Abiamenyo Vrs Atsu [2022] GHADC 143 (17 November 2022)

IN THE DISTRICT MAGISTRATE COURT HELD AT KOFORIDUA THIS THURSAY THE 17TH DAY OF NOVEMBER, 2022 BEFORE HER WORSHIP NANA AMA DABBAH FYNN NKANSAH SUIT NO: A2/81/2021 FRANCIS KOMLA ABIAMENYO OF UNNUMEMBERED HSE DENSUNU WATER WORKS - KOFORIDUA …. PLAINTIFF VERSUS EMMANUEL AMEKPOR KOMLA ATSU OF SSNIT - KOFORIDUA …. DEFENDANT ==================================================================== JUDGMENT ==================================================================== This case commenced with the issuance of a writ of summons and statement of claim by the Plaintiffs against the Defendant on the 23rd of February, 2021. The reliefs endorsed on the writ are as follows; A. Recovery of GHS 9,000.00 from the Defendant being payment of construction works done for the Defendant for the 1st Plaintiff with interest from the date of this suit till final payment. B. An order directed at the Defendant to acquire and transfer a plot of land situate and being at Koforidua consideration for services provided by the 2nd Plaintiff to the Defendant. C. Cost PLAINTIFFS’ CASE The Plaintiffs’ case in sum is that they are a married couple and caretakers of the Defendant’s property at Densuano. Plaintiff’s say that the Defendant contracted the 1st Plaintiff to construct rental accommodations on the plot of land which 1st Plaintiff did up until the lintel level amounting to GHS 9,000.00 which the Defendant has refused to pay till date. The Plaintiffs also say that the Defendant promised gifting her a plot of land in Densuano if she took good care of his property which said oral promises was witnessed by certain persons and the Defendant has reneged on his promises and rather asked them to vacate his premises. That it is the failure of the Defendant to honour his promises that has culminated the instant action. DEFENDANT’S CASE The Defendant denies the claim of the Plaintiffs and says that albeit he contracted the 1st Plaintiff to construct the 3 chamber and hall self contained bedrooms, he agreed with him that it was going to be on daily wage basis (by day) and he paid the 1st Plaintiff on weekends when he came around based on the work done by the 1st Plaintiff. The Defendant also says that the 2nd Plaintiff came begging him for a place too satay and he allowed her to be on his premises as a squatter in order to be cleaning the place and never promised her of any plot whatsoever. The Defendant also counterclaimed for the ejection of the Plaintiffs from his property. ISSUE FOR DETERMINATION: At the close of pleadings, the issue which this court sets down for determination is whether or not the Plaintiffs are entitled to their claims. THE BURDEN OF PROOF/ BURDEN OF PERSUASION By law, the Plaintiffs had a burden to prove their case to the standard required in civil actions; that is, on a balance of probabilities. Section 11 of the Evidence Act, 1975 (NRCD 323) states in part; Section 11—Burden of Producing Evidence Defined. (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. Regarding the burden of proof, the dictum of the Supreme Court in the case of KLAH v. PHOENIX INSURANCE CO. LTD [2012] SCGLR 1139, is relevant. In that case, it was held that; “Where a party makes as 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 satisfy itself that what he avers is true. (See also OKUDZETO ABLAKWA (NO.2) v. ATTORNEY-GENERAL &ANOR [2012] 2 SCGLR 845 @847 regarding what is expected of a person who goes to court and makes an allegation). (See also: ACKAH v. PERGAH TRANSPORT LIMITED &ORS (2010) SCGLR 736) In explaining the principles relating to the duty to produce evidence, the learned S. A Brobbey states at page 31 of his book ESSENTIALS OF THE GHANA LAW OF EVIDENCE thus; “This literally means “The proof lies upon him who affirms, not on him who denies, since by the nature of things, he who denies a fact cannot produce proof.” Where the Plaintiff makes a positive assertion at the start of the trial, he bears the legal burden. At the same time, he bears the evidential burden to adduce evidence at the start of the trial.” On a balance, then, can the Plaintiff, who has a burden to succeed on the strength of his own case, achieve this goal? “On the balance, if the existence establishes more than fifty per cent chance of existence of the fact, the standard of proof can be said to have been achieved. The Bench Book for US District Court Judges restates this principle graphically thus: “The plaintiff has the burden of proving his [her] case by what is called preponderance of the evidence. That means the plaintiff has to produce evidence which, considered in the light of all the facts, leads you to believe that what the plaintiff claims is more likely to be true than not. To put it differently, if you were to put the plaintiff’s and the defendant’s evidence on opposite sides of the