NANA ABENA OFORI VS SARAH BUAHIN (H1/68/2023) [2023] GHACA 150 (5 April 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA AD. 2021 CORAM: JUSTICE ANGELINA DOMAKYAAREH (MRS) J. A. (PRESIDING) JUSTICE JENNIFER A. DODOO (MRS) J. A. JUSTICE ERIC KYEI BAFFOUR CIVIL APPEAL No: H1/68/2023 5TH April, 2023 NANA ABENA OFORI PLAINTIFF/RESPONDENT VRS SARAH BUAHIN DEFENDANT/APPELLANT CONCURRING JUDGMENT DODOO, JA (MRS) I have read the Judgment to be delivered by my learned brother Justice Eric Kyei Baffour and I am in agreement that the appeal be allowed. I however wish to add a few words of my own. The Plaintiff/Respondent stated that she had invested the sums of £3,180.00 and $1,400.00 in April and September 1999 in the Defendant/Appellant’s boutique business. It was her case that the parties had agreed that there would be a margin of 50% as returns on this investment every 2 months. She stated further that the Defendant/Respondent reneged on this agreement and only made intermittent payments which caused her to lose the value of her investment. As a result, she issued a writ claiming the sum of £40, 760.00 together with interest at the prevailing bank rate from 2nd May, 2001 till date of final payment and $9,584.58 together with interest at the prevailing bank rate from 20th July, 2015 up to the date of final payment. The Defendant/Appellant whilst acknowledging receipt of the amounts of £3,180.00 and $1,400.00 stated that the funds were not an investment in her boutique business but was rather given to her to purchase goods on the Plaintiff/Respondent’s behalf from her suppliers to be retailed in her boutique and the proceeds to be paid to the Plaintiff/Respondent as and when these goods were sold. She asserted that all monies paid to the Respondent were proceeds of the sale of these goods. She also stated that goods which she could not sell were returned to the Respondent. The trial court after a trial on the merits found that the Respondent had invested in the Appellant’s business and therefore gave judgment for her in the sums endorsed on the writ. Aggrieved by this decision, the Appellant has filed an Amended Notice of Appeal which contains the following grounds of Appeal: i. The learned trial judge erred when he found that the Defendant/Appellant offered to pay the Plaintiff/Respondent 50% as returns on investment every 2 months. PARTICULARS OF ERROR a) There were no records showing the purported offer; neither was b) there any record showing the payment of 50% every two months on any given sum as returns on investment; ii. The learned trial judge erred in law when he granted the Plaintiff/Respondent’s relief for the recovery of £40,760.00 and interest PARTICULARS OF ERROR a) There was no record as alleged by the Plaintiff/Respondent evidencing the debt of £40,760.00 b) That the relief of £40,760.00 on the face of the endorsement had been caught by the Statute of Limitation. iii. The learned trial judge erred in law when he ignored the corroborative evidence of the Plaintiff/Respondent’s witness which affirmed the case of the Defendant/Appellant. PARTICULARS OF ERROR a) The trial judge failed to accept the corroborative testimony of the Plaintiff/Respondent’s witness that the arrangement between the Plaintiff/Respondent and the Defendant/Appellant was not an investment. b) The learned trial judge accepted the uncorroborated evidence of the Plaintiff/Respondent on the issue of her alleged investment in the Defendant/Appellant’s business without providing any reason or explanation for his preference of the uncorroborated testimony. iv. The Judgment is against the weight of evidence. An appeal as indicated by Rule 8(1) of the Court of Appeal Rules CI 19, is by way of rehearing. What this provision seeks to say is that the appellate court will deal with the matter as if it was hearing the matter at first instance. See the cases of Mamudu Wangara v. Gyato Wangara (1982-83) GLR 639 @ 655 CA; Ansu-Agyei v. Fimah (1993- 94) 1 GLR 299 at 305-306 SC and Praka v. Ketewa (1964) GLR 423 @ 426, SC. In rehearing the matter, the appellate court is required to examine the whole record of appeal, taking into account all the evidence, oral and documentary, to satisfy itself that the judgment is amply supported by the evidence on record, upon the preponderance of the probabilities. See Koglex Ltd (No. 2) v. Field (2000) SCGLR 175 @ 184; Tuakwa v. Bosom (2001-2002) SCGLR 61 @ 65 and Ackah v. Pergah Transport Ltd (2010) SCGLR 729. In this regard, the appellate court is enjoined to put itself in place of the trial court and evaluate the evidence. In so doing, it could make inferences from the facts on record and either affirm the judgment or interfere with the judgment where it deems fit. The parties to this Appeal shall be referred to simply as the Appellant and the Respondent respectively. There is no contention about the amounts paid by the Respondent as the Appellant did not deny receiving same. The only difference in opinion was the reason for which the sums were paid. While the Respondent labels these sums as investment in the Appellant’s business, the Appellant asserts that the sums were for her to buy goods on the Respondent’s behalf to be retailed in her (Appellant’s) boutique and the proceeds remitted to the Respondent. Were the sums advanced to the Appellant an investment in the Appellant’s business or were these sums to be used in buying goods on behalf of the Respondent to be sold in the Appellant’s boutique? If these sums were meant as investments, how were the proceeds to be paid, for how long were they to be paid and what amounts was the Respondent expectant of? At page 58 of the Record of Appeal (ROA) the following was elicited from the Respondent: Q: On which date was this arrangement to end? A: We did not put any date. Q: Is it thus your case that the Defendant was to pay you in perpetuity? A: Yes, as long as she runs her business. Q: Could you kindly show us if you have documentation covering this alleged investment? A: She wrote on a piece of paper the amount of monies that I invested, so I have it in her own handwriting. Q: Can you kindly show in your witness statement where you have attached this so- called evidence. A: I have it in my car, it is not attached to the statements. The Respondent repeated her pleadings in her witness statement filed as her evidence in chief. However, what is pleaded is not necessarily