Otoo and Another v Quarcoo (A9/14/23) [2024] GHADC 717 (30 September 2024)

IN THE DISTRICT COURT AT LA HELD ON MONDAY THE 30TH DAY OF SEPTEMBER, 2024. BEFORE HER WORSHIP ADWOA BENASO ASUMADU- SAKYI, SITTING AS MAGISTRATE SUIT NO: A9/14/23 1. SOLOMON OTOO 2. MARTIN ADDO-QUAO ALL OF LA, ACCRA >>> PLAINTIFFS VRS. HERMES QUARCOO LA-ACCRA >>> DEFENDANT _______________________________________________________________ PARTIES: Plaintiffs present Defendant absent JUDGMENT _______________________________________________________________ INTRODUCTION The Plaintiffs filed this instant suit on 1/12/22 against the Defendant and prayed for the following reliefs; 1. Recovery of the apartment rented out by the Defendant without the approval of Plaintiffs. 2. An order to evict the tenant who has taken occupation of the said apartment without approval from the Plaintiffs. 3. Cost of filing, facilitations and inconvenience. The Defendant filed a Statement of Defence and Counterclaim on the 19th of January, 2023 and prayed for the following reliefs; 1. A declaration that he/Defendant is not the rightful person to be sued in this matter. 2. That Plaintiffs are not entitled to their reliefs being sought for in this suit. 3. Recovery of the amount of Seven Thousand, Six Hundred and Eighty Ghana Cedis (GH¢ 7,68.00) being rent the amount given to the 1st Plaintiff. 4. Cost 5. Any other order(s) this Court deems fit. After pleadings closed the Court ordered the parties to file their respective witness statements on the 7th of August, 2023. The Plaintiffs filed their witness statements on the 4th of September, 2023 but the Defendant on the other hand failed to file a witness statement and also failed to appear in court despite being severed with several notices to appear. Accordingly, the Statement of Defence and Counterclaim of the Defendant was struck out and the Plaintiffs were allowed to proof their case on the 3rd of July, 2024 pursuant to Order 25 rule 1(2)(a) of the District Court Rules (2004) C.I 59. PLAINTIFFS CASE The Plaintiffs’ case is that the subject matter in dispute, an apartment at Green Court, La was bequeathed to their late mother by her senior brother. They go on to state that upon the death of their mother the said property devolved on them and they decided to rent the apartment for three years so they could use the rent to fund their mother’s funeral. The Plaintiffs state that upon the expiration of the rent the tenant handed the keys to the Defendant who is their cousin. They then decided to rent out the apartment to a new tenant and this decision was conveyed to the Defendant. They however changed their mind as the 1st Plaintiff needed a place to stay and since the subject matter was available, he decided to move into the apartment and with the consent of the 2nd Plaintiff they informed the Defendant. They further state that the Defendant without their consent and knowledge rented out the apartment to another tenant and he gave the 1st Plaintiff an amount of Six Thousand Ghana Cedis (GH¢ 6,000.00). The 1st Plaintiff states that he returned the money to the Defendant’s wife and asked her to give same to him. The Plaintiffs state that they decided to renovate the apartment so they deposited building materials in the room and the renovation works begun until they the locks to the apartment were changed and the materials removed. They finally state that the Defendant has gone ahead and allowed a new to move into the apartment without their consent and that all efforts to get the Defendant to stop renting out the apartment has proved futile. 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 the case of 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”. The Defendant refused to show up despite being served with several hearing notices and a result the Defendant’s statement of claim and counterclaim was struck out and the Plaintiffs were allowed to proof their case pursuant to order 25 rule 1 of the District Court Rules, 2009 (C.I 59). The 1st Plaintiff mounted the witness box and testified on the 3rd of July, 2024 on behalf of the 2nd Plaintiff and himself and testified that their late mother was bequeathed the subject matter in dispute from her senior brother and that upon her death they took over the property and rented same out to fund her funeral. 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 testimony adduced by the Plaintiffs they have been able to clearly identify the subject matter of the case and have traced their beneficial interest from their late mother and have been in possession until the Defendant without their consent and authority rented out the property to another tenant who is occupying same. It is trite law that a party in possession has good title against the whole world except one who has a better title. See the case of Mrs Elizabeth Osei v. Madam Alice Efua Korang [2013-14] 1 GLR 221. The defendant refused to testify and thus was unable to show he has a good title to the subject matter and thus the evidence of Plaintiffs that the Defendant without their consent and authority had rented out the subject matter of this case to a new tenant and that all efforts to get the Defendant to hand over this apartment to them has proved futile. The Defendant failed to cross examine the Plaintiffs due to his 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 (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 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 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 cases of Republic v. High Court (Fast Track Division); Ex-parte State Housing Co. Ltd (No. 2) (Koranten -Amoako Interested Party) (2009) SCGLR 185 at 190 and Agbewole v. Abodegbey (2012) 44 GMJ 124 at 129. The evidence adduced by the Plaintiffs stands unchallenged and I hereby hold that the Plaintiffs have been able to satisfy the burden on them and are entitled to the reliefs being sought. Having come to this conclusion it must be noted that the subject matter in this case has been rented out by the Defendant to a tenant whose rent period may not have expired. Although the occupation of this tenant of the said property is unlawful as same was rented by the Defendant who had no right to do so, in the interest of justice it is my opinion that his rent balance must be refunded to him by the Defendant before he vacates from the room. CONCLUSION Having considered the evidence in its entirety and based on my analysis above, I hereby make the following orders; 1. I order the Plaintiffs to recover possession of the apartment located at Green Court, La. 2. The tenant who occupies the said apartment has until the end of October, 2024 to vacate from the apartment and the rent balance refunded to him by the Defendant before the tenant vacates from the property. 3. I award costs of Two Thousand Ghana Cedis (GH¢ 2,000.00) against the Defendant. SGD H/W ADWOA BENSAO ASUMADU-SAKYI MAGISTRATE