scales, the plaintiff would have to make the scales tip somewhat on his [her] side. If the plaintiff fails to meet this burden, the verdict must be for the defendant.” It is obvious that if the evidence adduced is such that the scales are evenly balanced, the burden of proof on the plaintiff would not have been satisfied. In that event, the case of the plaintiff should fail.” (See S. A Brobbey Essentials of the Ghana Law of Evidence (Datro Publications), 2014 @ page 41) By the same measure, the Plaintiff is required to prove his claims against the Defendant on a balance of probabilities. In FRABINA LTD v. SHELL GHANA LTD. [2011] 33 GMJ 1SC, (@pages 27-28), the Court per Brobbey JSC stated; “What must be noted is that, in evaluating evidence in judicial proceedings, a court has several sources to draw material evidence from: 1. First are the pleadings. Where the pleadings are not in contention, it is safe for the trial judge to draw from it and make his conclusions…. 2. The second is the oral evidence that has been led in court. The credibility of oral evidence is normally tested through cross- examination …... 3. The third is the documentary evidence. This normally takes the form of documents that are tendered during the course of trial and upon which questions are asked during examination in chief and cross-examination. It can also take the form of reports submitted by court appointed expert witnesses such as Surveyors, Accountants, Medical Doctors, etc who testify and tender judge in reports prepared by them to help the in determining the case one way or the other. 4. The fourth are judicial decisions and authorities touching and dealing with principles of law in the subject matter of the case on trial. This is normally done during the closing addresses by Counsel of the parties to the court. What the Plaintiffs are expected to do in this case then would be to prove their case, on its own strength, without relying on whatever weaknesses there may be in the Defendant’s case, on a balance of probabilities. I will now proceed to deal with the penultimate issue in this trial. WHETHER OR NOT THE PLAINTIFFS ARE ENTITLED TO THEIR CLAIM At the heart of the determination of this issue lies the germane question whether the Plaintiffs were able to prove that indeed the Defendant owed 1st Plaintiff the sum of GHS 9,000.00 for construction work done. Having discussed the burden of the plaintiff in this case, lets juxtapose the law and the evidence put before the Court by the Plaintiffs to ascertain if this burden has been discharged by the Plaintiffs. In paragraph 11 of the Statement of Claim, it is stated that; It is the 1st Plaintiff’s case that he worked on the property as a mason from the foundation stage to the lintel or window level of the house and has not been paid in full and that the Defendant owes him a balance of Nine Thousand Ghana Cedis (GHS 9,000). At paragraph 10 of the Witness Statement of 1st Defendant, he indicates that; 10. The breakdown of the debt the Defendant owes me is as follows: a) Foundation digging GHS 1,500 b) Foundation concrete and footing GHS 1,500 c) Filling d) Super structure work e) Fixing of burglar proof f) Project supervisory work GHS 800 GHS 1,700 GHS 900 GHS 2,600 GHS 9,000 TOTAL I need mention that the Plaintiffs also attached a picture of a building which was tendered as Exh A indicating the said property he worked on. It is worthy of note that the above excerpts are the entirety of evidence the 1st Defendant proffered in proof of his claim of GHS 9,000.00 The Defendant denied the assertion of 1st Plaintiff and indicated in paragraph 11 of his Witness Statement thus; 11. I paid the Plaintiff anytime I come on weekends base (s.i.c) on the work done and there has not been any outstanding payment whatsoever between the parties. During cross examination of Defendant at page 25 of the R. O. P, this is what ensued: Q: So it is true that the 1st Plaintiff did the initial profiling; that’s the marking on the ground and brought people to dig the foundation. A: Yes but I paid him Q: How much did you pay the 1st Plaintiff for the initial profiling and digging of the foundation? A: I do not have any record of the amount I paid to him but whenever they finish working I pay them. Clearly, throughout the entire trial, the Defendant denied owing the 1st Plaintiff the said sum and insisted that he had paid all his outstanding amount and it was incumbent on the Plaintiffs to go beyond merely making bare assertions to adducing other substantial relevant evidence to make the earlier assertions denied much heavier. That is the settled position of the law and the Supreme Court in the seminal case of MAJOLAGBE v LARBI [1959] GLR 190 opined that when a party makes an averment in his pleading which is capable of proof in a positive way and the averment is denied, that averment cannot be