proof of the truth of the matter pleaded. See the case of GIHOC Refrigeration and Household Products Ltd v. Hannah Assi (2005-2006) SCGLR 458 @ 476. In her amended witness statement on p. 46 of the ROA it was the Respondent’s evidence that she had advanced £1,100 on or about 10th February, 1999. Then in September, 1999 she advanced £2,080.00 and $1,400.00. She did not tell the court if she had been paid returns on her investment in the months leading up to September 1999 when she claimed to have made further investments. Thereafter, she stated as follows at p. 62 of the ROA: Because I was not satisfied with the way she was paying, I requested for the investment and the earnings on October, 25, 2003 which was four years after and thereafter I kept on making demands because she assured me that she was going to give me the investments and the earnings at a certain time which she still did not. Is it reasonable to find that investments were made in February and September 1999 and while the return on the investment were not been made the demands were only made in October of 2003, more than 4 years after the investments were allegedly made? I do not think so. It was up to the Respondent to lead evidence to show how the amounts of £3,180.00 and $1,400.00 had ballooned to the amounts she has currently sued for i.e. £40,760.00 and $9,584.58. It was incumbent on the Respondent to prove that the transaction she entered into with the Appellant was an investment in the latter’s boutique business and that she was entitled to returns every 2 months. This is especially against the backdrop that the Appellant’s version of events was that the money was to be used to purchase merchandise which was to be sold in the boutique and the proceeds remitted to the Respondent. Whilst the Respondent claimed she had evidence of the investment in the Appellant’s own handwriting, she never tendered this as evidence of her claim. In the case of Zabrama v. Segbedzi (1991) 2 GLR 221 CA and re-affirmed in the case of Continental Plastics Ltd v. IMC Industries (2009) SCGLR 298 @ 306-307, the court stated: “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 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.” Furthermore, PW1 at p. 73 of the ROA had this to say in cross-examination: Q: Do you know the terms under which the Plaintiff gave this money to the Defendant? A: It came to my attention that monies were to be advanced by the Plaintiff to the Defendant for the purchase of various clothing and after sale of the items, the principal sums were to have been repaid inclusive of profit on the transaction. Q: You say you met with the Plaintiff and the Defendant on some occasions to aid in the resolution of the disagreement between them, is that not so? A: What I stated is that, I met with the Plaintiff and the Defendant with the view to resolve the disagreement that had risen out of this transaction. PW1’s evidence was rather in support of the Appellant’s evidence that the money was meant to purchase merchandise which was to be sold and the money inclusive of the profits was to be remitted to the Respondent. The rule is that where the evidence of one party on an issue is corroborated by the opponent’s evidence or the opponent’s witness while that of the opponent on the same issue remains uncorroborated, a court ought not to accept the uncorroborated version in preference to the corroborated one unless for some reason the court finds the corroborated one incredible or impossible. See the cases of Tsrifo v. Duah (1959) GLR 63, Osei Yaw v. Domfeh (1965) GLR 418, Asante v. Bogyabi (1966) GLR 232 and Manu v. Nsiah (2005-2006) SCGLR 25. Based on its evaluation of the evidence on record, the appellate court may interfere with the findings of facts made by the trial court, where good reasons exist for such interference. The authorities are however clear that findings of fact made by a trial Court can only be interfered with where such findings are not supported by the evidence on record; are perverse, or are based on wrong inferences drawn from established facts. These principles have been established in cases such as Simmonds v. Trassaco Estate Development Company (2010-2012) 1 GLR 393 CA; at holding 7 in the headnotes; Bonney v. Bonney (1992-93) Part 2 GBR 779 @781 SC and Jass Company Ltd & Anor v. Appau & Anor (2009) SCGLR 265 @275. In Amoah v. Lokko & Alfred Quartey (substituted) Gloria Quartey & Others (2011) 1 SCGLR 505, the court speaking through Aryeetey JSC whilst conceding that it was the exclusive duty of a trial judge to make primary findings of facts which will constitute the means by which the final outcome of the case would be arrived at, however held that, this notwithstanding, an appellate court was obliged to evaluate the evidence in coming to a decision whether the conclusions and findings of the trial court, which are being assailed, are supported by the evidence on record. Which of the rival versions as put forth by the parties is to be believed? In Poku v. Poku (2007- 2008) SCGLR 996 @ 1022 the court said: It raises the legal question of who bears the burden of persuasion in such civil matters… who has the onus of proof and what is the degree or standard of proof?... Generally, the burden of proof is therefore on the party asserting the facts with the evidential burden shifting as the justice of the case demands. The standard or degree of proof must also necessarily be proof on the preponderance of probabilities within the meaning of section 12(2) of the Evidence Act, 1975 (NRCD 323) It was the Respondent who had sued and where the evidence was unsatisfactory, the judgment should go in the Appellant’s favour as she was the one who had sought relief but had failed to prove she was entitled to the reliefs sought. See Duagbor v. Akyea- Djamson (1984-86) GLR 697. It is in our view that the Appellant’s case that the money was proffered to purchase merchandise for sale in the boutique is more probable than the Respondent’s assertion of investment in the business. As a result, we find that the trial judge in the face of the lack of evidence in respect of the investment that the Respondent had claimed to have made in the Appellant’s business ought to have dismissed her case. In view of this we reverse the findings made by the trial judge and enter judgment for the Appellant. The Appeal against the Judgment of the trial court is hereby allowed. 10