Andy Adjetey Vrs Adam Abubakari [2022] GHACC 122 (13 October 2022)

IN THE TDC DISTRICT COURT HELD AT TEMA ON THURSDAY, THE 13TH DAY OF OCTOBER, 2022 BEFORE HER HONOUR AKOSUA ANOKYEWAA ADJEPONG (MRS.), CIRCUIT COURT JUDGE, SITTING AS AN ADDITIONAL MAGISTRATE SUIT NO. A9/14/21 ANDY ADJETEY ANNANG ---------- PLAINTIFF VRS ADAM ABUBAKARI ---------- DEFENDANT PARTIES: PRESENT COUNSEL: ABSENT NO LEGAL REPRESENTATION FOR THE PLAINTIFF CELESTINA AKU YANNEY FOR THE DEFENDANT JUDGMENT On the 7th September 2020, the Plaintiff herein filed a rent referral from the Rent Office, Tema in the registry of this Court and sought the orders of the Court to enforce the recommendations made by the Rent Officer in the Plaintiff’s favour namely: (a) Eject Respondent from the premises with immediate effect to enable Complainant repair the property. (b) Make such orders as to costs or in connection with proceedings. Page 1 of 9 The Defendant filed notice of intention to appeal to the Rent Magistrate. In view of that the parties were referred to the Court Connected Alternative Dispute Resolution but they could not settle. The Court therefore ordered the parties to file their pleadings for a hearing to be conducted. A party has himself to blame for failing to attend Court when there is evidence that he has been served, for he cannot complain of not being heard by the Court. In the case of Republic v. Court of Appeal, Accra Ex Parte East Dadekotopon Development Trust, Civil Motion No J5/39/2015, dated 30- 07-15, SC Unreported, it was held that: “There could not be a breach of the rules of the audi alteram partem rule, when it is clear from the facts that sufficient opportunity was given to a party and was abused by him”. Adinyira JSC also in the case of Nana Ampofo Kyei Barfour v. Justmoh Construction Co. Ltd. & Others [2017] 113 G. M. J. 118 at pages 128-129 restated the principle in these words: “In the plethora of cases cited by counsel for the Plaintiff for example, Republic v. High Court (Fast Track Division) Accra; Ex parte State Housing Co. Ltd. (No. 2) (Koranten-Amoako Interested Party) [2009] SCGLR 185; Republic v. High Court (Human Rights Division) Accra, Ex parte Akita (Mancell-Egala& Attorney- General – Interested Parties) [2010] SCGLR 374 at page 379; where the Supreme Court held the principle of the audi alteram partem rule was inapplicable; it was clearly evident, on the face of the record that the party complaining of a breach of his/her right to be heard, was present in Court on the day the case was adjourned for hearing or was served with hearing notice but chose not to be present either by himself or counsel to be heard on the due date.” Page 2 of 9 Order 25 rule 1(2) (a) of the District Court Rules, 2009 (C. I. 59), provides that: “Where the Plaintiff attends and the Defendant fails to attend, dismiss the counterclaim, if any, and allow the Plaintiff to prove the claim” Relying on the above authorities and considering that the Defendant was absent on the date the hearing was to commence, notwithstanding his notice of the hearing date, the Court proceeded to hear the case without the Defendant. THE CASE OF THE PLAINTIFF In his Statement of Claim the Plaintiff stated that he is a police officer and resides in both Accra and Tema. He continued that he inherited the chamber and hall room of the Defendant from his late father, the late Mr. Emmanuel Adjetey Annang, the landlord. That the Defendant occupied the said chamber and hall which he completed at cost and be defrayed as rent. According to the Plaintiff, a tenancy agreement signed between his father and the Defendant was from 16th April 2013 to 16th August 2026 was breached by subletting the chamber and hall room without the consent of the Plaintiff, to different people of which he knows two of them. That at his family house, the Defendant agreed that the sublet tenant should occupy the room for two years after which he will refund GH¢1,500.00 to the Defendant for him to recover possession for renovation and personal use. That when the sublet tenant vacated the room he took charge of the vacant chamber and hall room and locked up the said premises. The Plaintiff further stated that during that time all attempts to refund the agreed GH¢1,500.00 proved futile. That he later realized that the Defendant has broken entry to the empty