Dzakah and Another Vrs Aboagye [2022] GHADC 275 (3 November 2022)

IN THE DISTRICT COURT, ABURA DUNKWA, CENTRAL REGION OF GHANA ON 3RD NOVEMBER, 2022 BEFORE HER WORSHIP, JULIANA S. P. MENSAH, ESQ. SUIT NO. A11/12/2022 1. 2. DR. EMMANUEL E. K. DZAKAH … PLAINTIFFS/RESPONDENTS CHRISTINA KAFUI DOGAH ALL OF BRAFO YAW VRS. ERNEST ABOAGYE@BRO MOSES ……. DEFENDANT/APPLICANT OF BRAFO YAW PARTIES: 1st Plaintiff 2nd Plaintiff Defendant -Absent but represented by 2nd Plaintiff - Present - Present LEGAL REPRENSENTATION: Daniel Amosah for Defendant - Present JUDGMENT SUMMARY OF CASE This is a part-heard suit I inherited at the time that PWI was to testify. It is also noted that all the parties were self-represented until Defendant opened his case and hired the services of a lawyer. DR. EMMAUEL E. K. DZAKAH v. ERNST ABOAGYE - SUIT NO.:A11/12/2022 The 1st and 2nd Plaintiffs, a married couple, are a lecturer and midwife respectively and Defendant a building contractor. It is the case of Plaintiffs that they have known Defendant for over 10 years and belong to the same church. Sometime in December, 2018 the Plaintiffs engaged Defendant to assist, at his convenience, build a one-storey house at Gloryland, Brafo Yaw. Plaintiffs paid the estimates for materials Defendant presented. At all times Defendant’s workmanship fees for the various stages of the construction were paid by Plaintiffs. Defendant never presented receipts for the materials he purchased apart from receipts for electrical items purchased. In March, 2019, following an ejection notice from Plaintiffs’ landlord, they requested Defendant to speed up the construction. In October 2020, Defendant and 2nd Plaintiff met in Accra for 2nd Plaintiff to select the desired tiles and other materials to complete the interior of the house. Back home, Defendant gave an estimate of GH₵27,968.00 for the said materials listed in relief 1. On 9th December, 2020 Plaintiffs paid an amount of GH₵30,000.00 for the items and their transportation from Accra to Cape Coast. GH₵200 for transportation from Cape coast to Accra and food. Defendant asked for and the Plaintiffs paid GH₵2,000.00 as unforeseen expenses in connection with the said purchases. Defendant has since failed to supply the materials and refused to respond to calls from the Plaintiffs. An intervention by their district pastor and church elders at a meeting on 28th August, 2021, to get Defendant to supply the materials proved futile even after he admitted collecting the GH₵32,000.00 to purchase the materials. Thus on 4TH November, 2021 Plaintiffs commenced the instant action against Defendant claiming DR. EMMAUEL E. K. DZAKAH v. ERNST ABOAGYE - SUIT NO.:A11/12/2022 1. The following items for which they had paid an amount of GH₵32,000.00 to Defendant: a. 270 boxes of 60 x 60 tiles b. 120 boxes of wall tiles c. 65 boxes of 30 x 30 tiles d. 38 boxes of kitchen wall tiles e. 2 single Chinese security doors f. 1½ Chinese security door g. 6 water closet toilets h. 5 hanging wash basins i. 2 standing wash basins 2. A refund of the GH₵32,000.00 where Defendant fails to supply the items in 1. 3. Interest on the GH₵32,000.00 from the December, 2020 to date of final payment at the current bank rate. 4. Cost. Defendant admitted Plaintiffs verbally contracted him to construct a one-storey building but denied receiving the GH₵32,000.00 for purposes of purchasing tiles. He admits to receiving the GH₵200 for a trip to the DBS Roofing Company. Defendant averred that he entered into an agreement with Plaintiffs to construct their one-storey building at an initial contract sum of GH₵57,000.00. He averred further that he was contracted specifically to mould and lay blocks, plaster the structure, undertake plumbing works, ceiling and roofing, fence and screeding. He was paid GH₵10,000.00 for clearing the land and block works at the foundation and another GH₵10,000.00 as part payment of the contract sum. It is Defendant’s contention that sometime in 2021 he handed the building to the Plaintiffs and they made an additional payment of GH₵32,000.00. DR. EMMAUEL E. K. DZAKAH v. ERNST ABOAGYE - SUIT NO.:A11/12/2022 The defendant in essence admitted to the 28th August meeting. He pleaded that at the meeting, he made it known to the pastor that he would like the meeting among the parties and the pastor only. Defendant neither admitted nor denied receipt of GH₵32,000.00 for purposes of purchasing the tiles. He averred that the total sum of GH₵52,000.00 so far received is part payment of the agreed contract sum with a balance of GH₵5,000.00 yet to be paid to him. ISSUES 1. Whether or not Plaintiffs paid Defendant a total amount of GH₵32,000.00 for purposes of purchasing materials listed in relief 1. 