AYONGO V BOKOM (A2/16/2024) [2024] GHADC 521 (31 October 2024)

BEATRICE AYONGO V ABRAHAM BOKOM IN THE DISTRICT COURT HELD AT FOMENA ON THURSDAY THE 31ST DAY OF OCTOBER, 2024 BEFORE HER WORSHIP LINDA FREMAH BOAMAH- SUIT NO. A2/16/2024 OKYERE, ESQ. BEATRICE AYONGO V ABRAHAM BOKOM JUDGMENT BACKGROUND: 1. This suit is one of recovery of money. The Plaintiff claims against the Defendant for the recovery of an amount of Fifty Thousand Ghana Cedis (GHC.50,000.00) which said money the Plaintiff claims to have lent to the Defendant to enable him purchase cocoa. According to the Plaintiff, the Defendant was supposed to have defrayed his indebtedness in 2019 but he has failed to do so despite repeated demands on him, till date. Plaintiff also urges the court to award interest on the said GHC.50,000.00 as well as costs. 2. The Defendant does not admit liability of any of the claims made by Plaintiff. He avers that he borrowed an amount of GHC.5,000.00 from the Plaintiff and not GHC.50,000.00. According to the Defendant, he has paid the said GHC.5,000.00 together with any interest that accrued on it, in accordance with the terms of agreement that the parties entered into when the Plaintiff lent the money to him. 3. It is against this backdrop that the matter proceeded to trial. The Plaintiff gave evidence by herself and also called two other witness to corroborate her claim. The Defendant also gave evidence by himself and called on one other witness to Page 1 of 14 BEATRICE AYONGO V ABRAHAM BOKOM corroborate his claim. Both parties as well as their witnesses did not rely on any form of documentary evidence. ISSUE(S) FOR DETERMINATION: 4. The issues arising from the facts of this case are: i. Whether or not the Plaintiff gave financial assistance to the tune of GHC.50,000.00 to the Defendant ii. Whether or not the Defendant has defrayed his entire indebtedness to the Plaintiff iii. Whether or not the Plaintiff is entitled to her claims BURDEN OF PROOF: 5. The general rule in civil cases is that the party who in his pleadings or his writ of summons raises issues essential to the success of his case assumes the onus of proof. In civil cases as this one, this onus of proof is on the preponderance or balance of probabilities as stated in Section 12 of the Evidence Act, 1975 (Act 323). Section 12 (2) of Act 323 defines the preponderance of probabilities as that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non- existence. The burden may shift from the Plaintiff to the Defendant or vice versa and this is the position of the law in Section 14 of Act 323 reproduced thus, “Except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting” 6. In the case of Sarkodie v FKA Co. Ltd [2009] SCGLR 65, it was held that it is a basic principle of the law of evidence, that burden of proof is to produce the Page 2 of 14 BEATRICE AYONGO V ABRAHAM BOKOM required evidence of facts in issue that has the quality of credibility short of which his claim may fail. It is trite learning that a matter that is capable of proof must be proved by producing sufficient evidence so that on all the evidence, a reasonable mind could conclude that the existence of a fact is more probable than its non-existence. 7. In the case of Ackah v Pergah Transport Ltd. (2010) SCGLR 728, the Supreme Court held that the method of producing evidence is varied and it includes the testimonies of the party and material witnesses, admissible hearsay, documentary evidence and things (often described as real evidence) without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court. See also Adjetey & Agosu v Kotey & Others [2003-2004] SCGLR 420. It is also trite learning that, generally, a person who is making a negative averment does not have to prove the negative averment. 8. The Plaintiff bears the burden of adducing sufficient evidence to demonstrate that she indeed gave the amount of GHC.50,000.00 to the Defendant especially since the Defendant has denied receiving such amount. Once she is able to convince the court on the balance of probabilities that the said money was given to the Defendant and that he received same, then the onus would fall on the Defendant to show that he has paid back that money to the Plaintiff. The Plaintiff does not bear any burden to prove that she has not received the money back from the Defendant because that is a negative averment and it would be absurd for the court to expect her to prove that negative