DANSO VRS FATI (A2/01/2025) [2024] GHADC 639 (29 November 2024)

IN THE DISTRICT COURT HELD AT DAMBAI ON FRIDAY THE 29TH DAY OF NOVEMBER 2024 BEFORE HIS WORSHIP ALHASSAN DRAMANI, ESQ. DISTRICT MAGISTRATE SUIT NO. A2/01/2025 DANSO LUCKY PLAINTIFF DAMBAI ZONGO VRS AUNTY FATI DEFENDANT DAMBAI ZONGO ________________________________________________________________________ PARTIES PRESENT PARTIES UNREPRESENTED JUDGEMENT The Plaintiff herein claims against the Defendant for: 1. Recovery of a total of GH¢1,019.00 being rent advance of GH¢900 and financial assistance of GH¢119.00 Plaintiff gave to Defendant. 2. Interest on the above stated amount. 3. Cost. The Defendant denied liability of all the claims of the Plaintiff and stated that she had a reasonable defence. THE CASE OF THE PLAINTIFF The Plaintiff’s case was that in the year 2022 he rented a single room apartment from the Defendant at the cost of GH¢450.00 per year. Plaintiff said he made three years advance payment of GH¢1,350.00 to Defendant. Plaintiff stated that after staying in the room for a year the Defendant started harassing him and ordered Defendant to vacate the room. According to Plaintiff whilst living in the house of Defendant, Defendant borrowed an amount of GH¢119.00 from Plaintiff which she has refused to pay back. Plaintiff said he has vacated Defendant’s house and hence is entitled to a refund of two years rent advance (GH¢900.00) plus the amount of GH¢119.00 the Defendant borrowed from him. The Plaintiff did not call any witness in support of his case hence closed his case after his evidence. THE CASE OF THE DEFENDANT In her defence the Defendant admitted taking an amount of GH¢1,350.00 as three year rent advance payment for a single room in Defendant’s house. The Defendant however vehemently denied harassing or inducing the Defendant to quit the house. The Defendant also denied ever taking financial assistance from the Plaintiff let alone the amount being GH¢119.00. Defendant said whilst the Plaintiff was living in her house, the Plaintiff’s brother visited the Plaintiff and when the said brother was leaving he gave Defendant GH¢50.00 due to the warm reception Defendant gave Plaintiff’s brother. Defendant said the plaintiff who appeared unhappy with this gesture tried to collect the money from Defendant but Defendant resisted the attempt. According to Defendant the entire house is connected to only one electricity meter and each time the ECG brings a bill it is shared among members of the house. Plaintiff said for some months now the Plaintiff has refused to pay his share of the electricity bills which conduct resulted in a huge debt compelling the ECG to disconnect the entire house from the national grid. Defendant said all efforts made by her to get Plaintiff pay the bills was unsuccessful so Defendant and the other tenants who were students, managed to pay off the arrears. Defendant sated that she afterwards caused Plaintiff’s room to be disconnected from the electricity supply. Defendant added that the Plaintiff summoned her before some elders of the community and after listening to both sides the elders advised Defendant to refund the remaining rent to Plaintiff since Plaintiff had at the time parked most of his belongings from the room and living elsewhere. Defendant said based on the above he deducted an amount of GH¢200.00 from Plaintiff’s remaining two years rent advance and gave an amount of GH¢700.00 to the elders to be given to Plaintiff but Plaintiff rejected the money insisting on collecting the two years advance payment of GH¢900.00 in full. Defendant said even though Plaintiff does not more live in the room he still has some of his personal belongings in the room and has thus locked up the room and refused to hand over the keys to Defendant till date. The Defendant called two witnesses as DW1 and DW2. DW1, Hajia Salamatu told the court that at all material times she lived in the house with the parties but never witness the Defendant harassing the Plaintiff. She further told the court that she is aware that Plaintiff owe electricity bill but has refused to pay. DW1 further told the court that the Plaintiff even though does not currently live in the room he still has some of his personal belongings in the room and is thus keeping the key despite several efforts made by Defendant to have vacant possession of the room. DW2, Alhaji Samiru Abu in his testimony stated that he was one of the elders the Plaintiff approached following the dispute with Defendant. DW2 added that when they met the parties, the Plaintiff told him that he does not intend to stay in the house gain but unless his rent advance was refunded to him, he was not ready to hand over the room key to Defendant. DW2 said Defendant was advised to refund Plaintiff rent advance to him which the Defendant complied with and brought an amount of GH¢700.00 to DW2 which amount was in turn handed over to Plaintiff but Plaintiff rejected the money insisting that it was left with a balance of GH¢200.00 and until the balance was added he will not accept the money nor will he hand over the key of the room to Defendant. Thereafter, the Defendant brought her case to close. The legal issues to be determined are as follows: 1. Whether or not the Plaintiff is entitled to a refund of two years rent advance (GH¢900.00). 