Abdul-karim Vrs Azamgbew [2022] GHADC 308 (12 August 2022)

(DISTRICT CORAM: HIS WORSHIP MR. MAWUKOENYA NUTEKPOR MAGISTRATE), SITTING AT THE DISTRICT COURT, BOLGATANGA IN THE UPPER EAST REGION OF GHANA, ON FRIDAY, THE 12TH DAY OF AUGUST, 2022. SUIT No. UE/BG/DC/A2/72/2022 WAYO ABDUL-KARIM PLAINTIFF VRS. ALICE AZAMGBEW DEFENDANT TIME: 10:04AM PLAINTIFF PRESENT DEFFENDANT ABSENT NO LEGAL REPRESENTATION Introduction JUDGMENT 1. By a Writ of Summons and Particulars of Claim filed on 8th March 2022, the Plaintiff claims against the Defendant as follows: - a. An order for recovery of the sum of One Thousand Five Hundred Ghana Cedis (GHC1,500) being money Defendant borrowed from the Plaintiff in 2020. b. Interest 50% on the said amount of GH₵1,500.00 till date of final payment. c. Cost Page 1 of 7 Background facts 2. The Plaintiff avers that in 2020, he lent the sum of One Thousand Five Hundred Ghana Cedis (GHC1,500.00) to the Defendant. Plaintiff says that Defendant issued out cheques to him to cash the money at the bank but the cheques were bounced after he presented them at the bank. Plaintiff says he called Defendant severally to come for the cheques and pay his money to him but all his efforts proved unsuccessful. 3. The Defendant appeared in court on 14th April 2022 and denied owing the Plaintiff. She was to file any response to the claim is she wishes but failed to do so. She has not been coming to court even though served with hearing notices. The court therefore allowed the Plaintiff to prove his case in the absence of the Defendant pursuant to Order 25 rule 1(2) of the District Court Rules 2009, (C. I.59). The said order provides as follows: “Where an action is called for trial and a party fails to attend, the trial magistrate may (a) where the plaintiff attends and the defendant fails to attend, dismiss the counterclaim, if any, and allow the plaintiff to prove the claim; .... (c) make any other order that is just. “ Issue 4. The issue for determination in this case is whether or not the Plaintiff borrowed or lent the sum of One Thousand, Five Hundred Ghana Cedis (GH₵1,500.00) to the Defendant. The fundamental principles governing the law of evidence in Ghana. Page 2 of 7 5. Section 10 of the Evidence Act, 1975 (NRCD 323) provides as follows: (1) For the purposes of this Decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court. (2) The burden of persuasion may require a party to raise a reasonable doubt concerning the existence or non-existence of a fact or that he establish the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt. 6. Section 11 of NRCD 323 also provides that: (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. 7. Section 12 of NRCD 323 (Proof by a Preponderance of the Probabilities) (1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities. (2) "Preponderance of the probabilities" means that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence. Page 3 of 7 8. Also in Majolagbe v Larbi & others (1959) GLR 190-195, it was held at page 192 that: “Proof, in law, is the establishment of fact by proper legal means; in other words, the establishment of an averment by admissible evidence. Where a party makes an averment, and his averment is denied, he is unlikely to be held by the Court to have sufficiently proved that averment by his merely going into the witness-box, and repeating the averment on oath, if he does not adduce that corroborative evidence which (if his averment be true) is certain to exist.” See also Klutse v. Nelson [1965] GLR 537 and Air Namibia (Pty) Ltd. V. Micon Travel & Tour & 2 Ors, [2015] 91 G. M. J, @ page 177. Legal Analysis and discussion of issues 9. The issue for determination in this case is whether or not the Plaintiff borrowed the sum of One Thousand, Five Hundred Ghana Cedis (GH₵1,500.00) to the Defendant. The Plaintiff herein is claiming from the defendant the amount he allegedly lent to Defendant in 2020. It is trite law that it is the duty of a Plaintiff to prove his case for he who alleges must prove. In Air Namibia (Pty) Ltd. V. Micon Travel & Tour & 2 Ors, [2015] 91 G. M. J, It was held at page 177 that: “It is trite law that it is the duty of a Plaintiff to prove his case for he who alleges must prove. In other words, it is the party who raises