Gyasi v Aweh (BA/KPO/12/2024) [2025] GHADC 232 (6 February 2025)

IN THE DISTRICT COURT KINTAMPO HELD ON THURSDAY 6TH FEBRUARY 2025 BEFOREHIS WORSHIP KWAMEADJEI MANUESQ. SUITNO: BA/KPO/12/2024 GEORGE GYASI - PLAINTIFF VRS LYDIAAWEH - DEFENDANT JUDGMENT 1. BACKGROUND 1.1. Plaintiff commenced this actionagainst Defedant claiming against her thus: “An order for the payment of Two Thousand Five Hundred Ghana Cedis (GHS 2,500.00) being the balance owing and due on account of Kia of Mangoes defendant bought from Plaintiff on 16th July, 2023 which said balance defendanthas failedor refused topay despite repeated demands” 1.2. The suit was tried summarily with Pleadings not ordered, so parties’ respective cases were gleaned entirely from the writ of summons, statements made in Court and the entirety of processes filed in the suit, they being lay persons acting pro se. I have thus extended to them all the necessary indulgence to ensure the deciphering and effective determination of the issues in contention. This is in discharge of the Court’s duty as discussed in Mante and Another v. Botwe [1989- 90]2GLR479where TaylorJ.S.C had this tosay: “In this connection, it is worthy of note that our judges have traditionally taken the view that some indulgence should be shown to illiterates appearing before our courts as is illustrated by the editorial note of Hayes Redwar J. in his judgment in Bossom v. Attonie (1897) Red. 199 at 201. See also the Page1of15 judgment of the Full Court (coram Sir William Brandford Griffiths C.J. and Francis Smith J.) in Ansah v. Kwesi Essuman (1898) Ren. 136 and the Fiakpoli Concession (1903)Ren. 281.” 1.3. Adade J.S.C. in Nartey v. Mechanical Lloyd Assembly Plant Ltd. [1987-88] 2 G.L.R. 314, S.C. restated this important duty owed to lay court users especially where they act in person. This principle has seen mention severally by the courts in cases such as Edun v. Koledoye (1954) 14 W.A.CA. 642. as relied on in Wiafe v. Kom [1973] 1 GLR 240. The Justice S.A. Brobbey (Retired) observed in his book Practice and Procedure in the Trial Courts and Tribunals of Ghana, 2011 onthis duty, whichobservation I proposed to be guided by thus: “Sometimes the task of deciphering the precise claimfrom "home- made" writs, especially those prepared by letter writers, is no mean one. The best approach is to be guided by the principle enunciated in Atiafu v Dzaka [1962] 1 GLR 280which concerned actions in the erstwhile native courts. In that case, itwas held that in actions where writs have been prepared by semi-literates, one has to look to the issues involved rather than the wording of the writ of summons. Similar views were expressed in Ankrah v Ankrah [1966] GLR 60, SC and Donkor vNkrumah [1964] GLR739,SC.” 1.4. Consequently, this Court in determining the issues has meticulously examined all filings submitted by parties to identify the core issues at hand. The cases presentedby each party areaddressed in thefollowing discussion. Page2of15 2. PARTIES’ CASES Plaintiff’scase 2.1. Plaintiff’s case according to his summary of the subject matter of his claim is that he sold what the Court concludes is aKia truckload of Mangoes at aprice ofGHS 15,000.00 to Defendant sometime around 16th July 2023. According to him, Defendant paid the sum of GHS 12,500.00 leaving a balance ofGHS 2,500 unpaid, and all efforts made for Defendant to pay the remainder have been without fruit, hence his decision tosue. Defendant’scase 2.2. Defendant admitted liability to the sum of GHS 1000.00 and insisted that this was the extent of her debt to Plaintiff. The effect of this is that there was no issue joined with Plaintiff as to the existence of the debt, but it was only in respect of the quantum of the debt that Defendant took exception. Therefore, the primary issue raised by this court on parties’ processes for trial is whether Plaintiff is still entitled to recover from Defendant the sum of GHS 1500.00 being the balance of the purchasepriceagreed between parties. 3. BURDENOF PROOF ANDPARTIES’ EVIDENCE Burden ofproof 3.1. Parties in civil litigation must succeed on the strength of their own case and not by a reliance on the weaknesses in that of their opponent. A party must persuade the Court and establish the requisite degree of proof in the mind of the Court by producing sufficient evidence. Section 10(1) of the Evidence Act, 1975 (NRCD 323) provides that “For the purposes of this Decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the Court”. In addition, Section 11(1) of the Evidence Act Page3of15 1975 (NRCD 323) sets out the burden on a party to produce evidence in a matter beforethe Courtinthese terms: “For the purpose of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against himon an issue”. 