BARSON VRS MAWUNYEGAH (A2/10/2019) [2024] GHADC 215 (7 June 2024)

1 IN THE DISTRICT COURT HELD AT ASHAIMAN ON FRIDAY THE 7TH DAY OF JUNE, 2024 BEFORE HIS WORSHIP DERICK PARDEN ESHUN (ESQ): THE DISTRICT MAGISTRATE BETWEEN: SUIT NO. A2/10/2019 DAMIEN GIDEON KWAME BARSON PLAINTIFF KAKASUNAKA NUMBER 1 AND VICTOR KWAME MAWUNYEGAH DEFENDANT AFARIWA JUDGMENT The plaintiff on the 19th day of September, 2018 filed a writ of summons against the defendant for the following reliefs: a. An order for the recovery of the sum of Gh₵9,000.00 being financial assistance plaintiff gave to defendant and had failed to pay same since December, 2016. b. An order for interest on the sum from December, 2016 till the final date of payment. Let me put on record that the suit was originally placed on the undefended cause list. However, the defendant on the 4th day of October, 2018 filed notice of intention to defend the claim of plaintiff. Subsequently, the defendant on the 15th day of November, 2018 filed an affidavit in opposition denying the claim of plaintiff and counterclaim as follows: 1) Recovery of a total sum of Gh₵700.00 for the pork plaintiff and his wife enjoyed as their wedding ceremony but had refused or failed to pay for same. 2 2) Interest on the Gh₵700.00 at a lending rate of the commercial banks effective September, 2017 till the final date of payment. In view of the affidavit in opposition filed by the defendant supra, the suit was removed from the undefended cause list to the general cause list for the matter to be determined on its merits, See Oder 8 of CI 59). Let me also put on record that the defendant through his counsel on the 14th day of October, 2021 filed a motion on notice to dismiss the suit for being unconscionable and a violation of an Act of Parliament pursuant to the Non-Bank Financial Institutions Act, 2008, Act 774. This application was dismissed by the court differently constituted. As I proceed to consider the facts and issues raised in this case, it is appropriate for me to state that it is trite law that for every case there is a burden of proof to be discharged and the party who bears the burden will be determined by the nature and circumstances of the case; See SECTIONS 10- 17 OF OUR EVIDENCE ACT, 1975 (NRCD 323). In ABABIO V AKWASI (III) [1994-95] GBR, PART (II), 74 the court stated that a party whose pleadings raise an issue essential to the success of the case assumes the burden of proving such issue. Reference is also made to the cases of TAKORADI FLOOR MILLS V SAMIR FARIS [2005-06] SCGLR, 882 and RE ASHALLEY BOTWE LANDS: ADJETEY AGBOSU & ORS V KOTEY & ORS [2003- 04] SCGLR, 420 which further elucidate the burden of proof as statutorily provided. The rule is that in a trial of a case like the instant one, a party wins on the preponderance of probabilities. See Section 12(2) of the Evidence Act, 1975 (NRCD 323). See also ADWUBENG VRS DOMFEH (1996-97) SCGLR 660. THE CASE FOR THE PLAINTIFF The plaintiff testified but did not call any witness in support of his case. He testifies that he got to know the defendant through his friend, Ephraim Amenyedzi. According to the plaintiff he went for a lunch break in the company of Ephraim on the 14th day of December, 2016. And while having their lunch, his friend, Ephraim spoke 3 with him about the defendant herein. He said Ephraim told him that the defendant requires some financial assistance to execute some contracts awarded him. The plaintiff avers that in the evening and while at home, Ephraim came to him in his house concerning the matter of giving financial assistance required by the defendant. According to plaintiff he decided to assist defendant financially and asked Ephraim to introduce defendant to him. According to plaintiff, Ephraim had asked the defendant to approach any Commissioner for oath to prepare a promissory note of some sort and to depose therein how he would repay the financial assistance facility which would be advanced to him. Plaintiff avers that on the 16th day of December, 2016 the defendant executed a receipt (Exhibit A) with some terms and conditions and being satisfied with the terms and conditions he advanced the sum of Gh₵5, 000.00 to the defendant. According to the plaintiff he later met the defendant personally a day after he had advanced the money to him through his (Plaintiff) account and they became friends thereafter. He continues that on the 23rd day of December, 2016 he advanced additional sum of Gh₵5,000.00 to the defendant as a financial assistance with similar terms and conditions with that of the initial one advanced him supra, See Exhibit A1. Plaintiff avers that per the terms of the financial assistance they agreed that on every 23rd day of every month the defendant was to pay the sum of Gh₵1,700.00 on each sum of Gh₵5000.00 to him through his (Plaintiff) Stanbic Bank account until the principal sum is paid. When he was under cross-examination he averred that in all, the defendant has paid him a total sum of Gh₵36,720.00 leaving the principal sum of Gh₵10,000.00 less Gh₵1,000.00 hence the instant action. Under cross-examination plaintiff told the court that the defendant paid the sum of Gh₵3,060.00 cumulatively each month from January, 2017 to December, 2017. THE CASE OF THE DEFENDANT: 4 The defendant testified and called a witness in support of his case. He avers that he is a farmer and that he owns a poultry farm and a piggery. He testifies that he got into contact with the plaintiff through Ephraim Amenyedzi (hereinafter referred to as CW1-Court Witness 1). He avers that he got some supply offers whereupon he approached CW1 to assist him