PRAH VRS HAMMOND (A2/204/2020) [2024] GHADC 53 (15 January 2024)

CORAM: HER WORSHIP AMA ADOMAKO-KWAKYE (MS.), MAGISTRATE, DISTRICT COURT ‘2’ KANESHIE, SITTING AT THE FORMER STOOL LANDS BOUNDARIES SETTLEMENT COMMISSION OFFICES NEAR WORKERS’ COLLEGE, ACCRA ON 15TH JANUARY, 2024. SUIT NO. A2/204/2020 PASTOR RANSFORD PRAH DANSOMAN :: PLAINTIFF ACCRA VRS. MR. JOSEPH NII HAMMOND :: DEFENDANT MAMPROBI, ACCRA Introduction JUDGMENT Per a Writ of Summons issued by the Plaintiff on 6th July, 2020, the Plaintiff claimed against Defendant for the following reliefs: a) Recovery of GH¢13,600. PASTOR RANSFORD PRAH V. JOSEPH NII HAMMOND b) Interest on the amount at the prevailing bank rate from July, 2019 to January, 2020 until date of final judgment. c) Cost. According to the Summary of subject matter of claim, sometime in the year 2019, the Defendant who identifies as a football agent, approached a congregant of Plaintiff’s church known as Richard Yankson to inform him that he had opportunity to facilitate the travel abroad of young footballers to get professional football contracts. Plaintiff averred that Richard Yankson approached him for assistance concerning Defendant’s offer and he agreed to assist him. Subsequently, a meeting was held with the Defendant who set out the terms which were accepted. The summary further stated that the Plaintiff catered for all the travelling and other expenses of Richard Yankson which was to a tune of €4,000 in the cedi equivalent of Ghȼ24,600.00 but the Defendant failed to perform his obligation under their contract and upon calls on him to refund the money paid, refunded Ghȼ11,000.00 with a promise to pay the balance of Ghȼ13,600.00 two days thereafter, which he has failed to pay since then. No written statements were ordered by the Court. The parties were unable to resolve their differences when they were referred for an attempt at settlement by the Court connected mediation machinery and as such, trial was conducted. At the close of trial, Counsel for the Defendant filed an Address on 2nd November 2022 wherein he amongst others submitted that there was no agreement between the parties for a refund of money in the event that the player was unable to travel for trials and also that the Defendant had rendered services and incurred expenses on the Ukraine and Spain applications and ought to be compensated. PASTOR RANSFORD PRAH V. JOSEPH NII HAMMOND Issue From the summary of subject matter of claim and the evidence before this Court, the main issue for the Court to determine is whether or not the Defendant is indebted to the Plaintiff in the sum of GH¢ 13,600.00 being balance of monies paid to the Defendant by Plaintiff as consideration for their contract. Legal Analysis and Evaluation of Evidence It is trite that in civil cases, the general rule is that the party who in his/her pleadings or writ raises issues essential to the success of his/her case assumes the onus of proof. The one who alleges, whether a plaintiff or a defendant, assumes the initial burden of producing evidence. It is only when such a party has succeeded in producing evidence that the other party will be required to lead rebuttal evidence, if need be. Proof lies upon him who affirms or alleges, not upon him who denies since, by the nature of things, he who denies a fact cannot produce any proof. See Sections 11(1) & (2), 12(2) and 14 of the Evidence Act, 1975 (NRCD 323); Tagoe v. Accra Brewery [2016] 93 GMJ 103 S. C; Deliman Oil v. HFC Bank [2016] 92 GMJ 1 C. A. In the case of Takoradi Flour Mills vs. Samir Faris [2005-2006] SCGLR 882, the Supreme Court captured the trite position of the law relating to the burden of proof and stated as follows at page 900: “To sum up this point, it is sufficient to state that this being a civil suit, the rules of evidence require that the Plaintiff produces sufficient evidence to make out his claim on a preponderance of probabilities, as defined in Section 12(2) of the Evidence Decree, 1975 (NRCD 323). Our understanding of the rules in Evidence Decree, 1975 on the burden of proof is that 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 PASTOR RANSFORD PRAH V. JOSEPH NII HAMMOND tilts is the person whose case is more probable of the rival versions and is deserving of a favorable verdict.” Similarly, in GIHOC Refrigeration & Household vs. Jean Hanna Assi (2005-2006) SCGLR 458, the Supreme Court held that: “since the enactment therefore, except otherwise specified by statute, the standard of proof (the burden of persuasion) in all civil matters is by a preponderance of the probabilities based on a determination of