Tambro Vrs Abambire [2022] GHADC 313 (7 October 2022)

(DISTRICT CORAM: HIS WORSHIP MR. MAWUKOENYA NUTEKPOR MAGISTRATE), SITTING AT THE DISTRICT COURT, BOLGATANGA IN THE UPPER EAST REGION OF GHANA, ON FRIDAY, THE 7TH DAY OF OCTOBER, 2022. SUIT No. UE/BG/DC/A1/4/2022 AGNES TAMBRO PLAINTIFF VRS. CLEMENT AGANA ABAMBIRE DEFENDANT TIME: 09:39AM PLAINTIFF PRESENT DEFFENDANT ABSENT NO LEGAL REPRESENTATION Introduction JUDGMENT 1. By a Writ of Summons and Particulars of Claim filed on 9th February 2022, the Plaintiff claims against the Defendant as follows: a. An order for recovery of Four Thousand Ghana Cedis (GHC4,000.00) being the balance of GH₵12,000.00 plaintiff paid for the purchase of a piece of land at Yikene. AGNES TAMBRO VRS. CLEMENT AGANA ABAMBIRE (SUIT NO. A1/4/2022) Page 1 of 8 b. General Damages. c. Cost. Background facts 2. Plaintiff says she bought a piece of land through the Defendant who is a land agent for a consideration price of Twelve Thousand Ghana Cedis (₵12,000.00). Plaintiff says she made full payment through the Defendant to the land owner. Plaintiff says Defendant signed as a witness for the land owner on the sale of land agreement. Plaintiff says she engaged an officer of Survey Department to survey the land and it was revealed that there was a road passing through the land. Plaintiff says when this happened, she drew the attention of the land owner and the Defendant and demanded for refund of her money but the land owner only refunded Eight Thousand Ghana Cedis to her and told Defendant to also refund Four Thousand Ghana Cedis as his share of the money. Plaintiff says she made several demands for Defendant to refund the money to her but all her efforts proved unsuccessful. 3. The Defendant however failed to appear before the court even though served with the writ of summons, particulars of claim and hearing notice. On 16th of September 2022 the matter was fixed for hearing but the Defendant did not come to court even though served with a hearing notice. The court therefore allowed the Plaintiff to prove her case in the absence of the Defendant pursuant to Order 25 rule 1(2) of the District Court Rules 2009, (C. I.59). The said order provides as follows: AGNES TAMBRO VRS. CLEMENT AGANA ABAMBIRE (SUIT NO. A1/4/2022) Page 2 of 8 “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; .... (c) make any other order that is just. “ The fundamental principles governing the law of evidence in Ghana. 4. Section 10 of the Evidence Act, 1975 (NRCD 323) provides as follows: (1) For the purposes of this Decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court. (2) The burden of persuasion may require a party to raise a reasonable doubt concerning the existence or non-existence of a fact or that he establish the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt. 5. Section 11 of NRCD 323 also provides that: (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. AGNES TAMBRO VRS. CLEMENT AGANA ABAMBIRE (SUIT NO. A1/4/2022) Page 3 of 8 6. Section 12 of NRCD 323 (Proof by a Preponderance of the Probabilities) (1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities. (2) "Preponderance of the probabilities" means that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence. 7. Also in Majolagbe v Larbi & others (1959) GLR 190-195, it was held at page 192 that: “Proof, in law, is the establishment of fact by proper legal means; in other words, the establishment of an averment by admissible evidence. Where a party makes an averment, and his averment is denied, he is unlikely to be held by the Court to have sufficiently proved that averment by his merely going into the witness-box, and repeating the averment on oath, if he does not adduce that corroborative evidence which (if his averment be true) is certain to exist.” See also Klutse v. Nelson [1965] GLR 537 and Air Namibia (Pty) Ltd. V. Micon Travel & Tour & 2 Ors, [2015] 91 G. M. J, @ page 177. Legal Analysis and discussion of issu(es) 8. The issue for determination in this case is whether or not the Defendant is liable to refund Four Thousand Ghana Cedis (4,000) to the Plaintiff. It is trite law that it is the duty of a Plaintiff to prove his case for he who alleges must prove. In Air Namibia (Pty) Ltd. V. Micon Travel & Tour & 2 Ors, [2015] 91 G. M. J, It was held at page 177 that: AGNES TAMBRO VRS. CLEMENT AGANA ABAMBIRE (SUIT NO. A1/4/2022) Page 4 of 8 “It is trite law that it is the duty of a Plaintiff to prove his case for he who alleges must prove. In other words, it is the party who raises an issue essential to the success of his case who assumes the burden of proving such issue. This burden of proof is statutorily defined in sections 10 (1) and (2) 11(1) and (4) and 12(1) and (2) of the Evidence Act, 1975 (NRCD 323) and explained in the case of Adwubeng v. Domfeh [1996-97] S. C. G. L. R. 660. It must be noted that specific pleading of an issue of fact by a plaintiff in the civil case requires a specific denial of that issue of fact by the defendant in his statement of defence in order to cast a duty on the plaintiff to adduce credible and sufficient evidence of that issue of fact in order to succeed in his claim. That is the rationale behind the enactment of section 10, 11 and 12 of the Evidence Act, 1975 (NRCD 323). Thus section 11(4) and 12(2) of NRCD 323 has provided in clear and uncertain terms that the standard of proof in the civil case is proof by a preponderance of the probabilities Adwubeng v Domfe (supra). But a bare assertion of the plaintiff in his evidence of the issue of fact he had asserted in his pleadings will not be sufficient to discharge his burden of proof of that assertion if he wants to succeed in his claim. He must go further to produce other evidence of facts and circumstances from which the court can be satisfied that what he has asserted is true. Such other evidence of such facts may include documentary evidence of the issue(s) asserted.” 