2. Whether the Plaintiff owe electricity bill of GH¢200.00 3. Whether the Defendant took GH¢119.00 from Plaintiff as financial assistance The standard of proof in civil cases is on a balance of probabilities as per sections 11(4) and 12 of the Evidence Act, 1975 (NRCD, 323); and the general rule is that the burden of proof rests upon the party, whether plaintiff or defendant, who substantially asserts the affirmative of the issue. In the case of Bank of West Africa Ltd. v Ackun [1963] 1GLR 176-182, S.C., Sarkodee- Addo JSC stated: “…The party who in his pleadings raises an issue essential to the success of his case assumes the burden of proof . . . The issue must be proved by the party who alleges the affirmative in substance, and not merely the affirmative in form.” I shall now examine and evaluate the evidence adduced by the Plaintiff in support of his case and the Defendant’s defence within the context of their respective burdens. From the evidence on record I make the following observations: 1. The Plaintiff rented a single room from the Defendant in February, 2023. 2. Annual rent paid by Plaintiff was GH¢450 and the Plaintiff has paid three years in advance. 3. The Plaintiff after living in his rented apartment for a year had misunderstanding with Defendant. I shall deal with issues one and two together as a single issue since in my view the two are linked to each other. The Plaintiff’s case was that he stayed in the room for only a year and so he is entitled to a refund of two years rent (GH¢900.00). The Defendant has not denied Plaintiff’s claim that he live in the room for only one year. However, the Defendant has argued that the Plaintiff owe electricity bill of GH¢200.00 and so this amount must be deducted from the Plaintiff’s balance of GH¢900.00 When Plaintiff came under cross examination by Defendant on 3/10/2024 he admitted that the joint electricity bill was in arrears. Below was what transpired. Q. Do you agree with me that you and I as well as the other three tenants who are students were using the same electricity meter. A. Yes. Q. Do you know that we jointly owe electricity bill amounting to GH¢1,500.00 A. I am aware that we were in arrears but I cannot remember the exact amount. Q. Do you remember that when the bill was brought by the ECG I informed you before you travelled. A. Yes, you told me and I paid my part before I travelled. Q. How much did you pay to me. A. GH¢100.00 Q. Are you saying that out of the GH¢1,500.00 your share is only GH¢100.00. A. Yes. Q. I put it to you that your share of the bill was GH¢300.00 and you paid only GH¢100.00 so you still owe GH¢200.00 A. I don’t agree with you. Q. I put it to you that you were the only tenant using several electrical gadgets including two fans, a T V set, iron, electric cooker fridge etc. A. Yes, I had some electrical appliances in my room and I have the right to use them. I can’t tell what gadgets you and the others had in your rooms. Q. I put it to you that the ECG disconnected us from the national grid because you failed to pay your share of the bill. A. Yes, we were disconnected but I was not the cause. Q. I gain put it to you that I and the other tenants paid off the bill before we were reconnected. A. I don’t know. From the above encounter it is not in doubt that the parties and other tenants were using a shared electricity meter. It is equally not in doubt that their electricity bill was in arrears. According to Defendant the arrears was GH¢1,500.00. From the above encounter even though Plaintiff admitted that there was some arrears he could not recollect the exact amount that was outstanding. The above cross examination has further exposed the Plaintiff as an unreliable person. He stated that he does not recollect how much the total bill was yet he wants the court to believe that his share of the bill was only GH¢100.00. If the Plaintiff does not know the quantum of the bill what was his bases in insisting that his share of the bill was only GH¢100.00? From the evidence adduced I have no justifiable grounds to doubt Defendant’s claim that the bill in arrears was indeed GH¢1,500.00. From the evidence at least five people were living in the house. This suggest that the bill was accumulated by these five person including the parties on one side and the three students above mentioned. The Defendant has been consistent in her position that the Plaintiff owe electricity bill of GH¢200.00. Her testimony was corroborated by both DW1 and DW2. From the record there is no direct evidence suggesting the ratio in which the bill was shared. However, Defendant testified that Plaintiff’s share of the bill was GH¢300.00. It is therefore safe to infer that the bill was shared equally among the five persons. I accordingly find that Plaintiff share of the bill was GH¢300.00 and he paid GH¢100.00 out of the GH¢300.00. This therefore means that the Plaintiff is in arrears of GH¢200.00 and I so hold. Having found that the Plaintiff is in arrears of electricity bill to the tune of GH¢200.00 it will be unconscionable for the Plaintiff to demand for a full refund of his two year rent advance of (GH¢900.00) whilst