BOATENG VRS. ASOBOALIBA (A2/13/2024) [2025] GHADC 7 (22 January 2025)

CORAM: HER WORSHIP EUGENIA ADUBEA FORDJOUR (ESQ), MAGISTRATE, DISTRICT COURT JACOBU, ASHANTI REGION ON THE 22ND OF JANUARY, 2025 SUIT NUMBER A2/13/24 RICHARD BOATENG PLAINTIFF OF H/NO. P30 PATASI BEKWAI VRS BABA MUSAH ASOBOALIBA Aka BABA OF JACOBU DEFENDANT ……………………………………………………………………… TIME: 10: 06AM PLAINTIFF: PRESENT DEFENDANT: ABSENT REPESENTATION: BENSON ADU-GYAMFI FOR MRS. HANNAH AFIA SARPONG FOR PLAINTIFF PRESENT DEFENDANT UNREPRESENTED …………………………………………………………………… JUDGMENT RICHARD BOATENG V BABA MUSAH ] e t a D [ 1 INTRODUCTION 1. The plaintiff herein instituted this action through his lawyer by filing a civil writ of summons on the 4th of December, 2023 with a supporting “Affidavit in opposition” which was struck out by the court for being out of place. The following are the reliefs of the Plaintiff before this court: a) Recovery of an amount of Thirty-Five Thousand Ghana Cedis (GH₵35,000.00). b) General damages for breach of agreement. c) Cost including solicitor’s fees. 2. The Defendant on his appearance in court pleaded NOT LIABLE to the claims and an order was made for the parties to file their respective witness statements. The plaintiff filed for himself on the 24/01/24 and attached “Exhibit A series” being three (3) separate photographs of his destroyed farms. He also attached “Exhibit B” being a demand notice dated 1/11/23 served on the defendant by his lawyer. RICHARD BOATENG V BABA MUSAH ] e t a D [ 2 THE CASE OF THE PLAINTIFF 3. The plaintiff stated per his witness statement that he is Richard Boateng, a retired security man while the defendant is a small scale miner. That he is the owner of a two and a half (2 ½) acre land situate at Fiankoma, Dotom-Jacobu and bounded by the properties of Agya Adu, Agya Atta, Agya Ponko and Agya Kramo’s farms. That he and his wife were cultivating on his land and could reap a great harvest from the farm. That somewhere in the year 2022 the defendant approached him to use his farm for his work. That they could reap not less than twelve (12) bags of cocoa annually. He stated that he orally agreed to give up his farm to the defendant for an amount of Ghc55,000.00. That the defendant after paying Ghc20,000.00 has refused to pay up the remaining amount but has proceeded to destroy his cocoa farm thereon. He attached pictures of the said destroyed farm and same marked as “Exhibit A series”. That the defendant owes him an outstanding balance of RICHARD BOATENG V BABA MUSAH ] e t a D [ 3 Ghc35,000.00 and has intentionally refused to effect payment despite several demands. That he even caused his lawyer to write to him but to no avail. He attached a copy of the letter and same was marked as “Exhibit B”. 4. PW1 also testified and stated that she is Akua Fosuaa, the wife of the plaintiff herein. She corroborated the evidence of the plaintiff in her witness statement by recounting almost the same account given by the plaintiff. 5. PW2 also testified and stated that he is Isaac Asumadu a.k.a Agya Adu, a farmer who lives at Fiankoma, Dotom-Jacobu. That he knows both parties in this matter and that he shares a boundary with the plaintiff. He stated that the defendant has made it a habit to trespass onto their lands and cultivate same without compensating them. That he has destroyed a portion of his cocoa farm which he has not yet paid for. That the defendant has destroyed the plaintiff’s farm to the extent that there are no cocoa trees thereon and that he has been unfair to the plaintiff. RICHARD BOATENG V BABA MUSAH ] e t a D [ 4 6. PW3 did not testify and accordingly his witness statement is expunged from the records. 7. The defendant did not appear to cross-examine any of the witnesses on their evidence adduced. 8. The plaintiff however informed the court on the 22nd day of July, 2024 that he has received an amount of Ghc5000.00 from the defendant. The court then advised the parties to reduce their terms of settlement into writing for adoption but same was not done. On the 15th of October, 2024, the plaintiff again informed the court that they had gone to survey the land and has renegotiated the price with the defendant. That the balance to be given to him by the defendant is Ghc7,500.00 which he has refused to pay despite several calls placed on him. He insisted on subsequent adjourned dates that the balance of Ghc7,500.00 has still not been paid up by the defendant. THE CASE OF THE DEFENDANT 6. The defendant clearly had no case to put up since he elected not to show up to contest the matter despite the issuance of RICHARD BOATENG V BABA MUSAH ] e t a D [ 5 several Hearing Notices on him. He therefore waived his right to be heard and on the authority of John Dramani Mahama vrs. Electoral Commission & 1 Or (Amended Presidential Election Petition Presidential Election held on 7th December, 2020) [2021] Unreported, SC Writ No. J1/5/2021 ( 11th February, 2021) his witness statement cannot be regarded as evidence as he failed to mount the witness box, take an oath, pray the court to adopt same and be subjected to cross- examination. The witness statement of the Defendant is thus expunged from the evidence before me. RELEVANT LAWS Burden of Proof 8. In civil cases, it behoves on the plaintiff to win his case on a preponderance of probabilities under sections 11 (4) and 12 of the Evidence Act, 1975 (Act 323). These sections have been clearly explained in cases such as Sarkodie v FKA Company Ltd [2009] SCGLR. Section 11(4) provides that “In other circumstances the burden of providing evidence requires a party to produce sufficient evidence which on the totality of RICHARD BOATENG V BABA MUSAH ] e t a D [ 6 the evidence, leads a reasonable mind to conclude that the existence of the fact was more probable than its non- existence”. 