AGURI VRS AVOKA (UE/BLG/DC/A2/305/2024) [2025] GHADC 39 (28 April 2025)

*HWMNJ@DC/BLG-28/04/2025* CORAM: HIS WORSHIP MAWUKOENYA NUTEKPOR (DISTRICT MAGISTRATE), SITTING AT THE DISTRICT COURT, BOLGATANGA IN THE UPPER EAST REGION OF GHANA, ON MONDAY, THE 28TH DAY OF APRIL, 2025. SUIT NO. UE/BLG/DC/A2/305/2024 AGURI ALBERT PLAINTIFF OF H/NO. UB-0081-1428, YARIGABISI-BOLGATANGA VRS. JACOB AVOKA DEFENDANT OF TANZUI-BOLGATANGA TIME: 09:27AM PLAINTIFF PRESENT DEFENDANT ABSENT NO LEGAL REPRESENTATION FOR THE PARTIES JUDGMENT Introduction 1. The Plaintiff commenced this action on 17th September, 2024 and claimed against the Defendant as follows: - a. Recovery of an amount of GHC8,500.00 from the Defendant being the cost of one Apmoto 110 Motor Cycle with Chases Number LB7DHC408LP048609 that the Defendant bought on credit on the 14th day of August, 2024. *JUDGMENT-AGURI ALBERT VRS. JACOB AVOKA (SUIT NO. A2/305/2024) * Page 1 of 9 *HWMNJ@DC/BLG-28/04/2025* b. An order directed at the Defendant to pay the said sum of GHC8,500.00 to the Plaintiff with interest. c. Costs. d. Any other order (s) this Honourable Court may deem fit. 2. On 26th November 2024, this court in consideration of the nature of the case and the willingness of the parties to attempt settlement of the matter out of court, referred the matter to the Court Connected Alternative Dispute Resolution pursuant to section 72 of the Courts Act, 1993 (Act 459) as amended. The said section provides as follows: Section 72—Courts to Promote Reconciliation in Civil Cases (1) Any court with civil jurisdiction and its officers shall promote reconciliation, encourage and facilitate the settlement of disputes in an amicable manner between and among persons over whom the court has jurisdiction. (2) When a civil suit or proceeding is pending, any court with jurisdiction in that suit may promote reconciliation among the parties, and encourage and facilitate the amicable settlement of the suit or proceeding. See also Order 25 Rule 1 sub rules (3) to (8) of the District Court Rules, 2009 (C.I 59) as amended by C.I. 134. However, the parties could not resolve the matter out of court; hence the court proceeded to determine the matter on its merit. *JUDGMENT-AGURI ALBERT VRS. JACOB AVOKA (SUIT NO. A2/305/2024) * Page 2 of 9 *HWMNJ@DC/BLG-28/04/2025* Plaintiff’s Case 3. The plaintiff avers that he sold one (1) Apmoto 110 Motor Cycle with Chases Number LB7DHC408LP048609 on credit to the defendant on the 14th day of August, 2024 for GHC8,500.00. Plaintiff says that he has made several demands for the defendant to pay the said sum of GHC8,500.00 to him but all to no avail. Plaintiff says that the Defendant is capable of paying the said sum of GHC8,500.00 to him but has refused to pay. Plaintiff says unless compel by this Honourable Court the defendant will not pay the said sum of GHC8,500.00 to him. Wherefore, plaintiff prays for the above-mentioned reliefs. Defendant’s Case 4. The defendant on the other hand says that the Plaintiff sold his Apmoto 110 motorcycle to him around 14th October, 2024 on credit with assurance that all the motor’s documents were valid and that the motor was worthy to be used on the road without facing any issue with the police. Defendant says Plaintiff assured him that a motor with no number plate could be used on the road without any problem from the police but he later realized plaintiff deceived him. Defendant says he was first arrested on the road by a Police officer called Samuel Barnie with phone number: 0230329782 at Tanzui junction and the motor was impounded with the reason that the motor had no valid documents and no number plate fixed on it. Defendant says he was cautioned never to use the motor until all documents are validated and number plate fixed. Defendant says the police later on referred him *JUDGMENT-AGURI ALBERT VRS. JACOB AVOKA (SUIT NO. A2/305/2024) * Page 3 of 9 *HWMNJ@DC/BLG-28/04/2025* to the DVLA office to authenticate and validate the motor documents otherwise he would be arrested anytime he uses the motor with invalid documents. 