Nyarko v Sarpong (G/WJ/A9/20/2023) [2025] GHADC 189 (16 April 2025)

IN THE DISTRICT COURT HELD AT WEIJA, ACCRA, ON WEDNESDAY, THE 16TH DAY OF APRIL, 2025, BEFORE HER WORSHIP RUBY NTIRI OPOKU (MRS), DISTRICT MAGISTRATE SUIT NO: G/WJ/A9/20/2023 PATRICK OFORI NYARKO PLAINTIFF SUING PER HIS LAWFUL ATTORNEY WILLIAM KWABENA BOATENG VRS VICTORIA AKUA SARPONG DEFENDANT PARTIES: LAWFUL ATTORNEY OF PLAINTIFF IS PRESENT AND REPRESENTED BY SAMUEL OSEI SARPONG ESQ. DEFENDANT IS PRESENT AND REPRESENTED BY DELA AGAMAH ESQ. HOLDING THE BRIEF OF KWABENA SARFO MENSAH ESQ. JUDGMENT The plaintiff filed a writ of summons at the registry of this court on 6th December 2022 against the defendant for the following reliefs: a. An order directed at the defendant to vacate from plaintiff’s residential property at Ablekuma Agape. b. Any order or further orders as this Honourable Court may deem fit. The defendant filed a defence on 19th December 2022 and counterclaimed as follows; 1. An order for the payment of compensation of GHC20,000.00 for manly hours expended on the construction of plaintiff’s residential facility at Ablekuma Agape. 1 2. An order for plaintiff to honour his obligations endorsed by him on terms of settlement being GHC35,000.00 3. An order to the plaintiff to pay GHC15,000.00 for the kitchen equipment and utensils plaintiff made the defendant abandon in her old residence. 4. An order for the payment of GHC16,000.00 for the engagement of the defendant in the sales of commercial items imported into the country. Plaintiff filed a reply and defence to counterclaim on 9th March 2023. ISSUES SET DOWN FOR DETERMINATION BY THE COURT The court set down the following issues for determination; 1. Whether or not plaintiff is entitled to an ejectment order against the defendant? 2. Whether or not the defendant is entitled to her counterclaim of compensation of GHC20,000.00 payment of GHC35,000.00 being plaintiff’s obligation under a terms of settlement agreement, payment of GHC15,000.00 for her abandoned kitchen utensils and the sum of GHC16,000.00 as her engagement fee for the sales of commercial items imported into the country? THE PLAINTIFF’S CASE It is the case of the attorney of the Plaintiff that plaintiff is his uncle who lives in the United Kingdom with his family and has a residential property at Ablekuma- Agape. It is the further case of the attorney that plaintiff has by a Power of Attorney filed in this court on 18th August 2023 granted him the power to represent him in this matter. He added that defendant was an ex-lover of plaintiff between 2017 to June 2022 and that in the course of the relationship, plaintiff allowed defendant to move temporarily into his residential property the subject matter of this dispute in 2018 when she was evicted from her rented apartment with the understanding that plaintiff will get defendant some money to move out of his property and rent another place for her. 2 According to the Attorney, in June 2022, plaintiff offered to pay for a suitable accommodation for defendant to move out of his property because he was relocating to Ghana in December 2022 and he needed vacant possession of the said property. The attorney stated further that plaintiff waited for defendant to furnish him with the cost of a one-bedroom accommodation so he could send her money to pay for her to no avail. Consequently, plaintiff caused his lawyers to write to defendant officially in October 2022 giving her a month’s notice within which to move out of the property. In spite of the persistent demands of plaintiff, defendant has failed and or refused to move out of the said property. The attorney denied all the averments of the defendant and added that plaintiff does not owe defendant and so she is not entitled to her counterclaim. He tendered in evidence the Power of Attorney filed on 18th August 2023 and same was admitted in evidence and marked as Exhibit A. He prayed the court to grant his reliefs. He did not call any witness. DEFENDANT’S CASE IN ANSWER Defendant on the other hand says that plaintiff met her some years ago and expressed his affection for her. It is her case that plaintiff told her he had no wife and promised to take her hand in marriage. Defendant says that subsequently, plaintiff proved in his later actions and moves that he was out to deceive her when he instructed her to move house and live with him in his room in the house the subject matter of this dispute. She added that plaintiff was fully aware that she had some possessions such as kitchen equipment, cooking utensils and other domestic appliances which he ordered her to leave behind in her old home with the explanation that she will not need them which she obliged. She stated that the said cooking utensils and cooking equipment are worth GHC 15,000.00 3 According to the defendant, plaintiff had not fully completed construction work on his building and so he requested her to undertake supervisory work on several construction jobs which included recruiting artisans and labourers and making purchases of construction materials which involved manly hours which she was not