averment. ANALYSIS/EVALUATION OF EVIDENCE AND THE LAW 9. The Plaintiff’s evidence as given by her witness statement filed on 3rd July, 2024 is to the effect that she has a business relationship with the Defendant. According Page 3 of 14 BEATRICE AYONGO V ABRAHAM BOKOM to her, the Defendant usually purchases cocoa from her. She states that about six (6) years ago, her late son by name Paa Nii informed her that the Defendant had run a loss in his business and needed financial assistance of GHC.50,000.00 with a promise to pay back the money. Plaintiff states that she called the Defendant who confirmed that indeed he needed the money just as Paa Nii had told her. About a week later, the Plaintiff says that she gathered the money and gave it to Paa Nii to be given to the Defendant. Upon receipt of the money, Defendant went to the house of Plaintiff to personally thank her and affirm his promise of paying back the money the following year. The Plaintiff states that she offered to assist the Defendant financially because he was a business partner to her and as a result of that, they had established a good relationship with each other. 10. According to the Plaintiff, the transaction in respect of this said GHC.50,000.00 was subsequently put into writing and executed by them and their witnesses. It is pertinent to point out that the Plaintiff did not submit the said written agreement to the court in support of her case. When there was an enquiry into the whereabout of the said document, this is what the Plaintiff said: Q. You stated that there was a written agreement in respect of the transaction but you did not exhibit same A. The person who prepared it for me is dead so I cannot find the document 11. The Plaintiff’s evidence is that the Defendant defaulted in the payment of the money contrary to what had been agreed upon so she took steps to coerce the Defendant by summoning him before the chief of Adansi Nyankumase where the Defendant allegedly admitted owing her the amount of GHC.50,000.00 and promised to pay back the money after two (2) weeks. The Defendant still did not pay the money after the two weeks had elapsed so the Plaintiff states that she reported the matter to the police where the Defendant presented his copy of the Page 4 of 14 BEATRICE AYONGO V ABRAHAM BOKOM written agreement and admitted owing the Plaintiff GHC.50,000.00. The Plaintiff states that she was advised by the police to institute a civil action against the Defendant and hence the issuance of the instant Writ of Summons. 12. From the evidence led by the Plaintiff, it appears that her surest way of proving that she gave the GHC.50,000.00 to the Defendant was to have produced the written agreement which she said was unavailable to her. She however called PW1 who, according to the Plaintiff, had signed the said document as one of her two witnesses in the execution of that document. Her other witness, Paa Nii, is deceased and this is not in doubt from the evidence adduced by both parties. PW1’s evidence was to the effect that the Plaintiff had given GHC.50,000.00 to the Defendant and a written agreement had been executed in respect of that transaction. Plaintiff also called PW2 who is the Krontihene of Adansi Nyankumase before whom the Plaintiff summoned the Defendant in respect of this same money. According to PW2, when the matter was heard, Defendant admitted owing the Plaintiff the amount of GHC.50,000.00 and pleaded to be given some time to pay back the money. The Defendant did not pay the money as he had promised to. 13. It is not in dispute that both Plaintiff and Defendant had copies of the said written agreement. The Plaintiff has explained the absence of her copy of the written agreement. The Defendant also did not produce his copy and his reason/explanation is that he was not able to produce the agreement because he had destroyed same. This is what ensued during cross examination of Defendant by Plaintiff: Q. Do you remember that you presented your document to the police commander when I reported the matter and it was GHC.50,000.00 A. I remember. It was GHC.5,000.00 that was on the document. Page 5 of 14 BEATRICE AYONGO V ABRAHAM BOKOM Q. Do you remember that when you brought the document, they advised me to sue you in court in the presence of Sowah A. They said so. The police said if your document is missing then you should go to court Q. Do you remember that it was after I sued you in court