5. Defendant says the DVLA Boss inspected the motor and declared the motor did not have valid documents as well as number plate and it was unlawful to ride such motor on the road without valid documents and number plate. Defendant says he quickly returned the motor to the Plaintiff with an amount of GH¢2,000.00 through his closest friend called Mr. Jacob with telephone number 0246313620 to be given to him as compensation for using the motor for two weeks. But plaintiff rejected the said amount with the reason that the money was too small. 6. Defendant contends that plaintiff should validate the motor documents and fix the number plate so that he will pay in full for the motor or plaintiff should allow him to repair all damages on the motor and return the motor to plaintiff. It is the defendant’s case that the plaintiff is not entitled to his reliefs and same should be dismissed with punitive costs. Burden of Proof 7. The obligations or duties of parties to lead evidence; and to persuade the court, as to the credibility of their allegations are covered both by statute and plethora of authorities. The law is that he who alleges must prove. Under sections 10, 11, 12 and 14 of the Evidence Act 1975 (NRCD 323) the burden of who has the responsibility to lead evidence is clearly set out. These are burdens of leading *JUDGMENT-AGURI ALBERT VRS. JACOB AVOKA (SUIT NO. A2/305/2024) * Page 4 of 9 *HWMNJ@DC/BLG-28/04/2025* evidence and the burden of persuading a tribunal by leading credible evidence. Sections 11(1)(4) and 14 of the Evidence Act 1975 (NRCD 323) provides as follows: 11(1) For 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. 14 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.” 8. There are two parts to the duty to discharge the burden of proof. Thus, the twin burdens of proof and standard of proof contained in the provisions are: (a) There is the burden of leading evidence to back an assertion; and (b) the burden of persuasion i.e. leading evidence of sufficient standard to persuade a tribunal to rule in one’s favour. See the case of Isaac Alormenu vs. Ghana Cocoa Board, Civil Appeal No. J4/86/2022, delivered on 8th February 2023. 9. In the case of In re Ashalley Botwe Lands; Adjetey Agbosu & Ors v Kotey & Ors [2003-2004] SCGLR 420, at pp. 464-465, Brobbey JSC explained the law on burden of proof thus: *JUDGMENT-AGURI ALBERT VRS. JACOB AVOKA (SUIT NO. A2/305/2024) * Page 5 of 9 *HWMNJ@DC/BLG-28/04/2025* “The effect of sections 11(1) and 14 and similar sections in the Evidence Decree, 1975 may be described as follows: A litigant who is a defendant in a civil case does not need to prove anything: the plaintiff who took the defendant to court has to prove what he claims he is entitled to from the defendant. At the same time, if the court has to make a determination of a fact or of an issue, and that determination depends on evaluation of facts and evidence, the defendant must realize that the determination cannot be made on nothing. If the defendant desires the determination to be made in his favour, then he has the duty to help his own cause or case by adducing before the court such facts or evidence that will induce the determination to be made in his favour. The logical sequel to this is that if he leads no such facts or evidence, the court will be left with no choice but to evaluate the entire case on the basis of evidence before the court, which may turn out to be only the evidence of the plaintiff.” 10. In Ackah v Pergah Transport Ltd., 2010] SCGLR 728, Sophia Adinyira JSC stated on the burden of proof at p.736 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. The method of producing evidence is varied and it includes the testimonies of the party and material witness, 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 minds 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 sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more reasonable that its non-existence. This is a requirement *JUDGMENT-AGURI ALBERT VRS. JACOB AVOKA (SUIT NO. A2/305/2024) * Page 6 of 9 *HWMNJ@DC/BLG-28/04/2025* of the law on evidence under Section 10(1) and (2) and 11(1) and (4) of the Evidence Act, 1975 (NRCD 323)”. 