FARUK VRS NYADAM & ANOTHER (NR/DC/KPA/A2/11/24) [2024] GHADC 440 (15 August 2024)

IN THE DISTRICT COURT HELD AT KPANDAI ON THE 15TH DAY OF AUGUST, 2024 BEFORE HIS WORSHIP GODSON ETSE KUMADO, ESQ. THE DISTRICT MAGISTRATE SUIT NO: NR/DC/KPA/A2/11/24 MOHAMMED FARUK OF KPANDAI VRS 1/ 2/ KWAKU NYADAM OF KABONWULE MATTHEW MACHIM OF KABONWULE ] ] ] ] ] ] ] PLAINTIFF DEFENDANTS __________________________________________________________________ __________________________________________________________________ INTRODUCTION JUDGMENT The Plaintiff issued the instant writ against the Defendants herein claiming the reliefs as stated on the amended writ of summons as follows: 1. Cash sum of twenty thousand Ghana cedis (GH¢20,000) jointly and severally from the Defendants since April 2022 which the Defendants refused to pay despite repeated demands. 2. Payment of interest accruing since June 2022. 3. Damages of GH¢2,000. 4. Trial cost 1 | P a g e 5. Any other order(s) that the court may deem fit. WHAT IS THE CASE OF THE PLAINTIFF? By his summary of subject matter attached to his amended writ, it is the case of the Plaintiff that he is a mobile money operator while both Defendants are traders residing in Kabonwule. The 1st Defendant has been one of Plaintiff’s loyal customers for the past five years. The Plaintiff also stated that he has been doing mobile money business with the Defendants. It is the case of the Plaintiff that sometime in April, 2022 the 2nd Defendant brought a business proposal to him and stated that he was sent by the 1st Defendant. 2nd Defendant stated that the 1st Defendant needed an amount of GH¢50,000 to procure some goods from 5 Star Company. According to the Plaintiff he told the 2nd Defendant that he could only get an amount of GH¢20,000. The 2nd Defendant then left and returned with the 1st Defendant and he repeated that he could only get him GH¢20,000 which the 1st Defendant accepted. Both Defendants left and the 1st Defendant told him to make the money ready for pick up by the 2nd Defendant the next day. The 1st Defendant promised to repay the money before June, 2022. According to the Plaintiff, the Defendants failed to pay the money by June, 2022. The 2nd Defendant instead came with another proposal that the 1st Defendant is ready to pay the money with an interest and that Plaintiff should give 1st Defendant an extension of time to repay the money to him. The Plaintiff stated that he accepted the proposal by the 2nd Defendant and the 1st Defendant has been paying an interest of GH¢500 weekly from April till June, 2022 when the 1st Defendant again sent the 2nd Defendant to him for a reduction of the interest to GH¢350 as the business of the 1st Defendant had gone down. Plaintiff stated that he accepted this proposal. However, the 1st Defendant only paid the interest of GH¢350 once. The Plaintiff averred that he later called the 1st Defendant to request his money but the 1st Defendant sent a whatsapp audio recording to him in which he stated that he gave the money to the 2nd Defendant to be given to the Plaintiff. He again called the 1st Defendant concerning 2 | P a g e the repayment of his money and he stated that he needed to get in touch with the 2nd Defendant to know whether they are going to share the liability equally by paying GH¢10,000 each. The Plaintiff concluded by stating that all efforts made by him to recover his money and the remaining interest from the Defendants proved futile, hence the instant action. The Plaintiff gave evidence for himself in support of his case. No other witness was called by him. In his witness statement which was adopted as his evidence in chief, the Plaintiff essentially repeated his case as contained in his summary of subject matter. The Plaintiff in his evidence added that he reported the matter to the father of the 1st Defendant but he told him he will call the 1st Defendant and get back to him. Plaintiff again testified that his father reported the matter to one police officer by name CID Jacob who called him and the 1st Defendant to attempt settlement of the issue. At the police station the 1st Defendant however stated that until he finds the 2nd Defendant, he cannot do anything about the money. In support of his case, the Plaintiff tendered in evidence EXHIBIT A which is a pendrive containing audio recording which, according to him the 1st Defendant sent to him through his whatsapp number. In the said audio recording, which the 1st Defendant admitted sending to the Plaintiff, the 1st Defendant instructed the Plaintiff to go and meet the father of the 2nd Defendant at Kabonwule as he is unable to reach the 2nd Defendant. The 2nd Defendant also does not pick his calls but he was informed by his family that he is at Bawku. The 1st Defendant in the said audio also stated that he gave the money to the 2nd Defendant a long time ago before the year 2023 commenced. He further stated that he gave the money to the 2nd Defendant the very day he came to inform the Plaintiff that the interest of GH¢500 is too much for the 1st Defendant. On the said day, the 