Anim v Mbellam (A2/444/2024) [2025] GHADC 164 (7 March 2025)

IN THE DISTRICT COURT OF GHANA, NGLESHIE AMANFRO DISTRICT COURT HELD ON 7TH MARCH, 2025 BEFORE HER WORSHIP EMELIA K. ABRUQUAH ESQ., (MRS). SUIT NO: SUIT NO: A2/444/2024 HENRY ANIM PLAINTIFF VRS MBELLAM ISAIAH DEFENDANT PLAINTIFF PRESENT DEFENDANT ABSENT JUDGMENT INTRODUCTION The plaintiff herein instituted this action against the Defendant on 13th August 2024 claiming the following reliefs; a. Immediate refund of GHS 25,700.00 being balance of monies defendant owed plaintiff as a result of a piece of land sold to plaintiff which land transaction did not materialized b. Interest on the said sun from December 2021 at the current bank rate till date of final payment c. Cost 1 | Page The Plaintiff, a Ghanaian citizen, brought this action against the Defendant, also a Ghanaian citizen, seeking the recovery of GHC33,700.00 on grounds of fraudulent misrepresentation and failure to deliver a valid parcel of land. The Plaintiff contends that in 2021, he purchased a parcel of land from the Defendant for GHC28,000.00 and additionally paid a digging fee of GHC3,500.00. The Defendant demarcated the land for him, but before development could commence, a third party laid claim to the land. Upon informing the Defendant of this, the Defendant relocated him to a different parcel of land. The Plaintiff then incurred GHC700.00 for a trip of sand and GHC1,500.00 for grading the new land. However, before he could begin construction, another third party, accompanied by land guards, also laid claim to this second parcel of land. The Plaintiff avers that the Defendant never had legitimate ownership of any land to sell and merely engaged in deceitful practices to extort money. Despite repeated demands, the Defendant has refused to refund the total sum of GHC33,700.00, leading to this legal action. Issues Whether or not the plaintiff is entitled to his claims In plaintiff’s evidence in chief by way of a witness statement filed on 26th September, 2024 along with a supplementary witness statement filed on 15th October 2024, he testified that he resides at Kingstown, Amanfro, and knows the Defendant personally. In 2021, the Defendant offered to sell him a parcel of land for GHC28,000.00, to which he agreed and also paid a digging fee of GHC3,500.00. After making payments, the Plaintiff attempted to develop the land, but a third party claimed ownership of it. When he informed the Defendant, he was reallocated a different parcel, but that too was later contested by another claimant. 2 | Page The Plaintiff stated that he incurred additional costs, including GHC700.00 for a trip of sand and GHC1,500.00 for grading the land. He further detailed his payment schedule, stating that he made an initial payment of GHC15,000.00 on 13th December 2021, a second installment of GHC7,000.00 on 31st January 2022, and a final payment of GHC6,000.00 on 10th March 2022, totaling GHC28,000.00. The plaintiff incurred a total cost of GHC33,700. 00 of which the defendant’s brother, by name Simon Mbellam refunded GHC8000.00 with a payment receipt dated,9th June, 2024, and signed by both parties was tendered in evidence by the plaintiff. As evidence, the Plaintiff attached receipts and a written document signed by the Defendant’s brother, who had promised a refund, but to date, no repayment has been made. The Plaintiff maintains that the Defendant remains indebted to him and seeks the recovery of the amount paid. Evaluation of Evidence and resolution of Main Issue The defendant failed to appear in court despite being served with the Writ of Summons and multiple hearing notices. The defendant refused to attend court to cross-examine the plaintiff or present his case. Consequently, he has forfeited this 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 Defendant fails to attend, the Plaintiff would be allowed to prove his claim. The Defendant had the opportunity to come to Court to cross examine the Plaintiff and his witnesses if any and to also adduce evidence but he elected not to be present to challenge the Plaintiff’s claim by his conduct of not appearing in Court. The Defendant can therefore not raise at any point that the door of justice was shut on him. 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 3 | Page 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.” However, although the Defendant did not appear before the court to contest the suit, the Plaintiff is not automatically entitled to the reliefs sought solely due to the Defendants’ absence. The Plaintiff must still meet the burden of proof before the court can grant the reliefs requested. 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 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 4 | Page 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 favorable verdict.” 