11. Also, it is a settled principle of law that a bare assertion or merely repeating a party’s pleadings in the witness box without more does not constitute proof. In Klah V. Phoenix Insurance Co. Ltd [2012] 2 SCGLR 1139, this principle was reiterated: “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 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.” See also the following cases on the burden of proof: Air Namibia (Pty) Ltd. V. Micon Travel & Tour & 2 Ors, [2015] 91 G.M.J, page 177, Majolagbe v Larbi & others (1959) GLR 190-195 and Klutse v. Nelson [1965] GLR 537 Evaluation of Evidence, Discussion of Issues and Legal Analysis 12. The issues for determination in this case is whether or not the defendant is liable to pay the sum of GHC8,500 to Plaintiff with Interest. The fundamental duty of a trial judge or magistrate is to make up his mind one way or the other on the primary facts and when he has made up his mind, he should state his findings and then proceed to apply the law. See the case of Quaye V. Mariamu [1961] GLR 93- 96. The duty of this court is to make up its mind, states its findings of facts from *JUDGMENT-AGURI ALBERT VRS. JACOB AVOKA (SUIT NO. A2/305/2024) * Page 7 of 9 *HWMNJ@DC/BLG-28/04/2025* the evidence on record and applies the law. From the evidence, the court found the following facts: Plaintiff sold the motor to defendant on credit for GHC8,500. The documents covering the motor were handed over to the Defendant, see Exhibits A and B. Defendant confirmed that the motor documents are not fake but original documents. The defendant has been using the motor and changed some parts of the motor. Defendant’s concern however is that he has to validate the documents at DVLA before he could continue using the motor as well as procure a number plate. 13. Defendant claims after he discovered that he cannot use the motor without a number plate contrary to assurances given to him by the plaintiff, he decided to return the motor to plaintiff with an amount of GHC2,000.00 as compensation for using the motor for two weeks through one Jacob but plaintiff refused to accept it. The plaintiff denied this allegation and the onus is on the defendant to convince this court by calling the said Jacob as a witness but he failed to do so. 14. From the evidence the defendant admitted purchasing the motor from the plaintiff on credit for GHc8,500.00. He admitted changing some parts of the motor as well as using the motor. Defendant confirmed that the motor documents given to him are not fake but original documents. To this court, the Defendant having changed some parts of the motor and having been using the motor, justice demands that he pays for the motor. Accordingly, defendant is hereby ordered to pay the sum of Eight Thousand Five Hundred Ghana Cedis (GHC8,500.00) being the cost of the motor in issue to the Plaintiff. *JUDGMENT-AGURI ALBERT VRS. JACOB AVOKA (SUIT NO. A2/305/2024) * Page 8 of 9 *HWMNJ@DC/BLG-28/04/2025* 15. Plaintiff is asking for interest, but from the evidence before the defendant can get a number plate the motor documents need to be validated at a cost. Hence, the court will waive the payment of interest. The defendant will however pay cost of five Hundred Cedis (GHC500.00) to the plaintiff. Conclusion 16. Having examined the whole evidence adduced by the plaintiff and the defendant on record in accordance with the foregoing authorities as well as the analysis, the court holds that plaintiff’s action succeeds in part. The defendant is hereby ordered to pay the sum of Eight Thousand Five Hundred Ghana Cedis (GHC8,500.00) being the cost of the motor bike in issue to the Plaintiff. Cost of Five Hundred Cedis (GHC500.00) is awarded against the Defendant in favour of the Plaintiff. No order as to interest. (SGD.) H/W MAWUKOENYA NUTEKPOR (DISTRICT MAGISTRATE) *JUDGMENT-AGURI ALBERT VRS. JACOB AVOKA (SUIT NO. A2/305/2024) * Page 9 of 9