Johnson v Mobile Edge Limited and Another (A2/06/24) [2025] GHADC 131 (27 February 2025)

IN THE KOTOBABI DISTRICT COURT, KOTOBABI, ACCRA HELD ON THURSDAY 27th FEBRUARY, 2025 BEFORE HER WORSHIP MAAME YAA A. KUSI-MENSAH (MS.) SUIT NO: A2/06/24 LORNA JOHNSON - PLAINTIFF OWUSU KOFI STREET GA-468-3710 DARKUMAN, ACCRA VRS. 1. MOBILE EDGE LIMITED 1st DEFENDANT 2. JAMES ARYEETEY 2nd DEFENDANT ACCRA PARTIES: Plaintiff present 1st and 2nd Defendants absent COUNSEL: Esther Nkulenu (Ms) holding the brief of Isaac Essien Esq. for Plaintiff present No Legal Representation for Defendants JUDGMENT PROCEDURAL BACKGROUND Plaintiffs commenced this action on 16th April, 202 seeking the following reliefs: a. An order for Defendants to pay the sum of Seventeen Thousand Ghana Cedis (GHC 17,000) being the outstanding balance of financial assistance given to the Defendants on 27th September 2022 by Andromeda Allotey which Plaintiff and 2nd Defendant guaranteed for the due repayment of same; Lorna Johnson vs. Mobile Edge Limited and Anor 1 b. Interest at the commercial lending rate on the sum of the amount of Seventeen Thousand Ghana Cedis (GHC 17,000) from 28th September 2022 till date of final payment; c. Costs including solicitor’s fees Defendants failed and/or refused to file any response to the instant suit although the record shows that at all material times they were served with all relevant processes at every stage of the proceedings by substituted service. Following the close of pleadings, Plaintiff filed her witness statement on 12th September, 2024 but did not attach any annexures in support of her claims. Thereafter, trial was conducted by this Court on 21st November, 2024 upon satisfaction by this Court that there was notice to Defendants of sitting for that day. During trial the witness statement of Plaintiff was tendered in evidence and adopted with no contention in light of the absence of Defendants. Trial was further concluded that same day and the matter scheduled for judgement with hearing notice once again served on Defendants. FACTS The facts in this case are straightforward. Plaintiff herein is the administrator of 1st Defendant company while 2nd Defendant is the Operations Manager of 1st Defendant company. Plaintiff contends that sometime in September, 2022 2nd Defendant and other members of management of 1st Defendant company approached her for financial assistance to supplement the business of 1st Defendant company in anticipation of a Fifty Thousand Ghana Cedis (GHC 50,000) cheque from Korle Bu in favour of 1st Defendant company. Plaintiff states that she initially indicated that she was unable to provide any financial assistance, but 2nd Defendant assured her that he was willing to guarantee the repayment of the money advanced to 1st Defendant company. Plaintiff therefore reached out to family and friends and was able to raise and amount of Twenty Thousand Ghana Cedis (GHC 20,000) through one Andromeda Allotey who is a cousin of Plaintiff’s sister-in-law. Lorna Johnson vs. Mobile Edge Limited and Anor 2 Plaintiff states further that this offer of financial assistance to the tune of Twenty Thousand Ghana Cedis (GHC 20,000) was made by the said Andromeda Allotey to 1st Defendant company on the condition that 2nd Defendant and Plaintiff would guarantee the repayment and Plaintiff and 2nd Defendant agreed to the terms. The terms of this oral agreement further stated that the period of the assistance was to be for one month from 27th September, 2022 to 26th October 2022 and 2nd Defendant guaranteed the repayment of the funds by 27th October, 2022. However, according to Plaintiffs, despite the receipt of the funds of Twenty Thousand Ghana Cedis (GHC 20,000), Defendants have only paid Three Thousand Ghana Cedis (GHC 3,000) leaving an amount of Seventeen Thousand Ghana Cedis (GHC 17,000) unpaid till date. Plaintiff states further that she was harassed by Andromeda Allotey for the remainder of the unpaid funds who reported the incident to the Dansoman district police and further confiscated her car and also locked her shop making it difficult for Plaintiff to conduct her business and move around with her three children during that period. Plaintiff states that due to this she was compelled to take a loan to settle the Defendants remaining debt of Seventeen Thousand Ghana Cedis (GHC 17,000) which loan is accruing interest. Plaintiff further asserts that Defendants have failed to fulfil their obligations to repay the amount owed despite repeated demands and will renege on their promise unless compelled by this Court. As I already indicated above, Defendants failed and/or refused to file any response to this suit or attend any of the hearings although the record shows that they were consistently served with notices of same by posting and through the registered what’s app number of 2nd Defendant. THE LAW AND ANALYSIS Since the Defendants failed to appear despite being served with several hearing notices, the Plaintiff was not cross-examined on her evidence submitted through her witness statement. Of course, a Defendant is certainly under no obligation to appear in court or provide an answer or response to processes served on him. However, such a defendant ignores court papers at his own risk. This is because, 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 Lorna Johnson vs. Mobile Edge Limited and Anor 3 entitled