an issue essential to the success of his case who assumes the burden of proving such issue. This burden of proof is statutorily defined in sections 10 (1) and (2) 11(1) and (4) and 12(1) and (2) of the Evidence Act, 1975 (NRCD 323) and explained in the case of Adwubeng v. Domfeh [1996-97] S. C. G. L. R. 660. It must be noted that specific pleading of an issue of fact by a plaintiff in the civil case requires a specific denial of that issue of fact by the Page 4 of 7 defendant in his statement of defence in order to cast a duty on the plaintiff to adduce credible and sufficient evidence of that issue of fact in order to succeed in his claim. That is the rationale behind the enactment of section 10, 11 and 12 of the Evidence Act, 1975 (NRCD 323). Thus section 11(4) and 12(2) of NRCD 323 has provided in clear and uncertain terms that the standard of proof in the civil case is proof by a preponderance of the probabilities Adwubeng v Domfe (supra). But a bare assertion of the plaintiff in his evidence of the issue of fact he had asserted in his pleadings will not be sufficient to discharge his burden of proof of that assertion if he wants to succeed in his claim. He must go further to produce other evidence of facts and circumstances from which the court can be satisfied that what he has asserted is true. Such other evidence of such facts may include documentary evidence of the issue(s) asserted.” 10. In the instant case, the Plaintiff testified that that in 2020, the Defendant was working on a project and she was short of money and called him to send her money through a mobile phone which he did. Thus, Plaintiff says he lent the sum of One Thousand Five Hundred Ghana Cedis (GH¢1,500.00) to the Defendant. The Plaintiff added that Defendant promised to give him a cheque covering the money and he has made several demands for the cheque or for the Defendant to come and pay his money to him but all his efforts proved unsuccessful. 11. This testimony was a repetition of his averment in his pleading or the particulars of claim which the Defendant had denied. It is a settled principle of law that a bare assertion or merely repeating a party’s pleadings in the witness box without more does not constitute proof. In KLAH V. PHOENIX INSURANCE CO. LTD [2012] 2 SCGLR 1139, this principle was reiterated: Page 5 of 7 “Where a party makes an 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 be satisfied that what he avers is true.” See also Majolagbe v Larbi & others (1959) GLR 190-195 and Klutse v. Nelson [1965] GLR 537. 12. The Plaintiff in this case did not produce any evidence showing he lent GH¢1,500 to the Defendant. The Plaintiff claims in his particulars of claim that the Defendant gave cheques to him to cash the money at the bank but the cheques were bounced after he presented them at the bank. But Plaintiff could not make copies of those cheques available to the court. Also, when the court asked Plaintiff whether he has any evidence showing he lent GH¢1,500 to the defendant the answer he gave was not helpful to the court. Thus during evidence in chief of the Plaintiff on the 2nd day of August, 2022 the following transpired: Q. Do you have anything showing you gave GH₵1,500 to the Defendant? A. She introduced a brother to me for assistance and I have been doing business with him since then. He is in court to give evidence. The said Plaintiff witness who could have helped the court testified that he is not aware of any transaction between the plaintiff and the defendant. Besides, the Page 6 of 7 Plaintiff did not produce any credible and sufficient evidence in support of his claim. The Plaintiff has therefore failed to prove that he lent GHC1,500 to the Defendant in 2020. Conclusion 13. Having examined the whole evidence adduced by the Plaintiff on record and from the foregoing analysis, the court holds that the Plaintiff has failed to prove his case to the satisfaction of this court that he lent GHC 1,500 to the Defendant. Thus, he failed to establish the existence of the facts contained in his claim by preponderance of the probabilities. Accordingly, Plaintiff’s reliefs are hereby dismissed or Plaintiff’s action is dismissed in its entirety. …………………………………… HIS WORSHIP MAWUKOENYA NUTEKPOR (DISTRICT MAGISTRATE) Page 7 of 7