sufficiently proved by just mounting the witness box and reciting the averment on oath without adducing some corroborative evidence in support of same. The breakdown which the 1st Plaintiff outlined in his paragraph 10(e) is self serving as he did not adduce any evidence to substantiate how the said figures were arrived at. What was the basis of each amount as indicated? In paragraph 8 of the Witness Statement, he stated thus; I worked on the property as a mason from the foundation stage to the lintel or window level of the house and has (s.i.c) not been paid During cross examination, 1st Plaintiff also stated thus; You did not pay me. I am the master, the GH₵6,000.00 he paid me was for the workers and labourers who helped me. Now, the 1st Plaintiff wants this court to believe that he virtually put up an entire building for the Defendant in stages without the Defendant paying him not even a cedi but gave him monies in respect of the labourers? There is no argument concerning the fact that the agreement between the parties for the 1st Plaintiff to construct the 3 room property was purely an oral one as seen in the excerpt as follows which ensued during the cross examination of the Defendant as follows: Q: Did you ever engage his services to construct a house for you at Densuano A: Yes but we went into an agreement based on certain terms Q: If you say you have an agreement with him, do you mean it was a written one? A: No it was not a written agreement Now despite the fact that the said agreement was an oral one which did not have any documentary proof of same, the Plaintiffs could have called further evidence in support of the said GH₵9,000.00 claim yet they played their averments on repeat. The photograph which the 1st Plaintiff attached as proof of the house he put up for Defendant did not help in the proof of the GH₵9,000.00 claim as the building as shown in Exhibit B is fully roofed yet the 1st Plaintiff even informs the court that he stopped at the lintel level. How then does this assist the Plaintiff in the discharge of his burden of proof? In the absence of such proof, the court is convinced that the Plaintiffs were unable to discharge their evidential burden and having failed to do so it did not now lie with the defendant to prove that he did not actually owe the Plaintiff and as such it is the opinion of this Court that the Plaintiff’s claim in respect of the GH₵9,000.00 is dismissed. In the case of DZAISU & Others v GHANA BREWERIES [2007-2008] 1 SCGLR 539 at 547 posited thus; It is trite law that a bare assertion by a party of his pleadings in the witness box without proof did not shift the evidential burden onto the other party. The next question to be answered in this judgment is whether or not the Plaintiffs are entitled to their 2nd relief which reads thus; An Order directed at the Defendant to acquire and transfer a plot of land situate and being at Koforidua consideration for services provided by the 2nd Plaintiff to the Defendant. At the centre of proof of this relief, the 2nd Plaintiff in her Witness Statement stated thus; 1. The Defendant sometime in 2008 came to my home traumatized that someone including a man known as Nana George had trespassed onto his land and threatened to kill him if he ever come unto the said land. 2. Defendant then impressed upon me as local residence of Densuano- Waterworks to assist him to recover possession of the said piece or parcel of land in consideration for a parcel of land adjacent to his land. 3. This oral agreement was witnessed by my daughter Delali Aprem, my mother and a local fetish namely Nwusu Avoryi. 4. The Defendant even handed his land document to me as confirmation of his commitment to buy a half plot of land for me in consideration of my services. The 2nd Plaintiff attached a copy of the receipt of payment of the land bearing Defendants name as proof of his commitment to buy a plot of land for her. This document was admitted into evidence and marked as Exhibit C. Before I proceed to analyse the evidence of the 2nd Plaintiff, let me highlight an excerpt of what ensued during cross-examination of 2nd Plaintiff at page 18 of the R. O. P; Q: Put to you: The Exhibit C, you broke into my room and took it without my consent A: That is not so. You gave it to me yourself; I did not break into your room. You gave me this document while you were fighting over the land and you had travelled so this was the document I used in retrieving the land. I must say that there is a blatant inconsistency between the answer given by 2nd Plaintiff during cross examination as to how she got custody of the Exh B and the paragraph 6 of her Witness statement. While in her Witness statement she indicates that the Defendant gave her a copy of Exh B as his commitment to buy her a piece of land, under cross examination she states that the Defendant gave it to her