Akosua Vrs Bayese [2023] GHADC 161 (31 May 2023)

SITTING IN THE DISTRICT COURT AT WENCHI IN THE BONO REGION ON WEDNESDAY THE 31ST DAY OF MAY,2023,BEFORE HIS WORSHIP ISSAH ABDUL-WAHAB (DISTRICT MAGISTRATE) BETWEEN GEORGINA AKOSUA OF WENCHI - - - PLAINTIFF SUIT NO. A2/28/22 VRS: KWABENA BAYESE OF HANI - - - DEFENDANT J U D G M E N T The plaintiff herein sued the defendant seeking from the court and against the defendant; (a) A recovery of cash the sum of GH₵4,000.00 being money plaintiff borrowed for the defendant to start his business. (b) Cost and general damages for breach of agreement. Defendant pleaded not liable to the claims after same were read and explained to him. Having therefore perused the plaintiff’s particulars of claim, the following issues were set down for trial; (1) Whether or not the plaintiff gave the said GH₵4,000.00 to the defendant to start any business. (2) Whether or not the defendant took the said GH₵4,000.00. (3) Whether or not the defendant failed to pay back the GH₵4,000.00 and (4) Whether or not the plaintiff is entitle to a recover of the GH₵4,000.00 from the defendant. In her evidence in-chief, plaintiff told the court she is Georgina Donokomi and is also known as Georgina Akosua and she lives in Wenchi. That she (plaintiff) is a seamstress and she met the defendant herein in the year 2020. That the defendant promised to marry her (plaintiff) and so they started a relationship. Plaintiff said a year later the defendant called and told her (plaintiff) his (defendant) sister (D. W.1) at Dormaa Ahenkro asked him (defendant) to come to Dormaa Ahenkro for a job offer. Plaintiff said the defendant went to Dormaa Ahenkro and hwne he returned from Dormaa, he (defendant) he said he needed an amount of GH₵4,500.00 before he (defendant) could get the job. That defendant said he had an amount of GH₵500.00 on him (defendant) and so needed the remaining GH₵4,000.00 for the forms to get the job. Plaintiff said she told defendant she had no money but she was doing susu with the Vision Fund. Plaintiff said she went to them and they gave her (plaintiff) a loan of GH₵4,000.00 and she gave it to the defendant. Then later the defendant asked her (plaintiff) to go with him to Dormaa to see where he was going to work. Plaintiff said she went with the defendant and returned the next day. Plaintiff said after she came back from Dormaa she (plaintiff) had information that the defendant impregnated a lady. When she (plaintiff) asked the defendant he confirmed same. Plaintiff said she then told defendant to give her back her (plaintiff) money so she will repay the loan. That defendant agreed but later came for his (defendant) belongings from her (plaintiff) room. Plaintiff said she never saw defendant again and when she (plaintiff) calls defendant on phone he will not pick the calls. She later heard defendant is at a town call Hani. She went there to see the Unit Committee Chairman, and when he called the defendant, that the defendant admitted that he (defendant) owed her (plaintiff) and asked for 2 weeks to pay. Then later the said Chairman told her (plaintiff) the defendant said he has no money. Plaintiff said that is why she has come to court. When asked what she (plaintiff) said she gave the GH₵4,000.00 to do, plaintiff said she gave it to defendant for the job. When asked by the defendant whose name was registered for the job, plaintiff said she does not know. When asked if she gave the money to him (defendant) or she (plaintiff) sent it to the people at the work place, plaintiff said she gave defendant GH₵1,500.00 cash and defendant gave a number to her to send the rest. Plaintiff did not call any witness. The defendant in his evidence in-chief told the court he is Kwabena Bayese and that he lives at Hani and is a farmer. That his (defendant) sister who lives at Dormaa Ahenkro called him (defendant) and mentioned a job she (D. W.1) was doing and asked if he (Defendant) was interested. Defendant said he went to Dormaa and saw the job. He was then asked to register with an amount of GH₵500.00 and then pay GH₵4,000.00 defendant said he had GH₵500.00 and so paid same and decided to sell his things to raise the GH₵4,000.00. That he (defendant) then informed the plaintiff and plaintiff said selling of the items will delay and that she (plaintiff) will take a loan for defendant to pay. Defendant said when plaintiff took the loan, she said that “men don’t speak the truth”, and so she (plaintiff) wanted to see the said people defendant was going to work with before she (plaintiff) will release the money to the defendant. Defendant said he gave his sister’s (D. W.1) phone number to plaintiff and plaintiff called D. W.1 and D. W.1 explained same to plaintiff. Defendant said D. W.1 again gave their leaders phone number to the plaintiff and she called and the leader also explained the nature of the job to the plaintiff. Defendant said after all that the plaintiff did not inform him (defendant) and sent the money to the leader at the work place. Defendant said plaintiff later went with him (defendant) to the company’s office in Dormaa where plaintiff used her own name for the job instead of he the defendant. Defendant said when they demanded her (plaintiff) next of kin plaintiff even used her (plaintiff) sister’s name. Defendant said inspite of that he still decided to do the work for the plaintiff and in her (plaintiff) name. So when plaintiff later heard he (defendant) had impregnated a lady, plaintiff told him (defendant) to leave the job. Defendant said he left and went to Kumasi. Defendant said whiles in Kumasi the plaintiff later called him and said she (plaintiff) had not go any profit from the investment and that he (defendant) should help her (plaintiff) pay the money. Defendant said he told plaintiff he did not have any money. Defendant said he stopped picking calls from the plaintiff that time. When he (defendant) even asked plaintiff to refund his (defendant) GH₵500.00 he paid for the registration, that plaintiff said she will not pay. Then he was there when plaintiff brought the court summons. The defendant’s sole witness (D. W.1) told the court she is Perpetual Dzaara and she lives at Dormaa Ahenkro. D. W.1 said she knows plaintiff and knows defendant too. That the defendant is her brother. D. W.1 said she got a certain job in Dormaa which she has done since 2012. So she called the defendant and told him about the job. That the defendant came and registered with GH₵500.00 but needed more money to invest. The witness said the defendant then said he was going to sell some of his things to raise the money. D. W.1 said after defendant left he later called on phone with the plaintiff and they both spoke with her (D. W.1). There defendant told her (D. W.1) the plaintiff is his wife. That when the defendant later came to Dormaa with the plaintiff, they explained everything about the business to them. D. W.1 said after their explanation, plaintiff then said she will invest in her (plaintiff) own name. Then on the beneficiary colum plaintiff put her brother’s name there. The witness aid the payment receipt was their written in the name of the plaintiff. D. W.1 said if the plaintiff therefore says she (plaintiff) gave the GH₵4,000.00 to the defendant that is not true. The witness (D. W.1) tendered a copy of the payment receipt which was admitted marked as Exhibit ‘1’. Having carefully evaluated all the evidence it is important to observe that the parties herein met and started a love relationship with a view to getting married as noted by the plaintiff in her evidence before this court. That it was in the course of this relationship that defendant informed the plaintiff about a certain job that his sister (D. W.1) herein had introduced to him (defendant). Indeed this was the narration given by both plaintiff and the defendant and which was corroborated by the defendant’s said sister. Perpetual Dzaara, who testified before this court for the defendant. (D. W.1). The witness told the (D. W.1) court she indeed informed the defendant about the said job and which she herself had done since the year 2012. Again, it must be noted the defendant having informed plaintiff also told the plaintiff he wanted to sell some items of his to raise an amount of GH₵4,500.00 to register for the job. It was at this point that the plaintiff told defendant selling of the items will delay and so she (plaintiff) was going to take a loan for the defendant. The plaintiff indeed did take the said loan. However, after having secured the said loan the plaintiff instead of giving the money to the defendant rather followed the defendant to Dormaa Ahenkro and invested the money with the said company in her (plaintiff) own name. It is therefore not accurate that the plaintiff took the loan of GH₵4,000.00 and gave same to the defendant. What is however true from the evidence before this court is the fact that it was the defendant who told plaintiff about the said job in Dormaa and this was after defendants sister (D. W.1) also told defendant about the job. This information then led the plaintiff to speak to the defendant’s sister (D. W.1) and the boss or leader of D. W.1 in Dormaa. This then raised the interest of the plaintiff in the said investment job, even though her initial intention was to raise the GH₵4,000.00 for the defendant to invest. However after having taken the loan of GH₵4,000.00 and also have obtained some more information about the supposed investment business, plaintiff changed her mind and invested in her name and for herself instead of giving the money to the defendant to same for himself. So if subsequently the said decision by the plaintiff failed to yield any good results, I do not see how and why the defendant should pay. Again, it is worth noting that whiles the defendant herein maintained that the plaintiff invested the GH₵4,000.00 in her (plaintiff) own name, the plaintiff on her part contended that she took the loan for the defendant, yet the plaintiff failed to prove that. Even when she stated that she gave the initial GH₵1,500.00 to the defendant and later sent the remaining GH₵2,500.00 though a mobile money Agent plaintiff still failed to provide any evidence to prove the said claims. Again, the plaintiff stated that when she traced the defendant to Hani after the defendant ranished and without picking her (plaintiff) phone calls, she met at Hani Unit Committee Chairman and who called the defendant