3.2. The law as stated by the Supreme Courtin Ackah v.PergahTransport Ltd. & Ors (2010)SCGLR 728,is that: “It is a basic principle of the law on evidence that a party who bears the burdenof proof isto producethe requiredevidence of the facts inissue that has the quality of credibility short of which his claim will fail. The method of producing evidence is varied and it includes the testimonies of parties 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 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 probable than its non-existence. This is a requirement of the law on evidence under sections 10(1) and (2) and 11(2) and (4) of the Evidence Act, 1975(NRCD323)” 3.3. Applying Ishack v. Praba (2007) 12 MLRG 172 at 181, the general principle of law is that it is the responsibility of Plaintiff to prove his case by substantiating his allegations. More specifically, the party who raises an issue in their pleadings that is essential to the success of their case assumes the burden of proving it. The Page4of15 burden shifts to Defendant to present sufficient evidence to tip the scales in their favor only when Plaintiff has provided some evidence to support their claim on a particular issue. If Defendant succeeds in providing this evidence, they prevail onthat issue and if not, they fail. 3.4. In the case of Memuna Moudy and Others v. Antwi [2003-2004] 2 SCGLR 967 at pages 974-975 , the Supreme Court speaking through Wood JSC (as she then was) explained asfollows: “A cardinal principle of law on proof as enunciated in the age-old case of Majolagbe v Larbi (1959) GLR 190 and reiterated in a number of cases, including Zabrama v Segbedzi (1991) 2 GLR 221at 246, is that, a person who makes an averment or assertion which is denied by his opponent, has the burden to establish that his averment or assertion is true. And he does not discharge his burden unless he leads admissible and credible evidence from whichthe fact or facts he asserts can be properly and safely inferred.” 3.5. From the foregoing, the party who alleges a particular fact bears the burden of proving it and where the fact alleged by the party pleading it is denied by his opponent, an issue arises for determination. Additional statutory support for this point is found at section 14 of the Evidence Act, 1975 (NRCD 323) which provides that: "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 claimor defence he is asserting." Page5of15 3.6. Though Plaintiff bears the initial responsibility of proving what he claims he is entitled to from Defendant, the burden is not static and shifts as explained in In Re Ashalley Botwe Lands; Adjetey Agbosu & Ors v. Kotey & ORS [2003-2004] 1 SCGLR 420. As further set out in statute at section 17 of the Evidence Act, this burden shifts from party to party at various stages of the trial, depending on the issue(s), and the facts asserted and or denied. Section 17 of NRCD 323 provides asfollows: “17.Allocationof burdenofproducing evidence Exceptas otherwise provided by law, (a)the burden of producing evidence of a particular fact is on the party against whom a findingon that factwould be required inthe absence of further proof; (b)the burden of producing evidence of a particular fact is initially on the party with the burdenof persuasion as to that fact.” 3.7. I have stated elsewhere that parties to this suit are lay persons and unrepresented by counsel, so this Court will indulge them by not holding their their technical inability against them. Their failures to cross-examine onparticular facts orissues shall not be held against them, but the entire evidence on record shall be evaluated holistically minded by the rules of law espoused in Edun v Koledoye(supra), Mante v Botwe(supra) and Wiafe v. Kom (supra) that where parties in a summary trial were not represented by counsel, strict application of the rules of cross-examination would defeat the ends of justice. The proper test as will be applied is to ascertain the existence of positive admissions of facts in issue and if not, the existence of contrary evidence from the opposing party's side. All issues of fact joined in the suit shall be resolved where justified on the credibility ofparties and their witnesses. Page6of15 Plaintiff’sevidence 3.8. A significant evidentiary admission made by Plaintiff is that the Price of the Mangoes purchased was negotiated with a