2. Whether or not the Defendant entered into an agreement with Plaintiffs to put up a one-storey building for a contract sum of GH₵57,000.00. 3. Whether or not Plaintiffs are entitled to their claims. THE LAW Section 14 of the Evidence Act, 1975 (NRCD 323) on Allocation of Burden of Persuasion, states Except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting In Re Ashalley Botwe Lands; Adjetey Agbosu & Others v. Kotey & Ors [2003-2004] 1 SCGLR 420, Wood JSC said DR. EMMAUEL E. K. DZAKAH v. ERNST ABOAGYE - SUIT NO.:A11/12/2022 “It is trite learning that by the statutory provisions of the Evidence Decree, 1975 (NRCD 323), the burden of producing evidence in any given case is not fixed but shifts from party to party at various stages of the trial, depending on the issues asserted and/or denied.” And so in Abbey & ors v. Antwi [2010] SCGLR 17 the co-defendant pleaded in his amended Statement of Defence that the land was jointly purchased. The Plaintiff denied co-defendant’s assertion. The court at page 25-26 held that the onus was on Plaintiff to prove his assertion of sole purchase, whilst the defendant bore the onus of proving their case of joint purchase. Kpegah JA in the case of Zabrama v. Segbedzi (1991) 2 GLR 221 at 246 affirmed the principle of burden to establish an averment by a party. “The correct proposition is that, a person who makes an averment or assertion, which is denied by his opponent, has the burden to establish that his averment or assertion is true. And he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of that burden.” The High Court, Commercial Division, in the case of Syndicated Capital Ltd v. Solcomtech Ltd & ors, Ghana Lawtimes Report (2019) Vol 1 at 527 held that a party alleging to prove by the introduction of required evidence of the facts in issue to make the existence of the case more probable than its non-existence to a reasonable mind. So basically, the law is that he who asserts must prove and the standard of proof is by a preponderance of probabilities. In order to establish their claims in the case herein, Plaintiffs called one Dr. Michael Owusu Appiah, referred to as PW1 in this document, to testify. PW1 is also a member of the church the parties belong to. 1st Plaintiff tendered in evidence an audio recording (Exhibit A). He also tendered documents marked Exhibits B, C, D, E1-E11, F-F4 and G1-G11 after he had closed his case. DR. EMMAUEL E. K. DZAKAH v. ERNST ABOAGYE - SUIT NO.:A11/12/2022 Defendant invited Kofi Essel and Emmanuel Arthur Mensah, referred to as DW1 and DW2 respectively, to testify on his behalf. DW1 and DW2 were engaged by Defendant to work on Plaintiffs’ building. Before I analyse the issues, I must commend Counsel for Defendant for filing an address on behalf of Defendant. I have read it and wish to address his submissions on the exclusion of Exhibit A from the evidence. Exhibit A is an audio recording of the meeting held on 28th August, 2021. Counsel submitted that Exhibit A ought to be excluded from the record because it was obtained in violation of the constitutional rights of the Defendant. He supports this argument with the holding in the case of Raphael Cubagee v. Michael Yeboah Asare & 2 ors. (Ref. No. JI6/04/2017) 28th February 2018), in which the Supreme Court held that the recording by Plaintiff of his telephone conversation with 1 st Defendant, without 1st Defendant’s consent amounts to a violation of his right under Article 18(2) of the 1992 Constitution and therefore excluded from the evidence. This court holds the view that the manner in which Counsel applied the Cubagee case to the instant case is misleading. I cite, copiously, the case from the Ghana Lawtimes Report (2019) Vol 1 242 in which Pwamang JSC delivered the judgment. In that case, the plaintiff sought to tender in evidence an audio recording of a