Coblah v Barima (A2/406/2024) [2024] GHADC 750 (8 October 2024)

IN THE DISTRICT COURT HELD AT BAATSONAA ON TUESDAY THE 8TH DAY OF OCTOBER, 2024 BEFORE HER WORSHIP MABEL N. L. AHELE DISTRICT COURT MAGISTRATE SUIT NO: A2/406/2024 MILLICENT COBLAL ....... PLAINTIFF VRS. MABEL BARIMA ....... DEFENDANT PARTIES: PLAINTIFF --- PRESENT DEFENDANT --- PRESENT NO LEGAL REPRESENTATION JUDGMENT 1. The brief facts recount that the Plaintiff was a tenant and the Defendant, a landlady. The Defendant rented out her one-bedroom self-contain apartment to the Plaintiff. The Plaintiff has vacated the premises and she is claiming a refund of rent paid in advance. 2. Plaintiff’s case The Plaintiff, by a Writ of Summons filed on 27th March, 2024, is seeking an order for Defendant to pay a cash sum of Twelve Thousand Ghana Cedis (GH₵12,000.00) being rent advance paid to the Defendant and cost. It is her case that, she rented the apartment from the Defendant for a period of 2½ years which amounted to GH₵20,880.00 at a monthly rent of GH₵700.00. According to her, after staying in the house for a period of 1 year and 2 months, the Defendant asked her to move out of the apartment without any cause. Now that she has moved out of the apartment of the Defendant, she wants the Defendant to refund GH₵12,000.00 to her. Page 1 of 9 8-10-2024 MILLICENT COBLAH VS MABEL BARIMA - JUDGMENT 3. Defendant’s Case The Defendant, in her defence filed on 3rd May, 2024, contended that, she rented out one bedroom self-contained to the Plaintiff at a monthly rent of GH₵700.00. Plaintiff paid a rent advance of GH₵7,120.00 and later GH₵1,280.00. According to the Defendant, Plaintiff later paid GH₵1,000.00 by Momo, then cash of GH₵3,200.00 to cover GH₵4,200.00 as rent advance for a period of 18 months. She averred that Plaintiff occupied the premises from 21st November, 2022 to 5th March, 2024 making a duration of 15 months, 13 days. That the period for which Plaintiff occupied the premises attracted a total rent of GH₵10,812.00 out of the GH₵12,000.00 payment made by the Plaintiff. It was her case that because the Plaintiff owes her the cost of dislodged septic tank and water bill for 15 months, 13 days amounting to GH₵500.00 and GH₵750.00 respectively, the remaining rent advance paid by the Plaintiff was used to defray the cost hence, she does not owe the Plaintiff any debt. 4. Issue for determination The main issue for determination is; whether or not Plaintiff is entitled to a refund of GH₵12,000.00 from the Defendant. 5. Evidential Burden The fundamental principle as far as the issue of proof is concerned in a civil matter is that, the party who alleges must prove what she alleges and the standard of proof required is by “preponderance of probabilities” as provided for under Section 12 of the Evidence Act, 1975 (NRCD 323). In order to satisfy the requirement, the party who alleges must lead sufficient evidence which will persuade the Court what she alleges is the truth. See ZABRAMA V. SEGBEDZI [1991] 2GLR 221, ABABIO V. AKWAS III [1994-1995] GBR 774 and ACKAH V. PERGAH TRANSPORT LTD. & ORS [2010] SCGLR 728. Section 11(4) of the Evidence Act 1975 (NRCD 323) states that “the burden of producing evidence is discharged when a party produces sufficient evidence so that on the entire evidence reasonable mind could conclude that the existence of the fact was Page 2 of 9 8-10-2024 MILLICENT COBLAH VS MABEL BARIMA - JUDGMENT more probable that its non-existence”. See FOSUA V. ADU-POKU MENSAH [2009] SCGLR 312. 6. Plaintiff claims a refund of GH₵ 12, 000.00 from the Defendant which according to her, was paid to the Defendant as rent advance. The Defendant denies this assertion. The burden then rested on the Plaintiff to prove the allegation. The law is that a person who makes an assertion bears the legal burden of establishing it. See POKU V. POKU [2008] 18 M.L.R.G. 1 AT PAGE 30. Similarly, Gbadegbe JSC in the case of SAGOE V. SSNIT [2011] 30 GMJ 133, (2012) held that, a party who asserts the affirmative of an issue has the incidence of the legal burden. 