MR. BIGG’S v. STEPHEN OWUSU BOATENG

JUDGMENT

The Plaintiff herein proceeded with its case against the Defendant under Order 36 rule (1) (2) (a) of the

High Court (Civil Procedure) Rules, 2004 C.I. 47. It provides as follows:

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.

It is important to give a brief history of the instant case. It was listed for hearing on 6/11/2013. The Defendant and his counsel were absent without reason. Two adjournments were given and a hearing notice was duly served for the last time on counsel for the Defendant per the affidavit of service filed on 16/01/2014. When the case was called for hearing on 29/01/2014, again, the Defendant and his counsel were not in court. In accordance with the above cited provision of C.I. 47, the Defendant’s counterclaim was dismissed and the Plaintiff was allowed to prove its claims.

By the endorsement on the Plaintiff’s writ of summons filed on 14/01/2013, the Company sought to recover an amount of $ 92, 750.00 being unused rent advance paid by the Plaintiff to the Defendant together with interest and cost.

The issues for trial are set out below:

Whether or not the Parties agreed that upon Plaintiff vacating Defendant’s premises, Defendant would refund unused rent of $ 92, 270.00 to the Plaintiff?

Whether or not the Defendant informed Plaintiff of his appointment of a quantity surveyor and made Plaintiff party to the inspection of the premises by the quantity surveyor?

Whether or not unpaid water bill to the tune of GH¢ 4,752.93 was submitted to Defendant after Plaintiff had vacated the premises?

Whether or not Defendant leased the premises to another tenant within two months after Plaintiff had vacated it.

Whether the Defendant is entitled to his counter-claim?

With the dismissal of the Defendant’s counterclaim, the fifth issue becomes redundant. Even though the Defendant waived his right to participate in this trial, the Plaintiff is enjoined by law to prove its claims to be able to succeed. Going back to the case of Zambrama v Segbedzi (1991) 2 GLR 221, Kpegah JA (as he then was) noted:

“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 admissi