2nd Defendant had returned from sales in Accra and he asked him to take out the amount of GH¢20,000 out of the sales for the Plaintiff. Even though the writ and subsequent processes were served on the 2nd Defendant by substituted means, he did not appear to contest the case against him. 3 | P a g e THE CASE AND EVIDENCE OF THE 1ST DEFENDANT The 1st Defendant filed his witness statement to contest the claims being made against him by the Plaintiff. In his said witness statement which was adopted as his evidence in chief, the 1st Defendant stated that he is a trader who buys goods in bulk and distribute to his customers. Sometime in the year 2022 he called the 2nd Defendant who is his manager and informed him that he was to make some payments and needed about GH¢20,000. 2nd Defendant told him he will ask some of his friends. In two hours’ time, the 2nd Defendant got him the amount of GH¢20,000 for him to make his payments for the goods. According to the 1st Defendant, he asked the 2nd Defendant to go to one of his customers to collect the money from him and return same to whoever he got the money from. It was at that point the 2nd Defendant informed him that he got the money from his friend, Faruk, the Plaintiff herein. The 1st Defendant testified that the 2nd Defendant told him the Plaintiff stated that should night fall on the money, he will be liable to pay an interest of GH¢500 but he told the 2nd Defendant that it is business. He then told 2nd Defendant to give the amount of GH¢500 to the Plaintiff as interest on the money as agreed. The 2nd Defendant later informed the Plaintiff that he complained of the interest being on the high side and proposed to pay the Plaintiff GH¢350. The 1st Defendant continued that one CID Jacob called to invite him to the police station. The said CID Jacob then told him that the 2nd Defendant admitted to him that he has spent part of the money supposed to be given to the Plaintiff. The 2nd Defendant informed the Plaintiff of this fact and told him not to let the 1st Defendant get to know of it. He stated that he immediately requested that Plaintiff be invited to the station and upon confrontations the Plaintiff stated that it was the 2nd Defendant who asked him not to inform the 1st Defendant about it. 1st Defendant also stated that the 2nd Defendant ceased doing business with him and he does not know his whereabouts. The 1st Defendant maintained that he does not personally know the Plaintiff neither did he take any monies from him in his name or in the name of his business. 1st Defendant concluded his testimony and stated that he actually gave the monies to the 2nd 4 | P a g e Defendant to be given to the Plaintiff and all indications showed that the Plaintiff collected part of the money and entered into a new agreement with the 2nd Defendant without his knowledge. The 1st Defendant also called no other witness in support of his case. THE BURDEN OF PROOF The general rule of evidence is that the burden of proof rests on the party asserting a claim to adduce the evidence required to proof the existence or non-existence of the fact he is asserting. This general principle of evidence has been codified under section 14 of the Evidence Act, 1975 (NRCD 323) which provides as follows: 14. Allocation of burden of persuasion Except as otherwise provided by law, unless 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 that party is asserting. The instant case being of a civil nature, the standard of proof required is proof on the balance of probabilities. This is the requirement of section 12 of NRCD 323 which also defines “preponderance of probabilities” to mean that degree of certainty of belief created in the mind of the trier of facts by which it is convinced that the existence of a fact is more probable than its non-existence. The court in the case of ZABRAMA v SEGBEDZI (1991) 2 GLR 221-247 summed up the position of the law in the following words: “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.” 5 | P a g e The Plaintiff in this case is claiming the recovery of the sum of GH¢20,000 from the Defendants. The basis for his claim is that the 1st Defendant sent the 2nd Defendant to collect the said money for him to make some payments to procure some goods from 5 Star Company. The Plaintiff also claims interest accrued on the said sum on the basis that it was agreed between him and the Defendants that the amount collected from him will attract a weekly interest of GH¢500 which amount was later reviewed to GH¢350 per week. The Defendant essentially disagreed with the Plaintiff on the ground that he did not personally take the money from the Plaintiff. It was the 2nd Defendant who collected the said monies and he gave it back to him to repay the person from whom he lent it. From the respective cases of the parties, it is not disputed that the 2nd Defendant in April, 2022 took the amount of GH¢20,000 from the Plaintiff. It is also not in dispute that 2nd Defendant gave the said money to the 1st Defendant to procure his goods from Accra. The dispute is whether at the time the 