Ogbenyemita v Agbeve (A2/26/2024) [2025] GHADC 97 (2 July 2025)

IN THE DISTRICT COURT A HELD AT KOFORIDUA THIS WEDNESDAY THE 2ND OF JULY 2025 BEFORE HER WORSHIP NANA AMA DABBAH FYNN NKANSAH(MRS) SUIT NO A2/26/2024 ABRAHAM OGBENYEMITA OF ADWESO-KOFORIDUA VRS THERESA AGBEVE OF NURSING TRAINING QUARTERS KOFORIDUA JUDGMENT This suit commenced with the issuance of a writ of summons and statement of claim on 18/08/23 in which was endorsed the following reliefs against the Defendant for: a. A Declaration by this Honourable Court that the sale agreement in respect of a container at Koforidua Nurses' Quarters is null and void as same was metallic based on deceit on the part of Defendant which makes its performance practically impossible. An Order for the recovery of cash amount of GHC9,500.00 being money b. paid to Defendant in March, 2023 as a consideration price for a metallic container inclusive of the piece of land on which same is situate. c. 2023 till the date of final payment. Interest on the said amount at current Bank of Ghana rate from March, d. GENERAL DAMAGES to Plaintiff for breach of agreement. An Order directed at the Defendant to pay a reasonable sum as e. Cost of litigation. PLAINTIFF’S CASE       The Plaintiff avers that, in pursuit of his objective to acquire a shop, he identified a container shop located near the exit of the Nurses Training School, which he learned belonged to the Defendant. The Plaintiff states that the Defendant informed him and his friend, Gabriel Adeleke (PW1), that the container belonged to her late daughter, who had previously occupied the bungalow situated immediately behind the container. Despite the bungalow being occupied by another person at the time, the container remained in its original position in front of the said bungalow. The Plaintiff further asserts that upon enquiring about the possibility of operating a the shop on the premises while another individual occupied the bungalow, Defendant assured him that the current occupant was a friend of her deceased daughter and had no objection to his intended use of the container. The Plaintiff states that he and the Defendant subsequently agreed upon a consideration of GHS 9,500 for the purchase of both the container and the land upon which it was situated, which amount he fully paid to the Defendant. The Plaintiff contends that although the Defendant thereafter presented him with a written agreement to sign, he discovered that its terms had been unilaterally altered by the Defendant to pertain only to the container, excluding any reference to the land. The Plaintiff objected to this alteration and refused to sign the agreement. Subsequently, the occupant of the bungalow informed the Plaintiff of her intention to reclaim the space occupied by the container for her personal use. The Plaintiff avers that this development led him to believe he had been defrauded by the Defendant, prompting him to seek a refund of the consideration paid. The Defendant’s refusal to refund the money culminated in the institution of this suit. DEFENDANT’S CASE The Defendant avers that she offered a container situated in front of a bungalow at the Nurses’ Quarters for sale in or about March 2023 and visibly marked the container with an inscription indicating it was “for sale.” The Defendant states that the Plaintiff subsequently approached her, and they agreed upon a purchase price of GHS 9,500.00 for the container. The Defendant asserts that prior to the Plaintiff making the final payment, he enquired whether he could temporarily leave the container on the land before relocating it. She informed him that she could not guarantee such an arrangement, as the container was located on government land and she had no authority to assure continued placement thereon. The Defendant the occupant of the bungalow objected to the Plaintiff operating his business on the further states that, following the completion of payment, thereby preventing him from using the container at the Plaintiff location. premises, According to the Defendant, in proceeding with the purchase and requested a refund of the purchase price so that the container could be offered for sale again. then expressed his disinterest that The Defendant contends that she informed the Plaintiff she was unable to refund the money, as ownership of the container had already transferred to him upon payment. She advised the Plaintiff that he was at liberty to sell the container to a third party if he so wished. BURDEN OF PROOF It is without question and quite trite law that the Plaintiff has a burden to prove his case to the standard required in civil actions; that is, on a balance of probabilities. Section 11 of the Evidence Act, 1975 (NRCD 323) states in part; Section 11—Burden of Producing Evidence Defined. (1) For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue. (4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence. Regarding the burden of proof, the dictum of the Supreme Court in the case of KLAH v. PHOENIX INSURANCE CO. LTD [2012] SCGLR 1139, is relevant here. In that case, it was held that; “Where a party makes as averment at capable of proof in some positive way e.g. by producing documents, description of things, reference to other facts, instances