financially. Defendant testifies that CW1 expressed interest in partnering him in the supply business and decided to invest in same. Defendant testifies that subsequent to that CW1 advanced a total sum of Gh₵9,000.00 to him. According to defendant, CW1 said he will not be around to assist in the supply contract and that he has appointed the plaintiff herein to be his representative in the said supply contract. He avers that he paid Gh₵3,060.00 every month for 15 months as interest on the amount advanced to him and same was paid to the plaintiff. He avers that in all he has paid a total sum of Gh₵56, 090.00 to the plaintiff as interest. Under cross-examination defendant maintained that the principal sum was advanced to him by CW1 and not plaintiff. ISSUES FOR DETERMINATION At the close of the case by the parties the following issues arose for determination by the court. Whether or not the Gh₵9,000.00 was advanced to the defendant by plaintiff? Whether or not the plaintiff is entitled to recover the sum of GH₵9,000.00 with interest? Whether or not the defendant is entitled to recover the sum of Gh₵700.00 from the plaintiff? NOW THE ISSUES IN SERIATIM ISSUE ONE: Whether or not the Gh₵9,000.00 was advanced to the defendant by plaintiff? 5 The defendant in his evidence-in-chief contends that he got some supply offers whereupon he approached CW1 to assist him financially. The defendant in his evidence in the main contended that CW1 expressed interest in partnering him in the supply business and decided to invest in same. Defendant testifies that subsequent to that CW1 advanced a total sum of Gh₵9,000.00 to him. According to defendant, CW1 said he will not be around to assist in the supply contract and that he has appointed the plaintiff herein to be his representative in the said supply contract. This assertion was vehemently challenged by the plaintiff. He contended that the initial sum of Gh₵5000.00 was advanced to the defendant on his behalf by CW1 on the terms and conditions as executed in Exhibit “A” while the second tranche of the Gh₵5000.00 he personally advanced same to defendant with terms as indicated in Exhibit “A1”. According to plaintiff the defendant had paid Gh₵1,000.00 out of the Gh₵10,000.00 advanced to him. Well, Ephraim Amenyedzi (CW1) testified. Infact the evidence of CW1 corroborated that of plaintiff materially in particular. CW1 in his evidence in the main testified that he was the one who introduced defendant to the plaintiff whereupon the latter agreed to assist the former financially. According to CW1, the initial Gh₵5,000.00 was handed over to him by the plaintiff and he in turn gave same to the defendant. He told the court that he was not privy to the other tranche of Gh₵5,000.00 which was advanced to the defendant. Under cross-examination, CW1 maintained that the financial assistance was given to defendant by the plaintiff. He denied the defendant’s assertion and maintained that at no point in time did he assist the defendant financially. I find CW1 a credible witness. It did not occur to me that he told a lie to the court. On the other hand, I find the defendant not a credible witness. He was very economical with the truth. Infact, he did not testify to assist the court in the resolution of the case before it. I find his assertion that the financial assistance was given him by CW1 as an afterthought. There are pieces of evidence on record to support a finding of fact that the financial assistance was offered to defendant by the plaintiff. For instance, Exhibits A and A1 described the plaintiff as the lender while CW1 was merely a witness to the agreement. CW1 was only an agent of his principal, 6 the plaintiff herein. The defendant lied through his teeth in his evidence in the main when he contended that CW1 expressed interest in partnering him for the execution of the said contract of supply whereupon he advanced him the sum in issue. From the foregoing, I am satisfied and find as a fact that the financial assistance of Gh₵10,000.00 less Gh₵1,000.00 was advanced the defendant by the plaintiff. ISSUE TWO: Whether or not the plaintiff is entitled to recover the sum of GH₵9,000.00 with interest? The plaintiff in his quest to establish his case relied heavily on Exhibits “A” & “A1”. It will therefore be prudent to reproduce the relevant portions of exhibits A & A1 in part for your perusal. Paragraphs, “2” & “3” of Exhibit “A” states as follows: “I therefore faithfully promise in the presence of the undersigned witnesses to be giving him a monthly interest of One Thousand Seven Hundred Ghana Cedis (Gh₵1,700.00) until further notice before I refund the capital of Five Thousand Ghana Cedis (Gh₵5000.00) to him (Mr. Damien Kwame Gideon Barson) without fail. That failure to comply with the terms of this receipt, Mr. Damien Kwame Gideon Barson reserves the power and authority to take legal action against me”. (The emphasis is mine). Exhibit “A1” is also captured in the same terms supra. Whereas the plaintiff contended that Exhibits “A” & “A1” was prepared by the defendant himself, the defendant contends that the exhibits supra were rather prepared by CW1 and same presented him to place his mark thereon. DW1, Cornelius Kwame Keketsuor testified. DW1 averred that he executed Exhibit “A1” as a witness. According to DW1 he was in the defendant’s house when CW1 brought the instrument whereupon he placed his mark thereon as a witness to the transaction. There is ample evidence on record to the effect that CW1 at all material times was acting under the instruction of his principal, the plaintiff herein. I find DW1 a credible witness. He