Adusah Appiah v Onyina (A11/16/24) [2025] GHADC 146 (20 January 2025)

IN THE DISTRICT COURT HELD AT NEW TAFO-AKIM ON MONDAY 20-01- 2025BEFOREHER WORSHIP JOSEPHINE SARFO(MRS.) SUITNO: A11/16/24 DANIELADUSAHAPPIAH MID-TAFO,AKIM PLAINTIFF VRS ONYINA EMELIA OLDTAFO-AKIM DEFENDANT PLAINTIFF-PRESENT DEFENDANTABSENT REP.BY COMFORT KPORVI (MOTHER) JUDGMENT The Plaintiff issued a writ of summons out of the registry of this Court on 11/10/23 forthe following reliefs: a. An order of the court at defendant to refund an amount of GHC 3,500.00 to Plaintiff for an improper sale ofa container shop at Old Tafo-Akim since May, 2022. b. Costoflitigationand any order(s) the Court maydeem fit. It is the case of Plaintiff that sometime in April 2022, he entered into an agreement with the defendant to rent her container shop located at Old Tafo and in pursuance of the agreement he paid an amount of GHC 1,000.00 to the Defendant as rent for three years. Subsequently, the Defendant approached him and expressed her desire to sell the shop to the Plaintiff to defray her debts. He agreed to purchase the 1 container and the parties agreed on GHC 5,200.00 as the purchase price for the shop. The Plaintiff avers that the defendant agreed to use the rent amount of GHC 1000.00 as part payment and he subsequently made payment of GHC 1,700.00 to the Defendant who had informed him that she was going to use the money to pay off her creditors. According to the Plaintiff, he used an amount of GHC 1,800.00 to renovate the shop. Sometime in May 2022, the shop was taken over by Advans Savings and Loan to defray the Defendant’s indebtedness. The Plaintiff avers that the Plaintiff and the mother pleaded with him to allow the aforementioned financial institution to confiscate the shop and promised to refund the Plaintiff’s money to him in three months’ time ie. at the end of August 2022. According to the Plaintiff he agreed with the Defendant for her to pay GHC 500.00 instead of GHC 1,800.00 being the cost of renovations solely on humanitarian grounds but added a caveat that should the Defendant fail to refund the total monies paid to her by the end of August, he was going to claim the full cost of renovations being GHC 1,800.00 in addition to the amount of GHC 2,700.00 which he had paid as part payment of the purchase price of the shop. According to the Plaintiff, the defendant failed to honor her obligation under their agreement and only refunded an amount of GHC 1,000.00 to him in October 2022. Thus the Defendant is indebted to him in the sum of GHC 3,500.00i.e. the sum of GHC 1,800.00 plus GHC 2,700.00 less the amount of GHC 1,000.00. Itisthe case ofthe Defendant that she indeed rented ashoptothe Plaintiff at the cost of GHC 1,000.00 for three years. That during the negotiations, she made the Plaintiff aware that she had used the shop as collateral for a loan and whenever the officials from the financial institution visits, he should let them know that Defendant was his sister. The Defendant avers that she later sold the shop to the Plaintiff for the sum of GHC 5,200.00 and the initial payment of GHC 1,000.00 was used as part payment. The Plaintiff later paid to her GHC 1000.00, GHC 500.00 and GHC 200.00 successively. According to the Defendant, together with her mother, they visited the 2 house of Plaintiff in respect of this matter and the Plaintiff told her to pay GHC 500.00 out of the GHC 1,800.00 he expended on renovation because of the financial challenges the Defendant was facing at the time. The Defendant avers that her mother paid GHC 1,000.00 to the Plaintiff leaving an outstanding balance of GHC 2,200.00 i.e. the initial part payment of GHC 2,700 plus the GHC 500.00 less the GHC 1000.00. It is significant to note that on the parties first appearance before the court, the Defendant admitted to owing the Plaintiff an amount of GHC 2,300.00. Thus, on 26th October, 2023, the court entered judgment on admission against the defendant in favour of the plaintiff for the recovery of cash sum of GHC 2,300.00. the court thereforeproceeded onafull trialin respectofthe outstanding sum ofGHC 1,200.00. The general rule in civil cases is that the party who by his writ or pleadings raises an issue essential to the success of his case has the burden of producing evidence to avoid a ruling against him on the issue. The same principle applies to a defendant who counterclaims. Both parties carry the burden of persuasion which requires proof by a preponderance of the probabilities. See Sections, 11,12, 14 of the Evidence Act 1975,NRCD323 The