ABRAHAM FRIMPONG v. BENJAMIN NARTEY

By his writ of summons Plaintiff herein issued out of this court a writ of summons with

affidavit in support dated 9/6/2022 seeking:

a. Recovery of outstanding balance of GHc9,270. 00 out of a total amount

of GHc42,270.00 being the cost of six tipper trucks defendant

rented on credit from Plaintiff.

b. Interest on the GHc9,270.00 from 20/8/2021, till date of

final payment.

PLAINTIFF’S CASE

Plaintiff deals in tipper trucks. Plaintiff is a caretaker of the trucks for the owner. That

on 20/8/2021 Defendant rented six of the trucks from him to Takoradi for some

construction works at a total cost of GHc42,270.00. That at the end of the construction

Defendant made a part payment of GHc33,000.00 remaining GHc 270,000.00 unpaid.

That all efforts made to collect the money from Defendant has proved futile.

Defendant on the other hand failed to appear in court in spite of service of writ of

summons and notices on him.

The legal issues for determination are:

i. Whether or not Defendant is liable.

ii. Whether or not Defendant is entitled to the reliefs sough

EVALUATION OF EVIDENCE AND APPLICATION OF LAW

The evidential rule in civil cases is that the burden of proof rests upon the party who

substantially asserts the affirmative of his case. In the case of Lamptey alias Nkpa vrs.

Fanyie and Others (1989-90) 1 GLR 286 the Supreme Court held that on general

principles, it was the duty of the Plaintiff to prove his case. However, when on a

particular issue he had led some evidence, then the burden will shift to the Defendant

to lead sufficient evidence to tilt the scale in his favour. This is clearly covered in section

10,11,12 and 14 of the Evidence Act, 1975, NRCD 323.

In Majolagbe v Larbi (1959) GLR190 @ 192, Ollennu J (As he then was) had this to say

on what constitutes proof in Law:

“Proof in law is the establishment of facts by proper legal means where a

party makes an assertion capable of proof in some 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 that

averment on oath, or having it repeated on oath, by his witness. He proves

it by producing other evidence of facts and circumstances, from which

the court can be satisfied that what he avers is true’.

Adinyira JSC expatiating on the cardinal principle of Audi alteram paterm in In re:

Kumi (dc’d); Kumi v Nartey (2007-200