GHANA LAW FINDER

                         

Self help guide to the Law

  Easy to use   Case and Subject matter index  and more tonykaddy@yahoo.co.uk
                

HOME

COMMERCIAL  COURT CASES

 

IN THE HIGH COURT OF JUSTICE (COMMERCIAL DIVISION) HELD IN ACCRA ON 15TH JUNE  2010 BEFORE HER LADYSHIP BARBARA ACKAH-YENSU (J)

 

SUIT NO.RPC/434/08

 

JAMES KOFI ASARE                                            ======= PLAINTIFF

              VRS

S. OWUSU ASANTE                                            ======= DEFENDANT

=========================================================

 

 

JUDGMENT:

The Plaintiff’s claim is for the following:

“a.   payment of the sum of GH¢10,800.00 (one hundred and eight million old cedis) being outstanding balance due plaintiff from defendant for the purchase of a Payloader Fiatallis Machine Model FR 20.

b. interest on the said amount from October, 2006 till date of final

   payment.”

The Plaintiff’s case is that the Defendant bought a Payloader Fiattallis Model FR 20 machine from Plaintiff for GH¢52,000.00. The sale was covered by an agreement, Exhibit “A”. Defendant made an initial payment of GH¢15,000.00 with the balance to be paid after clearing and taking possession of the machine from the Port. The Defendant after taking possession of the machine made various payments to the Plaintiff leaving a balance of GH¢10,800.00. Defendant made a further payment of GH¢4,000.00 after the issuing of the writ thus leaving a balance of GH¢6,400.00.

The Defendant’s defense is that he paid an amount of GH¢15,000.00 to Plaintiff with an assurance that the machine would be delivered to him within the same week, but Plaintiff failed to deliver the machine as agreed. The evidence led by Defendant, which was not challenged, was that Plaintiff collected an additional amount of GH¢7,200.00.  Defendant testified that the machine that was brought down was dismantled and had to be assembled in Ghana; it took about a month for the assembling to be completed.  On arrival to Kumasi, where the Defendant’s project was, the machine had to be taken to the workshop due to some oil leakages. Subsequently Plaintiff collected an additional amount of GH¢20,000.00 from him with the reason that he was travelling to Korea and that on his return he would bring a part that was needed to repair the machine. This piece of evidence was not challenged. Defendant’s evidence was that it took between five to six months before he could put the machine to any meaningful use. In the Defendant’s opinion, the outstanding balance on the machine is GH¢5,000.00.

Defendant has counterclaimed for the following:

a)   GH¢4,800.00 being interest on the bank loan during the six months that plaintiff failed to deliver the machine.

 

b)   Repair of the leakages of oil, defect in the steering control and the breaking system.

 

 

c)   Defendant claiming GH¢1,000 being the cost of low bed transporting the machine from the Harbour to the said workshop where the machine was assembled.

 

 

In my opinion the two main issues for determination are; whether or not the Plaintiff is entitled to his claim less the admitted sum of GH¢4,000, with interest; and whether or not the Defendant is entitled to his Counter Claim.

It is trite learning that certain issues are essential to the case of a party in civil proceedings in the sense that the issues raised by the pleadings must be proved by that party if he is to succeed in an action. The legal burden of proof will generally lie on the party asserting the affirmative of such an issue. The legal burden or burden of persuasion under section 10(1) and (2) of The Evidence Decree (1975) N.R.C.D. 323, has been defined as follows:

10 (1) for the purposes of the 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 establishes the existence or non- existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt.

A party bearing the legal burden on a particular issue will also bear the evidential burden on that issue. To discharge the legal burden and succeed on an issue therefore, the evidence adduced by that party must in the opinion of the court, be more cogent or convincing than that adduced by his opponent.

Under section 11 of The Evidence Decree, the burden of providing evidence in a civil suit is defined as follows:

11 (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.

Simply put, whether a party has discharged the burden of proof and proved a fact in issue will be determined at the end of the case when both parties have called all their evidence. This position of the law was enunciated in the case of Ababio v Akwasi 111 [1994-95] Ghana Bar Report, Part 11, 74. The general principle as stated in the said case is that a party whose pleadings raised an issue essential to the success of the case assumes the burden of proving such an issue. The Plaintiff herein therefore assumed the burden of proving its claim that the Defendant owed him an amount of GH¢10,800.00.

So, what evidence did Plaintiff lead? His evidence was that the Defendant had an outstanding balance of GH¢10,800.00 to pay to him.  The Defendant in his evidence did not deny owing the Plaintiff, but challenged the amount being claimed by the Plaintiff. As was stated in Zabrama v Segbedzi [1991] 2 GLR 221:

“The correct proposition is that a person who makes an averment or assertion which is denied by his opponent has the burden to establish that his averment or assertion is true. And he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of that burden.”

I will echo the opinion of Justice Mensa Boison JA in the case of Acquaye v Awotwi [1982-83] 2GLR 1110 that the testimony of a plaintiff is presumptive evidence which is rebuttable.  He stated further that it is a well-known rule of evidence that although proof in a civil case rested on the plaintiff, that burden was discharged, when once the plaintiff had introduced sufficient evidence of the probability of his case. It thus rested on the Defendant herein to show that he did not owe the amount being claimed by the Plaintiff after Plaintiff had led evidence to that effect.  Defendant led evidence to rebut Plaintiff’s claim.

In my opinion, Defendant has offered evidence, which evidence I accept as credible, that he owes Plaintiff an amount of GH¢5,000.00,  I will therefore find that Defendant owes Plaintiff an amount of GH¢5,000.00 and hold that Plaintiff is entitled to recover the said amount of GH¢5,000.00 together with interest at the prevailing commercial rate from October 2006 until date of final payment.

As stated above, the Defendant has counterclaimed. Defendant had the same burden to discharge in proving his counterclaim. However, Defendant did not lead sufficient evidence to prove his counterclaim. A yardstick has been provided for determining proof of matters pleaded in the well-known case of Majolagbe v Larbi & Ors [1959] GLR, 190, in which Ollenu J stated thus:

“Proof in law is the establishment of facts by proper legal means where a party makes an averment capable of proof in some positive way e.g. by producing documents, descriptions of things, reference to other facts, instances or circumstances and his averments 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 witnesses. He proves it by producing other evidence of facts and circumstances, from which the court can be satisfied that what he avers is true.”  

I will find that Plaintiff has not proved his counterclaim and will so hold. Defendant’s counterclaim is accordingly dismissed.

Costs assessed at GH¢2,000.00 against Defendant.

  

                                                                                      (SGD)

BARBARA ACKAH-YENSU (J)

JUSTICE OF THE HIGH COURT

COUNSEL

 

ROBERT YARTEY                        -        PLAINTIFF

ANTWI  ABANKWAH                    -        DEFENDANT

 
 

Legal Library Services        Copyright - 2003 All Rights Reserved.