KOBINA VRS ASEDA COMPANY LTD & ANOTHER (NR/DC/KPA/A2/5/24) [2024] GHADC 448 (25 September 2024)

IN THE DISTRICT COURT SITTING AT KPANDAI ON 25TH SEPTEMBER, 2024 BEFORE HIS WORSHIP GODSON ETSE KUMADO, THE DISTRICT MAGISTRATE SUIT NO: NR/DC/KPA/A2/5/24 YAW KOBINA ] PLAINTIFF OF NKACHINA ] VRS 1/ ASEDA COMPANY LTD ] 2/ MOHAMMED MBO a.k.a GANGUYELIDOO] DEFENDANTS OF BIMBILLA ] _______________________________________________________________ JUDGMENT _______________________________________________________________ INTRODUCTION This is an uncontested matter since the Defendant has failed to appear to answer the claims made against him by the Plaintiff. The Court therefore proceeded to hear the matter and ordered the Plaintiff to testify in proof of his claims. By his amended writ of summons the Plaintiff claims against the Defendant the following reliefs: 1. Cash the sum of GH¢ 4,000 being lotto that I staked and won from the Defendant, which 2nd Defendant has since refused or failed to pay the said money despite repeated demands. 2. Trial cost and interest on the said amount. 3. General damages including incidental expenses of GH¢1,000. 4. Any other orders that the Court may deem fit. THE CASE AND EVIDENCE OF THE PLAINTIFF The Plaintiff testified for himself and called no other witness in support of his case. By his summary of subject matter and his witness statement which was adopted as his evidence in chief, the Plaintiff stated the 2nd Defendant is the manager and registered agent of the 1st Defendant. In the year 2022 the 2nd Defendant came to Nkachina and told them he was operating Aseda lotto. He first met the chief of Nkachina No. 2, Nana Mensah and introduced one Dramani Abudu as his agent and that he was going to leave the documents with him so anyone who wanted to stake the lottery could go to him to do so. It is the case of the Plaintiff that on 11/09/2022, he staked an amount of GH¢20 with two numbers: 40-65 and won an amount of GH¢4,000. In support of his case, the Plaintiff attached EXHIBIT A which is the receipt of the staked lottery. It is the case of the Plaintiff that the 2nd Defendant has failed to pay the said moneys to him despite several demands. He again stated that he reported the matter to the chief of the area who summoned the 2nd Defendant yet the 2nd Defendant has failed to pay him the said monies. THE DECISION OF THE COURT As indicated earlier, this is an uncontested suit. From the records, the matter was first called on 30/01/2024 and though the defendant was absent on the said day, he was represented by one Mohammed Bin Latif who informed the court of the Defendant’s absence from court and prayed for a date. The Defendant has been absent from court on all the subsequent adjournments even though there are several proofs of service of hearing notices and court processes on him. The matter therefore proceeded and the Plaintiff was ordered to file his witness in proof of his case. The matter was subsequently called for hearing and the Defendant again failed to appear even though there is proof of service of the hearing notice on him. The law is that even though all parties are entitled to the right to be heard, a party who was given all the opportunities to be heard but failed to make himself available cannot not turn around to complain of the breach of the natural justice rule of fair hearing (audi alteram partem rule). In SAFO AND ANOTHER v. BADU [1977] 2 GLR 63 the court explained the requirement of the natural justice rule of hearing the other side in the following words: The audi alteram partem rule to which counsel refers means simply this: That natural justice requires that no condemnation should be pronounced behind the back of a man who has had no opportunity to appear and defend his interest, either personally or by his proper representative. But the court will not hold a judgment to be contrary to natural justice where the trial court has jurisdiction over the subject- matter of the suit and the parties thereto, and where the parties have duly and in accordance with common law ideas of natural justice been summoned to the trial court so as to have had a hearing or an opportunity of being heard. Order 25 rule 2 (a) of the District Court Rules, 2009 (C.I. 59) further gives guidance to the court in instances where the matter is called for hearing but the Defendant, as in the instant case, fails to attend: 1. Failure to attend trial (1) Where an action is called for trial and the parties fail to attend, the trial magistrate may strike the action off the trial list. (2) Where an action is called for trial and a party fails to attend, the trial magistrate may (a) where the plaintiff attends and the defendant fails to attend, dismiss the counterclaim, if any, and allow the plaintiff to prove the claim; In the instant case, the Defendant has not filed any counterclaim against the Plaintiff. The Court therefore went ahead and ordered the Plaintiff to give evidence in proof of his case whereupon the Plaintiff relied on his witness statement as his evidence in chief. The evidence of the Plaintiff remained uncontested since the Defendant did not attend to cross- examine him. The Plaintiff testified and led evidence that the 2nd Defendant who is a registered agent and manager of the 1st Defendant came to Nkachina that he is operating Aseda lotto and introduced one Dramani Abudu to the chief of Nkachina No. 2 as his agent, adding that he will leave the documents with him so anyone who intends on staking the lottery could do so. He consequently staked an amount of GH¢20 on two numbers as shown by EXHIBIT A. According to the Plaintiff, he won the amount of GH¢4,000 on his said stake but the 2nd Defendant has failed to pay him the said amount. The Plaintiff tendered in evidence EXHIBIT A which is a receipt of staked lottery. Exhibit A contains copies of two receipts with the date 11/9/22, numbers staked were 40-65 and amount contained on each receipt is “100,000” which written in modern currency is GH¢10. On a consideration of the uncontested evidence adduced by the Plaintiff, I am of the opinion that the Plaintiff has been able to prove his claims against the Defendants. He has been able to prove that the 2nd Defendant is the registered agent of the 1st Defendant and that he staked the said lottery from the 2nd Defendant. I am satisfied on Plaintiff’s evidence that he won the amount of GH¢4,000 on his stake but the 2nd Defendant failed to pay him the money. I accordingly grant all the reliefs claimed by the Plaintiff against the Defendant. It is hereby ordered that the Defendants pay to the Plaintiff the amount of GH¢4,000 being his winnings on the lottery he staked from the 2nd Defendant, manager of the 1st Defendant lotto company with interest calculated from 11/09/22 at the prevailing bank rate till the date of final payment. I award cost of GH¢500 against the Defendants in favour of the Plaintiff. SGD H/W GODSON ETSE KUMADO