ATULEY VRS. APPIAH (A9/02/2025) [2025] GHADC 26 (9 January 2025)

IN THE DISTRICT COURT, NEW EDUBIASE HELD ON THURSDAY 9TH JANUARY, 2025 BEFORE HER WORSHIP ANASTACIA Y.A. KARIMU ESQ. SUIT NO: A9/02/2025 KWAME ATULEY PLAINTIFF VRS. JONAH APPIAH DEFENDANT JUDGMENT 1. This is a judgment concerning the recovery of money and an order for ejection. 2. By a Writ of Summons dated 24th October, 2024 the plaintiff seeks against the defendant the following reliefs: a. Payment of GH¢320.00 being non-payment of rent for eight (8) months at the rate of GH¢40.00 per month, b. An order to eject the defendant from the room for non-payment of rent for the past eight (8) months without adhering to the several demands made by the plaintiff, and c. Cost.” 3. The defendant denied liability and stated that it was rather the plaintiff who owed him for additional expenses he incurred to complete the room before he moved in. Page 1 of 11 4. The case of the plaintiff is that in the year 2022 the defendant and his friend by name Musah came to his house in search of a room to rent. He informed the defendant he had a room available but same was uncompleted. The defendant agreed to take it, and he rented the said room for GH¢40.00 per month for two (2). He rented out the room for that price and for the length of time because he knew Musah. The total amount for the rent was GH¢960.00. The defendant the said sum of GH¢960.00 to him, out of which he took GH¢400.00 and asked the defendant to use the rest to complete the works in the room, namely casting the floor, plastering the room and putting up the ceiling. After this meeting, he did not hear from the defendant again until he sent a message to his wife in January 2023 to find out from him whether he had finished the works in the room. His wife came to inform him the defendant had already completed the room and had moved in. The tenancy agreement expired this year, so he called to inform the defendant. It was at this time that the defendant told him that he had done other works besides what he told him to do, without his consent. When he asked the defendant why he didn’t tell him, the defendant told him he rather informed his friend Musah. According to him, the defendant wants to capitalize on his illiteracy to manipulate him. He did not tender any exhibits, neither did call any other witness. 5. The case of the defendant is that his friend Abubakar Musah led him to rent an uncompleted room belonging to the plaintiff. The plaintiff agreed to rent the room at GH¢40.00 per a month for two (2) years. He made an initial payment of GH¢400.00 leaving an outstanding balance of GH¢560.00, which amount the plaintiff agreed for him to use to complete the room. The plaintiff informed his friend Musah to supervise the completion of the works he was to undertake. However, it took three months before he could start work on the room because a tenant of the plaintiff by name Abu would not give him access to the room. When he was finally given access to the room, Page 2 of 11 he completed works in the room as well as other major works on the veranda. One day he received a call from the plaintiff telling him to vacate the room because his tenancy had expired. He informed the plaintiff it would be unfair to vacate the room because he had spent his own money to carry out major works in the room and the veranda. He proposed they sit down to calculate the additional amount he spent on the room and veranda and how many months of rent the said amount would cover but the plaintiff refused and instituted this action. According to him, the amount of GH¢560.00 given to him by the plaintiff was insufficient to cover the works he undertook on the room and veranda. The following are the works he undertook on room: he fixed the ceiling, erected a door, plastering, and electrifications. He also carried out major works on the veranda. He tendered in evidence Exhibits 1, 2, and 3. He called one witness in support of his case. 6. The issues for determination are a. Whether or not the tenancy agreement between the plaintiff and the defendant commenced in 2022 or 2023, b. Whether or not the defendant owes the plaintiff rent arrears of GH¢320.00, c. Whether or not the plaintiff was aware of the additional works undertaken by the defendant, d. Whether or not the plaintiff asked Abubakar Musah to supervise the defendant to complete the outstanding works on the room, and e. Whether or not the defendant should be ejected from the plaintiff’s premises 7. A plaintiff who summons a defendant to court bears the onus to proof his case on the preponderance of probabilities. Section 11(1) of the Evidence Act, 1975 (NRCD 323) provides that “For the purposes of this Decree, the burden of producing evidence means the Page 3 of 11 obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue.” Preponderance of 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.” 8. The Law Reform Commission in its commentary on section 11 of NRCD 323 stated thus: “The party with the burden of producing evidence is entitled to rely on all the evidence in the case and need not rest entirely on evidence introduced by him. The party with the burden of producing evidence on the issue may point to evidence introduced by another party which meets or helps meet the test of sufficiency. It is for this reason that the phrase ‘on all the evidence’ is included in each of the tests of sufficiency.” 