Norgbe v Boye (A2/26/23) [2024] GHADC 709 (20 November 2024)

IN THE DISTRICT COURT AT LA HELD ON WEDNESDAY THE 20TH DAY OF NOVEMBER, 2024. BEFORE HER WORSHIP ADWOA BENASO ASUMADU- SAKYI, SITTING AS MAGISTRATE SUIT NO: A2/26/23 GIFTY NORGBE TESHIE ACCRA >>> PLAINTIFF VRS. ASHIE BOYE TESHIE-BUSH ROAD >>> DEFENDANT ACCRA _______________________________________________________________ PARTIES: Plaintiff present Defendant absent _______________________________________________________________ JUDGMENT _______________________________________________________________ INTRODUCTION Per an amended writ of summons and statement of claim filed on the 25th of July, 2023 against the Defendant and prayed for the following reliefs; 1. Recovery of the amount of Nine Thousand Five Hundred Ghana Cedis (GH¢ 9,500.00) being sums of money paid to the Defendant towards the acquisition of a parcel of land located at Teshie Bush Road, Accra. 2. Recovery of the sum of Three Hundred and Fifty Ghana Cedis (GH¢ 350.00), being cost of sand deposited by the Plaintiff on the land allocated to her by the Defendant at Teshie-Bush Road, Accra. 3. Interest to be calculated on the amount mentioned in relief (a) from first payment to date of final payment at the prevailing bank rate 4. General damages 5. Cost 6. Any order(s) the Court may deem fit The case was struck out for want of prosecution when the parties failed to show up in court on the 3rd of April, 2023. The case was then relisted after the Plaintiff’s application for re-listment was granted. The amended writ of summons and statement of claim was served on the Defendant on the 28th of August, 2023. Hearing notices were served on the Defendant on the 12th of September, 2023, 21st of November, 2023, 12th of February, 2024, 9th of July, 2024 and 24th of October, 2024 and yet he failed to show up in court. He also failed to file a statement of defence or witness statement. In the circumstance the Plaintiff was allowed to prove his case on the 26th of September, 2024 pursuant to Order 25 Rule 1(2)(a) of the District Court Rules, 2009 (C.I 59). The Plaintiff filed her witness statement and that of her witness on the 11th of October, 2023 and 12th of December, 2023 respectively. Hearing commenced on the 11th of July, 2024 and was completed on the 29th of October, 2024. THE BURDEN OF PROOF IN CIVIL SUITS As in all civil suits, the onus of proof first rests on the party whose positive assertions have been denied by his opponent. Depending on the admissions made, the party on whom the burden of proof lies is enjoined by the provisions of sections 10, 11(4), 12 and 14 of the Evidence Act, 1975 (NRCD 323) to lead cogent evidence such that on the totality of the evidence on record, the court will find that party’s version in relation to the rival accounts to be more probable than its non-existence. Indeed, this basic principle of proof in civil suits expounded in Zambrama v. Segbedzie [1991] 2 GLR 221 has been subsequently applied in numerous cases including Takoradi Floor Mills v. Samir Faris [2005-2006] SCGLR 882; Continental Plastics Limited v. IMC Industries [2009] SCGLR 298 at pages 306 to 307; Abbey v. Antwi [2010] SCGLR 17 at 19. In Ackah v. Pergah Transport Limited and Others [2020] SCGLR 728, Adinyira JSC succinctly summed up the law, at page 736: “It is a basic principle of law of 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… 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 a fact is more reasonable than its non-existence. This is the requirement of the law on evidence under section 10(1) and (2) and 11(1) and (4) of the Evidence Act, 1975 (NRCD 323).” From the above it is clear that the Plaintiff bears the burden of producing evidence and the burden of persuasion on his case which means if he fails to do so the court ought to enter judgment against him. With the above principles in mind, I have set down the following issues down as issues for determination; a. Whether or not the Defendant is liable to pay an amount of Nine Thousand Five Hundred Ghana Cedis (GH¢ 9,500.00) being sums of money paid to the Defendant towards the acquisition of a parcel of land located at Teshie Bush Road, Accra. b. Whether or not the Defendant is liable to pay an amount of Three Hundred and Fifty Ghana Cedis (GH¢ 350.00), being cost of sand deposited by the Plaintiff on the land allocated to her by the Defendant at Teshie-Bush Road, Accra. c. Whether or not the Defendant should be ordered to pay interest on the amount owed PLAINTIFF’S CASE The Plaintiff’s case is that she acquired a parcel of land in August 2010 from the Defendant at Teshie-Bush Road. She states that the agreed purchase price was Twelve Thousand Ghana Cedis (GH¢ 12,000.00) and that she paid the purchase price in instalments as follows; One Thousand Five Hundred Ghana Cedis (GH¢ 1,500.00) on the 25th of August, 2010, Two Thousand Ghana Cedis (GH¢ 2,000.00) on the 27th of August, 2010, Two Thousand Ghana Cedis (GH¢ 2,000.00) on the 1st of February, 2011 and One Thousand Ghana Cedis (GH¢ 1,000.00) on the 1st of April, 2011. After she made the third instalment she faced financial difficulties which caused a delay with the payment plan and this led to the Defendant unilaterally increasing the agreed price from Twelve Thousand Ghana Cedis to Fourteen Thousand Ghana Cedis (GH¢ 14,000.00). The Plaintiff was able to pay an amount of Three Thousand Ghana Cedis (GH¢ 3,000.00) on the 2nd of February, 2012 which brought to the total amount paid to Nine Thousand Five Hundred Ghana Cedis (GH¢ 9,500.00). Despite paying this money to the Defendant when she visited the land found out that someone was building on the land and when she informed the Defendant of the new development he replaced the land with a new parcel of land located in Teshie- Bush road. Unfortunately when she went onto the new land another person was building on the land and yet again when she informed the Defendant he allocated her another land. In order to safeguard her interest in the new land she deposited sand worth Three Hundred and Fifty Ghana Cedis (GH¢ 350.00) but that did not yield any positive results as after a short period upon visiting the new allocated land she once again realised that someone had used her sand to start building