Agyemang Vrs Kwateng [2022] GHADC 314 (12 October 2022)

(DISTRICT CORAM: HIS WORSHIP MR. MAWUKOENYA NUTEKPOR MAGISTRATE), SITTING AT THE DISTRICT COURT, BOLGATANGA IN THE UPPER EAST REGION OF GHANA, ON WEDNESDAY, THE 12TH DAY OF OCTOBER, 2022. SUIT No. UE/BG/DC/A2/5/2023 AKWASI AGYEMANG PLAINTIFF VRS. AKWASI KWATENG (MOTOR) DEFENDANT TIME: 09:06AM PLAINTIFF PRESENT DEFFENDANT ABSENT NO LEGAL REPRESENTATION Introduction JUDGMENT 1. By a Writ of Summons and Particulars of Claim filed on 8th August 2022, the Plaintiff claims against the Defendant as follows: a. Recovery of Two Thousand One Hundred Ghana Cedis [₵2,100.00] being the cost of price of 350 pieces of coconut defendant owes plaintiff since May 2022. b. Cost. AKWASI AGYEMANG VRS. AKWASI KWATENG ALIAS MOTOR (SUIT NO. A2/5/2023) Page 1 of 7 Background facts 2. Plaintiff says he sent his 35o pieces of coconuts through a VIP Bus to Bolga, on the 11th day of April, 2022 for onward delivery by his son. Plaintiff says that when the goods finally reach Bolga he called his son to go and convey them, but before his son got there defendant had gone to convey the goods. Plaintiff says he asked his son to go to defendant to remind him that the coconuts he conveyed was his goods and defendant said the coconuts belongs to him. Plaintiff says same day in the afternoon’s defendant’s goods arrived from Kumasi so plaintiff again sent his son to defendant to go and collect plaintiff coconuts from him and defendant still insisted and refused to give the goods to plaintiff’s son. Plaintiff says he has to travel from Kumasi to Bolga, and on arrival he went to defendant demanding for his money but defendant did not heed to his request and has since not paid him his money to him which is Two Thousand One hundred Ghana Cedis [₵2, 100.00] as the total cost price of 350 pieces of the coconuts. 3. The Defendant appeared in court on 2nd September 2022 and admitted that it was 288 coconuts that come in to his custody. The court directed the parties to go together with a court official to confirm the status of the Coconuts. And the matter was adjourned to 13th September 2022. However, it was found that the coconuts were not in good condition. Accordingly, the court granted judgment on admissions in favour of the Plaintiff to claim the sum of GHC1,728.00 being the cost of 288 pieces of Coconut at the price of GHC6.00 each. The matter was adjourned to 4th October 2022 for trial to determine whether coconuts were 350 or 288. On 4th of October 2022 the Defendant did not come to court even though he AKWASI AGYEMANG VRS. AKWASI KWATENG ALIAS MOTOR (SUIT NO. A2/5/2023) Page 2 of 7 was aware of the date, without any reasonable excuse or explanation. The court therefore allowed the Plaintiff to prove his 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: “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 AKWASI AGYEMANG VRS. AKWASI KWATENG ALIAS MOTOR (SUIT NO. A2/5/2023) Page 3 of 7 (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. 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 coconuts in issue were 350 or 288 pieces. It is trite law that it is the duty of a Plaintiff to prove his AKWASI AGYEMANG VRS. AKWASI KWATENG ALIAS MOTOR (SUIT NO. A2/5/2023) Page 4 of 7 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: “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 AKWASI AGYEMANG VRS. AKWASI KWATENG ALIAS MOTOR (SUIT NO. A2/5/2023) Page 5 of 7 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 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 relied on the particulars of claim and called two witnesses. The 1st witness testified that about three (3) months ago Plaintiff bought three hundred and Fifty (350) pieces of coconut from him. When they pick coconut to Bolga, it got missing. Subsequently, Plaintiff got to know it was Defendant who took the coconuts. That the Defendant says the coconut were 288 pieces and not 350. The plaintiff wanted me to tell the court the quantity of the coconut he bought from me. The coconut in question is Agric type and not local breed. We do not work with documents otherwise I would have provided it. 11. The 2nd witness also testified that he works with his master (plaintiff). He says the Plaintiff bought 350 pieces of coconut from Kumasi and sent it to Bolga about three months ago. He says when the goods arrived, the Defendant went and pick up the coconuts. When I got there Defendant loaded the coconuts for one of his boys to AKWASI AGYEMANG VRS. AKWASI KWATENG ALIAS MOTOR (SUIT NO. A2/5/2023) Page 6 of 7 go and sell. I told him the coconut belongs to Plaintiff and he says no. The 2nd witness says he called the plaintiff and informs him. He the Defendant insists that the goods are not for us I should stop. The plaintiff came down from Kumasi. He told the Defendant the coconut is ours but he says no. 12. From the evidence on record the court finds as a fact that PW1 sold 350 pieces of coconuts to the Plaintiff and when the coconuts arrived at Bolgatanga, the Defendant collected the coconuts and wrongly insisted that the coconuts belonged to him. That the Plaintiff made several efforts to collect the coconuts but Defendant failed to give back the coconuts to the Plaintiff. Conclusion 13. Having examined the whole evidence adduced by the Plaintiff on record, the court holds that the Plaintiff has proved his case to the satisfaction of this court. Thus, he established the existence of the facts contained in his claim by preponderance of the probabilities. Accordingly, Plaintiff’s action succeeds. It is hereby ordered that the Plaintiff shall recover the sum of Two Thousand Ghana One Hundred Cedis (GHC 2,100.00) 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) AKWASI AGYEMANG VRS. AKWASI KWATENG ALIAS MOTOR (SUIT NO. A2/5/2023) Page 7 of 7