that you claimed the document had gotten missing A. I have destroyed the document long ago. I paid the money in 2017 Q. Who were those who signed the documents you prepared A. My wife, my son Obed, I also signed, Paa Nii also signed, Nartey Andrew also signed 14. This is also what ensued when the court made an enquiry from the Defendant: Q. When did Plaintiff report you to the police commander concerning the money A. It was last year Q. When did you destroy the document A. Last year. I destroyed it after Plaintiff told the police that her document was missing. I destroyed it because Plaintiff was lying when she said her document was missing 15. The evidence led shows that it is not in dispute that the matter was reported at the police station. It is also not in dispute that the Defendant presented his copy of the written agreement which said document the Plaintiff admitted as being the agreement that was executed by them in respect of the transaction. All that the Defendant had to do was to show this document to the court which he believes showed his indebtedness of GHC.5,000.00 but Defendant did not only fail to produce the said document, he boldly informed the court that he had deliberately destroyed the written agreement that covered that transaction between himself and the Plaintiff. This still leaves to be answered, the question of whether the amount involved in the transaction was GHC.50,000.00 or GHC.5,000.00. Page 6 of 14 BEATRICE AYONGO V ABRAHAM BOKOM 16. The evidence of the parties herein boils down to the oaths of the Plaintiff and her witnesses against the oaths of the Defendant and his witness. It is trite learning that in such a situation, the decision of the court may safely be based on the trial court’s impression of the credibility of the parties and their witnesses. This was the established principle in Praka v Ketewa [1964] GLR 423, SC. See also In re Yendi Skin Affairs: Yakubu II V Abudulai (No 2) [1984-86] 2 GLR 239, SC. 17. The decision in the case of Ntim v Essien [2001-2002] SCGLR 451 empowers the trial court to decide which set of facts or whose version of the facts or which of the parties should be believed or disbelieved; thus, the trial court undertakes an exercise of deciding on issues of credibility. This decision in the Ntim case (supra) has been codified in the Evidence Act, 1975 (Act 323), Section 80 thus, “(1) Except as otherwise provided by this Decree, the court or jury may, in determining the credibility of a witness, consider any matter that is relevant to prove or disprove the truthfulness of his testimony at the trial (2) Matters which may be relevant to the determination of the credibility of the witness include, but are not limited to the following: - (a) the demeanour of the witness (b) the substance of the testimony (c) the existence or non-existence of any fact testified to by the witness (d) the capacity and opportunity of the witness to perceive, recollect or relate any matter about which he testifies (e) the existence or non-existence of bias, interest or other motive (f) the character of the witness as to traits of honesty or truthfulness or their opposites (g) a statement or conduct which is consistent with the testimony of the witness at the trial (h) the statement of the witness admitting untruthfulness or asserting truthfulness” Page 7 of 14 BEATRICE AYONGO V ABRAHAM BOKOM 18. In exercising my discretion in this matter, I find the evidence of Plaintiff more credible than that of the Defendant. I am of the view that the Defendant’s conduct of destroying the only piece of documentary evidence in this matter is repugnant to good conscience and he must not be made to benefit from such act. In fact, the act of the Defendant destroying the document is contrary to his allegation that he owed the Plaintiff an amount of GHC.5,000.00. It appears to me that the Defendant upon becoming aware that the Plaintiff’s copy of the agreement was missing, decided to take advantage of that situation and avoid paying his debt. It sounds ridiculous to me for the Defendant to assert essentially that even though he knew that the police had advised the Plaintiff to go to court, and even though at that time he had a document showing that he collected way less than the Plaintiff was alleging and that the Plaintiff had acknowledged that document as the agreement between them, he still thought it wise to tear the said agreement into pieces simply