person called Baba Yara, who introduced Defendant to Plaintiff. Defendant did not challenge this fact or lead contrary evidence thereto. An additional matter relevant to this suit in Plaintiff’s evidence is his testimony thathe offered toreduce the price ofthe mangoes in the evening after Defendant had left with them when he received a call from his brother through whom Defendant was pleading for a reduction in price. He made an offer for Defendant to pay a reduced price of GHS 13,500.00 on the sole condition that Defendant would retire the entire sum immediately, an offer Defendant did not take the benefit of. Defendant did not challenge this or lead any contrary evidence to it. It is trite law that such a conditional offer lapses if its attendantconditions are notme. 3.9. Baba Yara who testified as PW1 corroborated Plaintiff’s case substantially. He testified that after negotiating the price between parties at GHS 15,000.00 Plaintiff called him in the evening of the same day to inform him that Defendant did not pay him the full purchase price. His testimony was that before he left since it was getting late, he had seen Plaintiff and Defendant disagreeing, with Plaintiff demanding he be paid the full purchase price which at that time had not been paid. He subsequently informed Plaintiff that the issue of payment of the purchase price was between parties. Defendant did not challenge any portion of PW1’sevidence. Defendant’sevidence 3.10. Defendant’s testimony admitted the sale of the mangoes to her but explained that her inability to immediately pay the entire amount was due to the fact that her buyers had not paid her the full amounts in respect of the mangoes which she further sold to them. It is noteworthy that she did not in her evidence-in-chief Page7of15 mention how much parties agreed on as the purchase price and exactly how much she paid leaving a balance which according to her was GH 1,000.00. She attempted under cross-examination to assert that the agreed purchase price between parties was GHS 12,500.00 for the entire truckload out of which she paid GHS 11,500.00 leaving the balance of GHS 1000.00, but she contradicted this by admitting that she paid Plaintiff GHS 12,500.00, which was through another person. 3.11. I surmise from the unchallenged evidence that this payment of GHS 12,500.00 occurred on the same day parties agreed on the purchase price, so if true, no balance would have remained for Defendant to pay. Her assertion that the agreed price was GHS 12,500.00 is therefore unsupported by the evidence on record. It is also an unchallenged fact on the record that Defendant did not pay any of the remainder of the purchase price until she was served with the originatingprocessin this suit. 3.12. Under Section 80 of the Evidence Act, NRCD 323 this Court may determine the credibility of a witness and the truthfulness of testimony by considering matters including “(c) the existence or non-existence of a fact testified to by the witness; (g) a statement or conduct which is consistent or inconsistent with the testimony of the witness at the trial;” I am inclined toward a conclusion not only that Defendant’s testimony holds limited truth, but also that she is notacredible witness. 3.13. In assessing evidence led by parties, the Court is mindful of the settled rule of law as applied in Takoradi Flour Mills v Samir Faris [2005-2006] SCGLR 882 by Ansah JSC at page 890referring to Tutu v Gogo, Civil Appeal No 25/67,dated 28 April 1969, Court of Appeal, unreported; digested in (1969) CC 76, where Ollenu JA saidthat: Page8of15 “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 the evidence are deemed to have been admitted by the party against whom it is led, and must be accepted by the court.” 3.14. Samuel Okudzeto Ablakwa & Anor v. Jake Obetsebi Lamptey & Anor [2013- 2014] 1 SCGLR 16, is authority for the point that where a matter is admitted proof is dispensed with. The effect of admission of a fact advantageous to an opponent’s case was discussed 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 at 656, where the court explained theeffect ofadmissionsthus: “Where an adversary has admitted a fact advantageous to the cause of a party, the party does not need any better evidence to establish that factthan by relying on suchadmission, which isan example of estoppel by conduct.” 