whether or not the party with the burden of producing evidence on the issue has, on all the evidence, satisfied the judge of the probable existence of the fact in issue... Hence, by virtue of the provisions of NRCD 323, in all civil cases, judgement might be given in favour of a party on the preponderance of the probabilities...” The Plaintiff therefore had the onus of discharging the burden of producing sufficient evidence in respect of his claim on a balance of probabilities. Plaintiff testified by way of oral evidence on the 8th of April, 2021. His evidence was that he was introduced to the Defendant by a player in his church by the name Richard Yankson. According to Plaintiff, he was in church one day when the said Richard Yankson came to him to inform him that Defendant said he has a contract abroad and could assist him (Richard Yankson) to go for trials. It was the testimony of the Plaintiff that he met Defendant and had a meeting with him for Defendant to go through the details of the agreement. It was Plaintiff’s testimony that the parties entered into a verbal agreement. Plaintiff further stated that the said agreement was for the Plaintiff to give Defendant the full amount to process the documentations and in the event that he is unable to do so, Defendant would refund the money paid by Plaintiff to him. PASTOR RANSFORD PRAH V. JOSEPH NII HAMMOND According to Plaintiff, sometime after he had paid the required amount to Defendant, he realized that Defendant was unable to process the deal. Plaintiff therefore opted for a termination of the contract. It was the testimony of Plaintiff that after the contract was terminated, Defendant agreed to pay him the amount of money he had paid. Plaintiff further added that the Defendant gave him a date to collect the money he had paid. However, when that time lapsed, Defendant only paid part of the money and has failed to pay the outstanding amount. It is Plaintiff’s case that he paid an amount of Gh¢24,600.00 to Defendant. To prove his claims, Plaintiff tendered in evidence a document signifying the Defendant received an amount of Gh¢24,600.00 from him and same marked as Exhibit ‘A’. Plaintiff stated further that Defendant paid Gh¢11,000.00 in January 2020. In addition to this, Defendant paid Gh¢4000.00 after the institution of this suit. Plaintiff testified that the outstanding balance is therefore an amount of Gh¢9,600.00. To further prove his claims, Plaintiff called on Richard Yankson to testify as his witness. PW1 testified that he is a footballer who got to know Defendant through his team chairman. According to PW1, Defendant one day met him when he was returning from his training. It was then that the Defendant informed him of his new agency he had opened and extended an invitation to him. PW1 subsequently visited the Defendant in his office. That was when Defendant informed PW1 of a football trial deal he had in Ukraine. PW1 added that the Defendant also informed him of the amount involved which was €4,000. After leaving Defendant’s office, PW1 went to inform the Plaintiff of the conversation he had had with Defendant and the offer the latter had made him. According to PW1, Plaintiff after hearing all he had to say, said he wanted to hear from Defendant himself so Plaintiff together with PW1 went to Defendant’s office. PASTOR RANSFORD PRAH V. JOSEPH NII HAMMOND Defendant informed Plaintiff about the deal and the amount involved when he visited Defendant together with PW1. It was the testimony of PW1 that Plaintiff enquired from Defendant if he was certain of the deal he spoke of and the Defendant answered in the affirmative. It was the case of PW1 that Plaintiff paid the required fees to Defendant to facilitate the process. PW1 added that the Plaintiff insisted that an agreement be executed to the effect that Defendant would refund the money paid in the event that he is unable to successfully execute the deal but although Defendant agreed, it was not put on paper. PW1 further stated that before the money was paid to Defendant, Plaintiff demanded for a document to show he had given him such an amount. An agreement was embodied in writing to evidence that Plaintiff had paid such an amount of money to Defendant. Shortly after this, Defendant started facilitating the documents and few days later, informed them of an invitation he had received in respect of the application. Defendant showed PW1 and the Plaintiff how the document would be submitted at the visa office and they submitted same. However, PW1 was denied the visa. According to PW1, he enquired from Defendant why the visa was denied