2nd Defendant approached Plaintiff for the amount of GH¢20,000 he was acting on his own behalf or on the instructions of the 2nd Defendant. The issue is so because the 1st Defendant’s contention is that he did not personally take any monies from the Plaintiff. I will thus proceed to determine this issue before moving on to the other issues arising out of the respective cases of the parties. Whether at the time the 2nd Defendant took the amount of GH¢20,000 from the Plaintiff, he was acting on his own behalf or on the instructions of the 1st Defendant. This issue calls for an analysis on the law of agency, the creation of agency relationships and the liabilities or otherwise of a principal for the acts committed by his agent. By way of definition, an agency relationship is created when one party known as the agent, has the authority to act on behalf of another person called the principal. The authority of the agent to act on behalf of the principal could be express; that is, written or oral, or implied. The legal 6 | P a g e effect of the agent-principal relationship is that when it is established, the acts of the agent in respect of third parties become binding on the principal to the same extent as if he entered into the agreement with the third party himself. In the very old but often cited case of POLE v LEASK (1863) 8 L.T. 645 at 648 HL, Lord Cranworth outlined the various modes of creation of agency. He noted: “No one can become the Agent of another person except by the will of the other person. His will may be manifested in writing or orally, or simply by placing another in a situation in which according to ordinary rules of law, or perhaps it would be more correct to say according to the ordinary usages of mankind, that other is understood to represent and act for the person who has so placed him; but in every case it is only by the will of the employer that an agency can be created.” Also in FREDERICK K. KATOGLO v ABUBAKAR DAYSHINI YAKUBU Suit No. BL 524/2006, dated 24/02/2012, [Cited in COMMERCIAL LAW IN GHANA: SOURCE BOOK, by Akapame and Ahlijah at pages 9-10] His Lordship Dzakpasu emphasized that the essence of agency is the ability of the agent to enter into contracts which are binding on the principal. He held that: “The relationship of agency arises when one person known as Agent is given an authority, EXPRESS OR IMPLIED, to act on behalf of another known as the Principal… The essence of agency is that the Agent is thereby enabled to enter into contractual and other relations which are binding on the Principal. In a true agency, there must always be a Principal, an Agent and a third party with whom the Agent deals…” For a principal to be liable for the acts of the agent, there is the question of disclosed and undisclosed agency. In simple terms, disclosed agency is where the agent, while contracting 7 | P a g e with the third party disclosed that he was acting for and on behalf of the principal. In that case, it has been held that after the contract is concluded, the agent drops out of the picture and a contractual relationship is created between the principal and the third party. On the other hand, where the agency is not disclosed, that is, where the agent does not reveal the identity of the principal, the rights, obligations and liabilities borne out of the contract are concluded between the agent and the third party. In that case, the Principal does not become liable to the third party for the acts committed by his agent. In the instant case, it is the case of the Plaintiff that the 2nd Defendant came for the amount of GH¢20,000 from him on the instructions of the 1st Defendant. By his witness statement which was adopted as his evidence in chief, the 1st Defendant stated that he was in Accra and he called his manager, the 2nd Defendant that he needed about GH¢20,000 to make payment to procure some goods. 2nd Defendant then procured the said money to him and he later got to know 2nd Defendant took the money from the Plaintiff. The 1st Defendant does not deny knowing the 2nd Defendant. In fact, in addition to admitting at paragraph 4 of his witness statement that the 2nd Defendant is his manager, 1st Defendant further stated during his cross-examination by the Plaintiff that 2nd Defendant is the one in charge of his business. He stated as follows: Q. Who introduced Matthew to me? A. It was Matthew who rather introduced you to me. Matthew is the one in charge of everything that concerns my business. Without more, it could safely be said that the 1st Defendant held out the 2nd Defendant as his agent. In the words of the 1st Defendant, the 2nd Defendant is his manager and the person in charge of his business. That is the more reason when he needed the funds to pay for the goods while in Accra, he called no other person but the 2nd Defendant. As held by the case the FREDERICK K. KATOGLO v ABUBAKAR DAYSHINI YAKUBU (supra), agency 8 | P a g e relationship could be created expressly or impliedly. The court may infer the existence of an agency relationship from the conduct of the parties. In