3.15. Inmaking the findings offact that I shall proceed to do shortly, I have considered whether there is sufficient evidence on the record to support them. The test of satisfactoriness or sufficiency of evidence is the degree of belief that it creates in the mind of the trial court concerning facts or facts in issue so that at the end of assessment of facts on all the evidence adduced, a reasonable mind should come to conclusion that the existence of a fact in issue is more probable and reasonable than its non-existence. This standard that has been applied in myriad cases including Ackah v. PergahTransportLtd [2010] SCGLR 728,731. Page9of15 3.16. Additionally Her Ladyship Mrs. Wood, as she then was, in Yeboah vrs. Amofa (1997-1998) 1 GLR 674 at page 683 observed concerning the sufficiency of evidence thus: “I notice from section 11 of NRCD 323 that the statute does not attempt any definition of “sufficient evidence”. In other words no attempt is made in disclosing what evidence will be deemed sufficient and what could be classified as insufficient. The reason is not difficult to find. It is definitely a question of fact determinable on the peculiar facts of each particular case. So that what constitutes sufficient evidence in case A may not necessarily be sufficient evidencein case B..............” The effect of Her Ladyship’s observation that what the law requires of a person in each case is to lead such particular or sufficient evidence as the circumstances of the case would permit, so that on all the evidence a reasonable mind would conclude the probabilities of the existence rather than the non existence of a fact onwhich the success ofhis case required, orat least tosupport afinding thereon. 3.17. The duty of the Court in this suit is to assess all the evidence on record to determine in which of the parties’ favour the balance of probabilities is tilted. In the discharge of this duty, I rely on the mind of the Court in the case of in re Presidential Election Petition (No. 4) Akuffo-Addo & Ors. v. Mahama & Ors. [2013] SCGLR(Special Edition) 73,where the Supreme Court held at page 322as 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 versionsand is deserving of a favourable verdict.” Page10of15 3.18. There being no credible contradictory evidence from Defendant’s quarters on record, I find therefore,that Defendant paid only GHS 12,500.00out of the agreed purchase price which I further find to be in the sum of GHS 15,000.00, before the service ofthe writ in this suit. 4. DISCUSSIONOF THEISSUE whether Plaintiff is still entitled to recover from Defendant the sum of GHS 1500.00 being the balance of the purchase price agreed between parties. 4.1. Under the Sale of Goods Act 1962 (Act 137), Plaintiff as a seller had a duty under Sections 8 and 13 to deliver conforming goods of fit quality. It is unchallenged that the harvest of the mangoes was done in the presence of Defendant who ordinarily would discover any defects in them, and it has also not been urged on the Court that there were any latent defects in the goods. At any rate, relying on Faibi v State Hotels Corporation [1968] GLR 471 any evidence of such defect would be known to Defendant and within her power to prove, so the Court will holdherfailure to provesame asanadmissionofits non-existence. 4.2. Under Section 34 of Act 137, Plaintiff is an unpaid seller as defined under subsection (1)(a) since the whole of the price has not been paid or tendered. Plaintiff’s indulgence granted to Defendant to pay the price after retrieving her money from her buyers although not a part of the initial agreement between parties has clearly been disregarded by Defendant. She breached this actionable promise and on that strength alone, damages ought to lie against her beyond recovery of the purchase price. It would be right for the Court to estop her from denying this promise which as discussed in Ibm World Trade Corporation v. Hasnem Enterprises Ltd [2001-2002] 2 GLR248 was made with the intention that Page11of15 the Plaintiff should rely onit, which was in fact relied on by Plaintiff as proven to this Court. 4.3. The principle of promissory estoppel as referred to by some as equitable estoppel was explained by Denning J (as he then was) in the case of Central London Property Trust Ltd v. High Trees House Ltd [1947] KB 130 where it was held, asstated inthe headnote thus: “... where parties enter into an arrangement which is intended to create legal relations between them and in pursuance of such arrangement one party makes a promise to the other which he knows will be acted on and which is in fact acted on by the promise, the court will treat the promise as binding on the promisor to the extent that it will not allow him to act inconsistently with it even although the promise may not be supported by consideration in the strict sense...” 