Akonobea Vrs Awudu [2022] GHADC 212 (18 October 2022)

IN THE DISTRICT MAGISTRATE’S COURT HELD AT NSAWAM N. A. M. A ON TUESDAY, 18TH OCTOBER, 2022 BEFORE HER WORSHIP SARAH NYARKOA NKANSAH MAGISTRATE NANA AFUA AKONOBEA (QUEEN MOTHER OF ADEISO) OF H/NO. A12 AMA AGYEMAN STREET-ADEISO VRS AWUDU (SUBSTITUTED BY) KWEKU ANI FIO ALSO OF ADEISO SUIT NO. A2/07/20 ------- PLAINTIFF ------- DEFENDANT PARTIES: PLAINTIFF ABSENT AND REPRESENTED BY ALEX OFFEI. DEFENDANT ABSENT. COUNSEL: EDEM AMADZOR FOR PLAINTIFF ABSENT. JUDGMENT The Plaintiff claims against the Defendant as follows: 1. An order from this Honorable Court to eject the Defendant from the room occupied in the Plaintiff’s family house, 2. An order compelling the Defendant to refund or pay the sum of GH¢2,000.00 being cost of the sandcrete blocks used by the Defendant belonging to the Plaintiff, 3. Cost. Page 1 of 6 PLAINTIFF’S LAWFUL ATTORNEY’S CASE The Lawful Attorney of the Plaintiff, told the Court that, the rooms in dispute belongs to the Plaintiff. Plaintiff’s Lawful Attorney added that, the Plaintiff resides in the United Kingdom but comes to Ghana from time to time, and that somewhere in 2018, the Defendant forcefully entered and occupied Plaintiff’s rooms. Plaintiff’s Lawful Attorney continued that, attempts to vacate the original Defendant from the rooms proved futile and upon his demise, the Defendant’s substitute occupied the rooms claiming to have the authority of one Yaw Danso who purports to be the head of Plaintiff’s family. PW 1 concluded that, the said Yaw Danso is a native of Adeiso and not the head of family of Plaintiff’s family. Plaintiff’s Lawful Attorney prayed the Court for an order for Plaintiff to repossess her property. PW1’S CASE According to PW1, he belongs to the same family as Plaintiff and he is also the head of the family. PW 1 continued that, the Plaintiff renovated the rooms in dispute. PW1 explained further that, the said Yaw Danso is the head of a different family and cannot claim ownership to any property owned by the Komeley Asona family of which he, PW1 is the head of family Plaintiff’s case was closed thereafter. In the circumstance the issues that falls for determination are; a. Whether or not the Plaintiff is entitled to recover possession of the rooms in dispute b. Whether or not Plaintiff is entitled to a recovery of GH¢2000 Page 2 of 6 ANALYSIS a. Whether or not the Plaintiff is entitled to recover possession of the rooms in dispute As noted earlier, Defendant failed to attend Court during the Hearing. It is therefore the evidence adduced by Plaintiff witnesses that; this judgment considers as follows. 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. The Plaintiff has made material averments that have not been challenged in any way either by way of cross-examination or evidence in rebuttal. The plaintiff per her lawful Attorney has averred that, Plaintiff inherited the rooms from her late mother. That Defendant is just a trespasser who was placed in possession by one Yaw Danso; when the said Yaw Danso had no right to authorise anyone to take possession of Plaintiff’s property. It is the Plaintiff’s case that, the Court should grant her possession of the rooms in order to repossess same. In Takoradi Flour Mills vrs 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 Page 3 of 6 deposed to in that evidence are deemed to have been admitted by the opponent and must be accepted by the trial Court.” In view of the authority cited supra, the Court accepts Plaintiff’s evidence. The Court accordingly finds that, the original Defendant was a trespasser who was unlawfully placed in possession of the rooms in dispute which said rooms Plaintiff herein inherited from her mother. Based on these findings I hold that, the Plaintiff is entitled to possession of the rooms in dispute. b. Whether or not Plaintiff is entitled to a recovery of GH¢2,000.00 The Plaintiff per her reliefs sought made a claim for the refund of GH¢2,000.00 being cost of the sandcrete blocks used by the Defendant belonging to the Plaintiff. On this particular claim of the Plaintiff, no evidence was led. Neither Plaintiff’s lawful attorney nor PW1 adduced evidence to support this claim. I have to say that, Plaintiff in his statement of claim at paragraph 7, stated that, the Defendant used her sandcrete blocks worth Two Thousand Ghana cedis (GH¢2,000.00) to fence part of the room that he occupied. Beyond this averment, Plaintiff did not lead a scintilla of evidence to support this claim. It is settled law that, he who asserts must prove. The Plaintiff failed to do this. 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.” Page 4 of 6 On this issue, the Plaintiff failed to prove her averment on the preponderance of probabilities. The Plaintiff failed to discharge the burden imposed on her in a civil matter such as this. 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 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. It is the respectful opinion of the Court that the Plaintiff is not entitled to the recovery of Two Thousand Ghana cedis (GH¢2,000.00) from the Defendant as endorsed on her Writ of Summons. For the foregoing reasons, Plaintiff’s claim for Two Thousand Ghana cedis (GH¢2,000.00) is hereby dismissed. The Court has already noted that, the present Defendant who is substitute of the original Defendant failed to attend Court for the hearing although he had been notified of same by a Hearing Notice. The law is that, where the party is sufficiently made aware of the hearing date and was offered the opportunity to appear in Court to defend as in the present case where the Defendant was duly served and yet he failed to attend Court, the Court is entitled to proceed to determine the case on the basis of the evidence adduced at the trial, notwithstanding the absence of the Defendant. The Court has considered the whole of the evidence adduced at the trial, and enters judgment in favour of the Plaintiff against the Defendant as follows: Page 5 of 6 a. Recovery of possession of rooms in dispute. b. Defendant to vacate rooms in dispute within 14 days. Where Defendant fails to vacate as ordered by the Court, the Police is directed to assist in removing Defendant from occupation of the said rooms. c. Cost of GH¢500 in favour of Plaintiff. d. The claim for GH¢2000.00 is hereby dismissed. MAGISTRATE 18/10/2022 ..………………………………………….. H/W SARAH NYARKOA NKANSAH Page 6 of 6