was honest and candid in his testimony as his answers during cross-examination were forthcoming. It did not occur to me that he told a lie to the court. In the circumstance, I find that both exhibits supra 7 were prepared by CW1, the agent of the plaintiff herein. It is therefore not correct that the exhibits supra were prepared by the defendant himself. As a general rule, where parties have set themselves to contract and have reduced their intention into writing, they are bound by the terms of the agreement. Therefore facts recited in a written document are conclusively presumed to be true as between the parties to the instrument. Section 25(1) of the Evidence Act, 1975 (NRCD 323) provides that except as provided by law including a rule of equity, the facts recited in a written document are conclusively presumed to be true as between the parties to the instrument, or their successors in interest. It is trite that interest is payable when parties in an agreement express the intent that the transaction entered into shall attract interest. The courts will enforce the mutually agreed transaction between parties arrived at arm’s length and in the absence of any of the vitiating factors such as fraud, unconscionability, illegality etc. in LLOYDS BANK VRS BUNDY [1975] QB 326 which has a persuasive effect, the indomitable Lord Denning MR in stating the general rule said that there were many hard cases which are caught by this rule. It needs to be reiterated that this rule is not intransigent and that it is subject to the rules of equity of fraud, unconscionability of contract, mistake etc and as a matter of law, the court has the power to either set it aside or modify a contract so found by the court to be unconscionable. Again, the Supreme Court in the case of ATITSOGBUI VRS CFC CONSTRUCTION COMPANY [2005- 2006] SCGLR 858, the court espoused the doctrine of unconscionability of contracts and stated as follows: “under the equitable doctrine of unconscionable bargain, the courts would set aside as unconscionable, any dealing whether by contract or gift where on account of special disability of one of the parties, that party has been placed at a serious disadvantage in relation to the other”. In the instant case, the plaintiff when he was under cross-examination reiterated that it was financial assistance he offered defendant and not that he entered into any other agreement with defendant. Again, the plaintiff when asked under cross-examination why he did not recall the 8 principal sum from defendant, he told the court that the defendant pleaded with him not to otherwise he would not have any capital to continue with his contract of supply. The incontrovertible evidence on record indicate that the defendant while withholding the principal sum of Gh₵9,000.00 advanced him by plaintiff pays the sum of Gh₵3,060.00 per month as interest and he has since paid a total sum of Gh₵36,720.00. And by simple arithmetic the sum of Gh₵36,720.00 is in excess of 400 percent interest on the principal sum advanced the defendant. In the circumstance, I find that allowing the plaintiff to recover the principal sum of Gh₵9,000.00 in addition to the sum of Gh₵36,720.00 will amount to an unjust enrichment. According to the plaintiff the payment of Gh₵3,060.00 per month on the principal sum until the principal sum is paid was agreed upon by the defendant himself. Clearly, the transaction between the parties herein was not arrived at arm’s length. Again, I find that the defendant was placed under a serious disadvantaged position in relation to the plaintiff. ISSUE THREE: Whether or not the defendant is entitled to recover the sum of Gh₵700.00 from the plaintiff? The defendant in his testimony contends that he sold a pig head to the plaintiff at a price of Gh₵700.00. He contends that despite repeated demands the plaintiff has refused to pay him the price. This assertion was vehemently denied by the plaintiff. According to plaintiff the pig head was given to him as a gift by the defendant. In the case of DZAISU V GHANA BREWERIES LIMITED [2007-2008] SCGLR, the Supreme Court per Adinyira JSC (as she then was), in expounding on section 14 of NRCD 323, held as follows: “it is a basic principle in the law of evidence that the burden of persuasion on proving all facts essential to any claim lies on whosoever is making the claim”. The learned Justice of the Supreme Court went on to state: “It is trite law that a bare assertion by a party of his pleadings in the witness box without proof did not shift the evidential burden onto the other party”. In the instant case I do not think that the defendant herein had adduced any credible admissible evidence to 9 establish his claim. In the case of IBM V HASNEM [2001/2002] SCGLR 393 @ 402, the Supreme Court per Adzoe JSC held: “It is one thing pleading a cause and repeating it in court, and another thing providing evidence in support of the cause so pleaded”. In the instant case the defendant who contends that he sold a pig head to the plaintiff herein at a price of Gh₵700.00 and same having been denied by the plaintiff, it was incumbent on defendant to have adduced credible admissible evidence in the establishment of his assertion. I find that the defendant failed to adduce evidence in support of his cause. Issue accordingly resolved against the defendant. Upon the resolution of the issues set down for determination before this court, the court makes the following orders: ❖ The plaintiff’s claim dismissed with cost of Gh₵6,000.00. ❖ The defendant’s counterclaim dismissed. .............................................. (DERICK PARDEN ESHUN)