7. Evaluation of Evidence Plaintiff in proving her case testified by herself and called two witnesses to testify in her case. Plaintiff testified that on the 21st November, 2022 she made a payment of GH₵12,600.00 to the Defendant after agreeing to take a payment of one and a half years rent advance instead of 2 years. According to her, the Defendant agreed that she pays the remaining six months’ rent by 1st March, 2023. She supported her testimony by tendering Exhibits ‘A’ and ‘B’ containing receipt of GH₵12,600.00 and the Tenancy Agreement dated 21st November, 2022. 8. It was also her testimony that, a week after she moved to occupy the room, her landlady (the Defendant) came demanding from her GH₵1,000.00 and additional GH₵200.00 out of the balance of GH₵4,200.00 to be paid for the remaining six months’ rent advance. According to her, upon a continuous demand by the Defendant, she paid additional GH₵7,000 to complete the payment of the 2 years rent advance. Subsequently, the Defendant then asked her to pay a water bill of GH₵1,280.00. She tendered Exhibits ‘C’ and ‘D’; a receipt of a balance of GH₵3,000 and a payment of water bill. Page 3 of 9 8-10-2024 MILLICENT COBLAH VS MABEL BARIMA - JUDGMENT 9. The Defendant in her defence testified that, on 21/11/2022 a tenancy Agreement was executed between her and the Plaintiff for a two-year term of a monthly rent of GH₵700.00. She supported her testimony by tendering Exhibit ‘1’, the Tenancy Agreement. She further testified that, because Plaintiff did not have GH₵16,800.00, she agreed that Plaintiff makes a total payment of GH₵12,600.00 for one year and six months’ rent advance which was made by the Plaintiff in four instalments. The Defendant objected to Exbibits ‘A” and ‘C’ tendered by the Plaintiff. The Defendant strongly denied knowledge of Exbibit ‘A” of the Plaintiff because according to her, Plaintiff did not make upfront payment of GH₵12,600.00 on 21st November, 2022 but rather the payment was by instalments. She also testified that the Plaintiff occupied the room on 21st November, 2022 till 5th March, 2024. 10. In the celebrated case of MAJOLAGBE V. LARBI [1959] GLR 190, it was held that, “when a party makes an averment in his pleadings which is capable of proof in positive way as the averment is denied, that averment cannot be sufficiently proved by just mounting the witness box and reciting the averment on oath without adducing some corroborative evidence”. 11. In proving her case as her averment has been denied by the Defendant, the Plaintiff called two witnesses to testify in her case. Prince Harry Dorcoo, (PW1) testified as the agent who led the Plaintiff to the Defendant. He submitted in his testimony that he witnessed the payment of GH₵12,600.00 the Plaintiff made to the Defendant. He further testified that the Defendant issued a receipt of GH₵12,600.00 to the Plaintiff and beneath the receipt, the Defendant wrote the balance of GH₵4,200.00 to be paid by the Plaintiff on 1st March, 2024. According to him, he was not present when the Plaintiff made the subsequent payments as been alleged by the Plaintiff. He however testified under cross- examination that the Payment of GH₵12,600.00 was made by Plaintiff on 21st November, 2023. Page 4 of 9 8-10-2024 MILLICENT COBLAH VS MABEL BARIMA - JUDGMENT Theophilus Akuaku (PW2), is the brother of the Plaintiff. He also testified that on 21st November, 2023, the Plaintiff made a payment of GH₵12,000.00 to the Defendant in his presence. According to him, the Defendant issued a receipt of GH₵12,000.00 as a prove of payment. Under cross-examination, he testified that he personally made the payment of GH₵12,000.00 to the Defendant. This is how cross-examination of PW2 went. Q. When did you pay me that GH₵12,000.00? A. 21/11/2023. Q. You personally paid me GH₵12,000.00? A. Yes, in the presence of the agent. Q. Was the GH₵12,000.00 part of rent? A. Yes, part of the rent. Q. It cannot be possible because 21/11/2023 cannot be a year and a half. It is November 21, 2022, I put that to you. A. It was 21/11/2023 according to the prove. 