by the embassy and the latter informed him that the agent in Ukraine did not make hotel reservation. PW1 then perused the document and came to the realization that the invitation was not for football trial but it was a tourist visa. PW1 further stated that Defendant tried several times but all his efforts were unsuccessful. It was then that Plaintiff told Defendant not to proceed anymore. Plaintiff subsequently went to Defendant’s office to demand for the money he had paid. It was PW1’s case that the Defendant agreed to refund the money and even gave them a time he intended to do so. However, Defendant could not pay in full the amount given him by the Plaintiff. PW1 testified further that even though Plaintiff made several demands on Defendant to pay the outstanding money, Plaintiff’s efforts PASTOR RANSFORD PRAH V. JOSEPH NII HAMMOND proved futile. He added however that when the action was instituted, Defendant made payment of GH₵4000 to Plaintiff leaving and outstanding balance of GH₵9500 to be paid. The Defendant’s testimony was that he is a businessman and owns a football agency with the purpose of identifying talented footballers, finding them clubs for trials abroad and facilitating their travel to the clubs for the trials. He tendered in evidence a copy of his agency license as Exhibit ‘1’. According to him, prior to the incorporation of the agency, he knew PW1 through his coach, Awudu Ali Munkaila (DW1). He added that they both met him and enquired about the opportunities he had available for PW1 and he informed them about trial opportunities in Spain and Ukraine. It was the case of the Defendant that they informed him they needed to give it some thought and would revert later. About a week later, PW1 and DW1 came to his office and told him of their interest in the Ukraine opportunity. He then informed them of the sponsorship options available which they informed Plaintiff who was to sponsor PW1. Defendant stated that about a week later, PW1, DW1 and the Plaintiff came to his office for discussions about when the process would be completed and the possibility of the player getting a club and he explained to Plaintiff that the trial was a 50/50 chance but if he did not get the opportunity in Ukraine, he would continue working on other options until he gets a club for PW1. He also explained to Plaintiff how the profits would be shared in the event that PW1’s application is successful. Defendant averred that Plaintiff returned with PW1 to pay the cedi equivalent of €2,000.00 and he commenced the application. Defendant testified that he received the invitation from his agent in Ukraine and invited all the parties involved to his office. It was during this meeting that the invitation was opened and read by the Plaintiff after praying over same. It was the testimony of Defendant that the Plaintiff at the said meeting paid the remaining amount left which was the cedi equivalent of €2,000.00 for him to complete the process. PASTOR RANSFORD PRAH V. JOSEPH NII HAMMOND Defendant averred that Plaintiff said he needed something on paper to evidence that he had given such an amount to him so the Plaintiff drafted a hand written receipt and gave same to Defendant’s secretary to type. Defendant stated further that after it was typed, Plaintiff read through and the parties signed. Defendant testified that nowhere in the said document did he agree to refund all the money Plaintiff had paid in the unlikely event that the player’s application did not succeed. According to Defendant, when he finished the documentation, he informed Plaintiff about it and subsequently went to present the visa application. Defendant asserted that some weeks later, the passports were ready however it came to their realization that the visa had been refused. It was Defendant’s case that Plaintiff asked for the options available and he informed him of the opportunity in Spain and decided to personally pay for the invitation, the documentation and the visa application for Spain and after procuring the visa, the parties will discuss how to share the sign on fee. Defendant’s testimony was that the Plaintiff agreed and asked that he proceeds with the Spain application. Based on the agreement they had reached, Defendant catered for the expenses and secured an invitation from his agent and a club in Spain. He tendered in evidence the invitation from a club in Spain marked as Exhibit ‘2’. Defendant further stated that he called for a meeting between the parties and it was during the said meeting that the Plaintiff stated that he was no longer interested in the applications and