locked up chamber and hall room and took his personal belongings to the room. That they ended up at the rent control where he paid the Page 3 of 9 agreed GH¢1,500.00 at the rent control office. That the Defendant is currently not living in the said chamber and hall room so he pleads that this honourable Court can compel the Defendant to go for his balance of GH¢1,500.00 at the rent control office to aid him get access to the said chamber and hall. In his evidence-in-chief, the Plaintiff repeated the averments in his Statement of Claim in his Witness Statement and supplementary Witness Statement and tendered in evidence two tenancy agreements and land agreement which were not signed by the Defendant. He also stated that in 2015 a new tenancy agreement was accepted by both parties of which the monthly charge fees was GH¢100.00. that the Defendant agreed and paid GH¢2,400.00 for two years commencing from January 2015 to January 2017 and that the remaining balance for the new tenancy agreement as at January 2017 was GH¢2,805.00 where the Defendant stayed in the room for another year which was GH¢1,200.00 so the remaining balance as at 2018 was GH¢1,605.00. The Plaintiff closed his case thereafter. Let me put it on record that the Defendant and his lawyer did not attend Court on the date fixed for hearing after the Court had adjourned the case at their instance when counsel for the Defendant prayed for an adjournment to peruse the file as she had just been solicited to represent the Defendant. Not even the Defendant attended Court on the date of hearing. The Court as a result commenced the hearing where the Plaintiff opened and closed his case. Order 27 rule 1 of the District Court Rules, 2009 (C. I. 59) provides that it is the duty of the parties, their lawyers and the Court to avoid unnecessary Page 4 of 9 adjournments and other delays and ensure that causes or matters are disposed of as speedily as the justice of the case permits. Given that the Defendant had failed to appear before the Court although being fully aware of the date for the hearing to commence, the Court struck out the Witness Statement and supplementary Witness Statement of the Defendant. The Court therefore ended the hearing and set a date for judgment. The Plaintiff was ordered to serve hearing notice on the Defendant to appear in Court for the judgment and there is proof of service. The legal issue to be determined is whether or not the Plaintiff is entitled to the reliefs he claims against the Defendant. Section 12(1) of the Evidence Act, 1975 (NRCD 323), provides that: “except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of probabilities.” This was reiterated by Amissah JA in the consolidated case of Ricketts & Another v. Addo & Others and Ricketts v. Borbor & Others [1975] 2 GLR 158- 169, C. A., when the learned judge stated that: “... the burden of persuasion which a Plaintiff has to satisfy in every case is no more than proof on a balance of probabilities”. In In Re Ashalley Botwe Lands; Adjetey Agbosu & Ors v. Kotey & Ors [2003-04] SCGLR 420, the Supreme Court per Brobbey JSC reiterated the position of the law that: Page 5 of 9 “… it is the duty of the Plaintiff who took the Defendant to Court to prove what he claimed he is entitled to from the Defendant.” Section 11(4) of the Evidence Act explains the burden of proof in civil cases as follows: “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”. In the case of Ackah v. Pergah Transport Ltd & Ors [2010] SCGLR 728 the Supreme Court held inter alia 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 varied 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…” Notwithstanding the absence of the Defendant to appear in Court to enable him partake in the hearing, I have subjected the evidence of the Plaintiff to the prescribed standard of proof as provided under sections 10 – 14 of the Evidence Act, 1975 (NRCD 323). I have also examined the Statement of Defence of the Defendant with the view to establishing whether or not even with his absence in Court to open his defence, Page 6 of 9 any jurisdictional issue or other crucial reasonable legal defence has been raised by the Defendant’s defence. As a result, I made the following observations and findings: It is the Plaintiff’s case that his late father had a tenancy agreement with the Defendant