9. In Bisi and Others v. Tabiri alias Asare [1987-1988] 1 GLR 360 the court quoted with approval the explanation of the word probability given in an American case as follows “preponderance of evidence… becomes the triers belief in the preponderance of probability. An American decision Norton v. Futrell, 149, Cal App. 2d 566 (1957) has explained that: The term ‘probability denotes an element of doubt or uncertainty and recognizes that where there are two choices, it is not necessary that the jury be absolutely certain or doubtless, but that it is sufficient if the choice selected is more probable than the choice rejected.” 10. Taylor, JSC (as he then was) expanded on the meaning of section 11(4) and 12 of the Evidence Act, 1975 (NRDC 323) in Odametey v. Clocuh and Another [1989] 1 GLR 14 as follows: “I think the current principle is quite clear at least since 1st October, 1979 when NRCD 323 came into force… The position is this: If the plaintiff in a civil suit fails to discharge the onus on him and thus completely fails to make a case for the claim for which he seeks relief, then he cannot rely on the weakness in the defendant’s case to ask for relief... if, however, he Page 4 of 11 makes a case which could entitle him to relief if the defendant offers no evidence, then if the case offered by the defendant when he does give evidence discloses any weakness which tends to support the plaintiff’s claim, then in such a situation the plaintiff is entitled to rely on the weakness of the defendant’s case to strengthen his case...” 11. Thus, failure to lead sufficient evidence would lead to a ruling against the plaintiff. He cannot rely on the weakness in the defendant’s case to obtain his relief. Nevertheless, a plaintiff can, as the above-mentioned cases state, take advantage of the weaknesses in a defendant’s case to strengthen his only after he has successfully established same. In Nartey v. Mechanical Lloyd Assembly Plant Ltd [1987-1988] 2 GLR 314 at page 344, the Supreme Court speaking through Adade JSC held thus: “It is true that a person who comes to court, no matter what the claim is, must be able to make a good case for the court to consider, otherwise he fails. But that is not to say that having succeeded in establishing some case, he cannot take advantage of conflicting admissions and other weaknesses in the defendant’s case.” 12. The plaintiff testified that the defendant came to rent the room in the year 2022. He maintained this claim under cross-examination by the defendant and when he cross- examined the first defence witness. This assertion was denied by the defendant who contended that he rented the room in January 2023. The claim of the defendant was supported by the first defence witness, and eyewitness to the agreement. He confirmed that the plaintiff rented out the room to the defendant in January 2023 and gave the exact day in January 2023 the plaintiff made part payment to the defendant. This is what he said in his evidence, “We gave money to the plaintiff on 22nd January, 2023. The tenant of the plaintiff prevented the defendant access to the room for three months. The defendant began works on the room in May 2023.” The position of the law is that where a Page 5 of 11 party makes an averment and his averment is denied, he is unlikely to be held by the court to have sufficiently proved that averment by his merely going into the witness box, and repeating the averment on oath, if he does not adduce that corroborative evidence which (if his averment be true) is certain to exist: Majolagbe v. Larbi and Others [1959] GLR 190. On the evidence before me, I find as a fact that the tenancy agreement between the parties was entered into in January 2023. 13. This being the case, does the defendant owe the plaintiff rent arrears of GH¢320.00? Having found that the tenancy agreement was entered into in January 2023, this means the defendant’s lease is set to expire at the end of this month, that is January 2025. However, the defendant averred that he was prevented from completing works on the room and moving in for three months after he made payment. This evidence is corroborated by the defence witness who testified that works on the room commenced in May 2023. The plaintiff denies this and claims the issue was resolved within one week. He also claims that after the defendant paid him GH¢400.00 and they agreed to have the defendant complete the outstanding works on the room before moving in, he did not hear from the defendant again until he called him to vacate the room this year. There is no evidence before this court on the precise amount of time it took the defendant to complete the works. There is equally no evidence before this court on the exact date the defendant moved into the house. The only evidence before this court is that the defendant began works in May 2023. It is therefore reasonable to conclude that he completed the works in May 2023. 14. Was the plaintiff aware of the additional works carried out by the defendant? The plaintiff’s answer is a denial while the defendant’s answer is positive. The defendant stated that he carried out additional works in the room and the veranda of the room Page 6 of 11 after he informed the first defence witness whom the plaintiff had instructed to supervise the works he was to undertake. Thus, the works were carried out with the knowledge and consent of the plaintiff. The plaintiff vehemently denied this assertion and contends that he was told about the additional expenses by the defendant when he called to inform the defendant to vacate the room because his lease had expired. Although the defence witness admits he was instructed to supervise the works undertaken by the defendant, he testified that he only supervised the plastering. The cost incurred by the defendant are the purchase of six bags of cement, four trips of sand, transportation of the sand by a tricycle, and workmanship. According to the witness, if the defendant carried out additional works, he cannot tell because he stopped supervising him after the plastering. 