requested for a refund. Defendant asserted that he told Plaintiff that a refund was not possible however for the parties to share in the loss, he will try and refund half of the money Plaintiff paid to him. According to him, he has paid Gh¢14,000.00 to the Plaintiff and does not owe him anything anymore. To further establish his defence, Defendant called on one Awudu Ali Munkaila to testify for him. Awudu Ali Munkaila (DW1) testified that he is a football coach who was at a PASTOR RANSFORD PRAH V. JOSEPH NII HAMMOND point, training Defendant’s players for him. He stated that sometime in 2019, he heard the Defendant had started an agency. At the said time, he was training Richard Yankson (PW1) so they both sought Defendant’s assistance for PW1 to travel abroad for trials. According to him, Defendant informed them that he had opportunities in Ukraine and Spain. They however made it known to Defendant that they needed time to think about it and revert to him. Shortly after, DW1 and PW1 both informed Defendant of their interest in the Ukraine offer. It was DW1’s testimony that Defendant informed them of the offers available at his agency after which they made known to Defendant that the player (PW1) has a manager (Plaintiff) whom they would have to discuss same with. DW1 testified that after discussing same with Plaintiff, he informed them that he will fully sponsor PW1 by paying for the cost involved. He stated that the cost involved was €4,000.00. It was the case of DW1 that Plaintiff insisted on meeting the Defendant so a meeting was scheduled for the parties to meet. According to him, during the said meeting, Defendant gave Plaintiff a detailed explanation on the entire process, the risks involved and how the profits were to be shared in the event that their application is successful. DW1 added that after the said meeting, Plaintiff later paid the cedis equivalent of €2,000.00 for the Defendant to commence the process. According to DW1, when Defendant secured the invitation, he invited all the parties involved to his office for a meeting. He added that it was even the Plaintiff who prayed over the invitation and asked Defendant to proceed thereafter. Plaintiff then paid the remaining amount of the required fees to a tune of €2,000.00. It was the case of DW1 that Plaintiff drafted a document for Defendant’s secretary to type after which it was executed by the parties. DW1 further stated that Defendant and the player (PW1) went to submit PASTOR RANSFORD PRAH V. JOSEPH NII HAMMOND the application for the visa. It later came to their knowledge that the visa had been refused. Subsequently, another meeting was held where Plaintiff asked the Defendant the options available. According to DW1, Defendant informed Plaintiff of the opportunity in Spain and added that if he was interested, Defendant could commence the process. DW1 stated that Plaintiff asked Defendant to commence the application for the opportunity in Spain. It was DW1’s testimony that Defendant got the invitation for Spain as well and invited all the parties to his office only to be informed by Plaintiff of his intention not to proceed with the application again. Plaintiff therefore demanded for the money he had paid to Defendant however Defendant informed him that it was a business venture as such, Plaintiff cannot get his money back. DW1 added that Defendant despite this, told Plaintiff that he will refund half of the money he paid. From the evidence adduced before this Court, it is clear that Plaintiff’s claim from Defendant is one which is rooted in a contract entered into by both parties. It is however not in dispute the purpose for which the parties entered into the contract. What is in contention is whether it was agreed between the parties that the amount paid by the Plaintiff to the Defendant will be refunded in the event that PW1’s application fails. Plaintiff’s evidence before this Court suggests that the parties agreed that in the event that the Defendant was unable to process PW1’s application successfully, Defendant would refund the amount he paid to secure the contract. According to Plaintiff, he paid an amount of Gh¢24,600.00 to Defendant and tendered in evidence Exhibit ‘A’ to prove same. Although PW1 when he testified that the parties agreed that Defendant would refund the money paid in the event that he is unable to successfully execute the deal, the Defendant on the other hand stated that after Plaintiff paid the required fee, Plaintiff himself drafted a hand written receipt and gave same to Defendant’s secretary to type. PASTOR RANSFORD PRAH V. JOSEPH NII HAMMOND This