dictum of Brobbey JSC in the case of IN RE ASHALLEY BOTWE LANDS [2003 –2004]SCGLR 420is veryinstructive that: “The effect of sections 11(1) and 14 and similar sections in the Evidence Decree 1975 may be described as follows: A litigant who is a defendant in a civil case does not need to prove anything. The plaintiff who took the defendant to court has to prove what he claims he is entitled to from the defendant. At the same time if the court has to make a determination of a fact or of an issue, and that determination depends on the evaluation of facts and evidence the defendant must realize that the determination cannot be made on nothing. If the defendant desires a determination to be made in his favour, then he has a duty to help his own cause or 3 case by adducing before the court such facts or evidence that will induce the determinationto bemadein hisfavour…” It is therefore the Plaintiff who generally must prove its case on the preponderance of probabilities. However, where the Defendant files a counterclaim, then the same burden of proof would be used in evaluating and assessing its case just as is used to evaluate or assess the case of the Plaintiff against the defendant. In this case, however, the Defendant did notcounterclaim. Thus, it is thePlaintiff who is to prove thecase onpreponderance ofprobabilities under section 11(4)ofNRCD323. In an attempt to prove his case, the Plaintiff lead evidence and tendered into evidence an inventory of the total cost of GHC 1,800.00 incurred in renovating the shop which was marked as Exhibit A. in the course of the trial, the Defendant did not dispute this amount of GHC 1,800.00 neither did her witness, Comfort Kporvi, DW1. Both parties and DW1 admitted that the Plaintiff incurred the sum of GHC 1,800.00 in renovations. The point of divergence was whether or not the Defendant was to pay GHC 500.00 or the entire GHC 1,800.00 in addition to the purchase price of GHC 2,700.00. the Plaintiff testified that he agreed for the Defendant to pay GHC 500.00 on condition that the total amount due him would be paid to him by the end of August failure on the part of Defendant would mean that the full amount of GHC 1,800.00 would be paid by the Defendant. The Defendant failed to live up to her promise to pay the debt at the end of August 2022. The Defendant and her witness, DW1 denied that there was any such caveat from the Plaintiff however admit that they were unable to pay the Plaintiff the total amount due him at the end of August 2022 and only paid an amount of GHC 1,000.00 sometime in October 2022 after they havebeen approached by the Plaintiff. I find from the evidence led before this court that the parties agreed that the Defendant was going to pay the entire cost of GHC 1,800.00 being the cost of renovations in the event that she failed to honour her word to pay the debt of GHC 4 3,200.00at the end ofAugust 2022. Having failed toliquidate the said debt in August 2022,she cannot insist on paying GHC 500.00 instead of the fullcost ofGHC 1,800.00. In the case of BCM GHANA LIMITED VS. ASHANTI GOLDFIELDS LIMITED {2005-2006} SCGLR 602AT611THE SUPREMECOURT OBSERVED THAT: “ The cardinal presumption in the interpretation of a document is that the parties arepresumed tohave intendedwhat theyhavein fact written orsaid” In the case of Middle stone Vs. Brown {1878} 38 L.T. 334 at 355: Jessel M.R. stated asfollows: “ It appears to me a matter of the utmost importance that the Court should keep men totheir bargainswhen fairly entered into” The Defendant must be compelled to pay the Plaintiff the full cost of renovations being GHC 1,800.00 instead of GHC 500.00 having reneged on her earlier promise to liquidate heroutstanding indebtedness tothePlaintiff in August 2022. Onthestrength ofthe Plaintiff’s evidence therefore, Ienter judgment in favour ofthe Plaintiff against the Defendant asfollows: a. Recovery of cash sum of GHC 3,500.00 being the sum total of the initial deposit on the store i.e GHC 2,700.00 and the cost of the renovated shop i.e. GHC 1,800.00. b. CostofGHC 1000.00awarded against theDefendant infavourofthe Plaintiff. DECISION I conclude that the Plaintiff has proved his case on a preponderance of probabilities and I find Plaintiff’s claim convincing as against the case of the Defendant. I accordingly enter judgment in favour of the Plaintiff and order the Defendant to refund the amount of GHC 3,500.00 being total indebtedness of the Defendant to the Plaintiff. I awardcost ofGHC 1000.00against Defendant in favourofthePlaintiff. 5 SGD H/W JOSEPHINE SARFO(MRS) 6