compensated for. She estimated the cost of her labour between the period 2018 to 2020 as GHC20,000.00 She also stated that plaintiff imported used clothing and other items into the country which he made her sell. She estimated the cost of her labour as GHC16,000.00 Defendant averred that in the Yuletide of 2022, plaintiff instructed her on phone to vacate from the room in which they occupy since he was coming to Ghana with his wife and that was the first time she was hit with the news of a wife. According to her, she caused her lawyers to write to plaintiff to make a demand for her labour on the jobs undertaken. Upon the receipt of the said correspondence, defendant stated that a meeting was convened to settle the issue and subsequently plaintiff agreed to pay the sum of GHC35,000.00 to her. She added that plaintiff reneged on his promise and as a result, plaintiff’s lawful attorney attempted to evict her through self help and later through the rent control office. She tendered in evidence a letter dated 1st July 2022 which was objected to by counsel for the plaintiff on the basis that the said letter had been written without prejudice. Accordingly, the said exhibit was rejected and marked as R. She again tendered in evidence terms of settlement dated 8th July 2022 and a complaint form from the rent control office filed on 22nd August 2023 without any objection. Same were admitted in evidence and marked as Exhibits 1 and 2 respectively. She did not call any witness. BURDEN OF PROOF 4 It is trite that in civil cases, proof is by a preponderance of probabilities. 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.” The means of effecting proof was explained in Majolagbe V Larbi [1959] GLR 190, where Ollenu J. (as he then was) held that: “Proof, in law is the establishment of fact by proper legal means; in other words, the establishment of an averment by admissible evidence. Where a party makes an averment and his averment is denied, he is unlikely to be held by the court to have sufficiently proved that averment by his merely going into the witness box, and repeating his averment on oath, if he does not adduce that corroborative evidence which (if his averment be true) is certain to exist.” SHIFTING OF THE BURDEN OF PROOF The burden of proof may shift from the party who bore the primary duty to the other. Section 14 of the Evidence Act, 1975 (NRCD 323) provides as follows; 5 Except as otherwise provided, 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 Re Ashalley Botwe Lands; Adjetey Agbosu v Kotey [2003-2004] SCGLR 420, it was held as follows; “It is trite learning that by the statutory provisions of the Evidence Decree 1975 (NRCD 323) the burden of producing evidence in a given case is not fixed but shifts from party to party at various stages of the trial depending on the issue(s) asserted. WRITTEN SUBMISSIONS OF PLAINTIFF AND DEFENDANT The plaintiff filed his written address on 4th April 2025 however defendant failed to file a written address in compliance with the orders of the court. The court shall refer to the relevant portions of plaintiff’s address, when necessary, in resolving the issues set down for determination. EVALUATION OF THE EVIDENCE ON RECORD AND THE DECISION OF THE COURT ISSUE ONE At page 372 of the book, Land Law, Practice and Conveyancing in Ghana Third Edition by Dennis Dominic Adjei, the learned author and jurist on bare licence stated as follows; “It is usually created orally or in writing and does not create an interest in land. No consideration is given by the licensee to the licensor and it could be revoked at any time subject to the licensor giving the licensee reasonable notice. From the evidence, the lawful attorney pleaded that plaintiff allowed defendant to stay in his house temporarily which assertion has not been denied by the defendant. Indeed, under cross examination, defendant admitted that she was put in possession of the property by the plaintiff 6 and she has been living in plaintiff’s house from 2018 to date without paying any rent to him. Asked whether she was married to plaintiff, she answered in the negative. In the case of In Re Asere Stool; Nikoi Olai Amontia IV (substituted by Tafo Amon II) v Akotia Oworsika III (Substituted by Laryea Ayiku III) [2005-2006] SCGLR 637, the Supreme Court held as follows; “Where your adversary has admitted a fact advantageous to your cause, what better evidence do you need to establish that fact than relying on his own admission?” From the evidence, I find that defendant has no proprietary interest in the property the subject matter of this dispute same having been given to her rent free with the permission of the plaintiff. I find that plaintiff is entitled to repossess the property the subject matter of this dispute from the defendant on giving her reasonable notice. ISSUE TWO With regard to the counterclaim of the defendant, it is trite that the defendant bears the same burden as a plaintiff in proving her counterclaim which is on the preponderance of probabilities as stated by the authorities cited supra. In Tetteh Ayaa Iddrisu v. Winfred Otuafro & Anor [2010] SCGLR 818, the Supreme court held as follows; “A party who counterclaims bears the burden of proving his counterclaim on the preponderance of probabilities and will not win on that issue only because the original claim failed.” Ansah JSC in Joseph Akonu-Baffoe and 2 others v Lawrence Buaku and Another, Civil Appeal No. J4/6/2012 emphasized the position of the law on counterclaim as follows; 7 “In essence, a defendant’s counterclaim is to be treated in the same way as the plaintiff’s case. The roles are reversed and the defendant as plaintiff in the counterclaim assumes the burden to prove his case.” From the evidence, I find that apart from the bare assertions of the Defendant which had been denied by the plaintiff, she failed to lead credible evidence by way of documentary evidence such as receipts to back her claim of GHC20,000.00, GHC15,000.00 and GHC16,000.00 being supervisory fee, costs of her cooking utensils and fee for selling imported items respectively. For instance, she claimed that prior to moving into the property of the plaintiff, she left behind cooking utensils and other cooking equipment which she estimated at a cost of GHC15,000.00 During cross examination of the defendant, the following information was elicited; Q: Do you have any evidence in this court to show that you left the items in the house unattended to? A: No With regard to her claim that she had played a supervisory role during the construction of property the subject matter of this dispute which claim was vehemently denied, this is what she had to say under cross examination; Q: Did you enter into any formal contractual agreement with the plaintiff in respect of employment? A: We did not have any formal contractual agreement because I was his girlfriend then. Q: Do you have any documentary evidence before this court to show the man hours you spent in plaintiff’s employment? A: I do not have any documentary evidence but I used to go to work in the morning and sometimes get home at 10 p.m 8 Q: Can you tell the court the basis upon arriving at GHC20,000.00? A: I took into consideration the quantum of items I sold on his behalf to arrive at the sum of GHC20,000.00 She failed to call any of the artisans she supervised to corroborate her claim. It is worthy of note that in the pleadings of defendant, the sum of GHC20,000.00 was her estimated fee for supervisory work done on behalf of plaintiff however during cross examination she contradicted herself by attributing the said sum to sales she made on behalf of the plaintiff. In Odupong v The Republic [1992-1993] 3 GBR 1028 – 1048 CA, Brobbey J.A (as he then was) delivered himself as follows; “The law is now settled that a person whose evidence on oath is contradictory of a previous statement made by him whether sworn or unsworn is not worthy of credit and his evidence cannot be regarded as being of any probative value in the light of his previous contradictory statement unless he is able to give a reasonable explanation for the contradiction.” Applying the law cited supra to the facts of this case, I find that the evidence of the defendant is not worthy of credit in the light of her contradictory statement. With regard to the terms of settlement which is defendant’s Exhibit 1, the attorney of the plaintiff denied the authenticity of Exhibit 1 saying that the plaintiff never signed the said agreement. Plaintiff himself was not summoned to be cross examined on the signature that was purported to be his. Again, Defendant failed to call any witness including the lawyer who was said to have drafted the agreement to corroborate her claim that the plaintiff had signed the said agreement. Even though the court granted defendant’s motion for an order to appoint police forensic expert to determine the similarities of signatures of the plaintiff Patrick Ofori Nyarko on the alleged terms of settlement and the Power of Attorney granted to plaintiff’s attorney by the 9 plaintiff filed on 12th October 2023, no such expert was called to assist the court in determining whether or not the signature appearing on the face of Exhibit 1 was that of the plaintiff. Accordingly, I find that there is no evidence to prove that the signature appearing on the face of Exhibit 1 is that of the plaintiff and as a result the court will not place any probative value on same. DECISION On the totality of the evidence before the court, I find that the plaintiff has proved his claim on the preponderance of probabilities. The counterclaim of the defendant on the other hand fails and same is dismissed. This is because apart from her bare assertions which were denied, defendant failed to lead credible evidence to prove her counterclaim on the balance of probabilities against the plaintiff. Judgment is accordingly entered for the plaintiff as follows; Defendant is ordered to vacate from the property the subject matter of this dispute by 30th June 2025 and yield up vacant possession to the plaintiff. Costs of GHC20,000.00 is awarded in favour of the plaintiff against the defendant. …………………(SGD)…………………. H/W. RUBY NTIRI OPOKU (MRS.) DISTRICT MAGISTRATE 10