AKAATALI VRS ISSAHAKU (UE/BG/DC/A2/287/2024) [2024] GHADC 611 (17 December 2024)

*HWMNJ@DC/BLG-17/12/2024* CORAM: HIS WORSHIP MAWUKOENYA NUTEKPOR (DISTRICT MAGISTRATE), SITTING AT THE DISTRICT COURT, BOLGATANGA IN THE UPPER EAST REGION OF GHANA, ON TUESDAY, THE 17TH DAY OF DECEMBER, 2024. SUIT NO. UE/BG/DC/A2/287/2024 AKAATALI SYLVESTER PLAINTIFF OF YIKENE-BOLGATANGA VRS. YUSSIF ISSAHAKU DEFENDANT OF BOLGATANGA TIME: 08:50AM PLAINTIFF ABSENT REPRESENTED BY RUPERT ATUILE DEFENDANT PRESENT NO LEGAL REPRESENTATION FOR THE PARTIES JUDGMENT Introduction 1. The Plaintiff commenced this action on 25th July, 2024 and claimed against the Defendant as follows: - a. Recovery of the sum of GH₵3,500.00 being cost of electrical works or materials plaintiff paid to the defendant to extend electricity to plaintiff’s house, Wiage. *JUDGMENT-AKAATALI SYLVESTER VRS. YUSSIF ISSAHAKU (SUIT NO. A2/287/2024) * Page 1 of 10 *HWMNJ@DC/BLG-17/12/2024* b. Interest on the said GH₵3,500.00 at the current prevailing Commercial Bank rate. c. Cost Plaintiff’s Case 2. The plaintiff avers that somewhere in December, 2022, he asked his brother, Roland Aputiik to get an electrician to do some electrical works for plaintiff in Wiaga in the Builsa North District of the Upper East Region and the brother contacted one Abu who is an electrician in Sandema. Plaintiff avers that Abu informed his brother that the defendant is an electrician in that District and can help him. Plaintiff says he made his brother to contact the defendant and the defendant gave him an estimate amounting to GH₵8,800.00 for the whole work. Plaintiff contends that on 16th December 2022 he made a deposit of GHC3,500.00 to defendant to start the work and the defendant acknowledged receipt. Plaintiff says few days later defendant started the work to erect the poles but the line passed through someone’s plot and there was an issue so he stopped; and that defendant was to wait for that issue to be resolved. 3. Plaintiff says that within the following two (2) days that matter was resolved and defendant was to continue with the work but has failed to do so. Plaintiff further states that he has made several demands for the defendant to complete the work or refund his money to him but all his efforts proved futile. Plaintiff says the defendant has evinced an intention not to refund the money to him unless compelled by this Honourable Court. Wherefore plaintiff prays for the above- mentioned reliefs. Defendant’s Case *JUDGMENT-AKAATALI SYLVESTER VRS. YUSSIF ISSAHAKU (SUIT NO. A2/287/2024) * Page 2 of 10 *HWMNJ@DC/BLG-17/12/2024* 4. The defendant on the other hand says that is true that the Plaintiff engaged him through Plaintiff’s brother to do some electrical works for him. It is the defendant’s case that upon receipt of the said GHC3,500.00, he immediately engaged the services of a crane driver to lift plaintiff’s four (4) cement electric poles to the site and this was done to the knowledge of the plaintiff. Defendant denies the fact that the challenge faced by him on site was the line passing someone’s plot. Defendant says that the resistance faced by plaintiff in his attempt to extend the electricity came from the community members because the plaintiff as a member of the community failed or refused to pay his contribution during the time that the community made contributions to bring electricity to the community. Defendant says further that plaintiff took him to another location to do the work in order to avoid the resistance of the community members but the same resistance was encountered at the second place. 5. Defendant says that it was only on 2nd day of March, 2024, that plaintiff came to his house and could not meet him but met his son. Defendant says Plaintiff came again on 5/3/2024 to introduce himself to him as the person defendant was to do the electrical work for. Defendant says that was the first day both plaintiff and defendant met each other in person. Defendant says Plaintiff informed him on that day (5/3/2024) that he had come for refund of the GHC3,500.00 paid to Defendant for the work because he (plaintiff) had engaged another electrician to do the work for him. It is the defendant’s case that plaintiff never considered the expenses defendant incurred during the attempts to extend the electricity for the plaintiff. The defendant stated the details of his alleged expenses during his engagement by the plaintiff totaling GHC3,300.00 as follows: *JUDGMENT-AKAATALI SYLVESTER VRS. YUSSIF ISSAHAKU (SUIT NO. A2/287/2024) * Page 3 of 10 *HWMNJ@DC/BLG-17/12/2024* a. Transportation of four (4) concrete electric poles, electric cables and other materials to the site at GHC1,800.00 per day for hiring of the vehicle. b. Feeding fee for the driver who transported the poles and materials GH₵200.00. c. Digging of four pole holes at the two different locations at GH₵100.00 per hole amounting to GHC800.00 d. Digging of three (3) stain holes at the first location and two (2) at the second location at GH₵100.00, per hole amounting to GHC500.0 Total…………………………….. GH₵3,300.00. Defendant