to proceed with trial to its conclusion and make findings on the basis of the evidence adduced at the trial, after which the court may then proceed to give judgment. This was the position taken by the High Court in J.A. Plant (Gh) Ltd vrs. Mahamadas Company Ltd (Suit No: BC 127/2015; judgment dated 15th January, 2016). In that case, the High Court noted that the defendant had knowledge of the time, date and place of the trial and yet failed to appear. Accordingly, the court entered judgment in favour of plaintiff per the reliefs endorsed on the writ based on the viva voce evidence and the exhibits filed by the plaintiff therein. In such circumstances there cannot be a breach of the audi altarem partem rule of natural justice when it is clear that sufficient opportunity was given to a party to be present and heard on the matter but same was abused by him. A party who has been duly served with processes and accordingly notified of court proceedings has no one but himself to blame when he is made to suffer the consequences or liabilities for not attending court. I am fortified in this view by the case of The Republic Vrs. High Court (Fast Track Division) Accra, Ex Parte State Housing Corporation (No. 2) (Koranteng Amoako - Interested Party) [2009] SCGLR 185 where the Supreme Court speaking through Wood JSC (as she then was) stated the position of a Defendant who fails to attend court as follows; “…A party who disables himself or herself from being heard in any proceedings cannot later turn around and accuse an adjudicator of having breached the rules of natural justice...” (See also The Republic vrs. Court of Appeal, Accra, Ex Parte East Dadekotopon Development Trust and Anor (Civil Appeal No. J5/39/2015, judgment dated 30th July 2015) where the Supreme Court again took the same view). It is well-established principle in evidential law that a party who asserts a fact assumes the responsibility of proving same. The burden of producing evidence as well as the burden of persuasion lies on both a plaintiff and defendant, and the standard of proof required in civil cases is on the “preponderance of the probabilities”. These evidential rules have been provided for by the virtue of sections 10,11 and 12 of the Evidence Act, 1975 (NRCD 323). In Ababio vrs Akwasi IV [1994-1995] GBR 774 Aikins JSC expounded on this position of the law as follows: “The general principle of law is that it is the duty of a Plaintiff to prove what he alleges. In other words, it is the party who raises in his pleadings an issue essential to the success of his case who assumes the burden of proving it. The burden only shifts to the defence to lead evidence to tip the scaled in his Lorna Johnson vs. Mobile Edge Limited and Anor 4 favour when on a particular issue, the Plaintiff leads some evidence to prove his claim. If the Defendant succeeds in doing this she wins, if not, she loses on that particular issue.” Similarly, in Ackah vs. Pergah Transport Ltd [2010] SCGLR 728 these evidential rules were summed up eloquently by her Ladyship Adinyira JSC where it was held that: “It is a basic principle of the law of 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 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…. 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 than its non-existence. This is a requirement of the law on evidence under sections 10 and 11 of the Evidence Decree.” However, it is also noted that the position of the law is that where a party makes an averment and that averment is not denied, no issue is joined and there is no need for the party making the averment to lead evidence on that averment to establish same. What is more, 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. In Tutu vs. Gogo (Civil Appeal No 25/67, dated 28th April 1969, Court of Appeal, unreported, digested in [1969] CC 76), Ollenu JA (as he then was) stated: “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." This position was also stated in Fori vrs. Ayerebi [1996] GLR 627 SC and reiterated by Brobbey J (as he then was) in the case of Hammond vrs. Amuah [1991] 1 GLR 89 at 91. See also the case of Takoradi Flour Mills vrs. Samir Faris [2005-2006] SCGLR 890. As I have already emphasised above, having failed to take the opportunity to contest the facts led against them or tender evidence to the contrary, Defendants herein are deemed to have Lorna Johnson vs. Mobile Edge Limited and Anor 5 admitted the facts presented by Plaintiff and have shown by their own conduct to have no defence to the action. I accordingly enter judgment in favour of Plaintiff for all her stated reliefs. Defendants are ordered to pay to Plaintiff the sum of Seventeen Thousand Ghana Cedis (GHC 17,000) being the outstanding balance of financial assistance given to the Defendants on 27th September 2022 by Andromeda Allotey which Plaintiff and 2nd Defendant guaranteed for the due repayment of same. Defendants are further to pay interest at the prevailing bank rate on the sum of the said amount of Seventeen Thousand Ghana Cedis (GHC 17,000) from 28th September 2022 till date of final payment in accordance with the Court (Award of Interest and Post Judgement Interest) Rules, 2005 (C.I 52). Costs of Fifteen Thousand Ghana Cedis (GHC 15,000) is further awarded in favour of Plaintiff. SGD. MAAME YAA A. KUSI-MENSAH (MS). MAGISTRATE Lorna Johnson vs. Mobile Edge Limited and Anor 6