Akwetey Vrs Agboka [2022] GHADC 152 (4 October 2022)

IN THE DISTRICT MAGISTRATE’S COURT HELD AT NSAWAM N. A. MA. ON 4TH OCTOBER, 2022 BEFORE HER WORSHIP SARAH NYARKOA NKANSAH MAGISTRATE SUIT NO. A2/97/22 --------- PLAINTIFF GIDEON AKWETEY OF HEBRON VRS GIFTY AGBOKA ------- OF AHODWO DEFENDANT PARTIES: PLAINTIFF PRESENT, DEFENDANT ABSENT. COUNSEL: NO LEGAL REPRESENTATION. JUDGMENT The Plaintiff commenced the present action in this court praying for the following reliefs: a. GH¢4,700.00 being balance of loan Defendant took from Plaintiff and promised to pay back but has failed to do so despite repeated demand since June, 2019. b. Interest and cost The Defendant was duly served with the Writ of Summons. It is however to be noted that, even though Defendant had notice of the pending suit, the Defendant did not file any process to contest the suit or appear in Court personally to be heard. The Court therefore proceeded under Order 25 of the District Court Rules, 2009(C. I 59), and proceeded to hear the matter without the Defendant. Order 25 r 1(2) (a) provides; Page 1 of 4 “Where an action is called for trial and a party fails to attend, the trial magistrate may where the Plaintiff attends and the Defendant fails to attend, dismiss the counterclaim if any and allow the Plaintiff to prove the claim.” In Ankumah v City Investment Co Ltd [2007-2008] 2 SCGLR 1064, Baffoe Bonnie JSC held at page 1076 as follows; “A court is entitled to give judgment in default as in the instant case, if the party fails to appear after notice of the proceedings has been given to him. For then, it would be justifiable to assume that he does not wish to be heard.” PLAINTIFF’S CASE Plaintiff told the Court that, The Defendant came to borrow GH¢4,200.00 from him for her father’s funeral in December, 2019. The Plaintiffs further said that, the Defendant borrowed an additional GH¢3,000.00 for her chop bar on 1st January, 2020. According to Plaintiff; Defendant promised to pay him back by the end of July, 2020 but failed to pay. It is further the case of Plaintiff that, the Defendant only paid GH¢2,500.00 out of the total debt after the Plaintiff reported the matter to the Palace and has since failed to pay the rest of the money. Plaintiff prayed the Court to grant his reliefs. The Plaintiff closed his case thereafter. In the circumstance the issue that falls for determination is; Whether or not the Plaintiff is entitled to the amount claimed. Sections 11(4) and 12 of the Evidence Act, 1975 (NRCD 323) provides that the burden of proof on a party in a civil suit should be on a balance of probabilities. In the case of Adwubeng v. Domfeh [1996-97] SCGLR 660, the Supreme Court held that, in all civil actions, the standard of proof is proof by the preponderance of probabilities, and there is no exception to that rule. Page 2 of 4 Plaintiff led evidence to establish that, the Defendant was owing the Plaintiff a total amount of GH¢7,200.00 and out of which paid an amount of GH¢2,500.00 leaving outstanding unpaid balance of GH¢4,700.00 As stated supra, the Plaintiff was discharged without being cross-examined by the Defendant since the Defendant was absent without any excuse to the Court. The position of the law is that, the Court ought to accept the evidence led by a party, where his opponent fails to lead contrary evidence or challenge same under cross- examination by deeming the evidence as having been admitted by his opponent. In Takoradi Flour Mills v Samir Faris [2005-06] SCGLR 882, the Supreme Court held that, “where the evidence led by a party is not challenged by his opponent in cross-examination and the opponent does not tender evidence to the contrary, the facts deposed to in that evidence are deemed to have been admitted by the opponent and must be accepted by the trial Court.” Considering that, the Plaintiff was not cross-examined on his evidence to the Court, I accordingly conclude that, the Court has accepted the whole of the evidence of the Plaintiff on record. In the case of Nartey v. Mechanical Lloyd Assembly Press Ltd [1987-1988] 2GLR pg 314 Adade JSC 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.” In Boakye v. Asamoah [1974] 1 GLR 38 @ 45, the Court held that, the legal or persuasive burden is borne by the party who would lose the issue if he does not produce sufficient evidence to establish the facts to the requisite standard imposed under section 10 of the Evidence Act, 1975 NRCD 323 that is, by a preponderance of probabilities. Page 3 of 4 I accordingly conclude that, the Plaintiff has been able to prove his claim by a preponderance of probabilities. I hereby enter judgment in favour of the Plaintiff for the following reliefs; i. Recovery of the sum of GH¢4,700.00 from the Defendant. ii. Interest on the sum of GH¢4,700.00 at the commercial bank rate from 31st July, 2020 to date of final payment. iii. Cost of GH¢500.00 awarded against the Defendant. ..………………………………………….. H/W SARAH NYARKOA NKANSAH MAGISTRATE 04/10/2022 Page 4 of 4