BENJAMIN VRS AFI (A2/26/2021) [2022] GHADC 367 (1 September 2022)

1 01: 09: 2022 IN THE DISTRICT MAGISTRATE COURT HELD AT VAKPO ON THURSDAY THE 1ST DAY OF SEPTEMBER, 2022 BEFORE HER WORSHIP GIFTY CUDJOE THE MAGISTRATE SUIT NO. A2/26/2021 AYISAH BENJAMIN ) …. PLAINTIFF VERSUS PEACE HAYI AFI ) …. DEFENDANT J U D G E M E N T The Plaintiff claim from the defendant herein the following: - (a) Recovery of (16) sixteen bags of rice or in his equivalent at the prevailing market price GH₵200.00 being (31) thirty-one bags of rice collected from his farm withought his approval since September, 2020. (b) Cost. The defendant pleaded not liable to the claim in his Witness Statement. The plaintiff mentioned that the defendant is his customer and he buys assorted goods from her store and make monthly payments. That in 2018 February, March the defendant borrowed an amount of GH₵400.00 to him. He again borrowed an amount of GH₵700.00 from the defendant. He had an old debt of GH₵1,100.00 so the total debt he owes the defendant totaled GH₵2,200.00. He could not make payment at a stipulated time so the defendant caused his arrest. He promised making instalments of GH₵150.00. He made payment twice and again defaulted in payment. He personally went to the Police and reached another agreement with the defendant to use rice he will harvest to defray the amount he owed. He was in the farm a day around 5: 30 p.m. harvesting rice and the defendant emerged with her husband and son. The defendant called the Police and was held to measure what is due them and handover the rice to them. He told the Police it cannot be quantified since he is yet to winnow the rice to determine the quantity. The defendant later conveyed the rice with the word that she was sending same to the Police Station. In all there were (31) thirty-one bags of rice conveyed. The defendant’s husband messaged him to come to their house to process the rice but he asked him to hold on for him to complete harvesting the rice left on the farm. He went to the house later and realized they had started winnowing. He counted the rice and realized (17) seventy bags instead of the (31) bags. He informed the Police that the rice was not up to. He was asked to recount. He entered the store and realized other bags of rice all now totaling (20) twenty bags of rice instead of (31) thirty-one bags. They asked him to help winnow the rice but he deliberately refused because the number of bag of rice they collected from the farm does not tally with what he saw in the house. Seven months after he chose to redress in court. In her defence, the defendant in her witness statement states that the plaintiff is a customer who supply her with local rice. The plaintiff collected an amount of GH₵2,800.00 to supply local rice. The defendant failed to supply the rice and also failed to refund the money and so she reported him to the Police and he paid an amount of GH₵350.00 leaving a balance of GH₵2,450.00. The plaintiff also bought assorted goods from her shop at GH₵50.00 total amount the plaintiff owes is GH2,500.00. Agreement reached at the Police Station is that the plaintiff should harvest the rice on his farm and use same to defray the cost. This is from 2017 till December, 2020. When the plaintiff stated harvesting his rice he informed the Police. She went to the plaintiff’s farm to collect the local rice from the farm to her house for processing. The Police advised her to invite the plaintiff to be part of the processing but he refused to be part. I should therefore engaged people to process the rice. They had (14) fourteen bags of rice after winnowing. She informed the Police but the plaintiff failed to admit that they had (14) bags of rice. They argued for some time. Thereafter, anytime she called the plaintiff he refused to respond to her call. She was later served with court summons. The issues for the Court to determine are: - 1. Whether or not the defendant collected (31) bags of rice from plaintiff farm without his approval. 