting as an additional magistrate entered judgment on admission in the Plaintiff’s favour. The Court ordered the Plaintiff to serve hearing notice on the 2nd and 3rd Defendants but the case suffered several adjournments until a notice of appointment of solicitor was filed on behalf of the Plaintiff on the 8th of August, 2024. Despite several hearing notices served on the 2nd and 3rd Defendants they refused to appear and as a result the Plaintiff was ordered to file his witness statement on the 9th of October, 2024. The Plaintiff complied with the orders of the court and filed his witness statement on the 30th of October, 2024. Case management conference was conducted on the 27th of November, 2024. The Plaintiff was allowed to proof the his case on the 11th of February, 2025, 2024 pursuant to Order 25 rule 1(2)(a) of the District Court Rules (2009) C.I 59. PLAINTIFF’S CASE The Plaintiff states that somewhere in June 2021 upon his return from a peace keeping mission he was approached by the defendants for financial assistance with their import business. The defendants informed him that they had imported rice but needed funds to clear it at the Tema Harbour. The Plaintiff states that it was agreed that he would give the Defendants an amount of Forty Thousand Ghana Cedis (GH¢ 40,000.00) and that they would repay the money with a 20% on the amount within two weeks. The Plaintiff states that the defendants refused to pay the money as agreed after the two weeks and refused to answer his calls and they started playing hide and seek with the plaintiff. The Plaintiff states that he reported the conduct of 1st defendant who was a civilian employee and the 2nd and 3rd defendant to the Military Police which led to the arrest of the 1st defendant. Even though the 1st defendant led the military police to the house of the 2nd and 3rd defendants, all efforts to locate the 2nd and 3rd defendants proved futile. The Plaintiff states he lodged a complaint with the police and the Defendants admitted that they had received money from him and then made part payment of Five Thousand Five Hundred Ghana Cedis (GH¢ 5,500.00) to the police. He goes on to state that a criminal case was brought by the police but despite this the defendants have refused to pay the money. He then proceeded to file the instant case and prays the court grants his reliefs. DISCUSSION OF THE LAW The law is trite that a party who asserts a fact assumes the responsibility of proving same and thus the burden of producing evidence as well as the burden of persuasion is therefore cast on that party and the standard required is provided for by the virtue of sections 10,11 and 12 of the Evidence Act, 1975 (NRCD 323). The above stated provisions have received judicial blessings by the Supreme Court who has pronounced on them in the past to be the nature and standard of proof in civil cases. This position of the law has been reiterated in the case of Ackah v. Pegrah Transport Ltd And Others [2020] SCGLR 728 where in unanimously dismissing an appeal, the Supreme Court held as follows: “It is a basic principle of the 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. The method of producing evidence is carried and it includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things (often described as real evidence), without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as a jury. It is trite law that matters that are capable of proof must be proved by producing evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more probable than its non-existence. This is a requirement of the law on evidence under sections 10(1) and (2) and 11(1) and (4) of the Evidence Act, 1975 (NRCD 323)”. See the case of Ababio v. Akwasi IV [1994-1995] GBR 774. The Court has a duty to examine the evidence on record and determine whether the Plaintiffs have met the burden of proof. It is settled law that he who alleges must prove his case on the strength of his own case. This principle was enunciated in the case of Owusu v. Tabiri and Another [1987-88] 1 GLRR as follows: “It was a trite principle of law that who asserted must prove and win his case on the strength of his own case and not the weakness of the defence”. The Plaintiff therefore bears the burden of proof against the 2nd and 3rd defendants as judgment has been entered against the 1st Defendant. The Plaintiff mounted the witness box and relied on his witness statement on the 11th of February, 2025 and repeated his assertions against the 2nd and 3rd defendants. The evidence of Plaintiff was unchallenged as the 2nd and 3rd Defendants failed to appear to cross examine the Plaintiff due to their refusal to show up in Court despite being given several notices to appear. The position of the law is that when a party is given the opportunity to contest or lead evidence