Gyampoh Vrs Chartey [2022] GHADC 256 (21 October 2022)

IN THE DISTRICT MAGISTRATE’S COURT HELD AT NSAWAM N. A. M. A ON FRIDAY, 21ST OCTOBER, 2022 BEFORE HER WORSHIP SARAH NYARKOA NKANSAH MAGISTRATE SUIT NO. A2/62/22 PLAINTIFF WILLIAM OPOKU GYAMPOH ------- OF UNNUMBERED HOUSE ADJACENT TO THE CHIEF PALACE LANTEI-NSAWAM VRS ALEXANDER CHARTEY ------- DEFENDANT OF AMPONSAHENE, TEACHER PARTIES ABSENT. NO LEGAL REPRESENTATION JUDGMENT The Plaintiff commenced the present action in this Court praying for the following reliefs:  An order compelling the Defendant to pay all expenses incurred on the land the subject matter at a total cost of GH¢3,900.00;  A trip of sand @ GH¢1,000.00  A trip of gravels @ GH¢600.00  450 pieces of block @ 3.5=GH¢1,600.00  8 bags of cement @ 50.00=GH¢400.00  Transportation = GH¢100.00  Labour = GH¢200.00 An order compelling the Defendant to pay an amount of GH¢14,000.00 being current price of the two (2) plots of land at Amponsahene a suburb of Nsawam. Any further order as this Honorable Court may deem fit in the circumstances. Page 1 of 6 When the case was called for hearing, Defendant failed to attend Court despite having been duly served. Pursuant to Order 25 rule 1, the Court proceeded to hear the matter without Defendant. Order 25 r 1(2) (a) provides; “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” PLAINTIFF’S CASE The Plaintiff testified by himself and called one witness PW1 who also testified in support of Plaintiff’s case. According to the Plaintiff, he bought a piece of land measuring approximately 0.33 acres from the Defendant in 2014. The Plaintiff explained that, he gave to the Defendant in exchange for the said piece of land his 207 Benz Bus valued at GH¢3,500.00 as consideration for the transaction. The Plaintiff continued that, he farmed on the land till 2021 when he started to develop same. The Plaintiff continued that, he transported one trip of sand, one trip of gravels, 8 bags of cement and 450 pieces of cement blocks unto the land. The Plaintiff added that surprisingly, some men who claimed to be land guards stopped him from continuing the development of the land and all efforts to get the Defendant to intervene and stop the land guards have proved futile. The Plaintiff ended by saying that, the actions of the Defendant and the land guards have brought him untold hardship and they will not stop until compelled by the Court. PW 1 PW 1 mentioned that, he and the Plaintiff used to farm on the land, the subject matter until the Plaintiff decided to develop the land in 2021 and therefore bought blocks, sand, gravels and cement for his project. PW 1 continued that not long after, the Plaintiff told him some land guards had prevented him from building and warned him not to step foot on the land again. PW 1 stated also that, the Plaintiff told him the Defendant promised to solve the matter or change the land but this did not happen hence this Court action. Page 2 of 6 The Plaintiff closed his case thereafter. In the circumstance the issue that falls for determination is; a. Whether or not Plaintiff is entitled GH¢14,000.00 as present value of the land. b. Whether or not the Plaintiff is entitled to a recovery of GH¢3,900.00 being expenses plaintiff incurred on the land. 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. Issue 1: Whether or not Plaintiff is entitled GH¢14,000.00 as present value of the land. It is the case that, the Defendant was not present at the hearing and so the Plaintiff and his witness were not cross-examined by the Defendant. I have to add that, the Defendant had been duly served with a hearing notice and so had due notice of the proceedings. Since Defendant chose to be absent, the Court proceeded to hear the Plaintiff, nonetheless. The Court is guided by the position of the law stated in the case of Quagraine v. Adams [1981] GLR 599 where it was held that in a situation where a witness testifies and his opponent fails to cross-examine him, the Court may consider the witness’s testimony as admitted by his opponent The Plaintiff by his evidence adduced that, he bought a piece of land by exchanging his car at the value of GH¢3,500.00 The Plaintiff has also established that, although he had been farming on the land; he was stopped by some land guards from developing his land because his grantor had sold the entire land to some estate developers. On the authority of the Quagraine case cited supra, the Court accepts Plaintiff’s evidence and finds same as facts. Page 3 of 6 Meanwhile the Plaintiff is not claiming a refund of the purchase value of GH¢3,500.00. However, the Plaintiff is claiming a recovery of GH¢14,000.00 from Defendant which sum according to the Plaintiff is the present value of the said land. It is worth noting that, besides making this claim per his reliefs, Plaintiff made no mention of the said sum of