Darkey Vrs Narh [2023] GHADC 414 (25 April 2023)

1 IN THE DISTRICT COURT HELD AT SOMANYA ON THURSDAY THE 25TH DAY OF APRIL, 2023 BEFORE HIS WORSHIP MICHAEL DEREK OCLOO SUIT NO: A2/24/2022 REUBEN DARKEY PLAINTIFF VRS LADJER NARH DEFENDANT PARTIES PRESENT J U D G E M E N T The Plaintiff commence this action against the defendant for the following. 1. Recovery of GHC1,800.00 being the cost of one (1) drum of akpeteshie that defendant took and promise to pay but failed since the year 2015. 2. Costs of litigation. The Plaintiff’s case, per his witness statement is that he distils and sells akpeteshie and in the year 2015 the defendant engaged him to distil and supply her with one (1) drum of Akpeteshie at the cost of GHC1,500.00. He therefore contracted a bank loan which he used to distil the one (1) drum of akpeteshie and supplied same to the defendant who deposited GHC20.00 with the promise to pay the remaining amount of GHC1,480.00 after the sale of same. He added that the defendant failed to pay the money until ending of the year 2021 when she came to the Plaintiff in the company of her church Pastors to apologise for her failure to honour her promise. The defendant then proposed to pay GHC1,800.00 as payment to cover the remaining balance GHC1,480.00 and compensation in respect of the delay in payment. She then made on initial deposit of GHC200.00 and promised to pay the remaining GHc1,600.00 later. He concluded that it is well over 3 months now since the promise and after persistent demand the defendant refused to pay the money hence the instant action. In the witness statement of PW1, Faustina Darkey who is a prophetess and the wife of the Plaintiff, she stated that the defendant told the Plaintiff that she was taking the drum of akpeteshie on behalf of her sister. She added that since she knows the defendant’s family very well, she convinced the Plaintiff to grant the defendant’s request and the drum of akpeteshie was given to the defendant in her presence. She then told the defendant not to disappoint her (PW1). On account of her (PW1’s) intervention and upon that the defendant stated that she (defendant) would be responsible for the payment. PW1 then corroborated the Plaintiff’s evidence regarding the defendant’s apology and proposal of GHC1,800.00 and initial payment of GHC200.00. She concluded that the defendant failed to pay the remaining amount despite several demands by the Plaintiff. In opening her defence, the defendant per her witness statement stated that she introduced one Maku Batsa to the Plaintiff for a business transaction involving the purchase of akpeteshie which the said Batsa bought on credit in the year 2015. She added that in March 2021 the Plaintiff started demanding payment for the akpeteshie from her and he told the Plaintiff that she only introduced Maku Batsa to him (Plaintiff) but do not know any financial transaction between them (Plaintiff and Batsa). According to the defendant an arbitration headed by Apostle Johnson Agbemebia, who is DW2 in this case was held and the said Maku Batsa pleaded liable to the Plaintiff’s claim and promised to pay on monthly basis and instantly paid GHC100.00. She concluded that at the arbitration, Maku Batsa stated that the transaction was between her (Batsa) and the Plaintiff as such the defendant should be left out of same. Paul Tetteh (DW1) who is an Associate Pastor of the True word of God Ministries, per his witness statement stated that at the arbitration meeting they realized that it was not the defendant who bought the drum of akpeteshie but rather it was Maku Batsa who bought same on credit. He added that Maku Batsa accepted liability and agreed to pay GHC1,800.00 by installments. He further stated that Maku Batsa paid GHC100.00 each in two months but when she offered the GHC100.00 as the 3rd installment the Plaintiff refused to take same with the reason that Maku Batsa should pay the GHC1,600.00 at a go. DW2, Apostle Johnson Agbemebia corroborated the evidence of DW1 The legal issues for determination by the court are as follows;- 1. Whether or not there was a sale contract between the Plaintiff and the defendant. 2. Whether or not there was a breach of contract. 