holding on to his just debt the GH¢200.00 electricity bill. In my respectful view the fair and just thing to do under the circumstances is to refund Plaintiff’s two year rent to him less the electricity bill arrears of GH¢200.00. According to Defendant even though the Plaintiff does not more live in Defendant’s house he still has some of his personal belongings in the room and has also refused to hand over the keys to Defendant till his balance is refunded. DW2 who was one of the elders who attempted to settle the dispute between the parties corroborated Defendant’s account. He told the court that the Defendant brought an amount of GH¢700.00 to him to be given to Plaintiff but Plaintiff rejected the money insisting that unless he receive a full refund of GH¢900.00 he will not release the room key to Defendant. From the evidence on record, it is obvious that the Plaintiff has not vacated the room or given Defendant vacant possession of the room yet he is asking for a full refund. This in my view is completely untenable. Since the Plaintiff still keep his personal belongings in the room and is also keeping the keys he is still in possession of the room. The Plaintiff cannot a probate and reprobate. Until Plaintiff fully vacate the room and give vacant possession to Defendant, he cannot be heard to be demanding for a full refund. In the circumstances, I find that the Plaintiff have occupied the room from February, 2023 till date. This therefor means that the Plaintiff has occupied the room for one year nine months. Plaintiff is therefore entitled to a refund of one year three months (GH¢563.00) and not the GH¢900.00 he is claiming. I now proceed to deal with issue three: Whether the Defendant took GH¢119.00 from Plaintiff as financial assistance. The Plaintiff’s case was that sometime ago, the Defendant took an amount of GH¢119.00 from him as financial assistance and has refused to pay back despite several efforts made by Plaintiff. The Defendant has vehemently denied this assertion stating that she never took any money from Plaintiff in the form of financial assistance. She further argued that it was Plaintiff’s brother who once visited the Plaintiff and when the said brother was about leaving he gave Defendant GH¢50.00 as a gift. That Plaintiff was not happy with his brother’s kind gesture and hence tried to forcibly collect the money from Defendant but she resisted. In the case of Boakye v. Asamoah [1974] 1 GLR 38 at 45], it was held that “the legal or persuasive burden is borne by the party who would lose the issue if he does not produce sufficient evidence to establish the facts to the requisite standard imposed under section 10 of the Evidence Act, 1975 NRCD 323 that is, by a preponderance of probabilities”. In the instant case, the Plaintiff bore the legal burden and was thus required to prove that the Defendant took GH¢119.00 from him as financial assistance. The Plaintiff however failed to do so. Aside his bare assertion the Plaintiff did not produce a scintilla of evidence in support of his claim. He could not even produce a single witness to corroborate his story. Under cross examination by Plaintiff on 03/10/2024 the Plaintiff could not even remember exactly when he gave the financial assistance to Defendant. Below was what ensued: Q. So your case is that I took GH¢119.00 financial assistance from you not so. A. Yes. Q. Who was present when you gave me the money. A. My girlfriend was present. Q. Don’t you think you should have call your girlfriend as a witness in this case. A. I don’t think it’s necessary. The truth is that you owe me that money. Q. Can you tell this court when I took this money from you. A. I can’t recollect when I gave you the money. Q. I put it to you that you are not being truthful to the court. A. You are rather not being truthful to the court. From the above it is obvious that the Plaintiff is not being truthful to the court. He claims his girlfriend was present when he gave the money to the Defendant, yet does not find it prudent to call her to come to court to testify in his favour especially when the Defendant have denied the allegation from the onset. If indeed the Plaintiff’s story was true then he shouldn’t have hesitated in calling his girlfriend to testify his favour. Again Plaintiff could even tell exactly when he gave the money to Plaintiff. In the case of Majolagbe v. Larbi & Ors [1959] GLR 190-195 per holding 4, Ollennu J (as he then was) stated that: “That where corroborative evidence must exist, the Court expects a party who makes an averment (which the other side denies) to call such corroborative evidence in support of his own”. From all the foregoing I find that the Plaintiff have failed to prove that the Defendant took an amount of GH¢119.00 as financial assistance from him. I accordingly give judgment in part in favour of Plaintiff as follows: i) Plaintiff is to recover an amount of GH¢563.00 from Defendant being rent advance of one year three months. ii) Plaintiff is ordered to give vacant possession of the room to Defendant within fourteen (14) days from today. Considering the circumstances of this case there is no order as to cost. SGD H/W ALHASSAN DRAMANI DISTRICT MAGISTRATE 29TH NOVEMBER, 2024.