which was later varied with another tenancy agreement. That the Defendant breached the said agreement and sublet the chamber and hall room without the consent of the Plaintiff to different people. That at his family house, the Defendant agreed to accept the amount of GH¢1,500.00 for him to recover possession for renovation and personal use but attempts to refund the agreed GH¢1,500.00 proved futile. That he has paid the said GH¢1,500.00 at the rent control office. The Defendant in his defence denied the claims of the Plaintiff that Defendant’s tenancy agreement with the Plaintiff’s father has expired; and also denied the Plaintiff’s claim that he breached the agreement between him and the Plaintiff’s father. Therefore the Plaintiff had a burden of proof to establish his claims which have been denied by the Defendant. The Plaintiff tendered some exhibits in support of his claims. None of the tenancy agreements tendered by the Plaintiff in his evidence was signed by the Defendant. Indeed the Defendant stated in his statement of defence paragraph 6 that he refused to sign a tenancy agreement the Plaintiff redrew that reduced his years of occupation to two years at the rate of GH¢100.00. The Defendant in his defence denied the claims of the Plaintiff therefore even though the Defendant did not attend Court to partake in the hearing, the Plaintiff had a Page 7 of 9 legal burden to prove his claims since same have been denied by the Plaintiff. The agreements tendered by the Plaintiff in his evidence cannot be binding on the Defendant because they was not signed by the Defendant. The Plaintiff also indicated that he had paid an amount of GH¢1,500.00 to the rent control office but did not tender any receipt of such payment in his evidence. The Plaintiff did not adduce evidence as to how he arrived at the said GH¢1,500.00 and evidence of payment of same to the rent office for collection by the Defendant. The Defendant however did not appear in Court to lead any evidence in support of his averments made in the statement of defence and also to establish his counterclaim. The Supreme Court in the case of Ofori Agyekum v. Madam Akua Bio (Dec’d) substituted by Agartha Amoah; Civil Appeal No. J4/59/2014, dated 13th April, 2016, SC (Unreported), held per Benin JSC thus: “…Where no evidence is adduced on a fact that has been pleaded, it is treated as having been abandoned by the pleader, the Court does not call it into question in its judgment. The Court’s only duty is to consider the evidence the party has proffered in determining whether or not he has met the right standard of proof”. In the case of Adjetey Adjei & Ors. v. Nmai Boi & Ors. [2013-2014] 2 SCGLR 1474, Adinyira JSC held: “… It is trite law that pleadings would not constitute evidence. To hold otherwise would negate the requirements of proof as provided in the Evidence Act, 1975 (NRCD 323).” The Court of Appeal applying the principle held in the case of Fordjour v. Kaakyire [2015] 85 GMJ 61. His Lordship Ayebi J. A. espoused: “It has to be noted that the Court determines the merits of every case based on legally proven evidence at the trial and not mere allegations or assertions in the pleadings”. Relying on the above principles and authorities, the Court cannot make any pronouncement on the averments in the Statement of Defence and Counterclaim Page 8 of 9 of the Defendant; accordingly the Defendant’s assertions and counterclaim are hereby dismissed for want of proof. Flowing from the above reasons and authorities, I find that the Plaintiff did not adduce the necessary evidence in support of his claims and therefore could not discharge the burden and the standard of proof provided in the Evidence Act. I rely on the statement of Adade JSC in the case of Nartey v. Mechanical Lloyd Assembly Press Ltd [1987-1988] 2 GLR 314 when he stated that: “A person who comes to Court, no matter what the claim is, must be able to make a good case for the Court to consider, otherwise he must fail”. From the foregoing, I conclude that the Plaintiff has failed in his duties of providing and adducing sufficient evidence to establish his claims. Consequently, I hereby dismiss the claims of the Plaintiff as unsubstantiated. There shall be no order as to costs. [SGD.] H/H AKOSUA A. ADJEPONG (MRS) CIRCUIT COURT JUDGE 13TH OCTOBER 2022 Page 9 of 9