3. Whether or not the Plaintiff is entitled to the reliefs he seeks. The general rule in all civil cases including the instant one is that the burden of proof rests upon the party, Whether Plaintiff or defendant, who substantially asserts the affirmative of his case. In the case of LAMPTEY ALIAS NKPA V FANYIE & OTHERS (1989-90) 1 GLR 286 the Supreme Court held that: “On general principles, it was the duty of a Plaintiff to prove his case. However when on particular issue he had led some evidence, then the burden will shift to the defendant to lead sufficient evidence to tip the scale in his favour” Also in the case of BANK OF WEST AFRICA LTD V. ACKUN (1963) 1 GLR 176-182, SC it was held that: “The onus of proof in civil cases depends upon the pleadings. The party who in his pleadings raises an issue essential to the success of his case assumes the burden of proof… But the burden frequently shifts, as the case proceeds, from the person on whom it rested at first to his opponent… The issue must be proved by the party who alleges the affirmative in substance, and not merely the affirmative in form.” In the case of FOFIE V. ZANYO (1991) 2 GLR 475 (SC) it was held that: Before it could be said that there had been an acceptance of an offer by an offeree, there had to be: (a) Positive evidence by words, in writing or by conduct from which the court might infer acceptance and (b) The acceptance had to have been communicated to the offeror. In the instant case PW1, Faustina Darkey who is a prophetess and the wife of the Plaintiff claimed she was present when the transaction took place and this fact was not denied by the defendant. She has been assisting the Plaintiff in his (Plaintiff’s) trade as an akpeteshie distiler. According to PW1, the defendant approached the Plaintiff for the supply of one drum of akpeteshie on credit basis on behalf of her (Defendant’s) sister who was not present at the scene. PW1 knew the defendant’s family very well so she vouched for the defendant and convinced the Plaintiff to grant the request of the defendant. The Plaintiff therefore gave the one drum of akpeteshie on credit to the defendant who assured the Plaintiff that she (defendant) will be responsible for the payment. By the conduct of the defendant it is appropriate to state that there had been an acceptance of an offer by an offeree (Defendant). This means the elements of offer and acceptance have been proved and by extension the plaintiff has accordingly proved the existence of a sale contract between him and the defendant. The definition of contract was provided in the case of KOBAKU ASSOCIATE V OWUSU (2006) 2 MLRG 228 CA 247 as: “An agreement constituted by an offer and an acceptance with the mutual intention that enforceable at law. it should be binding and It was further held in KOBAKU ASSOCIATE V. OWUSU (supra) that: “An oral contract not reduced into writing is binding nevertheless so long as there is clear evidence as to the essential terms and the actual intention of the parties. By the operation of offer and acceptance the Plaintiff and the defendant in the instant case entered into an agreement in which the Plaintiff supplied one (1) drum of akpeteshie to the defendant who bought same on behalf of her sister Maku Batsa. The terms of the contract was that the defendant would take the product on credit and pay a consideration of GHC1,500.00 later but this was reviewed upwards to GHC1,800.00 due to the failure on the part of the defendant to pay the initial purchase price of GHC1,500.00. The contract was not reduced into writing however there was a clear evidence as to the essential terms and the actual intention of the plaintiff and the defendant. In the witness statement of the Plaintiff and PW1 they stated that the defendant paid GHC20.00 to the Plaintiff as part-payment of the initial purchase price of GHC1,500.00 in the year 2015. They further stated that after the payment of GHC20.00 the defendant did not make any payment again until the latter part of the year 2021 when the defendant, her sister Maku Batsa and some Pastors came to the Plaintiff and rendered an apology for the failure to honour the promise of making full payment and made a proposal to review the payment from GHCe1,500.00 to GHC1,800.00 to comprise full payment of the purchase price and compensation due to the six (6) years delay in payment. The defendant did not challenge their assertion either her witness statement or during cross examination of the Plaintiff and PW1. By her failure to cross-examine the Plaintiff and PW1 on those averments, the defendant is deemed to have acknowledged same as adduced in the cases of Quagraine V ADAMS (1981) GLR 599, C. A. AND AKYEA-DJAMSON V. DUAGBOR (1989) 1 GLR 223, SC. Also during cross examination of the Plaintiff by the defendant the following transpired: Q: I am putting it to you that we have made a total payment of GHC270.00 A: That is true. It is clear from the above that some payments had been made to the Plaintiff however the defendant did not define the word “We” as used in the cross examination. It is suggestive that it refers to both the defendant and Maku Batsa. It is also clear that the defendant has failed to make full payment of the cost of the drum of akpeteshie to the Plaintiff within the period of 2015 to 2021 and still counting. This conduct constitutes a breach of contract on the part of the defendant. It is very important to consider the defendant’s