APPIAH V BIO (civil case 395 of 2024) [2024] GHADC 492 (14 October 2024)

CORAM: HER HONOUR ROSEMARY EDITH HAYFORD (MRS.), SITTING AS ADDITIONAL MAGISTRATE, DISTRICT COURT EJISU, ASHANTI REGION ON THE14TH DAY OF OCTOBER, 2024 __________________________________________________________________ SUITNUMBERA2/395/2024 SAMUELAPPIAH - PLAINTIFF V EMMANUELBIO - DEFENDANT ……………………………………………………………………………………………………… TIME:11.50AM PLAINTIFF - PRESENT DEFENDANT - ABSENT __________________________________________________________________ JUDGMENT Plaintiff caused a writ of summon to be issued out of the Registry of this Honourable Courtonthe 29thofJuly, 2024against Defendant claiming the following reliefs: 1 A. Recovery of cash an amount of SixThousand, Two Hundred Ghana Cedis(GH₵6,200.00) being money Plaintiff gave to Defendant as start-up capital to run a mobile money businesswhichthe defendanthas failedto pay back B. Interest calculated on the said amount from July, 2019 at the current bank rate till the date of final payment. C. Costs When the matter first came to court on the 20th of August, 2024, the defendant failed to appear in court to defend the action even though there was proof of service of all the processonhim. Pursuantto Order 25rule 1(2) ofCI 59which provides that “where an action is called for trial and a party fails to attend the trial magistrate may where the Plaintiff attends and the defendant fails to attend dismiss the counterclaim, if any and allowthe plaintifftoprove hisclaim…”, Fortified by theabove provision, thecourt allowed the plaintiff toprovehis case. THEPLAINTIFF’SCASE The plaintiff, a Mobile Money Agent avers that he and the defendant are both residents of Abenase Asapong near Ejisu. Sometime in April 2019, the Defendant approached the Plaintiff that he needed a job. The plaintiff says that he considered same and employed 2 him in his mobile money business. According to Plaintiff, he gave Defendant an amount of Six Thousand Two Hundred Ghana Cedis (GH₵6,200.00) as startup capital to run the business. It is the case of the Plaintiff that the defendant after taking the money worked for barely four (4) months and absconded with the said capital. All effortstoretrieve themoney fromthe Defendant haveproved futile, hence this action. Atthe end ofthe trial, the issue belowwas set downfordetermination Whether or notthe Plaintiff is entitled to recover fromthe defendant the sum of GH₵6,200.00 being the startup capital Plaintiff gave to the defendant. APPLICATIONOF THE LAW In every civil suit the burden of persuasion and proof lies on the party who asserts the affirmative of his case and the standard of proof required of him is proof by a preponderance of probabilities as provided for under section 12 of the Evidence Act 1975 NRCD 323. Thus, the plaintiff who is making a claim against the defendant is required under section 11 (1) of the Evidence Act to lead sufficient evidence in proof of his case tocompel arulingin his favour. In the case of Ababio v Akwasi IV [1994-95] GBR 774 the court reiterated the nature of theburden onaparty required toprove anissue assertedin his pleadingsasfollows: 3 “The general principle of law is that it is the duty of a plaintiff to prove his case as he must prove what he alleges. In other words, it is the party who raises in his pleadings an issue essential to the success of his case who assumes the burden of proving it. The burden only shifts to the defence to lead sufficient evidence to tip the scales in his favour when on a particular issue the plaintiff leads some evidence to prove his claim. If the defendant succeeds in doing this he wins; if notheloses onthatparticular issue.” EVALUATIONOF THE EVIDENCE ANDDECISION OF THECOURT The Plaintiff testified himself and called one witness. He did not tender any documents in support of his case. The Plaintiff testified that he offered the defendant a job as a mobile money operator with a startup capital of GH₵6,200.00. According to the plaintiff in the first three months, everything was perfect. However, the defendant stopped working within the fourth month. The plaintiff says he then took steps and made enquiries about the defendant’s whereabout. When he found the defendant and confronted him, the defendant informed the Plaintiff that his landlord had taken part of the startup capital as a loan. The plaintiff testified that he gave the defendant two (2) days to go and continue work but he failed and subsequently, he vacated his place of residence. Plaintiff then made a complaint to the Defendant’s mother who assured him 4 to exercise patience and that she was going to talk to the defendant. However, all effortstoget thedefendant topay back have beenunsuccessful. It is significant to state that the evidence of the Plaintiff stood unchallenged. This is because the defendant failed to appear in court to defend the action despite all the processes having been served on him. The effect of the above unchallenged evidence of the Plaintiff is that the defendant acknowledges and admits same. See: Quagraine V Adams [1981] GLR 599, CA. and TAKORADI FLOUR MILLS VRS SAMIR (2005-2006) SCGLR882. It must be noted that the defendant was given the opportunity to be heard but he failed to appear in court. Therefore, he cannot say that the audi alteram partem rule has been breached. It is trite that where a party is given the opportunity to be heard and he fails to take it, he cannot complain that he has not been heard or there is a breach of any rule ofnaturaljustice. In Fori v Ayirebi [1966] GLR 627 SC, the Supreme Court held that “when a party has given evidence of a material fact and he is not cross examined upon that, he need not call further evidence of that fact.” In this instant case, however, the evidence of the plaintiff was corroborated by PW1, Akua Dankwah who is the wife of the Plaintiff and also a mobile money transfer agent. She stated that sometime in April 2019, she saw the Plaintiff giving an amount of GH₵6,200.00 to the defendant who lives within their vicinity to 5 operate a momo business. She did not hear anything about it again until the Plaintiff laterinformed her thatthe defendant couldnot be located. I have considered the facts and evidence of the Plaintiff which has been corroborated by PWI. It is my considered view that the evidence of the Plaintiff is cogent and credible, accordinglythe actionmust succeed. In the circumstance, I enter judgment in favour of the plaintiff in the sum of Six Thousand Two Hundred Ghana Cedis (GH₵6,200.00) being the money given to the Defendant as startupcapital which he has failed topay back tothe Plaintiff. The Defendant is further ordered to pay interest on the said sum of GH₵6,200.00 at the prevailing bank ratefromApril2019till the dateoffinal payment. I award cost of One Thousand Ghana Cedis (GH₵1,000.00) in favour of the Plaintiff against thedefendant. H/HROSEMARY EDITHHAYFORD(MRS.) CIRCUIT COURT JUDGE (SITTINGAS ADDITIONAL MAGISTRATE) 6