on the land. The Plaintiff once again informed the Defendant and he assured her that he would get her another land but she never heard from him again. She lodged a complainant against the Defendant but they could not arrest him as he was nowhere to be found. Fortunately in the year 2015 she was able to get in touch with the Defendant and he pleaded for another opportunity to get her another land but he would always give her excuses until the year 2022 when told her about a plot of land at Apolonia. The Defendant failed to meet the Plaintiff in March 2022 as agreed so she could inspect the land and he then blocked all communication with her. This led her to demand a refund of all the monies she had paid to him but all efforts proved futile. The Defendant failed to cross examine the Plaintiff due to their 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 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 and 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 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. That being said I have a duty to examine the evidence on record and determine whether the Plaintiff has 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”. The Plaintiff mounted the witness box and testified on the 11th of July, 2024 and repeated her assertions against the Defendant and tendered into evidence a copy of the land size and description which was marked as Exhibit A, copies of receipts evidencing payments of the monies she made to the Defendant which was marked as Exhibit B series, copy of receipt evidencing payment of the purchase of the sand which was marked as Exhibit C. 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 alleged that she entered into an agreement with the Defendant to purchase a plot of land. She tendered into evidence Exhibit A and Exhibit which were not challenged by the Defendant as he refused to cross examine her on same and as decided in the case of Fori v. Ayirebi (supra) it will be deemed as the true state of facts. From the discussion above I hereby hold that the Plaintiff has been able lead enough credible and cogent evidence to prove on a preponderance of probabilities that there was an oral agreement between the Plaintiff and Defendant for the purchase of a plot of land which the Defendant has failed to allocate to her. It is clear from the discussion above the Defendant breached the agreement between himself and the Plaintiff when he failed to allocate a plot of land which is also not allocated to another person. The Plaintiff also testified that she paid an amount of Nine Thousand Five Hundred Ghana Cedis (GH¢ 9,500.00) to the Defendant in instalment and she tendered into evidence Exhibit B series which the Defendant failed to cross examine the Plaintiff on this failure of the Defendant to cross examine the Plaintiff on this evidence means it will be deemed as the truth. See the case of Fori v. Aiyeri (supra). Having concluded that the Defendant breached the agreement to allocate a plot of land to her and then he is liable to refund the purchase price to her. The Plaintiff is also seeking for a refund of an amount of Three Hundred and Fifty Ghana Cedis (GH¢ 350.00) which is the value of the sand she deposited on the second plot of land the Defendant allocated to her. She testified that the said sand was used by another person to put up a building on the land allocated to her. This prayer of the Plaintiff cannot be granted because she failed to lead evidence to prove that it was the Defendant who used the sand without her consent or that it was an agent of the Defendant who unlawfully used the sand. This relief will fall under general damages for the breach of the contract. I will also discuss whether or not the Defendant should be ordered to pay interest on the amount owed. The learned Judge Brobbey J, in the case of Agyei v. Amegbe [1998-90] 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 IBM World Trade Corporation v. Hansem Enterprise Limited (supra). The amount was paid in the year 2011 and as such the Defendant has been in possession of same for almost thirteen years the Plaintiff is entitled to be paid interest on the amount owed to mitigate the cost she has incurred. The Plaintiff is also seeking for general damages for the breach of contract. Damages refer to the compensation awarded to a party who has suffered harm or loss as a result of another party’s actions. The compensation awarded can vary depending on the circumstances of the case. The damages awarded should provide reparation for the wrongful act and all the natural and probable consequences of the Defendant’s act. General damages arise by inference of the law and therefore need not be proved by evidence. See the cases of Royal Dutch Airlines KLM and Another v. Farmex [1989-90] 2 SCGLR 623 and Youngdong Industries Limited v. Roro Services [2005-2006] SCGLR 816. There is unchallenged evidence on record that the Defendant breached the contract for the purchase of a piece of land in the year 2011 and yet till date the Plaintiff has only been allocated encumbered lands by the Defendant and all efforts to get the Defendant to fulfil this oral agreement has proved futile. Having considered the evidence in its entirety and based on my analysis above, I hereby award the Plaintiff compensatory damages for her loss being the failure of the Defendant to allocate her a piece of land since 2011, in the sum of Two Thousand Ghana Cedis (GH¢ 4,000). I also award cost of One Thousand Ghana Cedis (GH¢ 1,000) is awarded against the Defendant. CONCLUSION I hereby enter Judgment in favour of the Plaintiff and make the following orders; a. The Defendant is ordered to pay an amount of Nine Thousand Five Hundred and Forty Ghana Cedis (GH¢ 9,500.00). b. The Defendant is ordered to pay interest on the amount of Nine Thousand Five Hundred and Forty Ghana Cedis (GH¢ 9,500.00) from the date the Plaintiff made first payment to date of final payment at the prevailing bank rate. c. The Defendant is ordered to pay an amount of Two Thousand Ghana Cedis (Four Thousand Ghana Cedis (GH¢ 2,000.00) as damages for the breach of contract. d. Cost of One Thousand Ghana Cedis (GH¢ 1,000.00) is awarded in favour of the Plaintiff. H/W ADWOA BENASO ASUMADU-SAKYI MAGISTRATE