in defence of allegations against him but fails to avail himself of the opportunity, the court will be entitled to proceed with trail to its conclusion and make findings on the basis of the evidence adduced at the trial and proceed to give judgment. In Fori v. Ayirebi (1966) GLR 627 SC it was held that when a party had made an averment and that averment was not denied, no issue was joined and no evidence need be led on that averment. Similarly, when a party had given evidence of a material fact and was not cross examined upon it, he need not call further evidence of that fact. See the cases of Takoradi Flour Mills v. Samir Faris (2005-2006) SCGLR 890, In Re West Coast Dying Industry Ltd; Adam v. Tabdoh (1984-86) 2 GLR 561 SC, Watalah v. Primewood Products Ltd (1973) 2GLR 126 and Hammond v. Amuah (1991) 1 GLR 89 at 91. It is also settled law that a party is to suffer the consequences or liabilities for not attending court after he has been duly served with processes and accordingly notified. See cases of Republic v. High Court (Fast Track Division); Ex-parte State Housing Co. Ltd (No. 2) (Koranten-Amoako Interested Party) (2009) SCGLR 185 at 190 and Agbewole v. Abodegbey (2012) 44 GMJ 124 at 129. This being said this court has to analyse the evidence adduce by the Plaintiff and apply the law. The unchallenged testimony of Plaintiff is to the effect that he did not enter a written agreement with the 2nd and 3rd Defendant and that thus it can be concluded that any agreement which took place between the parties was verbal. Thus if this Court concludes that there was a verbal agreement between the parties, this does not mean that same is unenforceable. Section 11 of the Contracts Act, 1960 (Act 25) provides as follows; “Subject to this Act, and to any other enactment, a contract whether made before or after the commencement of this Act, is not void or unenforceable by reason only that it is not in writing or that there is no memorandum or note of the contract in writing.” It is trite that when courts are met with verbal contracts, in order to ascertain the real intention of the parties, the courts are enjoined to apply the objective test by looking at the words or conduct of the parties. In the case of Smith v. Hughes (1871) LR 6QB 597, Lord Balckburn adopted the principle enunciated in the case of Freeman v. Cooke (1848) 2 Exch. 654 as follows: “if, whatever a man’s real intention may be, he so conducts himself that a reasonable man would believer that he was assenting to the terms proposed by the other party, and that the other party, upon that belief enters into the contract with him, the man thus conducting himself would be equally bound as if he had intended to agree to the other party’s terms.” With the above principle above I mind this court has to apply an objective test to determine the real intentions of the parties which in this case is the refusal of the 2nd and 3rd defendants to appear to cross examine the Plaintiff. This refusal of the 2nd and 3rd defendants to appear in court leads this court to believe that they do not have a defence to the suit. There is also unchallenged evidence on record that the defendants admitted they owed the Plaintiff and refunded an amount of Five Thousand Five Hundred Ghana Cedis (GH¢ 5,500.00) to the police. The conduct of the 2nd and 3rd Defendants therefore goes to show that they intended to be bound by the terms of the verbal agreement. Having failed to cross examine the plaintiff on his testimony I am of the opinion that the Plaintiff has been able to prove on preponderance of probabilities that the Defendants received an amount of Forty Thousand Ghana Cedis (GH¢ 40,000.00) from the plaintiff to clear their imported rice from the Tema Harbour. There is also unchallenged evidence on record that proves that the Defendants refunded an amount of Five Thousand Five Hundred Ghana Cedis (GH¢ 5,500.00) to the police which brings the total amount remaining is Thirty Four Thousand Five Hundred Ghana Cedis (GH¢ 34,500.00). The evidence adduced by the Plaintiff stands unchallenged and I hereby hold that the Plaintiff has been able to satisfy the burden on him and is entitled to the reliefs being sought. CONCLUSION I hereby enter Judgment in favour of the Plaintiff and make the following orders; a. The 2nd and 3rd defendants are jointly and severally liable to refund to the plaintiff cash sum of Thirty Four Thousand Five Hundred Ghana Cedis (GH¢34,500.00) being balance unpaid of financial assistance of GH¢ 40,000.00 given to defendants. b. The 2nd and 3rd defendants are hereby ordered to pay interest calculated on the GH¢ 34,500.00 from June 2021 till final payment. c. Cost of Five Thousand Ghana Cedis (GH¢5,000.00) each is awarded against the 2nd and 3rd Defendants. SGD H/W ADWOA BENASO ASUMADU-SAKYI MAGISTRATE