his book COMMERCIAL LAW IN GHANA: SOURCE BOOK, the learned authors, Akapame and Ahlijah discussed the factors that the court may consider in determining whether an agency exists by agreement. At page 12 of the said book, the authors stated that: “In determining whether an Agency relationship exists by agreement, one primarily looks to what they said and did at the time of the alleged creation of the Agency. Earlier words and conduct may afford evidence of a course of dealing in existence at the time and may be taken into account more generally as historic background. Later words and conduct may have some bearing, though likely to be less important. The most important factors are the words and conduct at the time of the creation of the Agency relationship.” From the conduct of the 1st and 2nd Defendant as borne out of the records, I hold the view that the 2nd Defendant acted as the agent of the 1st Defendant when he procured the amount of GH¢20,000 from the Plaintiff. The 2nd Defendant at the time was acting on the instructions of the 1st Plaintiff to get him funds in order to procure the goods. The 1st Defendant maintained that he did not know the Plaintiff until they appeared in court. According to his testimony, he only requested of the 2nd Defendant to get him some funds and in two hours’ time, the 2nd Defendant got him the amount of GH¢20,000. The Plaintiff denied this during his cross- examination by the 1st Defendant. According to the Plaintiff, when the 2nd Defendant came to him to procure the funds, he spoke with the 1st Defendant over the phone who agreed that he should give the monies to the 2nd Defendant. The 1st Defendant however denied that the Plaintiff ever called him. There is however evidence on the record that the 2nd Defendant had always acted for and on behalf of the 1st Defendant in procuring the money from the Plaintiff. After the said money was 9 | P a g e procured from the Plaintiff, the 2nd Defendant continued to act on behalf of the 1st Defendant in informing the 1st Defendant of the interest agreed on the amount. Not only that, when the 1st Defendant after sometime wanted a reduction of the interest amount from GH¢500 to GH¢350, he communicated it to the Plaintiff through the 2nd Defendant. These are essential facts which were admitted by the 2nd Defendant himself. At paragraphs 7, 8, 9 and 14 of the 1st Defendant’s witness statement which was adopted as his evidence in chief, he stated: 7. That I told the 2nd Defendant that where he went and collected the GH¢20,000 he should send back to the owner. 8. That is where he then revealed to me that it was his friend Faruk, the Plaintiff in this case. 9. That the Plaintiff told the 2nd Defendant that if a night fall on the money, he will pay an interest of GH¢500 and I told 2nd Defendant that it is business. So, he should not worry himself and give him the GH¢500 as interest on the money as agreed. …… 14. That the 2nd Defendant told Plaintiff that 1st Defendant complain about the interest on the money being too much for the 1st Defendant and that he is willing to give the Plaintiff GH¢350 as interest. From the 1st Defendant’s own answers, he knew of the Plaintiff right from the genesis of the transactions and it was the 2nd Defendant who transacted with the Plaintiff on the instructions of and for the benefit of the 1st Defendant. IS THE 1ST DEFENDANT LIABLE TO PAY THE AMOUNT OF GH¢20,000 TO THE PLAINTIFF? 10 | P a g e The law is that after entering into the contract or transaction with the third party, the agent drops out of the equation and the contractual relation is now created between the Principal and the third party as if he entered into the contract or transaction directly with the third party. In BANAHENE v SHELL GHANA LIMITED [2017] GHASC 48, judgment of the Supreme Court dated 6th April 2017 the court stated: “Under Agency relationship, the principal is liable for the actions of his agent within the scope of the authority given to the Agent”. See also the case of P.S. INVESTMENT LTD v CENTRAL DEVELOPMENT CORPORATION [2012] 45 GMJ 123 SC where the court noted at page 171 of the judgment as follows: “It is well established principle of agency law that contracts entered into by an agent are binding on the principal, as long as the agent acted intra vires. Legal personality, per se is not a sine qua non for the capacity of an agent to act for a principal” Thus, as long as it is proved that the agent acted within the authority given him by his principal, the principal is liable for his actions. In that case the agent does not incur any personal liability to the third party except he fails to disclose to the third party that he was acting as an agent. In the instant case, there is evidence that the 2nd Defendant did not go for the amount of GH¢20,000 from the Plaintiff for himself. He was at all times material, acting on the instructions of the 1st Defendant. I find from the evidence that the Plaintiff was fully aware at the time he was giving the money to the 2nd Defendant that he was acting on behalf of the 1st Defendant and not