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 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 main issue before the court is to determine whether Plaintiff has been able to prove on a preponderance of probability that he is entitled to his claim A contract for the sale of land requires mutual consent, consideration, and the seller's legal title to the property. The Plaintiff's payments and the Defendant's acceptance indicate mutual consent and consideration. However, the Defendant's lack of clear title to both parcels undermines the validity of the contract. The part payment made by the Plaintiff and the 5 | Page execution of a lease document all of which the Plaintiff has produced before this court further reinforce the existence of an agreement. Nonetheless, the contract cannot be deemed valid where the seller lacks the legal authority to convey title to the buyer. Fraud is a serious matter that, even in some instances, when it is not specifically pleaded but is led in evidence without objection, the rules of evidence are relaxed for the Court to entertain same. Philip Morro Djima V. Gloria Lekiah Djima (2013) 63 GMJ 183 CA Again it was held in the case of Apea and Anor V. Asamoah (2003-2004) 1 SCGLR 226 at 229 as follows: “Notwithstanding the rules on pleadings the law was that, where there was clear evidence of fraud on the face of the record, the Court would not ignore it Fraudulent misrepresentation occurs when one party knowingly makes false statements, inducing another to enter a contract, resulting in loss. Under Ghanaian law, fraudulent misrepresentation is a grave offense, particularly in land transactions. In the case of Michael Asiamah & Anor v. Kwamena Addo Agyarko & 2 Ors, the Court outlined the key elements necessary to establish a prima facie case of fraudulent misrepresentation: 1. The defendant made a false representation or lied. 2. The misrepresentation is material to the transaction. 3. The defendant made the misrepresentation with malice (i.e., with knowledge that the statement was false or with reckless disregard for the truth). 4. The defendant made the misrepresentation with the intention of inducing the plaintiff to enter the contract. 5. The plaintiff reasonably relied on the misrepresentation. 6. The defendant’s misrepresentation was the proximate cause of the plaintiff’s injury. Applying this principle to the present case, the Defendant’s representation that he had land available for sale was false. This misrepresentation was material, as it formed the very basis of 6 | Page the contract between the parties. The Defendant’s subsequent act of relocating the Plaintiff to a second plot, which also turned out to be unavailable, demonstrates a reckless disregard for the truth, if not actual knowledge of his lack of title. This satisfies the element of malice. Furthermore, the Defendant’s actions induced the Plaintiff to enter into the agreement and make full payment. The Plaintiff reasonably relied on the Defendant’s representations, as evidenced by the lease agreement and receipts tendered in court. The ultimate loss suffered by the Plaintiff, thus, the deprivation of land and financial loss was directly caused by the Defendant’s misrepresentation. Additionally, the fact that the Defendant’s brother attempted to settle the matter underscores the Defendant’s awareness of his wrongful actions. The Defendant’s failure to provide a valid title or to refund the Plaintiff’s money further confirms the fraudulent nature of the transaction. Given the fraudulent misrepresentation, the Plaintiff is entitled to rescind the contract and recover all monies paid and he is entitled to compensation for expenses incurred in preparation for the development of the land. Having reviewed the evidence before the Court, including the lease agreement, payment receipts, and the Plaintiff’s uncontroverted testimony, I find that the Defendant fraudulently misrepresented his ability to sell the land in question which right to sell, he has not. The Defendant had no legal title to the land but, through false representation, induced the Plaintiff to enter into the transaction. Knowing this he failed to appear in this court to defend the suit against him and to also cross examine the plaintiff on his claims Accordingly, on the preponderance of the probabilities I hold that the Plaintiff is entitled to his claims. I therefore enter judgment in favour of the plaintiff to recover the sum of GHC25,700.00, I further award interest on the said sum at the prevailing commercial bank rate from December, 2021 till the date of final payment by the Defendant. 7 | Page I award costs GHC 1000.00 in favor of the Plaintiff. (SGD) H/W EMELIA K. ABRUQUAH (MRS) (MAGISTRATE) 8 | Page