15. The defendant tendered in evidence exhibits 1, 2, and three. Exhibits 1 and 2 are receipts for building supplies bought. Exhibit 3 is a plain sheet of paper with a list of building materials purchased and their corresponding prices. This court is unable to tell which materials were used for the ceiling, erection of a door, plastering, and installation of wires. While the defendant testified that the first defence witness was aware of the additional expenses he incurred on the room, the witness testified that he was aware of the expenses incurred by the defendant on the plastering and no other works. 16. The plaintiff also stated that he did not put the defence witness in charge of the works. This evidence was also contested by the defendant and his witness. The defendant stated that he informed the plaintiff through the first defence witness about every additional expense he incurred because the plaintiff had put the first defence witness in charge of supervising the works he was to carry out on the room. When the defence Page 7 of 11 witness gave evidence, he stated that he supervised the plastering of the room and informed the defendant about every item purchased. However, he stopped supervising the defendant after the plaintiff threatened to curse him for trying to steal from him by insisting the cost of a bag of cement cost GH¢91.00 instead of GH¢35.00. This evidence was also not challenged by the plaintiff. 17. The plaintiff, who admitted in his evidence that he knew the first defence witness, denied knowing him and putting him in charge of the works on the room during cross-examination by the defendant and when he cross-examined the defendant. This is what ensued on 2nd December, 2024: “Q: Why did you not account for the money I gave you? A: Because you gave the money to Musah and instructed him to supervise the work. Every step I took I informed Musah so I thought he was giving you updates on the works. Q: It is not true that I put Musah in charge of the completion of the room. You were the one who came to rent the room. A: Yes you did. It was through Musah that I got to know you. You put him in charge of the works that were to be done on the room. Whatever issues I had I told Musah because you put him in charge. Q: It is not true. I do not know the said Musah. And I did not put him in charge of the toom. I gave you GH¢560.00 to finish plastering the floor and the wall. I am putting this to you. A: You gave me the money to count which I did. I then gave the money to Musah to also count. After Musah counted, he gave you the money. You counted and gave it back to Musah. The amount we counted was GH¢400.00. I kept the GH¢560.00 to Page 8 of 11 finish the works on the room. You told me to inform Musah if I incur additional expenses.” 18. The evidence of the first defence that he knew the plaintiff, had lived with him in his father’s house and still lives with him, and the room the subject matter of this suit in the house of the plaintiff is located behind his father’s house was not challenged by the plaintiff during cross-examination. This is what transpired on 4th December, 2024: “Q: I found out about the expenses when I asked the defendant to vacate the room. A: You were aware of the expenses we incurred when I supervised works on the room… Q: I gave money to the defendant to finish works on the house. Therefore, there was no reason for me to ask you to supervise the works. A: It is not true. I live with the plaintiff in the same house. I was part of those who built the first two rooms in his house. I bought the cements for the construction of the first two rooms you built in your house. I was secretary for the construction. I was part of every aspect of the construction. So, you are not being truthful to the court. I was the one who took the GH¢400.00 from the defendant and handed it to you.” 19. Clearly the plaintiff’s assertion that he does not know the witness and therefore did not ask him to supervise the defendant to complete works on the room is not true. 20. Upon the facts, I have come to the following conclusions: a. The lease agreement between the parties was entered into in January 2023, Page 9 of 11 b. The plaintiff agreed to have the defendant complete the remaining works on the room. The plaintiff gave the defendant GH¢560.00 to complete the works, c. The defendant began works on the house in May 2023, meaning the defendant’s lease will expire in June 2025, d. The defendant instructed Abuakar Musah to supervise the defendant to complete the works, e. Abubakar stopped supervising the defendant after the plastering was complete, and f. The defendant incurred additional cost in casting the floor, plastering the room and putting up the ceiling. However, the said amount cannot be determined from the evidence on record. 21. The plaintiff, the defendant and the first defence witness are to sit down, reconcile accounts, and determine the additional expenses incurred by the defendant in casting the floor, plastering the room and putting up the ceiling. The additional cost incurred by the defendant is to be taken as additional rent which should be at the current rate. The current rate is to be used to determine the number of months the additional amount will cover. After the determination of the above, the parties are to sign a tenancy agreement covering the new lease. The agreement shall commence from June 2025. A copy is to be filed at the registry of the court. 22. The claim of the plaintiff therefore fails and is accordingly dismissed. Cost of GH¢500.00 against the plaintiff. ANASTACIA Y.A. KARIMU ESQ. Page 10 of 11 [MAGISTRATE] Page 11 of 11