Registry of this court claiming against the Defendant, the following reliefs:

a) Payment of the sum of €25,000.00 or its Ghana Cedi equivalent being the total cost advanced to the Defendant in respect of the said plastering works on the two-three storey buildings

b) Interest on (a) at the prevailing commercial rate with effect from August 10, 2011.

c) Costs

d) Any other relief that the Honourable Court may deem fit.

It was the Plaintiff’s case as set forth in his Statement of Claim that he was a resident of Germany and the owner of two three storey buildings in Accra. He had entered into an oral contract with the Defendant, an ex policeman and contractor to have these buildings plastered

According to the Plaintiff, the Defendant presented him with an estimated cost of €25,000.00. He then transferred an initial amount of €1,500.00 and later transferred the outstanding balance to the Defendant. The Defendant had failed to carry out his obligations.

The Defendant stated in his defence that the Plaintiff contracted him to work not on three two storey buildings but on three, three storey buildings. The Defendant said the parties entered into an oral contract in which they agreed that as his contract fee, the Plaintiff was to purchase for him a brand new Nissan Navara pick up/ They further agreed that while Plairtiff was to provide all the building material, the Defendant was to provide for and pay all the workers on site. The Defendant stated that he carried out his part of the bargain by putting up the three-three storey building and roofing them. The contract fee for this venture was pegged at €25.000.00

He stated that the Plaintiff only transferred the sum total of €2.500.00 and instructed the Defendant to purchase land at Adenta with the money. He said the Plaintiff had however failed to pay his contract fee in spite of the fact that he had made many demands for it. He said he tracvelled to Germany to demand for his money and the Plaintiff only gave him €200.

In view of this, the Defendant made a counterclaim against the Plaintiff for the following reliefs:

1. Recovery of an amount of GH¢70,000.00 being the Defendant’s contract fee for building the three-three storey buildings at Atomic Accra, and a three storey building in Sunyani.

2. Interest at the prevailing commercial bank rate on the GH¢70,000.00 from October 2008 till date of final payment.

3. An order compelling the Plaintiff to purchase for the Defendant a brand new Nissan Navara pick up as agreed upon in the oral agreement.

4. In the alternative to 3 above the Plaintiff was to pay to the Defendant the current market value of a Nissan Navarra Pick up/.

5. Costs

The Plaintiff in his Reply said he entered into the contract with the Defendant who at the time was a serving police man. The Defendant was to engage the services of the Construction Department of the Ghana Police Service to carry out the contract. He averred that he had contracted the Defendant to purchase land for him but the Defendant had fraudulently purchased land which belonged to the State.

The issues slated for trial were:

1. Whether or not the Plaintiff engaged the services of the Defendant to plaster their two storey building?

2. Whether or not the Plaintiff gave the amount of €25,000.00 to the Defendant

3. Whether the Defendant applied the said amount toward the plastering work?

4. Whether or not the Defendant is entitled to his counterclaim?

5. Any other issue arising out of the pleadings but not specifically set down.

1. Whether or not the Plaintiff engaged the services of the Defendant to plaster their two storey building?

From the testimony given by the Plaintiff and PW1, the Defendant, a policeman working with the Estate Unit of the Ghana Police Service, was related to the PW1. They tasked him to engage the services of the Construction Unit of the Ghana Police to carry out building works on a project they had going at the time.

It was the Defendant’s version of events that the Plaintiff contracted him in his personal capacity to put up a 3-three storey building in Accra at an agreed contract sum of GH¢45,000.00 and a brand new Nissan Navarra Pick up.

The contract was an oral one. It was not in writing. According to Cheshire & Fifoot’s, Law of Contract 11^th edition at p. 27, an agreement is said to be not a mental state, but an act and as an act is a matter of inference from conduct. The parties are to be judged by not what is in their minds but what they have written, said or done. For as Chief Justice Brian proclaimed “the devil himself knows not the intent of a man.”What have they said and done in relation to this? Both sides are agreed that there was a contract but what was the agreement between them?

In the absence of any written contract, the court had to construe the agreement in the light of the parties’ actions. The burden of proof was initially on the Plaintiff to lead evidence that would entitle him to judgment. See Section 17(2) of the Evidence Act, 1975 NRCD 323 and Re Ashalley Botwe Lands; Adjetey Agbosu & Ors v. Kotey & Ors (2003.2004) SGLR 420 @ 425. This burden continues to shift depending on the nature of evidence adduced by the parties and their witnesses. Thereafter, it was up to the Defendant to lead evidence in proof of his contention that not only was he contracted to carry out plastering works but that he did construct the buildings in question.

The Exhibit C series and Exhibit 1 show that the project consisted of 3 blocks of 3 storey buildings. Did the Defendant construct these buildings or was he only asked to plaster the said buildings? The Plaintiff and his witness testified that the buildings were put up by one Atsu. The Defendant was later contracted to continue with the project by carrying out plastering works.

