FOSUAA VRS KWAKYE (C2/01/2023; C2/01/2023) [2024] GHACC 234 (28 June 2024)

IN THE CIRCUIT COURT HELD AT DUAYAW NKWANTA ON FRIDAY THE 28TH DAY OF JUNE, 2024, BEFORE HER HONOUR AKOSUA ASANTEWAA SARPONG ESQ, CIRCUIT COURT JUDGE C2/01/2023 JANET FOSUAA VRS AKWASI KWAKYE JUDGMENT The Plaintiff is a business woman who resides at Techimantia. The Plaintiff stated that on 21st of June 2021 the Defendant borrowed GH₵12,000.00 from her to buy poultry birds to pay it back on the 21st September 2021 without fail with no interest. The Plaintiff stated that the defendant was to pay back the principal amount without interest to her on 21st day of September 2021 but if he failed by then it will attract an interest of GH₵2,000.00 totaling GH14,000.00. The Plaintiff stated that the three months period given to the Defendant elapse and he deliberately refused to pay her money to her. After the three months had elapsed the Defendant came for an extension of an additional three months which the plaintiff agreed. It is the case of the Plaintiff that the Defendant deliberately kept on asking for extension of time without making any attempt to pay her money to her. The Plaintiff reported the Defendant to his family members who promised to pay the money in three months time but they also failed to pay. The plaintiff further stated that upon persistent demands, Defendant refused to pay the accumulated amount of GH₵14,000.00 which is 1 | P a g e principal and interest of one year two months to her. The Plaintiff observed that the attitude and behaviour of the Defendant and advised herself to bring the matter to court. All effort by the Plaintiff made to persuade the Defendant to pay her money since September 2021 had proved futile hence the present action. Wherefore the plaintiff claim against for an amount GH₵14,000.00 being money (principal GH₵12000 and interest of GH₵2000) Defendant borrowed from plaintiff on 21st June 2021 of which in spite of persistent demands made by the plaintiff. The Defendant entered appearance and subsequently filed his statement of Defence. In the statement of Defence the Defendant admitted paragraphs 1-3 of the plaintiff’s statement of claim. The Defendant denied paragraph 4 of the statement of claim and stated that he borrowed GH₵8000 as the principal amount and the Plaintiff added GH₵4,000.00. Defendant further stated that the amount of GH12,000 mentioned by the plaintiff is the principal plus the interest. The Defendant denied paragraph 5 of the statement of claim and stated that he run into loss that is the reason why he could not pay the money back to plaintiff as promised. Again the Defendant reiterated that he is aware of GH₵12,000.00 but not GH₵14,000.00 as stated by the Plaintiff. It is the case of the Defendant that he was trying to pay the Plaintiff in bits but Plaintiff refused and said the Plaintiff wanted him to pay GH₵12,000 to her once but not in bits. The Defendant ended by stating that the Plaintiff is not entitled to the relief endorsed on the writ of summons. The plaintiff filed a reply and stated that the said agreement was to pay the money by the end of 21st of September, 2021 without fail and that there is no statement in the agreement that when the poultry birds died he should not pay the money. The issues that were to be determined at trial were a) Whether or not Plaintiff is entitled to the relief being sought 2 | P a g e b) Whether or not Plaintiff has lent money to the Defendant c) Whether or not Defendant owes Plaintiff GH₵14,000.00 d) Whether or not the lending period has elapsed e) Whether or not Defendant has made efforts to pay the money to Plaintiff And any other issues raised by the pleadings. In resolving the issues the first issue that is whether or not Plaintiff is entitled to the relief being sought would be determined as the last issue. I would first address the issue of whether or not Plaintiff has lent money to the Defendant. In addressing this issue there is no doubt that the Plaintiff in her witness statement attached a promissory note which was marked as Exhibit A which the Defendant did not object to it being tendered. Once the Defendant did not object to it being tendered then it means that the Defendant has admitted that there was an agreement that indeed the Plaintiff lent him money. The Defendant in his witness statement that was filed on 11/11/20222 also admitted that somewhere in 2021 the Plaintiff lent him an amount of GH₵8,000.00 with an interest of GH₵4,000.00 totaling GH₵12,000 to be paid to the Plaintiff. He again stated that he used the money to feed his poultry birds. In the witness statement of the Plaintiff at paragraph 4 Plaintiff stated that Defendant asked her to support him with an amount of One hundred and Twenty Thousand Ghana Cedis (GH₵120,000.00) to purchase the poultry feed without which he was going to lose all the birds. Per the writ of summons the amount stated is GH₵14,000 being money (principal of GH₵12,000.00 and interest of GH₵2,000) Defendant borrowed from plaintiff on the 21st day of June 2021 of which defendant refused to pay to plaintiff in spite of persistent demands made by plaintiff. The Defendant in his statement of defence denied that he owed the Plaintiff an amount of GH₵14,000.00. The Defendant contends that the amount involved is GH₵12,000.00 3 | P a g e where GH₵8,000 is the principal amount and GH₵4,000.00 is the interest. In this case the plaintiff in her statement of claim stated that the amount that was given to the defendant was GH₵12,000.00 which defendant was to pay on the 21st of September 2021 but if he failed then it will attract an interest