9. Section 12(1) also provides that “Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities”. Section 12(2): “Preponderance of the probabilities means that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence”- See Yorkwa v Duah (1992-1993 1 GBR 278 CA, Tarkoradi Flour Mills v Samira Faris [2005-2006] SCGLR 882, In Re Ashalley Botwe Lands; Adjetey Agbosu & Ors v Kotey & Ors [2003- 2004] SCGLR 420. 10. The law is certain that when a party does not show up to contest a matter despite the fact that hearing notices have been served on him, then he is deemed to have waived his right to be heard and on the authority of Ankumah v City Investment Co. Ltd [2007-2008] 1 SCGLR 1064, the Court is entitled to proceed against him. The law is also settled that the right to RICHARD BOATENG V BABA MUSAH ] e t a D [ 7 be heard is an inalienable right which should not be taken from a party. However, if a party is aware of a hearing date, but fails to appear in Court it means he has waived this right – Julius Sylvester Bortey Alabi v Paresh & 2 Ors(2018) 120 GMJ 1 SC, also Republic v High Court (Fast Track Division) Accra; Ex Parte State Housing Co. Ltd(No.2),(Koranten- Amoah Interested Party) [2009] SCGLR 185, Republic v High Court(Human Rights Division) Accra; Ex Parte Akita (Mancell-Egala & Attorney General -Interested Parties)[2010] SCGLR 374. 11. Similarly, when a party has given evidence of a material fact and is not cross-examined on same, he needs not call further evidence to establish that fact as there is an implied admission -Kusi & Kusi v Bonsu [2010] SCGLR 60, Danielli Construction Limited v Mabey Johnson Ltd [2007-2008] SCGLR 60. ANALYSIS 13. On a preponderance of probabilities, the Plaintiff`s evidence adduced before this court makes it more probable RICHARD BOATENG V BABA MUSAH ] e t a D [ 8 than not that, the defendant owes him an amount of Gh₵7,500.00. Since the evidence of the Plaintiff remained uncontested and unchallenged by the defendant’s failure to rebut same, the presumption is that the defendant has conceded to the claims of the Plaintiff as established in the case of Isaac K. Kobi & 24 Ors v Ghana Manganese Company Ltd Civil Appeal No. H1/70/2004 dated (24/6/24) where the Court of Appeal per Quaye JA opined as follows: “The law is quite succinct that where a party leads evidence and his opponent fails to take him on, shake or puncture the claims or allegations of fact he has made, then there is a presumption in law that the opponent who has failed to cross-examine on the fact, has conceded the correctness of the fact alleged…” Per the uncontested evidence before me, I find no reason to doubt the veracity of the plaintiff`s claim that the defendant is indebted to him to the tune of Ghc7,500.00. 14. On Relief 2, the plaintiff is seeking for General Damages for breach of agreement. Although the terms of the initial oral agreement have been altered by a renegotiation between the RICHARD BOATENG V BABA MUSAH ] e t a D [ 9 parties, the defendant has at present not fully honoured his obligations towards the plaintiff and has therefore caused him some losses in respect of his land. In the case of Juxon-Smith v KLM Dutch Airlines [2005-2006] SCGLR 438 at 445 per Wood JSC: “We would, therefore, relying on Parke B’s dictum in Rebinson v Harman (1843-60) All ER Rep 383 conclude that in contract, the correct statement of the law on the measure of damages is: Where a party sustains a loss by reason of a breach of a contract, he is so far as money can do it, to be placed in the same situation with respect to damages, as if the contract had been performed…” However, since the initial oral contract entered between the parties has been made redundant by their subsequent renegotiation, I shall award general damages of Ghc2000.00 against the defendant in favour of the plaintiff. 16. On Relief 3, the plaintiff is claiming for costs including solicitor’s fees. I shall award a total cost of Ghc5000.00 as the parties have renegotiated in the cause of this matter and some payments have been made to the plaintiff. RICHARD BOATENG V BABA MUSAH ] e t a D [ 10 FINAL ORDERS a. I find for the plaintiff to recover from the defendant, the sum of GHc7,500.00. b. General damages of Ghc2000.00 awarded against the defendant in favour of the Plaintiff. c. Costs of Ghc5000.00 awarded against the defendant in favour of the plaintiff. SGD H/W EUGENIA ADUBEA FORDJOUR MAGISTRATE, JACOBU DISTRICT COURT RICHARD BOATENG V BABA MUSAH ] e t a D [ 11