therefore prays that the plaintiff is not entitled to his reliefs and same should be dismissed with punitive costs. Burden of Proof 6. The obligations or duties of parties to lead evidence; and to persuade the court, as to the credibility of their allegations are covered both by statute and plethora of authorities. The law is that he who alleges must prove. Under sections 10, 11, 12 and 14 of the Evidence Act 1975 (NRCD 323) the burden of who has the responsibility to lead evidence is clearly set out. These are burdens of leading evidence and the burden of persuading a tribunal by leading credible evidence. Sections 11(1)(4) and 14 of the Evidence Act 1975 (NRCD 323) provides as follows: *JUDGMENT-AKAATALI SYLVESTER VRS. YUSSIF ISSAHAKU (SUIT NO. A2/287/2024) * Page 4 of 10 *HWMNJ@DC/BLG-17/12/2024* 11(1) For 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. (4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence. 14 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 claim or defence he is asserting.” 7. There are two parts to the duty to discharge the burden of proof. Thus, the twin burdens of proof and standard of proof contained in the provisions are: (a) There is the burden of leading evidence to back an assertion; and (b) the burden of persuasion i.e. leading evidence of sufficient standard to persuade a tribunal to rule in one’s favour. See the case of Isaac Alormenu vs. Ghana Cocoa Board, Civil Appeal No. J4/86/2022, delivered on 8th February 2023. 8. In the case of In re Ashalley Botwe Lands; Adjetey Agbosu & Ors v Kotey & Ors [2003-2004] SCGLR 420, at pp. 464-465, Brobbey JSC explained the law on burden of proof thus: “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 *JUDGMENT-AKAATALI SYLVESTER VRS. YUSSIF ISSAHAKU (SUIT NO. A2/287/2024) * Page 5 of 10 *HWMNJ@DC/BLG-17/12/2024* court has to make a determination of a fact or of an issue, and that determination depends on evaluation of facts and evidence, the defendant must realize that the determination cannot be made on nothing. If the defendant desires the determination to be made in his favour, then he has the duty to help his own cause or case by adducing before the court such facts or evidence that will induce the determination to be made in his favour. The logical sequel to this is that if he leads no such facts or evidence, the court will be left with no choice but to evaluate the entire case on the basis of evidence before the court, which may turn out to be only the evidence of the plaintiff.” 9. In Ackah v Pergah Transport Ltd., 2010] SCGLR 728, Sophia Adinyira JSC stated on the burden of proof at p.736 as follows: “It is a basic principle of law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. The method of producing evidence is varied and it includes the testimonies of the party and material witness, 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 minds 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 reasonable that its non-existence. This is a requirement of the law on evidence under Section 10(1) and (2) and 11(1) and (4) of the Evidence Act, 1975 (NRCD 323)”. 10. Also, it is a settled principle of law that a bare assertion or merely repeating a party’s pleadings in the witness box without more does not constitute proof. In *JUDGMENT-AKAATALI SYLVESTER VRS. YUSSIF ISSAHAKU (SUIT NO. A2/287/2024) * Page 6 of 10 *HWMNJ@DC/BLG-17/12/2024* Klah V. Phoenix Insurance Co. Ltd [2012] 2 SCGLR 1139, this principle was reiterated: “Where a party makes an averment capable of proof in some positive way e.g. by producing documents, description of things, reference to other facts, instances and his averment is denied, he does not prove it by merely going into the Witness box and repeating that averment on oath or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances from which the Court can be satisfied that what he avers is true.” See also the following cases on the burden of proof: Air Namibia (Pty) Ltd. V. Micon Travel & Tour & 2 Ors, [2015] 91 G.M.J, page 177, Majolagbe v Larbi & others (1959) GLR 190-195 and Klutse v. Nelson [1965] GLR 537 Evaluation of Evidence, Discussion of Issues and Legal Analysis 11. Plaintiff testified himself and called two (2) witnesses. The Defendant also testified himself and called two (2) witnesses. The evidence of the parties is similar to the above brief facts. 12. The issues for determination in this case are: (a) whether or not the defendant liable to refund the sum of GHC3,500 to Plaintiff with Interest. It is not dispute that plaintiff gave GHC3,500.00 to the Defendant to extend electricity to his house. However, the defendant claims he has incurred expenses to the tune of GHC3,300 hence he is not liable to refund the sum of GHC3,500.00 to the Plaintiff. Thus, the Defendant herein claims he incurred expenses in the sum of GHC3,300 during an attempt to extend electricity to Plaintiff’s house. This claim in law is referred to us special damages. The Black’s Law Dictionary (Sixth Edition) defines Special *JUDGMENT-AKAATALI SYLVESTER VRS. YUSSIF ISSAHAKU (SUIT NO. A2/287/2024) * Page 7 of 10 *HWMNJ@DC/BLG-17/12/2024* damages as “those which are the actual, but not the necessary result of the injury complained of and which in fact follow it as natural and proximate consequence in the particular case that is by reason of special circumstances or condition. To be recoverable, they must flow directly and immediately from the breach of contract and must be reasonably foreseeable. Special damages must be specially pleaded and proved.” 