JUSTICE OPARE DANQUAH v. EDWARD WIREKU

No Legal Representation for the parties.

Judgment

The plaintiff’s claim is as follows:

“a. Recovery of GHC 120,850.00

b. An order for interest.”

Though the plaintiff has described himself per paragraph 2 of his witness statement as a

small scale miner, he admitted in the witness box that he did not have the requisite licence

to qualify as a small scale miner. He could not produce a valid license from the Minerals

Commission or the sector minister to prove his averment that he is licensed small scale

gold miner. The case of the plaintiff is that in September, 2020, he hired an excavator from

the defendant to use it for gold mining at Sefwi Asawinso. Under the agreement, the

plaintiff was required to pay a hiring fee of GHC 5,600 to the defendant daily. According

to the plaintiff, he paid the defendant GHC 47,000.00 instantly. The plaintiff then moved

the excavator to his mining site. He then detected that the excavator was mechanically

defective. He quickly informed the defendant of the development. The defendant then

asked the plaintiff to use his own money and engage mechanics to repair the excavator.

The plaintiff engaged several mechanics to repair the excavator. After he had managed

to repair the excavator, the plaintiff could only use it to carry out the mining activities for

only a week. The plaintiff alleges that he has spent a total of GHC120, 850.00 on repairing

the excavator. He also alleges he informed the defendant of the said expenditure and that

the defendant agreed to refund the said amount to him but to no avail and hence this

instant action.

The defendant was duly served with the writ and hearing notices but he declined the

invitation to come to court and defend himself. A principle of law is that when a

defendant or a party has been given opportunity to defend himself of allegations made

against him but he deliberately declines the invitation, the court is clothed with

jurisdiction to proceed with the case, see Republic v High Court, Accra, Ex parte Akita,

civil motion JS/7/2010 dated 17/02/2010.

After examining the facts and evidence of the case, I am of the considered opinion that

the issues for determination are

1. Whether or not the agreement between the parties is an illegal one and therefore

unenforceable and

2. Whether or not the plaintiff is entitled to recover GHC 120,850.00 from the

defendant.

Before determining the issues, I will briefly analyse the burden of proof. The law is firmly

settled