12. Contractions in the Evidence of the Plaintiff In the case of EFFISAH V. ANSAH [2005-2006] 943 AT 960, the Supreme Court held as follows: “…in the real world, evidence led at any trial which turns principally on issues of fact, and involving a fair number of witnesses, would not be entirely free from inconsisten- cies, conflicts or contradictions and the like. In evaluating the evidence at a trial, the presence of such matters per se, should not justify a wholesale rejection of the evidence to which they might relate. Thus, in any given case, minor, immaterial, insignificant or non-critical inconsistencies must not be dwelt upon to deny justice to a party who has substantially discharged his or her burden of persuasion. Where inconsistencies or conflicts in the evidence are clearly reconcilable and there is critical mass of evidence or Page 5 of 9 8-10-2024 MILLICENT COBLAH VS MABEL BARIMA - JUDGMENT corroborative evidence on crucial or vital matters, the court would be right to gloss over these inconsistencies…” I have cited the case of EFFISAH V ANSAH (supra) to remind myself of not harping on minor, immaterial, insignificant or non-critical inconsistencies to deny justice to the Plaintiff if the inconsistencies or conflicts are reconcilable. On the contrary, the inconsistencies found in the evaluation of the evidence are irreconcilable. The inconsistency is central to the resolution of the issue of refund of the liquidated sum claimed by the Plaintiff. 13. Plaintiff testified both under evidence-in-chief and cross-examination that she made a payment GH₵12,600.00 on 21st November, 2023. Both witnesses she called to testify in her case corroborated her testimony on the date of payment. However, her Exhibits ‘A’ and ‘B’, i.e. the receipt and the tenancy agreement in support of her testimony were both dated 21st November, 2022. Secondly, what is more damaging to her case was that, PW2’s testimony even contradicted her own testimony given on the amount paid on the said 21st November, 2023. Whilst Plaintiff quoted the amount to be GH₵12,600.00, PW2 stated that it was GH₵12,000.00 and emphasised that he even counted the money before handing over to the Defendant. Thirdly, she testified that she occupied the room on 27th November, 2023. Even in the face of a fierce challenge by the Defendant, Plaintiff was adamant and maintained that she occupied the room on 27th November, 2023. Plaintiff did not mince words when she was asked under cross-examination about the date of her occupation of the Defendant’s room. This is what transpired under cross- examination. Q. When did you move into my house? A. I moved in 27/11/2023 Q. And when did you move out of my house? Page 6 of 9 8-10-2024 MILLICENT COBLAH VS MABEL BARIMA - JUDGMENT A. I moved out 24/03/2024. Q. I am putting it to you that it is not true. A. It is true because I had the keys to the room with me. Q. When did you give me GH₵12,600.00 together? A. In 21/11/2023, I made payment of GH₵ 12,600.00 to you in front of the agent and my brother. 14. Clearly, there are material conflicts or inconsistencies in the evidence offered by the Plaintiff to prove her case. Plaintiff helplessly contradicted herself when she stated in evidence-in-chief that she occupied the room for a period of 1 year and 2 months yet under cross-examination she submitted that she moved into the room on 27th November, 2023 and moved out of it on 24th March, 2024. Per my basic arithmetic calculation, the number of months within the period of 27th November, 2023 and 24th March, 2024 is equal to four (4) months. It is certainly not 1 year and 2 months. It is settled law that a party or a witness whose evidence on oath is contradictory is not worthy of credit. 