telephone conversation he had with one John Felix Yeboah, a Superintendent Minister who was representing his church, the 3rd defendant, in the case. Plaintiff claimed the recorded conversation covered matters that were in contention in the case before the court and he wanted to use it to prove that the Superintendent Minister in that conversation admitted plaintiff's side of the case. The lawyer for the defendant objected to the tendering of the recording on, among other grounds, that it was made surreptitiously by the plaintiff without the consent of the said John Felix Yeboah and therefore in violation of his rights to privacy guaranteed by Article 18(2) of the Constitution. DR. EMMAUEL E. K. DZAKAH v. ERNST ABOAGYE - SUIT NO.:A11/12/2022 The Supreme Court held that the secret recording of the Superintendent Minister amounted to a violation of his right to privacy which has been guaranteed by Article 18(2) of the Constitution. The court before arriving at the above decision, compared our provisions to the provisions in other jurisdictions on whether evidence obtained secretly ought to be admitted in evidence. At page 249 Justice Pwamang JSC, stated “Our Constitution, unlike some foreign enactments, does not contain a provision that specifically provides for the circumstances in which a court is required to exclude evidence obtained in violation of any of the human rights provisions. Article 35(5) of the South African Constitution, 1996, Section 24(2) of the Canadian Charter of Rights and Freedoms, 1982 (which is a schedule of the Canada Constitution Act, 1982), to be referred to as "the Canadian Charter" and Article 69(7) of the Rome Statute of the International Criminal Court, 1998 all provide for the exclusion of evidence obtained in violation of human rights only upon stated grounds. That implies that where those grounds are not established in a trial, evidence obtained in violation of a guaranteed human right is to be admitted. That practice that gives discretion to the court to determine whether or not to exclude evidence obtained in breach of rights is referred to as the discretionary exclusionary rule. The Justice continued at page 252 thus: However, enforcement of human rights is not a one way street since no human right is absolute. There are other policy considerations that have to be taken into account when a court in the course of proceedings is called upon to enforce human rights by excluding evidence and that explains why more jurisdictions have now adopted the discretionary rule approach…” The English courts have adopted the discretionary exclusionary rule in respect of evidence obtained in breach of constitutional rights. DR. EMMAUEL E. K. DZAKAH v. ERNST ABOAGYE - SUIT NO.:A11/12/2022 The leading case is Jones v. University of Warwick [2003] 1 WLR 954. In that case, the claimant argued that she had a continuing disability in her right hand as a result of an accident at work. The defendant employed an inquiry agent who secretly filmed the claimant in her home. The videos showed that the claimant had entirely satisfactory function in her hand. The claimant sought to have the videos secretly recorded excluded from evidence in court arguing they were made in violation of her human rights … The trial judge held that the evidence was admissible in order to do justice in the case. Lord Woolf, C. J. then set out the question that was faced by the lower courts and answered it in this manner at paragraph 28; “That leaves the issue as to how the court should exercise its discretion in the difficult situation confronting the district judge and Judge Harris. The court must try to give effect to what are here the two conflicting public interests. The weight to be attached to each will vary according to the circumstances. The significance of the evidence will differ as will the gravity of the breach of article 8, according to the facts of the particular case. The decision will depend on all the circumstances. Here, the court cannot ignore the reality of the situation. This is not a case where the conduct of the defendant's insurers is so outrageous that the defence should be struck out." At page 255 Pwamang JSC stated “Furthermore, it is provided by Article 12(2) of the Constitution as follows; "(2) Every person in