for himself. According to the Plaintiff, when 2nd Defendant came to him for the money, he called the 1st Plaintiff to confirm and he agreed that same be given to him. 1st Defendant does not deny receiving the money and using same. This is what transpired during the cross examination of the Plaintiff by the 1st Defendant: 11 | P a g e Q. I am putting it to you that I gave the money to the 2nd Defendant to be given to you. A. I did not receive any money from the 2nd Defendant. Q. I am putting it to you that I did not take any monies from you. It was the 2nd Defendant from whom I took the money and I did not know you until the day we appeared in court. A. The day 2nd Defendant came for the money, I called you on phone to confirm and you agreed over the phone that I should give the money to the 2nd Defendant. Q. I am putting it to you that you did not call me. A. I called you I find that at all times material, the Plaintiff and the 1st Defendant knew very well they were dealing with each other and that the 2nd Defendant was only an intermediary between them. After the 2nd Defendant procured the amount of GH¢20,000 to the 1st Defendant from the Plaintiff, the contract to repay same to the Plaintiff was created between him and the Plaintiff. I find that the 1st Defendant is therefore liable to repay the amount of GH¢20,000 taken on his behalf by the 2nd Defendant from the Plaintiff. It has been the case of the 1st Defendant that he gave the amount of GH¢20,000 to the 2nd Defendant to be given to the Plaintiff. According to him, he called the 2nd Defendant to go to one of his customers to collect the money and give same to the Plaintiff. The 1st Defendant contended that on his invitation to the Kpandai Police station, the CID by name Jacob told him that 2nd Defendant came to him and confessed that he spent part of the monies he gave him to 12 | P a g e be given to the Plaintiff, and that he informed Plaintiff and asked him not to let him know of it. According to him, when Plaintiff was invited to the Police Station, he asked him why he had a new agreement with the 2nd Defendant without his knowledge. Since it is the case of the 2nd Defendant that he gave the moneys to the 2nd Defendant to be given to the Plaintiff, the burden was on him to prove his assertion. The law is that when a party makes an averment which has been denied by his opponent, he must lead credible and admissible evidence in proof of his averment, but not to mount the witness box and repeat the same averments. In MAJOLAGBE v LARBI [1959] G.L.R. 90 `the Court stated at page page 192 as follows: "Proof, in law, is the establishment of fact by proper legal means; in other words, the establishment of an averment by admissible evidence. Where a party makes an averment, and his averment is denied, he is unlikely to be held by the Court to have sufficiently proved that averment by his merely going into the witness-box, and repeating the averment on oath, if he does not adduce that corroborative evidence which (if his averment be true) is certain to exist." The Plaintiff denied receiving any monies from the 2nd Defendant. The 2nd Defendant did not appear to contest the case against him even though he was served with the writ of summons and subsequent processes through substituted means. That notwithstanding, the burden remained on the 1st Defendant to prove that indeed he gave the money to the 2nd Defendant and that same was duly delivered to the Plaintiff. Even though he alleged one CID Jacob told him the 2nd Defendant confessed to spending part of the money and informed the Plaintiff not to tell the 1st Defendant about it, the said CID Jacob was not called by him to testify in support of his case. Since he alleged that he was told of the said fact by the said CID Jacob, the same remained hearsay evidence until he is called upon to affirm or deny it. It was the case of the 1st Defendant that he made the 2nd Defendant to go for the money from one of his customers and same given 13 | P a g e to the Plaintiff. The said customer was not also called to testify to that fact. In any case, the Plaintiff as a third party is not bound by the transactions and agreements between the 1st Defendant as principal, and the 2nd Defendant as his agent. I say this because the Plaintiff is a third party and he cannot be deemed to know what transpires between the 1st and 2nd Defendant. In order to be absolved of his liability, the important fact to prove is that the Plaintiff indeed received the money he claimed he gave the 2nd Defendant. Apart from the 1st Defendant insisting he gave the money to the 2nd Defendant to be given to the Plaintiff, he adduced no evidence to prove when and where, and by what means the 2nd Defendant gave the money to the Plaintiff. The 1st Defendant in his cross-examination admitted that the 2nd Defendant failed to give the money to the Plaintiff and instead reported the matter to CID Jacob. This is what transpired during the cross-examination of the Plaintiff by the 1st Defendant: Q. When the 2nd Defendant failed to give the money to you, the 2nd Defendant told one police officer by name Jacob that he has taken part of the money given to him to be given to you and therefore the said Police officer should plead with you not to let me hear about it. A. The said Police officer called me and invited me to the Police station at Kpandai. When I went there, he asked me whether I know one Matthew. I said yes and that 1st Defendant told me he has given monies to the said Matthew to be given to me. However, the said Matthew has refused to pick up my calls, neither does he pick up the calls of the 1st Defendant. Q. I am putting it to you that the Police officer told me that he invited both you and the 2nd Defendant and that the 2nd Defendant pleaded for time to pay you which you agreed. 