to a meeting with her (plaintiff). Plaintiff again claimed that in the presence of the Unit Committee Chairman defendant admitted owing her and asked for 2 weeks to pay. The defendant denied this claim and again the plaintiff failed to prove the claim as she did not call the said Unit Committee Chairman at Hani to at least corroborate her ascertion, not even when the court gave her (plaintiff) an opportunity to call her witnesses. Also, the defendants sole witness (D. W.1), Perpetual Dzaara, who said she is the defendants sister also told the court when she testified that when the plaintiff came to Dormaa with the defendant, the plaintiff told them she was investing the GH₵4,000.00 in her own name. D. W.1 said not even their pleas to the plaintiff could persuade her (plaintiff) to keep to plans that the defendant proposed. D. W.1 said and so the plaintiff invested the money (GH₵4,000.00) in her was issued with a payment receipt which was in her (plaintiff). And that the said receipt covered the GH₵4,000.00 plaintiff paid and the GH₵500.00 registration that defendant gave their earlier. D. W.1 when crossed examined tendered the said payment receipt that was issued in her name of the plaintiff and same was admitted in evidence and marked as exhibit 1 as there was no objection from the plaintiff. Exhibit 1 which is the payment receipt when perused by the court has the name of the plaintiff and not the defendant and which was issued to cover the payment of an amount of GH₵4,500.00 and this both defendant and D. W.1 explained covered the GH₵500.00 that defendant initially paid for the registration. Finally, it is important to state that, the evidence before this court has established that the defendant initially informed the plaintiff about a certain business that D. W.1 introduced to defendant. The evidence has also shown that the plaintiff who initially also promised to raise an amount of GH₵4,000.00 to the defendant as a loan to invest, later decided to invest the said GH₵4,000.00 in her (plaintiff) own name and which plaintiff did. I therefore do not see any liability on the part of the defendant relative to the said GH₵4,000.00 invested by the plaintiff herself in her own name. From the evidence as adduced before this court therefore, I found the following as facts; (1) That the parties herein in the course of their love relationship the defendant told plaintiff about a business idea his sister (D. W.1) mentioned to him, and his desire to raise some money to invest. (2) That the defendant decided to sell his properties to raise the GH₵4,000.00 but plaintiff told defendant she will raise a loan of same amount for defendant. (3) That the plaintiff raised the GH₵4,000.00 through a loan facility but failed to give same to the defendant. (4) That the plaintiff instead invested the GH₵4,000.00 in her (plaintiff) own name after she (plaintiff) had obtained more information on the said business form D. W.1 and others. (5) That the defendant herein did not take or borrow any GH₵4,000.00 from the plaintiff as claimed by plaintiff. In a civil trial the party who makes the averment is the one who must prove the said averment. This is the general principle of the law on the burden of proof. In other words, the party who in his/her pleadings or writ of summons raise issues that are essential to the success of their claim, assumes the onus of proof. See Faibi Vs State Hotels, Corp. {1968} GLR, 176. In setting the standard burden of prove in civil trial, the Evidence Act, 1975 (NRCD 323) has used the expression “burden of persuasion, and in Section 11 (4) of NRCD 323, that has been defined as relating to each fact the existence or non-existence of which is essential to the claim or defence asserted”. The Evidence Act, (NRCD 323) provides further that the burden of persuasion requires a prove by the preponderance of probabilities which is also explained in Section 12 (2) to mean the degree of certainty of belief in the mind of the court, by which the court is convinced that the existence of the fact is more probable than its non-existence”. From the evidence before this court and the law as stated above, it is obvious that the plaintiff thought initially planned to help the defendant by taking the GH₵4,000.00 loan and to give same to the defendant, plaintiff later had a change of mind and upon takin the GH₵4,000.00 loan, plaintiff did not give same to the defendant but rather invested it in her own name. So clearly, it can not be true that plaintiff borrowed any GH₵4,000.00 and gave to the defendant. Yes, plaintiff borrowed the GH₵4,000.00 but plaintiff did not give it to the defendant. It is therefore the conclusion of this court, having considered the evidence before this court, that defendant never collected any GH₵4,000.00 from plaintiff or had any GH₵4,000.00 paid anywhere in his (Defendant) name. So the defendant does not owe plaintiff any GH₵4,000.00 as plaintiff has failed to prove her claim. The reason for the above conclusion are the same as the findings of fact made above in this judgment. The plaintiff’s claim is accordingly dismissed entirely. Cost of GH₵500.00 for the defendant and against the plaintiff. ………………………….. ISSAH ABDUL-WAHAB (MAGISTRATE) 10