Hill Bill Company Ltd v Yaba Delivery Company (A2/221/24) [2024] GHADC 757 (17 September 2024)

CORAM: IN THE DISTRICT COURT, ACHIMOTA – ACCRA HELD BEFORE HIS WORSHIP PRINCE OSEI OWUSU SITTING AS DISTRICT MAGISTRATE ON THE 17TH SEPTEMBER, 2024 SUIT NUMBER: A2/221/24 HILL BILL COMPANY LTD - PLAINTIFF LAKESIDE ESTATE ACCRA VRS. YABA DELIVERY COMPANY - DEFENDANT PER MANAGER TESANO ACCRA ……………………………………………………………………………………………… TIME: 9:36AM PLAINTIFF REPRESENTED BY BRIGHT AFARI DEFENDANT REPRESENTED BY WENDY TETTEH Introduction/Background JUDGMENT P a g e 1 | 6 Per a writ of summons issued by the Plaintiff on 13th June 2024, Plaintiff claimed against the Defendant the following reliefs a. Recovery of cash the sum of GH¢900.00 alternatively b. An order directed at the Defendant to release the 2 pairs of shoes belonging to Plaintiff. c. Cost of GH¢2,000.00 as damages for loss of profit. d. Any further others as the court may fit. It is the plaintiff’s case per the attached statement of claim that on or about somewhere 18th May and 20th May 2024 the Defendant was contracted to send 5 pairs of shoes to some customers of the Plaintiff in and around Accra and Tema. Plaintiff stated that some of the shoes were rejected by the customers as Defendant failed to handle the shoes with care. Plaintiff averred that he failed to pay for the cost of services of Defendant and the Defendant seized some of his items. Plaintiff further averred that the Defendant has seized two (2) pairs of shoes which cost is to the tune of GH¢900.00. The writ of summons and statement of claim and hearing notice was served on Defendant but failed to appear in court, either by himself or a representative. Under order 25 Rule 1(2) (a) of the District Court Rules 2009 (CI 59). “When an action is called for trial and the Defendant fails to attend, the Plaintiff would be allowed to prove his/her claim. Again, when a party is served and he/she fails to attend Court after the Court satisfied that service has duly been effected he/she is taken to have deliberately failed to take advantage of the opportunity to be heard”. His Lordship Jone v. M Dotse, JSC held in the case of Bortey v. Pareeh & 2ORS 2018,120 GMJ 1, @26-27 SC as follows. P a g e 2 | 6 “we are therefore of the view that, if a party voluntary and deliberately fails or refuses to attend upon a Court of competence jurisdiction (such as High Court which determines the case” to prosecute a claim against him, he cannot complain that he was not given a fair hearing or that there was a breach of natural justice”. See also the following cases in respect of when a party is served but fails to attend Court. Republic v. Circuit Judge ex- parte Dzaka [1984 – 1986] 1 GLR 741 Republic v. High Court, ex – parte Marwan Kort [1998 – 1999] SCGLR 833 Ankumah v. City Investment Co. Ltd [2007 – 2008] 1 SCGLR 1064 (holding 2) In Re West Coast Dyeing Ltd, Adom v. Tandoh [1987 – 1988] 2 GLR 561 The Court on the strength of these authorities therefore proceeded to hear the Plaintiff prove her claim in respect of her reliefs; Issues The issue from the claim of the Plaintiff which the court ought to determine is whether or not there was an agreement between the parties. Legal Analysis It is a trite law that in Civil Cases, the general rule is that the party who’s his/her pleadings or writ raises issues essential to the success of his/ her case assumes the onus of proof. The one who alleges be it a Plaintiff or Defendant assumes the initial burden of producing evidence. It is only when he succeeded in producing evidence that the other party will be required to lead rebuttal evidence if need be. Proof lies upon him who affirms or alleges, P a g e 3 | 6 not upon him who denies since by the nature of things he who denies a fact cannot produce any proof. See the following; Section II (1) & (2), 12 (2) and 14 of The Evidence Act 1975 [NRCD 323] As Well as The Case of Takoradi Flour Mills v. Samir Faris [2005 – 2006] SCGLR 882 at 900. Gihoc Refegeration & Household v. Jean Hanna Assi [2005 – 2006] SCGLR 458, T. Chandriam v. Tetteh [2018] 120 GMJ 112 At 147 CA Per Agnes M. A Dordzie, JA and Air Namibia v. Micron Travel [2015] 91 GMJ 173 at 191 CA per Kanyoke JA. Notwithstanding the fact that the Defendant was not in Court, the Court must still satisfy itself that the Plaintiff has satisfied the burden of him proving his case on the balance of probabilities. In the evidence in chief before this court on 12th August 2024, the Plaintiff testified that the Defendant picked up some shoes to deliver to his customers. Plaintiff stated that some of the items were not delivered. Plaintiff averred that one of the shoes that was delivered was rejected by his customer due to the scratches on it which was caused by the rider of the Defendant. Plaintiff further stated that he refused to pay for the services of the Defendant and the Defendant seized his products worth more than Two Thousand Ghana Cedis (GH¢ 2,000.00) but upon report to Ghana Police Service the Defendant delivered three out of the five (5) shoes. Copies of the correspondence between the Plaintiff and the Defendant was tendered in evidence by the Plaintiff as Exhibit “A” and “B”. The Plaintiff said the Defendant has not delivered the two (2) hence his prayer that the court assist him to recover the shoes or in the alternative ask Defendant to pay an amount of GH900.00. I find that there was an agreement between the Plaintiff and the Defendant. P a g e 4 | 6 From the correspondence, the parties were ad idem that they were entering into an agreement in respect of sending some shoes to the Plaintiff’s customer in and around Accra and Tema. From Exhibit ‘A’ and ‘B’, the Defendant agreed to send some shoes and did send some but some were rejected. The Defendant having failed to react to any of the averments of Plaintiff to debunk any of the allegations, the presumption is that the matters contained therein are admitted by him. The law is that there is no need for Plaintiff to call further or any evidence to prove allegation or assertion of fact in his claim where there is no joinder of issues. See the cases of Fori vs. Ayirebi [1966] 2 GLR 627, Total Ghana Ltd. vs. Thompson [2011] 1SCGLR 458, Air Namimbia (pty) Ltd vs Micon Travel and Tours & others [ 2015] 91 GMJ 173 @ 194. Conclusion The court having considered the Plaintiff, uncontested evidence finds that the Plaintiff has been able to discharge the burden on him of proving his case on a believe of probabilities. Judgment is accordingly entered for Plaintiff against the Defendant to send back the two (2) shoes in his possession with normal condition of new shoes or pay to the Plaintiff an amount of GH¢900.00 being the cost of two (2) shoes. Cost of GH¢ 300.00 is awarded against the defendant for Plaintiff. P a g e 5 | 6 SGD HIS WORSHIP PRINCE OSEI OWUSU DISTRICT MAGISTRATE P a g e 6 | 6