of GH₵2,000.00 totaling GH₵14,000.00. The parties are not in agreement as to the payment of GH₵14,000.00. The law is settled, that when a party makes an averment and the averment is not denied, no issue is joined and no evidence need to be led on that fact or averment. Similarly when a party has given evidence of a material fact and was not denied or challenged, it implies admission on the part of the opponent. See. Hammond v Amuah & Another [1991] 1 GLR 89 Fori vrs Ayirebi & others [1966] GLR 627 SC Kusi & Kusi v Bonsu [2010] SCGLR 60 Danielli Construction Ltd vrs Mabey & Johnson [2007-2008] 1 SCGLR Edmund Danso vrs Moses Adjei [2013] 58 GMJ 71 CA In this case the defendant is denying that he owes the Plaintiff an amount of GH₵14,000.00. Under cross-examination of the plaintiff by the Defendant at page 4 of the record of proceedings. The Defendant asked Q: I am putting it to you that we didn’t agree on any interest payment of GH₵2,000.00. A: That was verbally agreed. The plaintiff in her Exhibit A stated that the Defendant owed her an amount ofGH₵12,000.00. There was nowhere in the promissory note that talked about any interest. The plaintiff stated that the interest was agreed upon verbally but could not lead any evidence to prove same. 4 | P a g e The principles on allocating the burden of proof are contained in NRCD 323, section 14 as follows: “14 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 he is asserting” This provision implies that if the party can only succeed in his claim or defence by establishing a fact or element of claim or defence to the satisfaction of the trier of facts the party will fail unless he is able to lead evidence on that element or fact satisfactory to the court. Thus considered, that element or fact becomes the evidence essential to the claim or defence referred to in the section. In the case Dzaisu & Others vrs Ghana Breweries Ltd [2007-2008] SCGLR 539. It was argued that since the plaintiff averred that the defendant employed two streams of permanent workers categorized as regular or permanent workers both of whom did the same jobs and performed the same duties as the plaintiff, the burden was on the plaintiff to have proved that the plaintiffs did the same job as those categorized as permanent staff. The plaintiff merely asserted that averment as made in their pleadings without adducing evidence in support thereof. The Supreme Court held that the plaintiffs failed under NRCD 323, s.14 to discharge the onus of proof on them. The plaintiff in this case stated in her statement of claim that if the defendant did not pay the money in September it will attract interest. This she did not include in her promissory note and also did not lead any evidence on it save to say that they agreed on it verbally. It is the law, that if there is a conflict between oral evidence and documentary evidence which is authentic, such the promissory note, the court should lean favourably towards the documentary evidence. See WOOD (SUBSTITUTED BY) ASANTE-KORANTENG V TAMAKLOE & DERBAN [2007-2008] 7 SCGLR 852 5 | P a g e The plaintiff in her witness statement stated that the amount involved was GH₵120,000.00. The promissory note stated GH₵12000.00. The relief on the writ is also GH₵12000. It is the opinion of the court that the GH₵120,000 quoted in the witness statement is an error and the court cannot give the plaintiff an amount of GH₵120000 since all the documents and processes before the court is in respect of GH₵12,000. The standard of proof in civil cases has been set out in NRCD 323 section 10 as follows: 10 (1) For the purpose of this Decree, the burden of persuasion means the obligation of a party to establish requisite degree of belief concerning a fact in the mind of the tribunal of fact in the court. In addition to these, the standard of proof in civil cases has been emphasized in section 12 which provides that; 12 (1) Except as otherwise provided by law, the burden of persuasion requires proof by preponderance of probabilities. (2) “Preponderance of probabilities means 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 Plaintiff has the burden of proving his/her case by what is called preponderance of the evidence. That means the plaintiff has to produce evidence which considered in the light of all the facts, lead you to believe that what the plaintiff claims is more likely to be true than not. To put it differently, if you were to put the Plaintiff’s and the Defendant’s evidence on opposite sides of the scales, the plaintiff would have to make the scales tip somewhat to his (or her) side. If the Plaintiff fails to meet this burden, the verdict must be for the defendant. Per the processes and the evidence led so far the plaintiff could not proof that the Defendant owes her an amount of GH₵14,000. 