Exhibit A is an email from the Defendant to the Plaintiff dated 1^st March 2011. The contents are as follows:

PLASTERING WORKS ESTIMATE

Hello Dad,

Greetings from Chicagoland, I’m doing fine by God’s grace. Hope all the family members are doing well.

Attached is the for the completion of the walls plastering works and the floor finishes. We will be finishing our programme by June and I ‘m planning to visit you in Bonn on my return to Ghana, if that is ok by you. Especially mama said we need to buy the floor materials for the Accra project

Thanks for reading.

Greetings to the family.

Attached to Exhibit A is detailed estimate of “Materials Needed to Complete the Plastering”. There is no evidence of the Defendant’s assertion that he carried out the building of the structures on the land. He neither presented an estimate of how much the construction cost nor did he present a schedule of works. He abandoned the trial after the Plaintiff had closed his case and was not available to be cross-examined on his assertions.

On the other hand, the Plaintiff’s contentions were supported by the evidence on record. From the above correspondence it becomes clear that both parties intended the contract to be for the plastering of the storey buildings in question.  In Ackah v. Pergah Transport Ltd (2010) SCGLR 728 @ 736 the court held:

It is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. The method of producing evidence is varied and includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things (often described as real evidence) without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as a jury. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more reasonable than its non-existence.

See also Section 12(1) of the Evidence Act which provides as follows:

Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities.

Section 12(2):

Preponderance of the probabilities’ means that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence

The court therefore finds that in spite of the Defendant’s claim that he constructed the buildings in contention, he was not able to prove this. The Plaintiff was however able to lead evidence that the Defendant was contracted to carry out plastering works and nothing more.

This brings the court to the second issue which is:

Whether or not the Plaintiff gave the amount of €25,000.00 to the Defendant

The Plaintiff has attached to his witness statements evidence of payments made between 2010 and 2011. These are the Exhibit B series. Exhibits B1 – B4 are Moneygram money transfers from the Plaintiff in Germany to the Defendant in Ghana. Exhibit B5 is a document indicating money transfers made. Exhibit B6 contains 2 receipts in which the Defendant has signed acknowledging receipt of €5,000.00 and GH¢9,200.00 respectively. The following payments were made in 2010 and 2011:

Exhibit B          €4855.20

Exhibit B1        €4882.79

Exhibit B2        €2857.92

Exhibit B3        €4855.48

Exhibit B4        €2118.00

Exhibit B5        €2057.90

Exhibit B5        €5000.00 and GH¢9,200.00

TOTAL            €26,627.29 and GH¢9,200.00

There is a paper trail detailing the amount of money the Plaintiff paid to the Defendant.

In the case of Zabrama v. Segbedzi (1991) 2 GLR 221 CA and re-affirmed in the case of

Continental Plastics Ltd v. IMC Industries (2009) SCGLR 298 @ 306-307, the court stated:

“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.”

The Plaintiff has made his claim and has provided evidence in support of his claim. The court therefore finds that the amount of €25,000.00 asserted as being the sum paid over to the Defendant was indeed paid over to him.

In Re Ashalley Botwe Lands: Adjetey Agbosu & Others v. Ebenezer Nikoi Kotey & Others (2003/2004) 1 SCGLR 420 @ 444 the court held as follows:

It is trite learning that by the statutory provisions of the Evidence Decree, 1975 (NRCD 323), the burden of producing evidence in any given case is not fixed but shifts from party to party at various stages of the trial depending on the issue(s) asserted or denied.

The Plaintiff has demonstrated amply that he paid the amount of €25,000.00 to the Defendant as claimed.

This leaves the court with the outstanding issues of 3 and 4 which are

(3) Whether the Defendant applied the said amount toward the plastering work”

(4) Whether or not the Defendant is entitled to his counterclaim?

The Plaintiff’s evidence in this suit has been corroborated not only his witness who gave evidence as PW1 but also on the documents tendered at the trial.

Section 7(1) of the Evidence Act, 1975 NRCD 323 has it thus:

“Corroboration consists of evidence from which a reasonable inference can be drawn which confirms in a material particular the evidence to be corroborated and connects the relevant person with the crime, claim or defence.”

In the case of Nyame v. Tarzan Transport (1973) 1 GLR 8 CA, the court held:

“There is a distinction between pure conjecture and reasonable inference. A conjecture may be plausible but it is of no legal value for its essence is that it is a mere guess. An inference in the legal sense on the other hand, is a deduction from the evidence and if it is a reasonable deduction, it may have the validity of legal proof. The attribution is always a matter of inference.”

See also Section 18(2) of the Evidence Act, 1975 NRCD 323 which states:

“An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action.”

