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JUDGMENT:
The Plaintiff herein has sued
the Defendant for:
“ 1. Order for payment of the
total sum of GH¢23,780.12 being
outstanding balance of petroleum
products the Plaintiff supplied
to the Defendant at his request
but which he has failed, or
refused to pay in spite of
Plaintiff’s repeated demands.
2.
Interest on the said amount of
GH¢23,780.12 at the
current bank lending rate
from 31st July 2009
to date of
final payment.
3. Costs.”
By its pleadings and evidence
adduced on its behalf by
Ransford Kisi Appiah (Marketing
and Operations Manager),
Plaintiff’s case was that
Plaintiff supplied liquefied
petroleum gas to Defendant
between March and July 2009. The
products were supplied on credit
basis. Defendant however failed
to pay for some of the supplies
leaving an outstanding balance
of about GH¢23,780.12. Mr. Kisi
Appiah tendered in evidence
(exhibit “A”) a Statement of
Account of all the transactions
with Defendant, a copy of which
he said, had already been given
to Defendant.
The Defendant filed a Statement
of Defence but failed to appear
in Court to lead evidence even
though, the Court adjourned
after Kisi Appiah led evidence
to give the Defendant a last
opportunity to come to Court to
cross-examine the witness and
lead evidence to support his
case.
It is trite learning that after
a plaintiff has adduced
sufficient evidence to discharge
the burden on it, the burden
shifts to the defendant to
debunk the plaintiff’s case by
leading evidence. The Defendant
herein also had a duty to
cross-examine Kisi Appiah.
There is abundant case law on
the effect of a party not
cross-examining a witness. The
principle was enunciated by
Brobbey J (as he then was) in
the case of
Hammond v. Amuah [1991]
1 GLR 89 at pg 91
as follows:
“The law is quite settled that
where a party makes an averment
and that averment is not denied,
no issue is joined and no
evidence need to be led on that
averment. Similarly, when a
party has given evidence of a
material fact and is not
cross-examined upon it, he need
not call further evidence on
that fact. See
Fori v. Ayirebi (supra).
Indeed it was held in the case
of
Quargraine v. Aikins [1981] 1
GLR 599, CA
that where a party made an
averment and his opponent fails
to cross-examine on it, the
opponent will be deemed to have
acknowledged sub silentio, that
averment by failure to
cross-examine"
In the case of
Takoradi Flour Mills v. Samir
Faris [2005-06] SCGLR
882,
Ansah JSC referred to the case
of
Tutu v. Gogo, Civil
Appeal No. 25/67, dated 28th
April 1969,
Court of Appeal unreported;
digested in 1969 CC76 where
Ollenu JA said that:
“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, Kisi Appiah led
credible and cogent evidence to
prove Plaintiff’s case, and I
believe him. I will therefore
give judgment in favour of the
Plaintiff on the four corners of
Kisi Appiah’s evidence. I will
accordingly hold that Plaintiff
is entitled to the reliefs it is
seeking and order that Defendant
pay to Plaintiff the sum of GH¢23,780.12
together with interest at the
prevailing bank lending rate
from 31st July 2009
to date of final payment.
Costs of GH¢3,000 awarded
against Defendant.
(SGD)
BARBARA ACKAH-YENSU (J)
JUSTICE OF THE HIGH COURT
COUNSEL
CHARLES KUSI
- PLAINTIFF |