agreement was signed by the parties. Defendant testified that nowhere in the said document did he agree to refund all the money Plaintiff had paid in the unlikely event that the player’s application does not succeed. It is important that this Court in determining this issue answers the question whether or not Exhibit ‘A’ by its nature and content is sufficient to constitute an agreement probably so called between the parties. Plaintiff did not dispute the fact that he drafted the said exhibit after which the parties signed. However, to Plaintiff, Exhibit ‘A’ is merely a receipt evidencing that he paid an amount of Gh¢24,600.00 to the Defendant. This is what happened under cross examination of Plaintiff by counsel for the Defendant: Q: Exhibit A is a travelling note? A: That is correct. Q: It says that Defendant has received GH₵24,600 from you on behalf of Zoe Kingdom Chapel Korle Gonno as an amount for travelling document processing? A: Yes my Lady. Q: This agreement was signed subsequent to your conversation with the Defendant ? A: That Note is in the first place not an agreement but a receipt of money received. The Note was signed subsequent to the conversation. Q: The second paragraph of Exhibit A says this agreement was signed on the said date above and all amounts for the processes has been settled, waiting for the player’s departure. It is thus clear that it was an agreement? A: It was not an agreement because after the verbal agreement I had wanted us to put it into writing but he said he cannot cheat a Pastor. I requested for a receipt and he said his PASTOR RANSFORD PRAH V. JOSEPH NII HAMMOND agency is new so he does not have a receipt. For the sake of evidence, I put something in writing and his secretary typed to show that some monies were paid. If there is a term ‘agreement’ in it, then it might be in reference to the verbal agreement we had. It is a Note of receipt of money. Q: You have told this court that you wrote what is in Exhibit A and the Defendant’s secretary typed on Defendant’s letter head? A: That is correct. Q: Nowhere in Exhibit A was it stated that if the player is unable to travel, the Defendant would refund all the money paid? A: Correct that document is not the agreement that is why it is not captured in it. I have carefully examined Exhibit ‘A’ and its content. It is clear that the said exhibit does not only evidence the fact that Plaintiff paid an amount of Gh¢24,600.00 to Defendant but the words used by the drafter would lead any reasonable man to draw the conclusion that the said exhibit embodied the terms of the parties’ agreement. For the avoidance of doubt, paragraph two of Exhibit ‘A’ reads: “…This agreement was signed on the said date above and all amount for the processes has been settled, waiting for the said player’s departure”. Exhibit ‘A’ was also signed by both parties in the presence of a witness who also signed. It is therefore reasonable for this Court to conclude which same is borne out of the evidence adduced that Exhibit ‘A’ is not a mere receipt as Plaintiff wants this Court to believe but evidences the agreement entered into by the parties. Even though Plaintiff claimed that he wanted their oral agreement concerning the refund to be put on paper, it is surprising that he did not include same when he drafted Exhibit ‘A’. It therefore goes without saying that such a clause was not included in Exhibit ‘A’ by PASTOR RANSFORD PRAH V. JOSEPH NII HAMMOND Plaintiff because it was not part of their agreement. It is trite learning that when parties to an oral contract later reduce their oral contract into writing, the omission or exclusion of an oral statement from the written document may lead to the inference that the parties did not intend it to be a term of their contract. In such a case, the statement is said to be a mere representation and where such a representation turns out to be false, the party misled is able to claim damages only upon proof of fault. See the cases of: Heilbut, Symons & Co v. Buckleton [1913] A. C. 30 and Routledge v. McKay [1954] 1WLR 615. Again, where parties have recorded their agreement into writing, the written agreement is prima facie taken to be the whole contract. The terms of such a contract are therefore limited to the contents of the written document. It is therefore trite that where parties have embodied the terms of their agreement into writing, extrinsic evidence will not be admissible to add to, vary or contradict the terms of their written agreement. See the cases of Motor Parts Trading Co. v Nunoo [1962] 2 GLR 195 and Wilson v Brobbey [1974] 1 GLR 250. This