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JUDGMENT:
The Plaintiff filed the instant
suit claiming the following
reliefs.
1.
Recovery of the sum of 11,000
Euros or the cedi equivalent
from the Defendant forthwith.
2.
Interest on the said amount from
September 15, 2006 to the date
of payment.
3.
Cost
inclusive of solicitor’s fees,
administrative and statutory
expenses.
It is the Plaintiff’s case that
Defendant agreed to buy a
vehicle for the Plaintiff from
Germany. Plaintiff accordingly
advanced an amount of 24,000
Euros to Defendant to enable him
buy the vehicle. The Defendant
failed to use the money for the
purpose for which it was
advanced. Consequently
Plaintiff did not get what he
paid the money for, whereupon
Plaintiff made a demand for the
return of his money. Defendant
paid 4,000 Euros out of the
amount and undertook in writing
per receipt dated March 10, 2006
(Exhibit ‘A’) to pay Plaintiff
the full outstanding amount of
20,000 Euros by September 15,
2006.
Defendant defaulted on his
obligation to pay this amount
and Plaintiff reported the
matter to the Police and
Defendant subsequently made
payments totalling 9,000 Euros.
When Defendant failed to pay
this amount despite persistent
demands from Plaintiff, he took
the instant action. Defendant
has since paid 2,000 Euros to
Plaintiff, leaving a balance of
9,000 Euros.
Defendant filed a defence to the
action, and also counterclaimed,
but failed and/or refused to
come to court to prosecute his
case. The Supreme Court, per
Brobbey JSC, in the case of
In Re: Ashalley Botwe
Lands; Adjetey Agbosu &
Ors v. Kotey & Ors [2003-2004]
SCGLR 420, reiterated the
position of the law that it is
the duty of the Plaintiff who
took the Defendant to court, to
prove what he claimed he is
entitled to from the Defendant.
However, if the court has to
make a determination of a fact
or of an issue and that
determination depends on
evaluation of facts and
evidence, the Defendant must
realise that the determination
cannot be made on nothing. If
the Defendant desires the
determination to be made in his
favour, then he has the duty to
help his own cause or case by
adducing before the court such
facts or evidence that will
induce the determination to made
in his favour.
The Supreme Court pointed out
that the logical sequel to this
is that if he leads no such
facts or evidence, the court
will be left with no choice but
to evaluate the entire case on
the basis of the evidence before
the court, which may turn out to
be only the evidence of the
Plaintiff. If the court chooses
to believe the only evidence on
record, the Plaintiff may win
and the Defendant may lose.
As stated above, the Defendant
herein did not lead any evidence
to support his pleadings,
neither did he cross-examine the
Plaintiff. There is abundant
case law on the effect of not
cross-examining a witness. In
the case of Fori v. Ayirebi
[1966] GLR 627 SC at 647, it
was held as follows:
“The law is that when a party
made an averment, and that
averment is not denied, no issue
is joined on that averment, and
no evidence need be led. Again,
when a party gives evidence of a
material fact and is not
cross-examined upon it, he need
not call further evidence of
that fact.”
The principle was further
enunciated by Ansah JSC in
Takoradi Flour Mills v. Samir
Faris [2005 -2006] SCGLR 882
when he referred to the case of
Tutu v. Gogo, Civil Appeal
No. 25/07, dated 28th
April 1969, Court of Appeal
unreported; digested in 1969
CC76 where Ollenu JA stated
thus:
“In law, where evidence is led
by a party and that evidence is
not challenged by his opponent
in cross-examination and the
opponent did not tender evidence
to the contrary, the facts
deposed to in the evidence are
deemed to have been admitted by
the party against whom it is
led, and must be accepted by the
court.”
In my opinion, Plaintiff herein
has adduced sufficient evidence
to prove his case and his
evidence stands unchallenged.
By Section 21 (a) &
(b) (i) of the Evidence Decree,
a Judge may find that the
evidence of the party with the
right to begin has so
effectively established the
basic facts that a reasonable
mind must necessarily conclude
that their existence is more
probable than their
non-existence. Where this
situation arises, the Judge has
to find that the resulting
presumed facts have been
established; that is, a prima
facie case has been
established in favour of the
Plaintiff or the person on whom
lies the burden of persuasion,
unless and until the party
against whom the presumption
operates proves the
non-existence of the presumed
fact.
The Plaintiff led cogent and
credible evidence to prove his
case, and I believe him. I will
therefore give Judgment in
favour of the Plaintiff on the
four corners of his evidence.
In conclusion, I will hold that
the Plaintiff is entitled to
recover the sum of 9,000 Euros
or the cedi equivalent from the
Defendant, together with
interest at the prevailing bank
rate from September 15, 2006
until date of final payment.
I will dismiss the Defendant’s
counterclaim.
Costs assessed at GH¢2,000
against Defendant.
(SGD)
BARBARA
ACKAH-YENSU (J)
JUSTICE OF
THE HIGH COURT
COUNSEL
BARIMA MANU
- PLAINTIFF |
