Ansah v Koniba and Another (A2/59/23) [2024] GHADC 706 (8 November 2024)

IN THE DISTRICT COURT AT LA HELD ON FRIDAY THE 8TH DAY OF NOVEMBER, 2024. BEFORE HER WORSHIP ADWOA BENASO ASUMADU- SAKYI, SITTING AS MAGISTRATE SUIT NO: A2/59/23 ANDREW OWUSU ANSAH BURMA CAMP, ACCRA >>> PLAINTIFF VRS. 1. KONIBA GIDEON 2. SINGER VENTURES ALL OF ACCRA >>> DEFENDANTS _______________________________________________________________ PARTIES: Plaintiff present Defendants absent ______________________________________________________________ JUDGMENT _______________________________________________________________ INTRODUCTION The Plaintiffs filed this instant suit on 21/6/23 against the Defendants and prayed for the following reliefs; 1. An order at defendants jointly and severally to refund cash the sum of Forty Thousand Ghana Cedis (GH¢ 40,000.00) being money paid to defendants for the supply of rice of plaintiff which defendant after taking plaintiff’s money have refused to supply the rice since March 2020. 2. Interest on the GH¢ 40,000.00 calculated from March 2020 till final payment. 3. Damages for breach of agreement. 4. Cost including legal fees. All efforts to serve the Defendants through personal service proved futile so the Court ordered the Defendants to be served with the Writ of Summons through substituted service but the Plaintiff failed to comply with the orders of the court. The case was struck out due to the absence of the both the plaintiff and the defendants on the 7th of November, 2023 and 20th of March, 2024. The case was relisted on the 25th of April, 2024 and the Defendants were served with the writ of summons and particulars of claim on the 6th of June, 2024. The Defendants failed to file a statement of defence and a witness statement and also refused to show up despite the several hearing notices which were served on them. 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). PLAINTIFFS CASE The Plaintiffs’ case is that sometime in March, 2020 the 1st Defendant represented to him that he would be able to supply him with some quantities of bags of rice which he needed for his nephew’s business. He goes on to state that he deposited an initial amount of Twelve Thousand Ghana Cedis (GH¢ 12,000.00) into the 2nd Defendant’s GCB account No. 4091130005051 on the 24th of March, 2020 at the request of the 1st Defendant. He also states that he made another deposit of Eleven Thousand, Seven Hundred and Twenty-Five Ghana Cedis (GH¢ 11,725.00) into the same account but the 1st Defendant failed to supply the goods. The Plaintiff states that the 1st Defendant demanded for more money so he sent an amount of Three Thousand Ghana Cedis (GH¢ 3,000.00) to the 1st Defendant’s WhatsApp number; 0245821200. He also gave an amount of Four Thousand Five Hundred Ghana Cedis (GH¢ 4,500.00) to the 1st Defendant’s driver by name Godfred Abeiku. The Plaintiff states that he gave an amount of Three Thousand Seven Hundred and Seventy-Five Ghana Cedis (GH¢ 3,775.00) and Five Thousand Ghana Cedis (GH¢ 5,000.00) on the 30th of September, 2020 and 23rd December, 2020 respectively. The Plaintiff states that despite paying a total amount of Forty Thousand Ghana Cedis (GH¢ 40,000.00) the 1st Defendant has refused to supply the goods or refund the money he paid. He states that he lodged a complaint at the police station and a public notice was issued for the 1st Defendant to be located and he that he also paid an amount of Eight Hundred Ghana Cedis (GH¢ 800.00) for a public notice to be published on UTV. 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. 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. 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 carried 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 Defendants 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. Ayerebi (1996) 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, 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 26th of September, 2024 and repeated his assertions and tendered into evidence Exhibit A which is a copy of the record of registration of the 2nd Defendant, Exhibit B which are receipts of the payment he made into the GCB account of the 2nd Defendant, Exhibit C which is a copy of the public notice issued by the police and Exhibit D which is a copy of the receipt issued by UTV for the public notice looking for the 1st Defendant. From the testimony adduced by the Plaintiff he has been able to prove that he entered into an oral contract with the 1st Defendant for the supply of bags of rice to the tune of Forty Thousand Ghana Cedis (GH¢ 40,000.00) which was paid in instalments from the 24th of March, 2020 to 23rd of December, 2020 through various means which included paying money into the 2nd Defendant’s GCB account No: 4091130005051. The defendant refused to testify and thus was unable to show he has a defence to the instant suit. The evidence adduced by the Plaintiffs stands unchallenged and I hereby hold that the Plaintiff has been able to satisfy the burden on him and proved on a preponderance of probabilities that the Defendant has breached the agreement of supplying him bags of rice to the tune of GH¢ 40,000.00. I will now discuss Whether or not the Plaintiff is entitled to damages 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. Special damages must be pleaded and particularized and then proved by admissible evidence otherwise it could not be recovered. The damages being claimed by the Plaintiff in the instant case is in the form of general damages although the Plaintiff failed to state same. General damages arise by inference of the law and therefore need not be proved by evidence. See Royal Dutch Airlines KLM and Another v. Farmex [1989-90] 2 SCGLR 623 and Youngdong Industries Limited v. Roro Services [2005-2006] SCGLR 816. It is also trite that where a party in a civil suit raises issues that are essential success of his claim, he assumes the onus of proof. Discharging this burden requires that a party go beyond merely repeating the averments in the pleadings on oath and produce evidence of other facts and circumstances from which the court can ascertain that what she claims is true. Indeed, the principle of what constitute proof was articulated and expressed in the celebrated and frequently cited decision of Ollenu J (as he then was) in the case of Majolagbe v. Larbi [1959] GLR 190. The central issue is whether the Plaintiff has led cogent evidence to warrant his claims in relief c. Having concluded that the Defendants failed to supply the bags of rice to the tune of GH¢ 40,000.00, the Defendants breached the contract and as such the Plaintiff is entitled to be compensated for damages for the breach of the contract. Taking into consideration the circumstances of the case and evidence adduced by the Plaintiff I hereby order the Defendants to pay an amount of Five Thousand Ghana Cedis (GH¢ 5,000.00) as compensation for damages for the breach of the contract. CONCLUSION Having considered the evidence in its entirety and based on my analysis above, I hereby make the following orders; 1. The Defendants are ordered to refund cash the sum of Forty Thousand Ghana Cedis (GH¢ 40,000.00) being money paid to Defendants for the supply of rice. 2. The Defendants are also ordered to pay simple interest at the prevailing bank rate on the GH¢ 40,000.00 calculated from March 2020 till final payment. 3. The Defendants are to pay an amount of Five Thousand Ghana Cedis (GH¢ 5,000.00) to the Plaintiff as compensation for the breach of the contract. 4. I award cost of Two Thousand Ghana Cedis (GH¢ 2,000.00) in favour of the Plaintiff. SGD H/W ADWOA BENSAO ASUMADU-SAKYI MAGISTRATE