Awatu v Tawiah and Others (A2/11/23) [2024] GHADC 710 (28 November 2024)

IN THE DISTRICT COURT AT LA HELD ON THURSDAY THE 28TH DAY OF NOVEMBER, 2024. BEFORE HER WORSHIP ADWOA BENASO ASUMADU- SAKYI, SITTING AS MAGISTRATE SUIT NO: A2/11/23 PHILIP ATSU AWATU OF H/NO. GT328-2879 SPINTEX >>> PLAINTIFF VRS. 1. STEPHEN TAWIAH 2. DEVPOD SERVICES LTD OF MADINA >>> DEFENDANTS _______________________________________________________________ PARTIES: Plaintiff present Defendant present ______________________________________________________________ INTRODUCTION The Plaintiff filed this instant suit on the 14th of October, 2022 against the Defendant. Counsel for the Defendants filed an application to disjoin the 1st Defendant as the alleged contract which was breached was entered into by the 2nd Defendant which is a separate legal entity and same was granted on the 13th of December, 2023. The Plaintiff then amended the writ of summons and statement of claim on the 22nd of December, 2023 and prayed for the following reliefs; 1. An order of the honourable court directed at the Defendants jointly and severally to pay cash the sum of four thousand nine hundred and sixty Ghana Cedis (GH¢ 4,960.00) being an outstanding balance of coring work undertaken by plaintiff for defendant which defendant has refused to pay despite repeated demands and appeals. 2. Interest calculated on (GH¢ 4,960.00) from September, 2022 till final payment 3. Cost Despite several appearances by counsel for the Defendant, it failed to file a statement of defence so the plaintiff was ordered to file his witness statement and on the 22nd of December, 2023 he complied with this order. PLAINTIFFS CASE The Plaintiffs’ case is that somewhere on the 2nd of July, 2022 the Defendant Company contracted him through its site engineer to core concretes at its site at Labone Senior High School to enable it continue with its construction works. He accepted the contract and provided the cost of coring each hole to the defendant company and it accepted the estimated cost and asked him to proceed. He started the coring with his workers and by the 15th of August he had cored the following holes at an agreed units prices;- (Floor)---25pcs of 3”Dia Holes at GH¢ 90.00 per hole (Floor)---8pcs of 5”Dia Holes at GH¢ 110.00 per hole (Beam)---24pcs of 3”Dia Holes at GH¢ 120.00 per hole (Beam)---13pcs of 5”Dia Holes at GH¢ 150.00 per hole The total amount agreed to was Seven Thousand Nine Hundred and Sixty Ghana Cedis (GH¢ 7,960.00) and that while he was still on the job the Defendant Company paid an amount of Three Thousand Ghana Cedis (GH¢ 3,000.00) and promised to pay the balance after the completion of the entire coring work. He attached a copy of the table of work done with the amount paid and remaining balance and same was tendered into evidence as Exhibit A. The Defendant has refused to pay the remaining balance of Four Thousand Ghana Cedis (GH¢ 4,960.00) despite several demands to do so. DISCUSSION OF THE LAW The law is trite that a party who asserts a fact assumes the responsibility of proving same and thus the burden of producing evidence as well as the burden of persuasion is therefore cast on that party and the standard required is provided for by the virtue of sections 10,11 and 12 of the Evidence Act, 1975 (NRCD 323). The above stated provisions have received judicial blessings by the Supreme Court who has pronounced on them in the past to be the nature and standard of proof in civil cases. This position of the law has been reiterated in the case of Ackah v. Pegrah Transport Ltd And Others [2020] SCGLR 728 where in unanimously dismissing an appeal, the Supreme Court held as follows: “It is a basic principle of the 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 caried and it includes the testimonies of the party and material witnesses, 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 mind of 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 evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more probable than its non-existence. This is a requirement of the law on evidence under sections 10(1) and (2) and 11(1) and (4) of the Evidence Act, 1975 (NRCD 323),” See Ababio v. Akwasi IV [1994-1995] GBR 774 The Court has a duty to examine the evidence on record and determine whether the Plaintiffs have met the burden of proof. It is settled law that he who alleges must prove his case on the strength of his own case. This principle was enunciated in the case of Owusu v. Tabiri and Another [1987-88] 1 GLRR as follows: “It was a trite principle of law that who asserted must prove and win his case on the strength of his own case and not the weakness of the defence”. It is settled law that a binding contract is a legally enforceable agreement between parties which is formed through either written or oral agreements or through the conducts of the parties involved. A contract is formed when there is an agreement between parties, supported by consideration, and the parties intend to be legally bound. In order to ascertain the existence of a binding contract, an objective test must be conducted by considering what an objective and reasonable bystander would have understood to be the intention of the parties based on their words and conduct, and not merely the intention of the parties. This test is even preferable where there is no written agreement between the parties, which can easily be referred to, and even where there is, the test is still used to determine