2. Whether or not the plaintiff as a way of counter claim owes the defendant an amount of GH₵2,500.00. In civil cases, the plaintiff bears the burden of proving his case on the preponderance of probability. The burden on the plaintiff to adduce cogent evidence that when same is considered in the light of all the facts if will appear to a reasonable mind that the facts presented is more probable than not. See Section 11(4) and (12) of the Evidence Act; 1975 (NRCD 323). Where there is a counter claim as in the instant case the same standard of proof will be used in evaluating and assessing the case of the defendant. Just as is used to evaluate and assess the case of the plaintiff against the defendant. Aryeh and Akakpo versus Ayaa Iddrisu [2010] SCGLR 891 at 901, it was held that: - “A Party who counterclaims bears the burden of proving his Counter Claim on the Preponderance of Probabilities and will not win on that issue only because the Original Claim failed. The Party won on the counter claim on the strength of his only case and not on the weakness of his opponent’s case”. On the body of evidence, the averments the witness Statements filed and the oral responses in open court, the record is incontrovertible that these parties have dealt with each other in business terms. The evidence again is conclusive that the defendant had gone into the plaintiff’s rice farm and while he was harvesting talk some bags of rice away. To Corroborate this piece of evidence, this was disclosed during Cross Examination on plaintiff: - Q. Are you aware you harvested for (2) two years and did not pay me and I visited you at the farm. A. That is not correct when I asked for the money in 2020 I said I will pay. I promised with the rice farm I had in 2020 PW (1) in her witness statement held the Court that she was on the farm before the defendant arrived and mentioned that she collected a total of (31) bags of rice form the farm. CROSS EXAMINATION OF PW (1) REVEALS: - Q. Are you saying you were present when I conveyed (31) bags of rice? A. Yes, I was on the farm. Q. You do not know what transpired between me and plaintiff? A. I was on the farm when you came for the rice. Q. A. Can a moto king convey (31) thirty-one bags of rice at a go? Yes. It conveyed the (31) thirty-one bags. PW (2) interestingly told the court in his witness statement that in December 2019, the defendant engaged him to conveys rice from the plaintiff warehouse. At Liati Suba. He went with the plaintiff and together they collected (18) eighteen bags of rice. That following day they offloaded the rice to the defendants store at Have Etoe. The inconsistency in the evidence of PW (1) and (2) is revealed. Whereas PW (1) Stated that he saw (31) thirty-one bags of rice collected from the farm, PW (2) saw a different figure thus (18). It is the defendants defence that upon collecting the rice from the farm they had to process same. The defendant did not disclose how many bags she collected from the farm but indicated that after processing she got (14) fourteen bags of rice against the (31) thirty-one bags the plaintiff mentioned. Again she stated that when she collected the rice from the farm, she invited the plaintiff to come so they can all witness what is there with her but the plaintiff refused. Generally, there are Several Post-Harvest handily of rice grans thus field drying, threshing, shed-drying, grading etc. The exact processing the defendant stated not disclosed. That notwithstanding, it is general knowledge that any granting of rice upon harvest that had to go through dry post-harvest process before final sale and consumption will diminish. The court finds that at the beginning of stages of the case, there have been a deposit of (14 ) fourteen and half bags of rice at the court. A careful perusal of the rice shows it is in its raw form. Accordingly, the inability of PW (1) and PW (2), the direct and material witnesses, to adduce sufficient evidence to establish the (31) thirty-one bags collected on the day becomes total to the plaintiff claim. On the balance therefore the court finds as a fact. That the plaintiff could not offer sufficient claim evidence to prove that (31) thirty-one bags of rice was collected from his farm. The defendant’s claim of an amount of GH₵2,500.00 is not disputed by the plaintiff. It is noted that the plaintiff’s claim against the defendant on the writ of summons is for the: - “Recovery of (16) sixteen bags of rice or in its equivalent at the prevailing market price at GH₵200.00”. It is noted that both parties have not dealt with each other in good faith. First and foremost, the plaintiff erred when he did not pay debt owed in good time compelling the defendant to have taken a rather drastic action. The defendant also erred when she has forcefully collected bags of rice from the plaintiff’s farm. The court in order to bring the parties back to the original positions will order that:- 1. The (14⅟2) fourteen and half bags of rice in custody of the court whose current selling price is GH₵200.00 per bag be used to offset the defendant’s debts. Total cost shall be GH₵2,900.00. 2. The Plaintiff owes the defendant GH₵2,500.00. 3. The balanced GH₵400.00 shall be paid into court for the plaintiff to collect. No Order as to cost. Each Party bear his own cost. THE MAGISTRATE (SGD) GIFTY CUDJOE