14 | P a g e A. When I went to meet the Police officer, the 2nd Defendant was not present. I only met the Police officer who told me that the 2nd Defendant has refused to pick up his calls. He then told me the complaints 2nd Defendant brought to him when he came to see him. The Police Officer told me to go home and that he will invite me again when the 2nd Defendant comes. From the excerpts of the cross examination referred to above, the 1st Defendant is very much aware that the 2nd Defendant has not given the moneys to the Plaintiff. I have held in this judgment that since an agency relationship existed between the 1st and 2nd Defendant when the latter went to procure the monies from the Plaintiff for the 1st Defendant, the 1st Defendant is liable to repay same to the Plaintiff. His failure to do so constitutes breach of the contract between him and the Plaintiff. I have also held that as regards the Plaintiff, whether indeed the 1st Defendant gave the money to the 2nd Defendant to be given to the Plaintiff is not relevant because the Plaintiff as a third party is not privy to the transactions between the 1st and 2nd Defendant. What will absolve the 1st Defendant from liability is that the Plaintiff actually received the money. Until same is proved, his liability to the Plaintiff remained. The 1st Defendant has failed to adduce any evidence that the Plaintiff received the money he purportedly gave to the 2nd Defendant to be given to him. As I have also stated, the said Police officer was not called to prove whether the Plaintiff received part of the money from the 2nd Defendant or not. If indeed the 1st Defendant gave the money to the 2nd Defendant to be given to the Plaintiff, and he did not, then his remedy lied in taking an action against the 2nd Defendant for recovery of the amount and for breach of his duties as an agent. That does not however absolve him of his liability to pay the amount of GH¢20,000 taken on his behalf by the 2nd Defendant from the Plaintiff. 15 | P a g e I therefore grant relief 1 as claimed by the Plaintiff and hereby order that the 1st Defendant pays to the Plaintiff the amount of GH¢20,000 which he took from the Plaintiff through the 2nd Defendant, his agent. The next relief claimed by the Plaintiff is the recovery of interest accrued since June, 2022. By the provisions of Rule 1 of the Court (Award of Interest and Post Judgment Interest) Rules, 2005 (C.I. 52), the court generally has the power to ward interest on a sum of money due. Such is to be calculated at the prevailing bank rate at the time of the order and at simple interest. However where there is an agreement by the parties regarding the rate of interest to be paid, the court shall award the rate of interest to be calculated in the manner as agreed by the parties. Rule 1 of C.I. 52 provides as follows: “1. If the court in a civil cause or matter decides to make an order for the payment of interest on a sum of money due to a party in the action, that interest shall be calculated a. at the bank rate prevailing at the time the order is make, and b. at simple interest But where an enactment, instrument or agreement between the parties specifies a rate of interest which is to be calculated in a particular manner the court shall award that rate of interest calculated in that manner.” Where interest is claimed by a party on the basis of an agreement between the parties, then the said agreement, like a contract, must be proved with the necessary evidence. In the instant case, the Plaintiff claims that the 1st Defendant promised to repay the amount of GH¢20,000 before 16 | P a g e June, 2022. The 2nd Defendant later came back after June to inform him that 1st Defendant is ready to repay the money with interest and that he should be given more time. It is the case of the Plaintiff that the 1st Defendant has been paying an interest of GH¢500 every week on the amount since April, 2022 till June, 2022 when the 2nd Defendant came to him for a rescheduling of the interest amount to GH¢350 on the basis that the 1st Defendant’s business had gone down. On his side, the 1st Defendant stated in his evidence in chief (paragraph 9 of his witness statement) that when 2nd Defendant went for the money from the Plaintiff, he told him that should night fall on the money, he will be liable to pay an interest