OSCAR RAPHAEL v. FRANK AWUAH ADJEI & 3 ORS

JUDGMENT

The Plaintiff in this action claimed that he won a lottery which is run by the 1st Defendant. His case was that he staked some numbers with the 2nd, 3rd and 4th Defendants who are agents of the 1st Defendant. He alleged that he won the numbers staked per Asare Original Pay All winning numbers as announced at the time in question. It is the alleged prize money of GH¢18,000.00 which he has sued for.

The Defendants denied all the material allegations of fact made by the Plaintiff. Their defence was that Private Lotteries, including Asare Original pay All, had been abolished by Act 722 and the same had been confirmed by the Supreme Court. Thus, the Defendants could not have been given any license by the National Lottery Authority (NLA).They pleaded illegality.

The main issue for determination by this court is whether or not the Defendants have license to operate Private Lottery? And if so, whether the Plaintiff is entitled to his claim.

In all civil suits, a party who makes an averment which is denied by his opponent assumes the burden of proof on that assertion as was held by Kpegah JA (as he then was) in Zambrama v Segbedzi (1991) 2 GLR 221 as follows:

“… 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.” See also Continental Plastic v IMC Industries-Technik GMBH (2009) SCGLR 298 at 307.

Having assumed such an onerous burden, it is the duty of that party to introduce credible evidence so that on the totality of the evidence, the court will find that party’s case to be more probable than not as required by sections 11(4) and 12 of the Evidence Act, 1975 N.R.C.D. 323. These provisions read as follows:

“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.”

“Section 12(1): Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of probabilities.

Section 12(2): Preponderance of the probabilities ‘means that degree of certainty of belief in the mind of the tribunal o