attitude in relation to the transaction in issue. In the witness statement of the defendant she stated that she introduced Maku Batsa to the Plaintiff in the year 2015 and Maku Batsa had an exclusive business transaction with the Plaintiff in the purchase of akpeteshie as such she the defendant was not aware of any monetary issue between the Plaintiff and Maku Batsa. Also when the defendant cross-examined the plaintiff the following transpired: Q: I brought somebody to buy akpeteshie from you. A: That is not true. It is clear from the above that the defendant is laying claim to the fact that the said Maku Batsa personally dealt with the Plaintiff in the purchase of the drum of akpeteshie. In a situation where the defendant failed to challenge or deny the Plaintiff’s assertion that it was the defendant who approached him (Plaintiff) and bought the said drum of akpeteshie on credit on behalf of Maku Batsa and personally made an initial part- payment of GHC20.00 to the Plaintiff, the court finds it difficult to attach any credible weight to the defendant’s assertion especially when the defendant failed to state whether she (defendant) or Maku Batsa conveyed the drum of akpeteshie from the Plaintiff’s premises. Evidence adduced is indicative of the fact that it was the defendant who engaged the Plaintiff in the purchase transaction and bought the drum of akpeteshie on credit on behalf of Maku Batsa and deposited GHC20.00 as the initial installment payment and conveyed the said drum from the Plaintiff’s premises. The defendant did not state that Maku Batsa was physically present at the time of the purchase transaction or agreement. It is a fundamental principle of law that in any trial a party that makes an assertion has a duty imposed upon him by law to persuade the court that his assertion is true. Section 14 of the evidence Act, 1975 (NRCD 323) provides as follows: 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 The above provision was upheld in the case of BILLSON V. RAWLINGS AND ANOTHER (1993-94) 2 GLR where it was adduced that: “The law has always been that he who alleges that Certain state of facts exit, must prove it.” It was the defendant who stated that she only introduced Maku Batsa to the Plaintiff and the business transaction took place between the Plaintiff and Maku Batsa as such she was not aware of any transaction between the Plaintiff and Maku Batsa and not also aware of any monetary issue concerning the transaction. The burden was therefore upon the defendant to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact that the transaction took place between Maku Batsa and the Plaintiff was more probable than its non-existence. The standard of proof on the defendant was on a balance of probabilities. In her attempt to satisfy this legal requirement, the defendant called DW1 and DW2. In the evidence of DW1 which was corroborated by DW2, he stated that DW2 summoned all the parties to arbitration where it emerged that the defendant only led Maku Batsa to the Plaintiff to buy a drum of akpeteshie on credit and that it was not the defendant who bought the drum of akpeteshie. They added that Maku Batsa however accepted liability of GHC1,800.00. The evidence of DW1 and DW2 is to the effect that the defendant was not part of the transaction between the Plaintiff and Maku Batsa. Their evidence did not address the issue as to whether or not Maku Batsa was physically present at the time the request for the supply and purchase of the dram of akpeteshie was made. They also failed to address the issue as to who deposited GHC20.00 as initial payment for the drum of akpeteshie. They also failed to address the issue as to whether or not the defendant promised to pay the money or sale price should Maku Batsa fail to pay same. The evidence of DW1 and DW2 can therefore be appropriately termed as hearsay which is not admissible per the provisions in section 117 of the Evidence Act, 1975 (NRCD 323). Also it is very evident that the whole issue is conferred on Maku Batsa. It was therefore expected that the defendant would call the said Maku Batsa to testify to prove her case but she failed. This is because Maku Batsa would have assumed the status of a material witness in the suit to prove the case of the defendant. It is my finding after considering all the evidence adduced that there was a contract between the Plaintiff and the defendant which was breached by the defendant. Also the Plaintiff led evidence to prove his case but the defendant was unable to lead sufficient evidence to tip the scale in her favour. Therefore on a balance of probabilities I enter judgment in favour of the Plaintiff for the recovery of GHC1,600.00. A cost of GHC500.00 is awarded in favour of the Plaintiff. (SGD) ……..………………….. MICHAEL DEREK OCLOO DISTRICT MAGISTRATE 25TH APRIL, 2023.