GH¢14,000.00 in his Witness Statement. It is obvious that, the Plaintiff did not establish any basis for this claim of GH¢14,000.00. Even if Plaintiff had led evidence on his claim of GH¢14,000.00, I have to say that, there would have been no legal basis for the Court to grant the Plaintiff this claim. The value at which Defendant obtained the land from the Defendant was GH¢3,500.00. It is a recovery of this sum that Plaintiff is entitled to. It is in addition to this that the Plaintiff may be entitled to interest for the period that the Defendant held on to Plaintiff’s money unjustifiably. One basis for awarding interest is that, a person who has unjustifiably kept the money that ought to have been paid to the owner should not be permitted to benefit by having the money in his possession and to enjoy the use of the money as well. It is considered a profit lost to the owner and so it is usually ordered to be paid back with interest. The interest then becomes some kind of compensation or damages for the wrongful withholding of another person’s money. In the case of Royal Dutch Airlines (KLM) v. Farmex Ltd. the Court per Adade Ag. CJ, held that, “In this case, the judgement debt of £23,800 together with the interest became payable on 18th March 1987. If it had been paid then, the plaintiffs could have had the benefit of it from the 18th March 1987 to date. But it was not paid. It is reasonable to suppose that the Defendants kept the Plaintiffs’ money from 18th March 1987, and used it to their advantage, to the detriment of the Plaintiffs. The Defendants cannot justly claim to be entitled to keep the profits they have thus made at the Plaintiffs’ expense. The Plaintiffs are entitled to call upon the Defendants to account to them for the use of this money; which is another way of saying that the Plaintiffs are entitled to interest on the said money.” Also in Senedza Vrs. Dzokotoe (1991) 2GCR 81-88 the Court held that Page 4 of 6 “But when the Defendant breached the agreement it entitled the Plaintiff to be awarded interest on the sum loaned because he thereby deprived the Plaintiff of the use of that money” (emphasis mine). As noted supra, the evidence adduced at the trial does not support Plaintiff’s claim for GH¢14,000.00. The Plaintiff is rather entitled to the value in GH¢3,500.00 that he transferred to Defendant for which value he has lost because Defendant has sold the land to another person. Having sold the land to another person, it has become clear that, Defendant is unjustifiably holding on to Plaintiff’s purchase price of GH¢3,500.00; and for this Plaintiff is entitled to interest on the GH¢3,500.00 Order 28 of the District Court rules, 2009, (CI59) provides that The Court, at the time of giving judgment or making on order or at any time afterwards may (b) Order the payment of interest at the same rate as a High Court may order in the circumstances. (2) The time for payment shall be reckoned from the date of the judgment or order or from some other point of that time that the Court considers appropriate. I resolve the first issue by holding that, Plaintiff is not entitled to GH¢14,000.00 but rather GH¢3,500.00. Issue 2: Whether or not the Plaintiff is entitled to a recovery of GH¢3,900.00 being expenses plaintiff incurred on the land The Plaintiff made this claim per his reliefs. Plaintiff and PW1 mentioned in their Witness statements that, Plaintiff placed sand, gravels, blocks and cement on the land. They again testified that; Plaintiff dug foundation on the land. This notwithstanding, Plaintiff failed to lead evidence on the amounts claimed in his relief. Plaintiff did not lead evidence on how he came by the total amount GH¢3,900.00 claimed in his relief. This claim by plaintiff is in the nature of special damages. It is trite learning that, a person claiming special damages ought to specifically prove same. And the Plaintiff failed to do this. 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 Page 5 of 6 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. In the case of Nartey v. Mechanical Lloyd Assembly Press Ltd [1987-1988] 2GLR pg 314 the Court held 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.” The evidence adduced at the trial does not support Plaintiff’s claim for GH¢3,900.00. I accordingly hold that, Plaintiff is not entitled to his claim of GH¢3,900.00. 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.” The Court has considered the whole of the evidence adduced at the trial and hereby enters judgment in favour of the Plaintiff against the Defendant as follows: a. A recovery of GH¢3,500.00 by Plaintiff from Defendant. b. Interest on GH¢3,500.00 at the commercial bank rate from December, 2014 to date of final payment. c. Cost of GH¢500.00 in favour of Plaintiff against Defendant. H/W SARAH NYARKOA NKANSAH (SGD) MAGISTRATE 21/10/2022. Page 6 of 6