and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances from which the court can satisfy itself that what he avers is true.” (See also OKUDZETO ABLAKWA (NO.2) v. ATTORNEY-GENERAL &ANOR [2012] 2 SCGLR 845 @847 regarding what is expected of a person who goes to court and makes an allegation). (See also: ACKAH v. PERGAH TRANSPORT LIMITED &ORS (2010) SCGLR 736) By the same measure, the Plaintiff is required to prove his claims against the Defendant on a balance of probabilities. In FRABINA LTD v. SHELL GHANA LTD. [2011] 33 GMJ 1SC, (@pages 27-28), the Court per Brobbey JSC stated; “What must be noted is that, in evaluating evidence in judicial proceedings, a court has several sources to draw material evidence from: 1. trial judge to draw from it and make his conclusions…. First are the pleadings. Where the pleadings are not in contention, it is safe for the 2. The second is the oral evidence that has been led in court. The credibility of oral evidence is normally tested through cross-examination …... 1. The third is the documentary evidence. This normally takes the form of . questions are documents that are tendered during the course of trial and upon which asked during examination in chief and cross-examination. It can also take the form of reports such as Surveyors, Accountants, Medical Doctors, etc who testify and tender in reports prepared by them to help the judge in determining the case one way or the other. submitted by court appointed expert witnesses The fourth are judicial decisions and authorities touching and dealing with principles done during the closing 4. of law in the subject matter of the case on trial. This is normally addresses by Counsel of the parties to the court. Upon a critical evaluation of the evidence led by both parties, the determination of the case herein shall turn on whether or not the Plaintiff is entitled to his reliefs. To start with, it was Plaintiff’s case throughout the proceedings that he, at all time material, dealt with Defendant in the company of PW1 and the amount he paid to the Defendant was for the container and the land situate thereon. The Defendant throughout the proceedings also insisted that she could not have sold the land together with the container thereon to the Plaintiff since it was government land. Plaintiff called upon his friend whom he alleges was privy to the entire agreement with the Defendant as PW1 to testify and during his cross examination this is what ensued; ‘Q: Do you know that the land on which the container in situate; Nursing Training College Quarters is government land? A: Yes Q: Do you recall that I told you that the container belongs to my late daughter who had passed on. And I wanted an outright payment to use to complete the building she was constructing. A: Yes, you said so Q: Are you sure I told you I was selling the land? A: No, you did not indicate that.’ From the immediate answers from PW1 who was at all times present, he admits that the Defendant did not say she was selling the land as part of the transaction; which assertion corroborates the testimony of the Defendant. The position of the law is settled in situations where the evidence of a party's witness supports the case of the opposing party. In the case of KOGLEX LIMITED V FIELD 1999-2000] 2 GLR 437, Acquah JSC (as he then was) held as follows: "For a host of respectable authorities had settled the principle that where the evidence of a party's witness supports the other party on an issue, while that party's version stands unsupported by his own witness, a court is duty-bound to accept the corroborated version unless there are compelling reasons to the contrary, which reasons must be set out: Tsrifo V vrs. Duah VIII (1959) GLR 63; Asante vrs. Bogyabi (1966) GLR 232; and Banahene vrs. Adinkra (1976) 1 GLR 346." Thus, this court shall accept the corroborated version of the evidence on record which is that the offer for sale was in respect of the container only. That being established, once the Plaintiff paid for the container itself and indeed took possession of same, then property in same has passed unto Plaintiff making him the bona fide owner of the container. The court takes judicial notice of the fact that a container is movable and the Plaintiff is at liberty to move it and situate it somewhere else. In the alternative if he wants to sell it, he can seek permission from the occupant of the bungalow for a reasonable within which to do so. To the mind of this court, it will be an injustice to order that the Defendant refunds the GHS9500 to the Plaintiff when the evidence on record does not support Plaintiff’s assertion that the Defendant acted deceitfully towards him for the purposes of the agreement. The Defendant is not the Lands Commission, neither is she an officer of the Nurses Training College. She is in no way, shape or form seized with the capacity to alienate government land. Therefore, it is preposterous that the Plaintiff would enter into a contract with the Defendant under the misapprehension that he was buying government land. The fact that he claims he is uneducated does not mean he cannot do due diligence. On the totality of the evidence, the Plaintiff’s claim fail and same accordingly dismissed. Cost of GHS 1,500 in favour of Defendant.