because he believed that the Plaintiff’s allegation that she had misplaced her copy was false 19. The Defendant did not stop there. He invited his wife, DW1 to assist him to make his story believable. In paragraph 11 of her witness statement, she averred that in respect of the transaction between her husband and the Plaintiff, “an agreement was documented and put in writing”. However, after her husband had told the court on record that the said agreement was witnessed by his wife (DW1) and his son, DW1 when confronted by the Plaintiff in cross examination, with the execution of the agreement DW1 had this to say: Q. Do you have any document evidencing the transaction A. I do not have any document evidencing the transaction Q. I am putting it to you that your husband has destroyed the document Page 8 of 14 BEATRICE AYONGO V ABRAHAM BOKOM A. He has not told me that he has destroyed any document. I do not know anything about it Q. Do you remember that in paragraph 11 of your witness statement, you said that the agreement was put in writing, do you still stand by that assertion A. Yes I do Q. Where is that document A. It is the Defendant who can answer this question 20. DW1 also had this to say when an enquiry was made by the court: Q. Who signed the document that evidenced the fact that Plaintiff had given some money to your husband A. Plaintiff, Defendant and the late Apoko Q. Were you present during the execution of that document A. No I was not 21. These pieces of evidence and their inconsistency with Defendant’s own evidence only adds to the incredible nature of the Defendant’s case. In any case, once the two parties had agreed at the police station that the document in the custody of the Defendant was the true and accurate representation of the agreement between them, the Defendant had a duty as per section 14 of Act 323 to produce that document to establish the fact which he alleges, but he failed to do so. 22. Without belaboring the point, I find that the Defendant’s story lacks candor and the existence of the Plaintiff’s version of the facts when placed on the scale of probabilities is more likely than its none existence. I find further that the Plaintiff gave an amount of GHC.50,000.00 to the Defendant and there is no evidence led by the Defendant to show that he has repaid the said money to the Plaintiff. 23. Section 1 of the Moneylenders Act, 1941 (Cap 176) is to the effect that a person who lends money at a higher interest is presumed to be a moneylender until the Page 9 of 14 BEATRICE AYONGO V ABRAHAM BOKOM contrary is proved. See also the case of Duah v Afriyie [1971] 1 GLR 260 at 262- 263. Section 3 of Cap 176 provides that, “any person who lends money at interest or who lends a sum of money in consideration of a larger sum being repaid shall be presumed to be a moneylender until the contrary is proved.” This provision was interpreted in the case of Dua v Afriyie (supra) to mean that ‘the statute creates a rebuttable presumption in favour of a person who alleges that another is a moneylender provided he shows that, that person lent money on one occasion at interest. Once the presumption is raised, the onus shifts to the lender to show that he is not a moneylender or to take his case out of the application of Cap 176. If he fails to do that by evidence, he will be caught up within the clutches of the Moneylenders Act. When so caught up, the court may order the transaction to be re-opened and the harsh, excessive and illegal portions amended, cancelled or declared null and void and unenforceable. The decision will be given by the court but as dictated by what is just and reasonable on the particular facts and circumstances of the case.’ 24. The Defendant alleged that the Plaintiff is a money lender and that she gave him an amount of GHC.5,000.00 at 100% interest rate. The Plaintiff denies this allegation and maintains that she gave him an amount of GHC.50,000.00 with no interest. She avers that she gave the money to the Defendant because of the cordial relationship between them. Defendant in an attempt to prove that Plaintiff lends money to people at interest rates, mentioned one Elia who allegedly received money from the Plaintiff at 100% interest. The Plaintiff again denied this and stated in cross examination that she gave him the money because he asked for it to support his father’s funeral and that she gave it to him out of benevolence. The said Elia was not