Ghana, whatever his race, place of origin, political opinion, colour, religion, creed or gender shall be entitled to the fundamental human rights and freedoms of the individual contained in this Chapter but subject to respect for the rights and freedoms of others and for the public interest." This provision in our opinion is an explicit direction to the court to undertake a balancing exercise in the enforcement of the human rights provisions of the Constitution.” DR. EMMAUEL E. K. DZAKAH v. ERNST ABOAGYE - SUIT NO.:A11/12/2022 The Justice of the Supreme Court added at page 256 thus: “where in a civil case, while the case is pending or at the time the dispute was raging, one of the parties with a view to procuring evidence in support of his case in court obtains evidence in violation of the human rights of his opponent, that is conduct that could also bring the administration of justice into disrepute” The Supreme Court finally gave this direction to the courts: “It therefore seems to us that the frame work of our Constitution anticipates that where evidence obtained in violation of human rights is sought to be tendered in proceedings, whether criminal or civil, and objection is taken, the court has to exercise a discretion as to whether on the facts of the case the evidence ought to be excluded or admitted. We therefore adopt for Ghana the discretionary rule for the exclusion of evidence obtained in violation of human rights guaranteed under the 1992 Constitution.” The Cubagee case was thus decided on the basis that the secret recording of John Felix Yeboah by the Plaintiff was obtained with a view to using the evidence in court against him and therefore ought to be excluded. The circumstances of the instant case are different. In the first place, the fact shows that Exhibit A was obtained about three months before Plaintiffs commenced the suit so cannot be construed that Exhibit A was obtained at that time for purposes of using it in court. Secondly, when Exhibit A was played in Court Defendant confirmed his voice on the audio and did not object to its admission in court. Thirdly, Defendant is heard insisting that his submissions at the meeting be recorded just as the submissions of Plaintiff was recorded. The Supreme Court in holding (4) of the Cubagee case, supra said “Telephone conversation is a form of oral communication and it is therefore wrong for one party to the communication to assume that the other party has waived his right to privacy and consented to him recording the conversation and rendering it in a permanent form.” DR. EMMAUEL E. K. DZAKAH v. ERNST ABOAGYE - SUIT NO.:A11/12/2022 It is also noted in holding (8) that the admission of evidence obtained in violation of the fundamental human rights provisions in the 1992 Constitution would not automatically render a trial unfair. I find that the facts of the case herein do not present a violation of Defendant’s rights. More so, when Defendant is heard insisting that his submission be noted. In order words he wanted the proceedings to be captured as minutes. I am of the opinion that Defendant waived his right to any privacy when he insisted that his submissions be captured. I am empowered by the insightful interpretation of Article 18(2) given by the Supreme Court and directions to the Courts to adopt the discretionary rule. In regard to the circumstances of Exhibit A and in the interest of justice, I exercise my discretion in this case and hold that Exhibit A was not obtained in violation of Defendant’s rights. Even if it was improperly obtained, it was not obtained in an outrageous manner so as to exclude. Exhibit A, therefore, remains on the record as admitted. Having cleared the hurdle of the admissibility of Exhibit A, I now deal with the issues. 