4.4. Beyond this, Plaintiff has his Personal Rights under Act 137 among others to sue forthe price. Section46ofthe Actreads: 46.Action forprice (1) Where, under a contract of sale of goods, the property has passed to the buyer, and the buyer wrongfully refuses or neglects to pay for the goods according to the terms of the contract, the seller may maintain an action againstthe buyer for the price of the goods. (2) Where, under a contract of sale of goods, the price or a part of the price is payable on a certain day, and the buyer wrongfully neglects or refuses to pay the price or the part which has become due, according to the terms of the contract, the seller may maintain an action for the price or the part which has become due, although the property in the goods may not have passed to the buyer. Page12of15 (3) Where, under a contract of sale of goods, the seller delivers part only of the goods and the buyer accepts or is bound to accept that part, the seller may maintain an action against the buyer for a proportionate part of the price without prejudice to a counterclaim by the buyer for damages in accordance with section53. (4) Subsection (3) does not apply to a contract to which Part One of the Contracts Act, 1960 (Act 25)applies. (5) This section does not prevent a seller from maintaining an action for damages in addition to an action for the price where the circumstances warrant. 4.5. It goes without saying, that Plaintiff is entitled under Sections 46(1)(2) and (5) to sue not only to recover the price of the goods sold, but also for damages in respect of the breach of the contract of sale. The authorities in case law are numerous on this point. Regarding interest which I have concluded that Plaintiff is entitled to recover with the unpaid part of parties’ agreed purchase price, as explained by the Court in Kama Health Services Limited v. Unilever Ghana Limited (2013) JELR 68603 (SC), parties need not provide in their contract that interest shall be paid in the event of a breach. Interest payment follows failure of a contract under which payment has been made, as a form of damages for breach ofcontract. 4.6. By the Court (Award of Interest and Post Judgement Interest) Rules, 2005 (C.I. 52) it is provided at Rule 1 that if the court in a civil cause or matter decides to make an order for the payment of interest on a sum of money due to a party in the action, that interest shall be calculated (a) at the bank rate prevailing at the Page13of15 time the order is made, and (b) at simple interest, but where an enactment, instrument or agreement between the parties specifies a rate of interest which is to be calculated in a particular manner the court shall award that rate of interest calculated in that manner. In this suit there is no contractual or statutorily applicable rate. Rule 2(1) of C.I. 52 provides that Subject to subrule (2) each judgment debt shall bear interest at the statutory interest rate from the date of delivery of the judgment up to the date of final payment. I have in this suit decided that is fair that all sums of money ordered to be paid must attract the appropriateinterest. 4.7. The statutory orprevailing bank rateas provided under Rule 4(1) is the bank rate prevailing at the time the judgement or order is made by the court and where there is doubt as to the prevailing bank rate, the 91 days Treasury Bill interest rate as determined by the Bank of Ghana shall be the prevailing bank rate as provided by rule 4(2). I fall on the reasoning of the Supreme Court in Daniel Oforiv. Ecobank Ghana Limited (2020) JELR92012(SC), since to my mind there is no agreed or other statutorily applicable rate. I assess interest in this suit at the statutory rate of 28.41% per annum, which I have taken notice of as the Bank of Ghana 91-day treasury bill interest rate as at judgment. It is at this rate that interest on all previous sums ordered to be paid in this suit by the Court shall be computed. CONCLUSION In conclusion, Plaintiff’s action succeeds, and judgment is entered in his favour to recover fromDefendant as follow: a. The sum of One Thousand Five Hundred Ghana Cedis (GHS 1,500.00) with interest atthe statutoryrateof28.41% per annum from16th July, 2023till final payment. Page14of15 b. Costs of Three Thousand Ghana (GHS 3000.00) with interest at the statutory rate in order“a.”above fromjudgment till finalpayment. SGD. KWAMEADJEI MANU ESQ. (DISTRICTMAGISTRATE) Parties present (Unrepresented) Page15of15