called neither was any evidence led by Defendant in proof of this allegation. Defendant could also not lead any evidence to show the alleged interest at which the Plaintiff had lent him money. Page 10 of 14 BEATRICE AYONGO V ABRAHAM BOKOM Defendant and his wife tried to make the court believe that Defendant went for the money from Plaintiff only because she was known for giving loans at interest rates, however, their own evidence makes it difficult for the court to believe this assertion. For instance, during cross examination of DW1 by Plaintiff, DW1 stated as follows: Q. Did I have any business with your husband A. You do not have any business with him. You are in the business of lending money to people at 100% interest rate This answer is inconsistent with Defendant’s own averment in paragraph 6 of his Statement of Defence that he is one of the Plaintiff’s cocoa purchasers. 25. Again, DW1 stated in cross examination by Plaintiff as follows: Q. Do you remember that I gave the money to your husband because he told me he had sold his cocoa and had run at a loss so he needed help A. I do not remember that Q. Do you remember that you came to tell me that the person who was responsible for your husband’s loss had been arrested A. It was just a conversation since we already had that kind of relationship 26. The evidence above makes the Plaintiff’s assertion that she gave the money to the Defendant due to the good relationship she had with him more believable than the Defendant’s assertion that he went to take the money from her because he knew her as a moneylender. It appears to me that the Defendant denied taking the money for purposes of his cocoa buying business in order to make it believable that he took GHC.5,000.00 from the Plaintiff and not GHC.50,000.00 because GHC.5,000.00 is barely sufficient for a cocoa purchasing clerk to buy enough cocoa with. There is no evidence that the Plaintiff gave money at one Page 11 of 14 BEATRICE AYONGO V ABRAHAM BOKOM instance at an interest rate and therefore I find that the allegation that she is a moneylender is ill-conceived. 27. On the issue of award of interest, the Supreme Court in the case Delle & Delle v Owusu-Afriyie [2005-2006] SCGLR 60 (holding 4) stated that “…under the existing statutory regime in Ghana, the courts have the power to award interest on sums claimed and found to be due. Such interest is payable from the date on which the claim arose.” See also Royal Dutch Airlines (KLM) v Farmex Ltd [1989-90] 2 GLR 623, SC. 28. It is also trite learning that one of the grounds for the award of interest is that a person who has unjustifiably kept money which properly ought to have gone to its owner should not in justice be permitted to benefit by having that money in his possession and additionally enjoying the use of it. This principle of law was established in the case of London, Chatham & Dover Railway Co. v South Eastern Railway Co. [1893] AC 429 at 437, HL which was applied in Holland West Africa v Pan African Trading Co. [1976] 2 GLR 179 at 183. The case of Akoto v Gyamfi-Addo [2005-2006] SCGLR 1018 also established that unless there is justification for keeping the money, interest in payable. 29. In specific answer to the issues raised: i. Issue 1- The evidence shows that the Plaintiff gave an amount of GHC.50,000.00 to the Defendant as financial assistance Page 12 of 14 BEATRICE AYONGO V ABRAHAM BOKOM ii. Issue 2- There is no evidence that the money has been paid by the Defendant. I find that the Defendant has not paid his indebtedness to the Plaintiff. iii. Issue 3- The allegation that the claim arose in 2019 is uncontroverted. The Plaintiff is therefore entitled to the interest claimed as well as all her other reliefs. 30. For the foregoing reasons, judgment is entered in favour of the Plaintiff as follows; a. Recovery of the amount of Fifty Thousand Ghana Cedis being financial assistance the Plaintiff gave to the Defendant to purchase cocoa and repay within a year but has failed and/or refused to pay back despite persistent demands on him so to do b. Interest on the said amount of GHC.50,000.00 from December 2019 till date of final payment at the prevailing commercial bank rate c. Costs of GHC.2,000.00 against Defendant d. Judgment debt to be paid within thirty (30) days from the date of this judgment. Page 13 of 14 BEATRICE AYONGO V ABRAHAM BOKOM MRS. LINDA FREMAH BOAMAH-OKYERE SGD MAGISTRATE 23/10/2024 Page 14 of 14