1. WHETHER OR NOT PLAINTIFFS PAID TO DEFENDANT A TOTAL AMOUNT OF GH₵32,000.00 FOR PURPOSES OF PURCHASING TILES AND OTHER MATERIALS. Plaintiffs say that they contracted Defendant, based on a trust relationship, to help construct their one-storey building. Defendant gave estimates for materials and workmanship charges for each stage of the project and the Plaintiffs paid accordingly. Defendant never produced receipts for materials purchased except for the electrical materials. Defendant did not deny these facts. DR. EMMAUEL E. K. DZAKAH v. ERNST ABOAGYE - SUIT NO.:A11/12/2022 However, the issue that brought about this suit is Defendant’s failure to produce the tiles for which he had collected an amount of GH₵32,000 from Plaintiffs. Under cross-examination PW1 answered that he would not believe Defendant’s assertion that the GH₵32,000.00 was part payment for the project because, during the 28th August, 2021 meeting Defendant never denied that Plaintiffs’ gave him the total amount of GH₵32,000.00 for the purposes of purchasing the tiles and other materials. According to PW1, when Defendant was asked where the tiles were? Defendant answered “what if he says he will not bring them. What can the Plaintiff do?” PW1 testified further that Defendant later turned the tables to centre on his sacrifices purportedly made for the Plaintiffs. Defendant then left the meeting unceremoniously. As earlier stated, Exhibit A was played in court. The defendant is heard responding to the allegation in Fante. He is heard saying that he had arranged with Brother Aaron to go for the tiles but Brother Aaron could not make himself available. Since time was running out, Plaintiff went to the warehouse without Brother Aaron to procure the tiles. In the process, he incurred GH₵2,000.00 expenses and informed Plaintiffs about it. Defendant is also heard saying in Fante that ‘Nti tiles nidzi oworhor, nna dem nyaman so worhor”, meaning ‘the tiles and the other material are there’. He added that he kept the tiles and other materials at a policeman’s house close to Plaintiff’s place. DW2 testified that though he does not know the financial terms of the contract between the parties, Defendant disclosed whatever transpires between the parties to him (DW2). He also testified to the effect that Defendant normally went to the market, without any of the workers, to purchase materials for the Plaintiffs’ building project. The workers off-loaded the materials from the truck when Defendant arrived with them. DW2’s testimony indicates that Defendant purchased the building materials, I believe after Plaintiffs had given him money for estimates Defendant presented. DR. EMMAUEL E. K. DZAKAH v. ERNST ABOAGYE - SUIT NO.:A11/12/2022 Exhibits B, C, D, E1-11, F-F4 and G1-G11 were filed after Plaintiffs had closed their case but admitted in evidence. The exhibits are records of estimated materials and payments purportedly made by Plaintiffs to Defendant. Section 62 (Cross-Examination) of the Evidence Act, NRCD 323 states (1) At the trial of an action, a witness can testify only if he is subject to the examination of all parties to the action, if they choose to attend and examine. (2) If a witness who has testified is not available to be examined by all the parties to the action who choose to attend and examine, and the unavailability of the witness has not been caused by any party who seeks to cross-examine the witness, the court may in its discretion exclude the entire testimony or any part of the testimony as fairness requires. Justice Brobbey gives the objectives of section 62 (cross-examination) in his book Essentials of the Ghana Law of Evidence, 2014 at page 169 thus: Firstly, cross-examination is to ask questions of the witness which are calculated to assess the truth or veracity of the testimony and the credibility of the witness. … The second is to elicit facts or evidence which may support the case of the party conducting the cross-examination. At page 171 the learned Justice explains that “In simple terms, the section makes it mandatory for all persons to make themselves available to be cross-examined when they testify. If a witness is not available to be cross-examined on his testimony, his evidence may be expunged from the record.” The above exhibits having been filed after Plaintiff had closed their case, Defendant lost the opportunity to cross-examine the Plaintiffs on the said exhibits through no fault of his. It would therefore be unjust to allow the said exhibits to form part of the evidence. Exhibits B, C, D, E1-11, F-F4 and G1-G11 are therefore excluded as not forming part of the evidence. In spite of the exclusion of the above Exhibits, I find as a fact that Plaintiffs gave Defendant a total amount of GH₵32,000.00 for the purposes of purchasing and DR. EMMAUEL E. K. DZAKAH v. ERNST ABOAGYE - SUIT NO.:A11/12/2022 transporting the materials listed in Relief 1 and there is ample evidence to support this fact. Issue 1 is consequently held in favour of Plaintiffs. 