whether the agreement reasonably confers contractual obligations on the parties. It must be noted that the alleged contract entered into between the parties was an oral one and this does not invalidate the agreement. See section 11 of the Contract Act, 1960 (Act 25). The courts look for whether or not the parties were at a consensus where there was no written agreement. In the case of IBM World Trade Corporation v. Hasnem Enterprise Limited [2001- 2002] 2 GLR 248 the court held as follows: “The rule is that where a contract has to find a contract in correspondence, and not in any one particular document, the entire set of correspondence which passed between the parties must be taken into consideration. In Thomas Hussey vrs John-Payne & Anor. (1879) 4 App. Case 311, Earl Carins, the Lord Chancellor said at p. 316:” “The second requisite in this case he proposes to supply through the medium of letters which passed between the parties and it is one of the first principles applicable to a case of the kind that where you have to find your contract, or your note or your memorandum of the terms of the contract in letter, you must take into consideration the whole of the correspondence which has passed. You must not at one particular time draw a line and say ‘we will look at the letters up to this point and find in them a contract or not, but we will look at nothing beyond’. In order to fairly estimate what was arranged, if anything was agreed between the parties you must look at the whole of that which took place and passed between them.” The Plaintiff mounted the witness box and relied on his witness statement on the 22nd of October, 2024 and repeated his assertions against the defendant. This evidence of the Plaintiff was unchallenged as the Defendant Company failed to appear to cross examine the Plaintiff due to its refusal to show up in Court despite being given several notices to appear. The position of the law is that when a party is given the opportunity to contest or lead evidence in defence of allegations against him but fails to avail himself of the opportunity, the court will be entitled to proceed with trail to its conclusion and make findings on the basis of the evidence adduced at the trial and proceed to give judgment. In Fori v. Ayirebi (1966) GLR 627 SC it was held that when a party had made an averment and that averment was not denied, no issue was joined and no evidence need be led on that averment. Similarly, when a party had given evidence of a material fact and was not cross examined upon it, he need not call further evidence of that fact. See the cases of Takoradi Flour Mills v. Samir Faris (2005-2006) SCGLR 890, In Re West Coast Dying Industry Ltd; Adam v. Tabdoh (1984-86) 2 GLR 561 SC and Watalah v. Primewood Products Ltd (1973) 2GLR 126, Hammond v. Amuah (1991) 1 GLR 89 at 91. It is also settled law that a party is to suffer the consequences or liabilities for not attending court after he has been duly served with processes and accordingly notified. See cases of Republic v. High Court (Fast Track Division); Ex-parte State Housing Co. Ltd (No. 2) (Koranten -Amoako Interested arty) (2009) SCGLR 185 at 190 and Agbewole v. Abodegbey (2012) 44 GMJ 124 at 129. In civil cases the standard of proof is by a preponderance of probabilities which was defined in the case of GIHOC Refrigeration and Household v. Jean Hanna Assi [2005-2006] SCGLR 458 as a party’s ability to persuade the Honourable Court that the existence of a relevant fact is more probable than not. From the unchallenged testimony adduced by the Plaintiff it is clear that he has been able to meet the objective test to establish the existence of a contract between himself and the Defendant Company and I hereby hold is entitled to the reliefs being sought. I will also discuss whether or not the Defendant Company should be ordered to pay interest on the amount owed. The learned Judge Brobbey J, in the case of Agyei v. Amegbe [1998-90] 1 GLR 351 held as follows; “…whenever interest is to be charged and paid in respect of money, the charge is based on the supposition that the person to pay the interest has had the use of the payee’s money. If the money is no longer with the person to be charged that interest, the basis for the interest will cease to exist. In other words, interest is not chargeable on non-existing indebtedness. Interest itself is regarded as money earned on money. This is why it is related to the specific amount in the possession of the person to pay the interest…” See the case of IBM World Trade Corporation v. Hansem Enterprise Limited (supra). The amount has been owed since the year 2022 and the Defendant Company has refused to pay same. This means the Defendant Company has been in possession of same for almost two years and has deprived the Plaintiff use of same and as such is entitled to be paid interest on the amount owed to mitigate the cost he has incurred in this instant case. CONCLUSION I hereby enter Judgment in favour of the Plaintiff and make the following orders; a. The Defendant Company is ordered to pay an amount of Four Thousand Nine Hundred and Sixty Ghana Cedis (GH¢ 4,960.00). b. The Defendant Company is ordered to pay simple interest on the amount of Four Thousand Nine Hundred and Sixty Ghana Cedis (GH¢ 4,960.00) from the date of the judgment to the day of final payment. c. Cost of One Thousand Ghana Cedis (GH¢ 1,000.00) is awarded in favour of the Plaintiff. SGD H/W ADWOA BENASO ASUMADU-SAKYI MAGISTRATE