of GH¢500. He told the 2nd Defendant not to worry himself about it since it is business. He then gave the amount of GH¢500 to the 2nd Defendant as the interest agreed. At paragraph 14 of his witness statement, the 1st Defendant admits he told the 2nd Defendant that the interest of GH¢500 was too much for him but he is willing to give the Plaintiff GH¢350 as interest. From the evidence of both parties, it is clear that the parties agreed on payment of interest on the amount. Though same was not in writing, there was an oral agreement by the parties to pay an interest on the money taken from the Plaintiff. According to the Plaintiff, the interest was to be paid on a weekly basis. The initial interest was GH¢500 but was later rescheduled to GH¢350. It its very surprising that the 1st Defendant who earlier admitted these facts in his evidence in chief, denied same during his cross examination by the Plaintiff. At one point the 1st Defendant stated that there was no agreement between the Plaintiff and the 2nd Defendant to pay interest. And at another point, he stated that the 2nd Defendant informed him that Plaintiff said he will pay interest of GH¢500 on the money. That upon being so informed, he realised it was a bad business and so he gave the principal together with the interest of GH¢500 to the 2nd Defendant to be given to the Plaintiff. These are excerpts of the cross-examination of the 1st Defendant by the Plaintiff: 17 | P a g e Q. Do you remember the day you came to me on a motorbike and informed me you have a discussion with me concerning the money Matthew took? A. That is not true. I used to buy bread from your mother. The instance you are talking of that I came there could be when I came to buy bread not to have a discussion with you. Q. When you came, you asked me how much interest you should pay on the money Matthew took from me. A. That is not true. Q. You told me you will pay me GH¢500 per week and I stated that since we are business partners, whether you pay interest or not I do not have a problem. A. That is not true. Matthew did not agree with you to pay any interest on the money. I could therefore not have had any discussion with you to pay interest on the money. Q. Matthew was paying interest on the money for two (2) months. There was a time you even brought the GH¢500 yourself when Matthew went to buy goods from Accra. A. That is not true. Matthew cannot go to Accra for the goods because he is not a registered agent. Q. It was in the third month that 2nd Defendant told me you told him you cannot afford to pay the GH¢500 as the market was not going well. 18 | P a g e A. That is not true. Q. In EXHIBIT A, you stated that the day you told 2nd Defendant you could no longer afford to pay the interest of GH¢500 was the same day you gave him the money to be given to me. A. When Matthew told me you said we will pay interest of GH¢500 on the money, I realised it was a bad business. So when I gave the money to 2nd Defendant to be given to you I added the GH¢500. It was only a two-three days transaction I had with you. I find the evidence of the 1st Defendant not credible and not worthy of any belief. At one breath he denied the 2nd Defendant agreed with the Plaintiff to pay interest on the money. At another breath he admits 2nd Defendant told him the Plaintiff said they will pay interest on the amount. He then realised it was a bad business and so he gave the money together with the interest of GH¢500 to the 2nd Defendant to be given to the Plaintiff. During his cross-examination, 1st Defendant denied paying interest on the amount to the Plaintiff from April till June. He said it was only some two-three days’ transaction he had with the Plaintiff. But at paragraph 14 of his own witness statement, the 1st Defendant admits there was a rescheduling of the interest from GH¢500 to GH¢350. On the totality of the evidence, I find the case of the Plaintiff more probable than that of the 1st Defendant. I find that there is sufficient evidence to prove that the parties initially agreed on a weekly interest of GH¢500 payable on the amount. I find that by a later agreement between the parties the interest amount was reduced to GH¢350. I am also satisfied from the evidence that 1st Defendant has failed to pay to the Plaintiff the interest of GH¢350 accruing on the amount since June, 2022 till date. 19 | P a g e By a reading of Rule 1 (b) of the C.I 52, where the court finds that the parties by themselves have an agreement on the interest rate to be paid and have also agreed on the mode of calculating same, the court must give effect to same. By the legal maxim pacta sunt servanda an agreement is binding as between the parties and the courts will enforce same unless it is proved to be unconscionable, illegal or that it was induced by fraud. In the instant case, there is no such evidence of fraud, mistake, duress or illegality so as to vitiate the agreement to pay the interest of GH¢350 per week on the amount. I will therefore hold the parties bound by their own agreement. I therefore grant relief (2) claimed