rule is however not without exceptions. Plaintiff from her evidence has not been able to prove to the satisfaction of this Court that there exists any of the exceptions to the parole evidence rule. It is important that I mention at this stage that where a document containing contractual terms is signed, in the absence of fraud or misrepresentation, the party signing it is bound by its terms and it is wholly immaterial whether a party read the document or not. As such, a party of full age and understanding is normally bound by his or her signature to a document whether or not he read same. In certain cases, however, a party who has been misled into executing an agreement with character different from that which he intended to execute or sign can escape liability on the signed document by pleading the defence of non est factum in an action brought against him or her for enforcement of the agreement. PASTOR RANSFORD PRAH V. JOSEPH NII HAMMOND From the evidence adduced, Exhibit ‘A’ was drafted by Plaintiff himself and signed by the parties. Since Exhibit ‘A’ did not make any provision for the monies paid by Plaintiff to be refunded, Plaintiff’s extrinsic evidence will not be admissible to add to, vary or contradict the terms of their agreement. The evidence on record shows that the Defendant performed his obligation under the contract by procuring the invitation from the club in Ukraine. It was no fault of the Defendant’s that PW1’s visa application was refused as Defendant had no control over the issuance of visas by the embassy. From the facts and evidence adduced, it appears the parties entered into two different agreements. The first and initial agreement entered into between the parties was in respect of the application for Ukraine. When the visa for Ukraine however was refused, new terms were entered into by the parties with the Defendant offering to cater for all the expenses involved with the Spain application and the parties sharing the sign on fees after procuring the visa for PW1. It was this second offer that the Plaintiff agreed to and entered into a second contract with Defendant after the first contract had failed only for Plaintiff to breach the second contract by his unwillingness to proceed with the process. It is important to point out that, in respect of the second contract, Defendant, the offeror, paid for the costs involved in procuring the invitation. Plaintiff did not give any consideration to secure the contract. Plaintiff cannot therefore enforce a contract he had not given any consideration to secure nor can he derive any benefit from such a contract as nothing of value had flowed from him to secure the Defendant’s offer. In the mind of the Court, the Gh¢24,600.00 initially paid was in respect of the application to Ukraine. It did not in any way extend to the application for Spain in which case Defendant would not have paid for the cost involved. I must say that Defendant was magnanimous enough to refund an amount of Gh¢15,000.00 to Plaintiff out of the Gh¢24,600.00 Plaintiff paid as PASTOR RANSFORD PRAH V. JOSEPH NII HAMMOND consideration for the preparation of PW1’s documents for the purpose of his travel outside the country to pursue a football career. In the opinion of the Court, Plaintiff has not been able to prove to the satisfaction of the Court that he is entitled to the reliefs he claims from the Defendant. The burden of proof was on him to establish that the Defendant indeed owed him the amount of Gh¢9,600.00 being monies he paid to the Defendant. It is clear from the evidence adduced that the said money was consideration for the contract they both entered into which I have found as a fact that the Defendant performed his obligations under their agreement. Having regard to the agreement of the parties and the fact that the Defendant performed his obligation under the said agreement, in the absence of any vitiating factor, the parties will be bound by the terms of their agreement embodied into writing. Conclusion Having regard to the totality of the present case and evidence adduced by the parties and their witnesses, the Court finds that the Plaintiff has been unable to produce sufficient evidence to back his claims for a determination to be made in his favour. Accordingly, his claims fail and the suit is dismissed. Cost of Gh¢4,000.00 is awarded for the Defendant against the Plaintiff. AMA ADOMAKO-KWAKYE (MS.) (MAGISTRATE) Legal Representation PASTOR RANSFORD PRAH V. JOSEPH NII HAMMOND No legal representation for Plaintiff. Edem Nuhoho, Esq. for the Defendant. PASTOR RANSFORD PRAH V. JOSEPH NII HAMMOND 16