IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2018
MOST REV. TITUS AWOTWI AND OTHERS - (Plaintiffs)
JACQUELINE BOAKYE - (Defendant)
DATE: 30 TH NOVEMBER, 2018
SUIT NO: OCC. 58/2017
JUDGES: DR. RICHMOND OSEI-HWERE JUSTICE OF THE HIGH COURT
LAWYERS: AKUA POKUAA KWARTENG FOR THE PLAINTIFFS
On 7th March, 2017 the plaintiffs herein instituted the instant action against the Defendant herein seeking the following reliefs:
a) Recovery of the sum of Thirty-Five Thousand Ghana Cedis (GHC35,000.00) being rent arrears as at November 2016.
b) Interest on the said sum of Thirty-Five Thousand Ghana Cedis (GHC35,000.00) at the prevailing lending rate from November 2016 up till the date of full and final payment.
On 11th May, 2017 final judgment in default of appearance was entered against the Defendant in the sum of GHC 35,000.00 and interest at the prevailing Commercial Bank lending rate from November, 2016 till date of final payment. Costs of GHC 3,000.00 was also awarded against the Defendant.
On 26th October, 2017 the default judgment was set aside upon an application by the Defendant.
Consequently, the Defendant filed a statement of defence on 14th November, 2017 and counter claimed against the Plaintiffs as follows:
a) A declaration that all items (personal effects/belongings which were illegally and or unlawfully ceased by Plaintiffs/Representatives be released to her (Defendant) by Plaintiffs and/or their representatives.
b) General damages for keeping the said items (personal effects/belongings) by the Plaintiffs without any legitimate order.
After unsuccessful attempts at settlement, five issues were set down for trial namely:
1. Whether or not the agreed rent for the occupation of the two bungalows was GHC250.00 per bungalow.
2. Whether or not the Defendant owes the Plaintiffs the sum of GHC35,000.00 for rent from December 2010 to November 2016.
3. Whether or not the Plaintiffs have prevented the Defendant from taking her belonging from the bungalows.
4. Whether or not the Plaintiffs are entitled to their claim.
5. Whether or not the Defendant is entitled to her counterclaim.
It is observed per the Court’s records that after the case management conference counsel for the Defendant was duly served with hearing notices to attend court for the trial to commence but both defendant and counsel failed to show up. This is evidenced by some of the affidavits of service sworn on 10/07/2018; 30/07/2018 and 09/11/2016.
With the continuous absence of the Defendant the court had no option than to proceed with the case under order 36 rule 1(2)(a) of the High Court (Civil Procedure) Rules 2004, CI 47. It states:
Rule 1(2) where an action is called for trial and a party fails to attend, the trial judge may;
a. Where the plaintiff attends and the defendant fails to attend, dismiss the counterclaim, if any, and allow the plaintiff to prove the claim.
On the basis of the rule, the plaintiffs were allowed to prove their claim on the 14th November, 2018. One Nana Yaw Boakye testified as a witness on behalf of the plaintiffs. The crux of the plaintiffs’ case is that that the Defendant was a resident of property with address Hse No. 9 VRA Ward Ridge which was owned by the late Edward Osei Boakye. The property is now owned by the 4th defendant while the 1st, 2nd and 3rd defendants are the executors of the will of the deceased and trustees of the 4th Plaintiff. The Property in question are 2 bungalows and the defendant rented both for herself and her brother. According to the witness, sometime in 2008 after the death the Edward Osei Boakye, the 4th Plaintiff took over the management of the property. It was then that the Defendant wrote to the 4th Plaintiff that she paid GHC 13,000.00 to the deceased and it was agreed that the amount should cover rent between September 2018 and December, 2010.
It is their case that although there was no documentary evidence in respect of the said amount they agreed to the arrangement. The plaintiffs also claim that after 2010, they agreed with the Defendant on the amount of GHC 250 as the monthly rent payable per bungalow.It is their case that the defendant has defaulted in the payment of rent from November, 2010 to November, 2016. They are therefore claiming from the defendant the accumulated amount of GHC 35,000.00 plus interest on the said amount. To succeed in his claim, the plaintiff is required to prove his case to the required standard in civil suits, that is by the preponderance of probabilities as required by sections 11(4) and 12 of the Evidence Act, 1975 NRCD 323.
The Plaintiff’s burden of proof is not dispensed with despite the fact that the Defendants chose not to participate in the trial. In other words, the Plaintiff must demonstrate to the satisfaction of the court that his case is more probable than not, else he loses. Thus, in Takoradi Flour Mills v Samir Faris [2005-2006] SCGLR 882 at 884, the Court held as follows:
“It is sufficient to state that being a civil suit, the rules of evidence require that the Plaintiff produces sufficient evidence to make out his claim on a preponderance of probabilities, as defined in section 12 (2) of the Evidence Decree, 1975 (NRCD 323). In assessing the balance of probabilities, all the evidence, be it that of the Plaintiff or the Defendant must be considered and the party in whose favour the balance tilts is the person whose case is the more probable of the rival versions and is deserving of a favourable verdict.”
From the evidence on record, the plaintiffs are saying that the defendant agreed to pay a monthly rent of GHC 250.00. This is not backed by any documentary evidence. However, in the absence of any evidence to the contrary the court has no option than to accept the oral evidence. The court considers both oral and documentary evidence in reaching a conclusion. It can only discard oral evidence if it is inconsistent with documentary especially where the documentary evidence is authentic and the oral evidence is incredible. See Hayfron v Egyir[1984-86] 1GLR 682, CA. Indeed, the defendant by her own showing per the complaint to the Rent Control Office (exhibit C) admitted that she owed the 4th Plaintiff rent arrears. She however intimated in exhibit C that she was in arrears for two years and that the money has been paid to the Police. The fact that money has been paid to the police has been denied by the plaintiffs and they (plaintiffs) are further alleging that the defendant is in arrears between November, 2010 and November, 2016.Again in the absence of any credible evidence to the contrary, I find the plaintiffs’ authentic.
For the foregoing reasons, I conclude that the Defendant is liable to pay the amount of GHC 35,000 to the plaintiffs plus interest at the prevailing Bank rate from November, 2016 till the date of final payment.
Costs of GHC 6,000.00 awarded against the defendant.