9. Also, it is a settled principle of law that a bare assertion or merely repeating a party’s pleadings in the witness box without more does not constitute proof. In KLAH V. PHOENIX INSURANCE CO. LTD [2012] 2 SCGLR 1139, this principle was reiterated: “Where a party makes an averment capable of proof in some positive way AGNES TAMBRO VRS. CLEMENT AGANA ABAMBIRE (SUIT NO. A1/4/2022) Page 5 of 8 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 be satisfied that what he avers is true.” See also Majolagbe v Larbi & others (1959) GLR 190-195 and Klutse v. Nelson [1965] GLR 537. 10. In instant case, the Plaintiff testified herself and called one witness. She says she met Defendant who told he was an agent of lands and at that time, she was looking for a land to buy, so the Defendant told her he had a sister who had a plot she wanted to sell. Plaintiff says the Defendant took her to the land and she saw that they were about to build. There was sand and block on the plot, so she likes it and took her witness who knows much about the land and building to the place, he saw it and said it was okay. Plaintiff says after seeing the place, her witness said she should go to the Land Commission and verify but Defendant said it was a genuine plot and there was nothing to fear and that they were even about to build but because the Land owner needed money that was why she was selling it out. The Defendant said she should pay him the money and she paid GHC 12,000.00 to the Defendant. Plaintiff testified that the Defendant insisted that she should build and after that he will do the paper but she declined and decided to go to the Lands Commission first before building. When she went to the Land Commission, they say, she cannot build because the place was a road when they said that she approached the Defendant and his sister’s daughter that this was what the Land AGNES TAMBRO VRS. CLEMENT AGANA ABAMBIRE (SUIT NO. A1/4/2022) Page 6 of 8 Commission has said so they should refund her money to look for another land. Defendant brought GH₵8,000.00 out of GH₵12,000.00 leaving the balance of GH₵4,000.00. Plaintiff says after that, when she calls the Defendant, he would tell her he was coming but never came. Plaintiff says the Defendant blacklisted her number and that of her witness. Plaintiff says all efforts to recover the remaining balance from the Defendant has failed. The Plaintiff tendered in evidence a statutory declaration (Exhibit “A”) made by the farm owner in her favour evidencing payment for the land. 11. Also, Plaintiff witness testified that Plaintiff wanted to buy a plot from the Defendant and she asked him to go and look at the plot and confirm if it was a good area. He followed her to the Defendant and she paid the GH₵ 12,000.00. The witness says he went to Town and Country Planning to verify whether the plot was okay. And he was told the plot was a road, so they went back to the Defendant. The Defendant was not the owner of the land but the land was for Defendant sister’s daughter and the lady (daughter) refunded GH₵ 8, 000.00 and told us that the remaining GH₵ 4,000.00 will be paid to her by Defendant because the Defendant gave 8000.00 to her. She issued a receipt document confirming the GH₵8000 given to the plaintiff. All efforts to retrieve the 4,000.00 from Defendant proved futile. 12. From the evidence on record, the court finds as a fact that the Plaintiff initially bought a land through the Defendant and the Plaintiff paid GHC12,000.00 to the Defendant. But since the place was confirmed to be a road, the land owner refunded GHC 8,000 leaving the outstanding balance of GHC4,000.00 which the AGNES TAMBRO VRS. CLEMENT AGANA ABAMBIRE (SUIT NO. A1/4/2022) Page 7 of 8 Defendant is liable to pay but has failed to do. And having examined the whole evidence adduced by the Plaintiff on record, the court holds that the Plaintiff has proved her case to the satisfaction of this court. Thus, she established the existence of the facts contained in her claim by preponderance of the probabilities. Accordingly, Plaintiff’s action succeeds. It is hereby ordered that the Plaintiff shall recover the sum of Four Thousand Ghana Cedis (GHC 4,000.00) from the Defendant. Cost of Five Hundred Cedis (GHC500.00) is awarded in favour of the Plaintiff against the Defendant. …………………………………… HIS WORSHIP MAWUKOENYA NUTEKPOR (DISTRICT MAGISTRATE) AGNES TAMBRO VRS. CLEMENT AGANA ABAMBIRE (SUIT NO. A1/4/2022) Page 8 of 8