by the Plaintiff and order that the 1st Defendant pay to the Plaintiff the weekly interest amount of GH¢350 calculated from June 2022 till date of final payment. By his third relief, the Plaintiff seeks damages of GH¢2,000. It is not clear whether Plaintiff seeks special or general damages. Where the damages sought is in the nature of special damages, the law is settled that same ought to be proved with cogent and admissible evidence. On the other hand, general damages naturally flow as the consequences of the breach of the contract. In my opinion, the failure of the Plaintiff to specify whether he is seeking general or special damages is not fatal. The most important question is whether the Plaintiff is entitled to damages for the breach of the contract by the 1st Defendant. I say breach of the contract because the contract between the 1st Defendant and the Plaintiff was the 1st Defendant undertaking to repay the amount of GH¢20,000 he took from the Plaintiff by June, 2022. Failure to do so therefore constitutes breach of the contract. In cases of breach of contract, the measure of damages is restitution integrum. The principle is that the party must be, as far as practicable, placed in the same situation he would have been in had the contract been performed. The principle was summed up in the case of JUXON-SMITH v KLM DUTCH AIRLINES [2005-2006] SCGLR 438 at 442: 20 | P a g e “Where a party has sustained a loss by reason of a breach of contract, he was, as far as money could do it, to be placed in the same situation with respect to damages, as if the contract had been performed.” In its earlier decision in ROYAL DUCTH AIRINES AND ANOTHER v FARMEX LTD [1989- 90] 2 GLR 623 at 625, the Supreme Court has stated that: “On the measure of damages for breach of contract, the principle adopted by the courts was restitutio in integrum, i.e. if the Plaintiff has suffered damage not too remote – he must, as far as money could do it, be restored to the position he would have been in had that particular damage not occurred. What was required to put the plaintiffs in the position they would have been in was sufficient money to compensate them for what they would have lost.” In the instant case, the Plaintiff led no evidence that he suffered specific damage or loss due to the 1st Defendant’s failure to repay the money. However, any reasonable mind will come to a conclusion that if the Plaintiff was paid the said money, he would have used it for some investment or other purposes. The 1st Defendant therefore withholding same and depriving the Plaintiff the benefit of the use of his money is a form of loss suffered by the Plaintiff which ought to be compensated. Such loss is one which is a reasonable and foreseeable consequence of the 1st Defendant’s breach of the contract. Considering all the circumstances of the case, I am of the view that the damages of GH¢2,000 sought by the Plaintiff is reasonable and I hereby grant same. CONCLUSION The Plaintiff has been able to prove his case against the 1st Defendant. The 2nd Defendant did not participate in the trial though he was served with the writ of summons and the subsequent 21 | P a g e processes by substituted means. That notwithstanding, I find that the 2nd Defendant was the agent of the 1st Defendant. When 2nd Defendant went to procure the amount of GH¢20,000 from the Plaintiff, he was acting for and on behalf of the 1st Defendant. Though the 1st Defendant contended that he gave the money to the 2nd Defendant to be given to the Plaintiff, there is no evidence from him to support that fact. There been no evidence that Plaintiff received the said money, the 1st Defendant is liable to repay to the Plaintiff the amount of GH¢20,000. If he indeed gave the said money to the 2nd Defendant and he kept same for himself, then his remedy lied in taking an action against the 2nd Defendant for the recovery of his money and for breach of his duties as an agent. The evidence again shows that the parties agreed to pay the interest of GH¢350 weekly on the amount if GH¢20,000 taken from the Plaintiff. There been such an agreement, the court is obliged to enforce same unless the said agreement for payment of interest could be impugned on grounds of fraud, illegality, mistake or duress. There been no evidence of such, the relief (2) of Plaintiff is granted and the 1st Defendant is liable to pay the sum of GH¢350 per week from June, 2022 till the date of final payment. Having regards to all the circumstances of this case, I am of the view that the damages of GH¢2,000 claimed by the Plaintiff against the 1st Defendant is reasonable. It is reasonably foreseeable that the 1st Defendant returning the Plaintiff’s money with him all these while will cause the Plaintiff to incur some loss. He could have invested his money in another business or something else for profit. I therefore award damages of GH¢2,000 against the 1st Defendant in favour of the Plaintiff. Cost of GH¢500 is awarded against each of the Defendants in favour of the Plaintiff. SGD H/W GODSON ETSE KUMADO 22 | P a g e 23 | P a g e