VORDZORGBE VRS. CHINEDU (A2/07/23) [2025] GHADC 43 (26 February 2025)

IN THE DISTRICT COURT “TDC” TEMA HELD ON WEDNESDAY THE 26TH DAY OF FEBRUARY 2025 BEFORE HER WORSHIP BENEDICTA ANTWI ESQ. SUIT NO: A2/07/23 FELIX ATSU VORDZORGBE PLAINTIFF TEMA VRS PAUL IKE CHINEDU DEFFENDANT OF KATAMANSO TEMA J U D G M E N T By a writ issued by the plaintiff on the 9th November 2022, he claimed the following reliefs against the defendant; 1. Payment of the sum of GH¢ 77,540.00 being the cost of electrical cables defendant purchased from plaintiff. 2. Interest on the said amount of GH¢ 77,540.00 at the prevailing bank rate with effect from December 2021 till date of final payment. 3. Cost The defendant failed to put in an appearance upon the service if the writ on him. The entire trial thus proceeded on the one-sided evidence of the plaintiff since the defendant failed to file any defense despite the due service of hearing notices on him. On the 13th October 2024, the plaintiff testified by relying on his witness statement filed on the 26th April 2023 as his evidence in chief. CASE OF PLAINTIFF Plaintiff is a businessman trading in electrical goods. Sometime in the year 2016, he sold goods to the defendant. The plaintiff did not demonstrate to the court the total amount of goods sold to the defendant. He however states in his statement of claim that the defendant paid part of the debt and was left with an outstanding bill of GH¢ 25,000.00. The defendant thereafter issued a cheque for the remaining sum but same was dishonored by the bank. The plaintiff alleges the remaining debt to be paid by defendant is the sum of GH¢ 77,540.00. BURDEN OF PROOF In every civil suit, the burden of proof lies on the party who asserts a claim. This burden requires a party to prove the existence or non-existence of a fact in issue. The burden of producing evidence as well as the burden of persuasion is cast on such a party and the standard of proof required to discharge the burden of persuasion in civil matters is one of preponderance of the probabilities. Sections 10, 12(1) and (2) and 11(4) of the Evidence Act, 1975 (NRCD 323) are the statutory provisions that deal with the burden of pproducing evidence and the standard of proof. However, the determination of whether a party has met the burden of producing sufficient evidence on a particular issue is a question of law to be determined by the court. These statutory provisions have been the subject of discussion in a plethora of decisions by the superior courts of Ghana. Some of the cases in point are Takoradi Flour Mills v. Samir Faris [2005-2006] SCGLR 882, In re Ashalley Botwe Lands; Adjetey Agbosu & Ors. v. Kotey & Ors. [2003-2004] SCGLR 420. A party can discharge the burden of persuasion by leading evidence to prove the claim and relief he seeks. In the case of In re Presidential Election Petition (No. 4) Akuffo-Addo & Ors. Vs. Mahama & Ors. [2013] SCGLR (Special Edition) 73, the Supreme Court held at page 322 of the report as follows: “Our understanding of the rules in the Evidence Decree, 1975 on the burden of proof is that in assessing 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 the more probable of the rival versions and is deserving of a favourable verdict.” ANALYSIS I have considered the unchallenged evidence of plaintiff before the court. This court further notes that the relief contained in the plaintiff’s writ are in the nature of liquidated claim. Order 8 of the District Court rules 2009 C.I.59 provides that; “Despite order 2 rule 4 of these rules, a plaintiff who wishes to place that plaintiff’s suit on the undefended list shall attach to the writ of summons an affidavit in support of the claim and all the documents which the plaintiff intends to rely on in support of the claim” The plaintiff in this case therefore was required to attach to his writ an affidavit together with all the documents he intended to rely on to prove his case. Having failed to comply with this requirement, this court gave the plaintiff the opportunity to file his witness statement and attach all the documentary evidence in support of his claim. The plaintiff merely repeated the averments in his statement of claim in his witness statement without more. There was no documentary evidence in support of the claim made by the plaintiff. Despite the failure of the defendant to put in a defense to the plaintiff’s claim, the burden of proof remained on the party who alleges to prove his case on its own strength and not on the weakness of his opponent’s case. Section 11 (4) of the Evidence Act NRCD 323 provides that; “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” In Majolarbi v Larbi (1959) GLR 190, it was held that when a party makes an averment in his pleadings which is capable of proof in a positive way and the averment is denied, that averment cannot be sufficiently proved by just mounting the witness-box and reciting the averment on oath without adducing some corroborative evidence. This evidential principle has been clarified in the Zabrama v Segbedzi (1991) 2 GLR 221, CA. I lay emphasis on the phrase “the averment is denied” in the above-stated authority. The plaintiff alleges that the defendant issued a cheque for the payment of the outstanding debt. This cheque was however dishonored upon presentation. Despite these allegations, the plaintiff could not produce a copy of the said cheque issued by the defendant. Neither did the plaintiff present the court with any receipts as to the business transaction which allegedly took place between the parties. However, in the instant suit, the defendant did not put in any appearance to deny the claims of the plaintiff. This court takes the view that where the defendant is duly served with the writ and has notice of the action pending against him, but takes no step at all to defend the action or have same dismissed on some grounds of law, then the court may consider the written statements of plaintiff contained in his writ enter judgment in default of defense against the defendant subject to the usual time-frame required to have same set aside. Accordingly and upon consideration of the liquidated reliefs endorsed on the writ, and pursuant to Order 8 rule 7 of the District Court Rules 2009, C.I 59 I hereby enter judgment in favor of plaintiff as follows; 1. Plaintiff is entitled to recover the sum of GH¢ 77,540.00 from defendant being the cost of electrical cables sold to defendant. 2. Interest on the sum in order 1 at the prevailing commercial bank rate from December 2021 till date of final payment. 3. Cost of GH¢ 500.00 in favour of plaintiff as against the defendant. SGD H/W BENEDICTA ANTWI (MS) DISTRICT COURT MAGISTRATE PARTIES PLAINTIFF- PRESENT DEFENDANT- ABSENT