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 |