13. In the case of Royal Dutch Airlines (KLM) and Another v. Farmex Limited (1989- 1990) 2 GLR 263 holding 3, it was held that: “Special damages must be specially pleaded and specifically proved. But the rule did not imply that if one claimed general damages only, one could not lead evidence of specific damages as a foundation for an award of general damages. In coming to a decision as to how much general damages to award, the court would need some guidance as to financial loss…” 14. Also, the Supreme Court speaking through Twum, JSC in Delmas Agency v Food Distribution [2007-2008] 2SCGLR 749, held in holding 3 that: “Special damages are distinct from general damages. General damages are such as the law will presume to be the natural or probable consequences of the Defendant’s act. It arises by inference of the law and therefore need not be proved by evidence. The law implies general damages in every infringement of an absolute right. The catch is that only nominal damages are awarded. Where the Plaintiff has suffered a properly quantifiable loss, he must plead specifically his loss and prove it strictly. If he does not, he is not entitled to anything unless general damages are also appropriate.” *JUDGMENT-AKAATALI SYLVESTER VRS. YUSSIF ISSAHAKU (SUIT NO. A2/287/2024) * Page 8 of 10 *HWMNJ@DC/BLG-17/12/2024* 15. From the above-authorities, it is clear that not only must special damages be specifically pleaded and particularized, but it must be strictly proved with sufficient and credible evidence to show what was actually lost or spent. The defendant herein indeed pleaded and particularised the special damages or the amount that he allegedly spent during attempt to extend electricity to Plaintiff’s house. Despite the fact the Defendant pleaded and particularize the special damages or the expenses he incurred, a question to ask is whether or not he has succeeded or failed in proving the actual amount spent. 16. It is a settled principle of law that he who alleges must prove. The defendant testified that he spent GHC1,800 for transporting the concrete electric poles to the site. In other words, he claims he hired a crane to carry the poles to the site. This court is of the view that the defendant could have done a little bit more by tendering in evidence a receipt in support of renting the crane but that was not done. The defendant also maintains that they dug 8 holes and 5 stain holes at GHC100 per hole amounting to GHC1,300 as well as paid GHC200 to the driver who transported the poles to the site. The Plaintiff however denied that defendant incurred this expenses. From the evidence, this court is not convinced that the defendant spent GHC3,300 during an attempt to extend electricity to plaintiff’s house. The Defendant has therefore failed to prove strictly the alleged expenses he incurred. 17. Nevertheless, this court will award a reasonable amount in favour of defendant as the court found as a fact that the holes were dug at the site in preparation to extend electricity to plaintiff's house as well as sent the poles to the site. Indeed, general *JUDGMENT-AKAATALI SYLVESTER VRS. YUSSIF ISSAHAKU (SUIT NO. A2/287/2024) * Page 9 of 10 *HWMNJ@DC/BLG-17/12/2024* damages are such as the law will presume to be the natural or probable consequences of a party’s act. It arises by inference of the law and therefore need not be proved by evidence. See Delmas Agency v Food Distribution and Royal Dutch Airlines (KLM) and Another v. Farmex Limited supra. Accordingly, this court hereby awards the sum of One Thousand Six Hundred Ghana Cedis (GHC1,600.00) in favour of the defendant against the Plaintiff as nominal amount covering the expenditure defendant incurred in a attempt to extend electricity to plaintiff’s house. Accordingly, the defendant is to subtract the GHC1,600.00 from the GHC3,500.00 paid to him and refund the remaining balance of GHC1,900.00 to Plaintiff with interest at the prevailing commercial bank rate from December 2022 till the date of final payment. Conclusion 18. Having examined the whole evidence adduced by the plaintiff and the defendant on record in accordance with the foregoing authorities as well as the analysis, the court holds that plaintiff’s action succeeds in part. The defendant is hereby ordered to refund the sum of One Thousand Nine Hundred Ghana Cedis (GHC1,900.00) to the Plaintiff with interest at the prevailing commercial bank rate from December, 2022 till the date of final payment. No order as to costs. (SGD.) H/W MAWUKOENYA NUTEKPOR (DISTRICT MAGISTRATE) *JUDGMENT-AKAATALI SYLVESTER VRS. YUSSIF ISSAHAKU (SUIT NO. A2/287/2024) * Page 10 of 10