2. WHETHER OR NOT THE DEFENDANT ENTERED INTO AN AGREEMENT WITH PLAINTIFFS TO PUT UP A ONE-STOREY BUILDING FOR GH₵57,000.00. Defendant pleaded and testified that Plaintiffs verbally engaged him to construct a one-storey building for an initial sum of GH₵57,000.00. Plaintiffs denied this add that they (Plaintiffs) became aware of this amount the first time when Defendant stated it in his statement. Plaintiffs further said the Defendant was paid for every stage of the construction and has been paid GH₵67,000.00 as his workmanship so far. Defendant also pleaded that the parties agreed he would be paid his workmanship after he has completed the project but then his workers would be paid regularly. Defendant said Plaintiffs paid him the GH₵32,000.00 after he handed over the building to them in October, 2021. It is a basic principle of law that it is the party alleging a fact that bears the burden of establishing the existence of that fact by the introduction of sufficient evidence to convince a reasonable mind that on the preponderance of probabilities, the existence of the alleged facts are more probable than its non-existence. See: Syndicated Capital Limited v. Solcomtech Limited & ors, supra, at 573. On record, I find as a fact that the workers Defendant hired were paid by Plaintiffs regularly, through Defendant. Indeed, DW1 testified that the labourers were ten in number and were paid GH₵80 daily for block works and GH₵100 for concrete works. In addition, they were given breakfast and lunch. Having considered the evidence on this issue I find some inconsistencies in the stories surrounding the time Defendant claims to have been paid the GH₵32,000.00. DR. EMMAUEL E. K. DZAKAH v. ERNST ABOAGYE - SUIT NO.:A11/12/2022 First, Defendant testified that Plaintiffs paid him the GH₵32,000.00 as part payment of his contract sum after he had handed over the building (without doors, tiles and bathrooms) to them sometime in October, 2021. Yet the purpose of the 28th August, 2021 meeting was to urge Defendant to produce the tiles for which Plaintiffs had paid GH₵32,000.00 in December, 2020. Considering the sequence of events, the GH₵32,000.00 could not have been paid after October 2021 as Defendant claims. Defendant did not adduce any evidence to prove that he indeed receive d the money in October or after October 2021. Secondly, I find that the amount of GH₵57,000.00 was first mentioned in Defendant’s witness statement. There is also no evidence of a prior demand from Plaintiffs since October, 2021 of the purported balance of GH₵5,000.00 on the alleged contract sum. I hold the view that the alleged GH₵57,000.00 was concocted after the Plaintiffs commenced the instant suit against Defendant and therefore the alleged contract does not exist. CONCLUSION Upon an evaluation of the evidence I find established on a preponderance of probabilities that 1. Plaintiffs, sometime in December, 2020, paid to Defendant an amount of GH₵32,000.00 to purchase tiles and other materials to finish the interior of their building. 2. Defendant procured the building materials paid for by Plaintiffs. 3. At all times, Plaintiffs paid Defendant his workmanship fees for every stage of the work he did for Plaintiffs 4. The parties never entered into a contract for the sum of GH₵57,000.00 for the construction of Plaintiffs’ one-storey building. It is for the above reasons that I enter judgment in favour of the Plaintiffs as follows: Plaintiffs are to recover (per their reliefs) from Defendant DR. EMMAUEL E. K. DZAKAH v. ERNST ABOAGYE - SUIT NO.:A11/12/2022 1. The materials listed in Relief 1 of their claim 2. In the alternative of (1) above, Defendant is ordered to pay an amount of GH₵32,000.00 to Plaintiffs. 3. Defendant is ordered to pay Plaintiffs, interest on (2), where he opts to pay the GH₵32,000.00 4. In view of the current astronomical increments in the prices of goods and services, I award a cost of GH₵4,000.00 against Defendant. SGD: H/W Juliana S. P. Mensah, Esq. District Magistrate DR. EMMAUEL E. K. DZAKAH v. ERNST ABOAGYE - SUIT NO.:A11/12/2022 15