15. It is intriguing that Plaintiff herself and her two witnesses maintained that the Plaintiff moved into occupation of the room on 21st November, 2023 but not 21st November, 2022 as submitted by the Defendant. The question is, why will Plaintiff sign a rent agreement and wait till a year to occupy same? One will make an argument that Plaintiff made a mere error in stating the year. If that was so, why will she and her witnesses maintain same date in the face of a ferocious challenge by the Defendant? In my considered opinion, the testimonies given by the Plaintiff and her witnesses cannot be mere mistakes because they were very assertive when they mounted the witness box. And to make matters worse, the Plaintiff has altered the commencement date found in paragraph 2 of her Exhibit ‘B’, thus the tenancy agreement which is also Exhibit ‘1’ of the Defendant. Instead of “21st day of November 2022 and expires on the 21st November 2024”, the Plaintiff has altered her copy to read “27th day of Page 7 of 9 8-10-2024 MILLICENT COBLAH VS MABEL BARIMA - JUDGMENT November 2022 and expires on the 27th November 2024”and signed against her alteration with the initials of Defendant’s names in ink. The Defendant’s copy of the Tenancy Agreement has no such alteration. 16. My question is, should the dates of commencement and termination of the copies of the tenancy agreement not be the same? And if indeed there was such a need to change the commencement and termination dates of the tenancy agreement, should the changes not reflect on the Defendant’s copy? 17. I can only conclude that the Plaintiff is not worthy of credit and she is only here with the intention to mislead the Court. Sullied hands never found favour in a Court of equity unless concrete, convincing evidence. There is a maxim of equity which states that one “who comes into equity must come with clean hands”. 18. So, the question is, at what point did Plaintiff make payment to the Defendant, was it on the date when the agreement was signed or after she has moved in. As aforesaid, Defendant denied knowledge of Exhibit ‘A’ of the Plaintiff, the receipt of GH₵ 12,600.00 dated 21st November, 2022. Defendant claimed she did not receive such an amount from Plaintiff and did not sign the purported receipt. It was clearly obvious, on the face of the two documents, Exhibits ‘A’ and ‘B’ that the signatures found thereto are not same. However, Defendant failed to show evidence of the dates those payments were made to her. 19. Both parties lack credibility test where the Plaintiff failed abysmally. Plaintiff swore that she took possession of the room on 27th November, 2023 yet she stated in her evidence-in-chief that she occupied the room for a period of 1 year and 2 months as at 24th March, 2024. 20. It should be born in mind that the onus was on the Plaintiff to prove her claim by showing evidence of the amount paid to the Defendant. Plaintiff failed to discharge the evidential burden by producing enough evidence to persuade the Court what she alleges is the truth. There was no evidence of a Tenancy Agreement of 2 and a half years as was her claim stated in her Summary of Page 8 of 9 8-10-2024 MILLICENT COBLAH VS MABEL BARIMA - JUDGMENT Case endorsed on her Writ of Summons. Again, there was no credible evidence of payment of GH₵12,000.00 of which the Court can enter judgment for recovery of same from the Defendant. Both Exhibits ‘C’ and ‘D’ tendered by Plaintiff in support of her allegation of payment made to the Defendant were outstanding balances supposed to be paid to Defendant but not receipts of money actually paid for. 21. In conclusion, the Plaintiff was unsuccessful in establishing her claim against the Defendant. The action is dismissed. 22. A cost of GH₵1,000.00 is awarded in favour of the Defendant against the Plaintiff. H/W MABEL N. L. AHELE (MAGISTRATE) 08/10/2024 Page 9 of 9 8-10-2024 MILLICENT COBLAH VS MABEL BARIMA - JUDGMENT