COFFIE VRS. OKYERE (A2/189/2024) [2024] GHADC 591 (30 December 2024)

IN THE DISTRICT COURT, NEW EDUBIASE HELD ON MONDAY 30TH DECEMBER, 2024 BEFORE HER WORSHIP ANASTACIA Y.A. KARIMU ESQ. A2/189/2024 CHARLES COFFIE PLAINTIFF VRS. KWABENA OKYERE DEFENDANT JUDGMENT 1. On 24th July, 2024 the plaintiff filed a writ of summons for the following reliefs: a. Payment of GH¢600.00 b. An order for the defendant to fix the plaintiff’s metal container damaged by the defendant, and c. Payment of GH¢450.00 being the cost of one trip of motor king tricycle sand 2. The plaintiff filed an affidavit in support to his writ of summons, to which he attached a tenancy agreement. The defendant in his affidavit in opposition denied liability and stated that the plaintiff failed to mount his metal container after signing the tenancy agreement. He admitted that he owed the plaintiff Gh¢154.00 being rent for fourteen months, that is from July 2024 to September 2025. 3. The issues for determination are Page 1 of 7 a. whether or not the plaintiff is entitled to the recovery of GH¢600.00 from the defendant, b. whether or not the defendant is liable for the damage caused to the plaintiff’s container, and c. whether or not the plaintiff is entitled to the recovery of GH¢450.00 being the cost of one trip of motor king tricycle sand. 4. The case of the plaintiff is that in …the defendant rented to him a piece of land on which to mount his container. When he went to prepare the land for the container to be mounted, the defendant told him to hold on until the funeral rites of his sister was completed. After the funeral, he went to see the defendant to find out whether he could go ahead with his preparation on the land for the container to be mounted. The defendant gave his approval. He together with his brother and John Awutey went on the land to deposit sand and water. However, when they got there, a younger brother to the defendant prevented them from depositing the sand and the water on the land. Another sister of the defendant by name Eno, told her younger brother that the defendant was the one who gave them permission to mount the container on the land. Eno then gave them a room to store the water, and they deposited the sand on the land. When he and his brother John Awutey later returned to prepare the land, they found out that the container had been destroyed by a truck which had gone on the same land to deposit sand. He informed the defendant who assured him he would repair the container. However, the defendant failed to repair the container. He reported the matter to the Assemblyman of the area to talk to the defendant to repair his container, but this also proved futile. He called two witnesses in support of his case. 5. The case of the defendant is that in September 2021 the plaintiff came to him to ask for a land to mount his container which he gave. The plaintiff came and Page 2 of 7 placed the container on land for a year before he paid an amount of GH¢500.00 on the 9th of September,2022. After the plaintiff made payment, he travelled and, on his return, the plaintiff came with the Assembly member of Aburaso to his house to tell him the plaintiff’s container had been damaged. He assured them he would find the culprit. Once he found out who damaged the container, he instructed the person to repair same. Once the container was repaired, he informed the assembly member and a linguist by name Charles to inform the plaintiff. The Plaintiff upon hearing the news came to inspect the container and thanked him for the good work done. After the container was repaired, the plaintiff did not work with same but left the contained abandoned on the land. He was there when the plaintiff served him with the present suit. He called two witnesses to support his case. 6. 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 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.” 7. 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.” Page 3 of 7 8. 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.” 9. 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 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...” 10. 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 Page 4 of 7 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.” 11. The evidence on record supports the assertion of the defendant that the plaintiff paid GH¢500.00 as rent for a period of three years. Contrary to the evidence of the second plaintiff witness, there is no clause in the tenancy agreement which states that the yearly rent is GH¢200 per year. Where a contract is reduced into writing, the court is duty bound to give effect to the terms of the contract. The terms of the contract are as follows…from the terms, it is clear that the parties entered into a tenancy agreement from… to … I find that the plaintiff paid an amount of GH¢500.00 as rent for the defendant’s land situate at… for a period of three years to the defendant beginning... 12. In his affidavit in opposition, the defendant averred that the plaintiff took his container to his land in June 2021, but the contract for the lease of the land was entered into on 9th September, 2022. This assertion is supported by the plaintiff’s answer during cross-examination by the defendant. When the defendant asked him how long the container has been on his land, the plaintiff’s response was “Two years, ten months.” 13. The plaintiff’s claim is that the defendant has failed to repair his damaged container, which damage was caused by the defendant’s nephew. The plaintiff contends that the defendant has failed to repair the damage to the container after same was reported to him, thus preventing him from mounting same for use by his wife. While the defendant readily admits that the plaintiff’s container was damaged by his nephew and he repaired same when it was brought to his notice, he denies liability for the current damage to the container which damage he contends was caused after the plaintiff left the container unused after he repaired it. Thus, according to him, the container has been damaged twice. Both Page 5 of 7 parties called one witness each to support his claim. The plaintiff called his brother who testified that the defendant never fixed the damaged container. While he testified that he came to see the container after the plaintiff informed him same had been destroyed, he does not state how he got to know the defendant never repaired the container, whether he was told by his brother or went to inspect the container a second time and confirmed same had not been repaired. While the plaintiff stated during cross-examination that he went with his brother to inspect the container only to find it unrepaired, the evidence of the first plaintiff’s witness is silent on this. His evidence was not challenged by the defendant during cross-examination. I find as a fact that the defendant’s brother prevented the plaintiff and his brother from mounting the container on the land. 14. On his part the defendant, through his second witness Justice Appiah testified that the plaintiff’s container was repaired by the defendant’s nephew who was the one who damaged it. He testified that he was present when the welder hired by the defendant’s nephew came to the land to repair the container. He also testified that he was present when the plaintiff came to inspect the repaired container as well as when the plaintiff came with another man in the evening of the same day to thank the defendant. This evidence was not challenged by the plaintiff in cross-examination. I find that the plaintiff’s container was damaged by the defendant’s nephew. Equally, I find as a fact that the defendant had the container repaired by his nephew who caused the damage. 15. Having failed to mount the container after same was repaired by the defendant, the defendant cannot be held liable for the unused trip of sand and water placed on the land by the plaintiff. Consequently, the defendant is not liable for the cost of the sand and water. Page 6 of 7 16. As earlier stated, the contract is for a period of three years, beginning 9th September, 202. Since the execution of the contract, two years two months has elapsed, leaving unexpired term of twelve months of the contract. Per the terms of the agreement, the yearly rent for the land comes to GH¢166.67. The suit was instituted in August 2024, meaning there is one year outstanding on the lease. The defendant is hereby ordered to refund an amount of GH¢166.67 being the cost of the outstanding lease within fourteen days. The amount is to be paid into court. The plaintiff is hereby ordered to remove his container from the defendant’s land within fourteen days from today. 17. There will be no order as to cost. H/W ANASTACIA Y.A. KARIMU ESQ. [MAGISTRATE] Page 7 of 7