6 | P a g e The next issue is whether or not the Plaintiff has lent money to the defendant. Here there is no doubt that the plaintiff has lent money to the defendant since the defendant did not deny this. In the statement of defence of the defendant in his own witness statement the defendant admitted that the plaintiff lent him GH₵12,000. The defendant did not raise any objection to the tendering of the promissory note in evidence. In the case of FORI VRS AYIREBI & OTHERS [1966] GLR 627 SC: it was held that “When a party had made an averment and that averment was not denied, no issue was joined and no evidence need to be led on that averment. Similarly when a party had given evidence of a material fact and was not cross-examined upon, he need not call further evidence of that fact” so this issue is resolved that indeed the plaintiff lent money to the defendant. The next issue to be discussed is whether or not the lending period has elapsed. The plaintiff in her statement of claim stated that she gave the money to the defendant from June 2021 to be paid in September 2021. In the statement of defence that was filed by the defendant he admitted that he had to repay the amount in September. So there is no issue about the time for the repayment of the money. Since this was admitted in the statement of defence of the defendant then it can be stated that the time for the repayment of the money had long elapsed. The next issue is whether or not the defendant had made any effort to repay the money. Per the writ of summons and the witness statement of the Plaintiff she stated that she put the matter before the family members of the defendant and they also promised to pay the money but failed. The defendant in his statement of defence admitted this assertion by the plaintiff. During cross-examination of the plaintiff, he did not cross-examine the plaintiff on this issue meaning that it was an admitted fact by the defendant and she did not have to lead any further evidence on it. 7 | P a g e The plaintiff asked the defendant under cross-examination at page 10 of the record of proceeding Q: At the expiration of the three months, did you make any payment to me? A: I did not make any repayment Q: Where is your evidence that I refused to accept installment payments? A: I went to her house with my wife Q: I am putting it to you that you did not come to my house with your wife. A: It is correct The witness of the defendant under cross-examination at page 18 of the record of proceedings had this to say Q: Have you paid part of the money to me A: We took GH₵4,000 to her and she said it was not enough and she refused to take it. Q: Do you remember you told me you had GH₵4,000 and you wanted to add more but you never showed me the GH₵4,000 A: I never showed her the money because it was with my father. Q: If indeed your father had the GH₵4,000 why did he not give it to the head of the family to give it to me? A: I was not at the meeting Q: I am putting it to you that you never brought any money to me for me to reject. A: I can’t challenge her. 8 | P a g e A careful consideration at what really transpired in court during cross-examination clearly shows that the defendant did not make any effort to repay the money. If indeed the defendant went to the plaintiff’s house to give her the money with his wife then he should have called her wife as a vital witness to testify to that fact. In the case of Nkaeguo vrs Kunadu [1974] 2 GLR 150 it is the general rule that the court is not entitled to reject the evidence of a witness merely because he is a relative of the party. So nothing stopped the defendant from calling his wife to testify on his behalf. The wife was a vital witness and as such he should have called her. In resolving the first issue whether or not the plaintiff is entitled to the relief being sought. It could be stated that per the Exhibit A that was tendered by the Plaintiff at the trial she did not state that she had given the defendant money with interest. When the witness of the defendant was under cross-examination, this is what transpired at page 17 & 18 of the record of proceedings. Q: Did I lend your father the loan with interest or without interest? A: She gave the loan with interest. Q: So you agree with me that because I gave the money to your father without interest he was supposed to pay within 3 months and we prepared a document to that effect. A: It was within 3 months with interest. Q: I am putting it to you that the money your father came for is what is on the promissory note. A: I agree that the money and the interest on it is what is on the promissory note. 9 | P a g e The plaintiff is claiming for an amount of GH₵14000 as being principal and interest defendant borrowed from plaintiff on the 21st of June 2021 of which defendant has refused to pay to plaintiff in spite of persistent demands made by plaintiff. Per the evidence adduced so far and the document tendered the plaintiff could not lead evidence to proof that she gave the money to the defendant with interest. Even though the Plaintiff could not proof that she gave the money with interest. It is settled law that the liability to pay interest in the event of breach of contract or order to pay money is automatic since the Defendant breached his contract to pay the money in September then, he is entitled to pay interest on the amount to Plaintiff. From the above analysis it is my judgment that the plaintiff is entitled to GH₵14,000 which is the money she lent to the defendant on 21st June 2021. The law settled that the liability to pay interest in the event of breach of contract or order to pay money is automatic. Therefore, once the money was not paid on or before the stipulated date that it was to be paid, then the innocent party is entitled to interest from the date the money was to have been paid to her. See the case of UNILEVER GH LTD VS KAMA HEALTH SERVICES LTD [2013-2014] 2 SCGLR 861. In this present case the money was to be paid on 21st September 2021. It has been almost 3 years and the money has still not been paid so the plaintiff is entitled to the principal and the interest. Therefore the plaintiff is entitled to her relief sought. The Defendant is to pay GH₵14,000 being money (principal GH₵12,000 and interest of GH₵2,000) borrowed from the plaintiff on 21st June 2021. Cost of GH₵2,000 is awarded in favour of the plaintiff. H/H AKOSUA ASANTEWAA SARPONG ESQ, CIRCUIT COURT JUDGE 10 | P a g e