to use in retrieving the land when Defendant was away. Considering that the 2nd Plaintiff sought to convince this Court into believing that the Exh B was given her by Defendant as a commitment to acquire another plot of land for her, her inconsistent answer, in the light of the total denial of this assertion, prompts the Court to conclude that the existence of the facts on which the Defendant’s case is grounded is more probable than that of the 2nd Plaintiff. In effect, the basis of 2nd Plaintiff’s claim is based specifically on the said promise made by the Defendant to her which promise she indicated was evidenced by about 3 persons who she called none to even testify in the court to corroborate her claim. To my mind, these persons were material witnesses which 1st Plaintiff failed to call and in their absence, she did not produce any further evidence either in proof of this oral promise made to her by the Defendant which the Defendant has denied severally. During cross-examination of the 2nd Plaintiff she stated thus; Q: In paragraph 5 you said your daughter was a witness to the agreement for me to buy you a land but your daughter never attended court. A: The reason why I don’t bring her is that you would say because she is my daughter she will side with me. In all honesty, this statement should not have come from a party who is ably represented by Counsel throughout the proceedings. Besides in the case of BASARE v SAKYI [1987-88] 1 GLR 313, CA, it was held that a court seeking to do justice could not without more, disregard the evidence of a material witness solely on the basis that the witness was a relative of the party and as such had an interest in protecting the family’s interest. From the foregoing, Upon the failure of the 2nd Plaintiff to prove that there was an oral promise by Defendant which he reneged on same, the Court finds that the condition precedent for the grant of relief 2 has not arisen and as such same is dismissed. Assuming without admitting that the 2nd Plaintiff was able to prove this relief being sought, considering its wording, could this Court grant it? The grant of same would make it an un-executable order as to my mind same cannot be enforced by any known process of execution. See the following cases: APPIAH v PASTOR LARYEA ADJEI [2007-2008] 2 SCGLR 863 N. D. K FINANCIAL SERVICES v YIADOM CONSTRUCTION AND ELECTRICAL WORKS AND OTHERS [2007-2008] 1 SCGLR 93 Now, the Defendant filed a Statement of Defence and counterclaim on 2/03/21 and claimed for the following: Ejection of the Plaintiffs from the house, property of the Defendant. The trite learning is that a counterclaim is a separate and independent suit capable of determination on its own merits. It has been held in the case of BOW MACLACHLAN & CO.v THE CAMOSUN [1909] AC 5976 and WILLIAMS v AGIUS [1914] AC 522 thus; A counterclaim is independent and it is only for convenience that it is made jointly. It is substantially a cross-action, not merely a defence to the Plaintiff’s claim. It must be of such a nature that the court would have jurisdiction to entertain it as a separate action. See also; OGBARMEY-TETTEH v OGBARMEY-TETTEH [1993-94] 1 GLR 353; KAMARA vrs TRAORE [1968] GLR 1009. There is no contention that it is a landlord that can eject a person from a particular premises. Throughout the proceedings, one thing that there admits of no controversy is the fact that the premises which the Plaintiffs reside belongs to the Defendant herein. It has also been made bare that the Plaintiffs do not reside there as tenants as there exist no tenancy agreement between the parties herein. To my mind, the Plaintiffs are nothing but mere licencees. Section 281 of the Land Act, 2020 (Act 1036) defines a licence as a permission other than easement or profit given by a proprietor of land or of an interest in land which allows the person granted the permission to do certain acts in relation to the land which would otherwise be a trespass. Juxtaposing this definition to the evidence adduced in the trial, the Defendants allowed the Plaintiffs to be on his premises as caretakers which they have been living therein over years. Thus, the Plaintiffs pass as licensees. In his book, LAND LAW, PRACTICE AND CONVEYANCING IN GHANA, 3rd edition, page 372, Sir Dennis Dominic Adjei states thus; A bare license is usually created orally or in writing and does not create an interest in land. No consideration is given by the licensee to the licensor and it could be revoked at any time subject to the licensor and it could be revoked at any time subject to the licensor giving the licensee reasonable notice. From the above, there is no gainsaying that the Plaintiffs are licensees to the Defendant and as such the Court grants the counterclaim accordingly and awards cost GH₵3,000.00 against the Plaintiffs. SGD: NANA AMA DABBAH FYNN NKANSAH MAGISTRATE 11