It is therefore more probable not than not that the Defendant failed to carry out the plastering works on the project thus giving rise to the instant suit. In the case of Fosua & Adu-Poku v. Dufie (deceased) and Adu-Poku Mensah (2009) SCGLR 316, the court held that Section 11(4) of the Evidence Act, 1975 NRCD 323 put the obligation in civil proceedings of producing evidence on 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.

Issue 3 is therefore answered in the negative. The Defendant failed to carry out the plastering as contracted.

The Defendant has made a counterclaim for the following reliefs:

1. Recovery of an amount of GH¢70,000.00 being the Defendant’s contract fee for building the three-three storey buildings at Atomic Accra, and a three storey building in ;Sunyani.

2. Interest at the prevailing commercial bank rate on the GH¢70,000.00 from October 2008 till date of final payment.

3. An order compelling the Plaintiff to purchase for the Defendant a brand new Nissan Navara pick up as agreed upon in the oral agreement.

4. In the alternative to 3 above the Plaintiff was to pay to the Defendant the current market value of a Nissan Navarra Pick up/.

5. Costs

The legal position with regards to the Defendant’s case was that once he had made a counterclaim, he assumed the same onus of proof as the Plaintiff did in making out his claim. See the cases of Malm v. Lutterodt (1963) 1 GLR 1 and Appiah v. Asamoah (2003/2004) SCGLR 226 and Section 11 of the Evidence Act.

As stated above, the Defendant abandoned the suit after the Plaintiff had closed his case and was unavailable to formally tender his evidence in court. He therefore could not have been cross-examined on it. The court would however evaluate his witness statement and treat it as a hearsay declarant’s evidence. He has asserted that he was to have been paid a contract sum of GH¢70,000.00 and in addition to this the Plaintiff was to convey to him, a Nissan Navarra Pick Up.

In his witness statement, the Defendant asserted that his contract fee covered projects in Accra and Sunyani. He said he also started the project in Accra from its inception and was even responsible for putting up the architectural designs. He was also the one who built the 3- three storey building from its inception up to its current stage. Although he attached pictures of the various projects he claimed to have carried out for the Plaintiff, he did not attach the architectural design he said he had put up.

In the age old case of Mojolagbe v. Larbi and others (1959) GLR 190, the court had this to say:

“Where a party makes an averment capable of proof in some positive way e.g. by producing documents, description of things, reference to other facts, instances or circumstances and his averment is denied, he does not prove it by merely going into the witness box and repeating this 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.”

The court continued by saying:

“Proof in law is the establishment of facts by proper legal means i.e. the establishment of an averment by admissible evidence. When a party makes an averment… he is unlikely to be held by the court to have sufficiently proved that averment by merely going into the witness box and repeating that averment on oath if he does not adduce that corroborative evidence which if his averment is true is bound to exist.”

The evidence on record did not attest to the Defendant’s claims. There was also no evidence that any agreement had been reached for the Plaintiff to give to the Defendant a Nissan Navarro Pick Up as contended by the Defendant. Did the Plaintiff do or say anything from which the court could make inferences in the Defendant’s favour?

In the case of McCutcheon v. David MacBrayne Ltd (1964) 1 WLR 125 the court stated

“The judicial task is not to discover the actual intentions of each party it was to decide what each was reasonably entitled to conclude from the attitude of the other.”

See also the case of Danquah v. Timber & Transport Ltd (1971) 2 GLR 383. Nothing in the attitude of the parties supports the Defendant’s case.

The Plaintiff was required to establish its case on a preponderance of probabilities. See Sections 10(1), 11(1) and 11(4) of the Evidence Act, 1975 NRCD 323.

Section 10(1)

For the purposes of this Act, 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.

Section 11(1)

For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue.

Section 11(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.”

The rules of evidence required the parties to make out their claims on a balance of probabilities. In the case of Takoradi Flour Mills v. Samir Faris (2005/2006) SCGLR 882 at 900 the court said:

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.

The court finds the Defendant liable to the Plaintiff despite the Defendant’s assertions to the contrary.

The Plaintiff’s obligation was to pay a sum for the plastering of his storey buildings and the Defendant’s obligation was to carry out these plastering works. Whilst it is clear from the evidence that the Plaintiff had carried out his obligations, the Defendant had not.

Judgment is entered for the Plaintiff who is adjudged to be entitled to his claims. The Defendant is therefore ordered to pay to the Plaintiff the sum of €25,000.00 or its cedi equivalent together with interest at the prevailing commercial rate with effect from August 10, 2011 up to and inclusive of the date of final payment.

Costs of GH¢20,000.00 is awarded against the Defendant.

(SGD)

JENNIFER A. DODOO

JUSTICE OF THE HIGH COURT