ASIAMAH VRS BOAHENE (C2/34/2022) [2024] GHACC 211 (17 July 2024)

IN THE CIRCUIT COURT HELD AT AMASAMAN – ACCRA ON WEDNESDAY THE 17TH DAY OF JULY, 2024 BEFORE HER HONOUR ENID MARFUL-SAU, CIRCUIT COURT JUDGE SUIT NO:C2/34/2022 JOYCE ASIAMAH OF 385 SCANDIA STREET BLACKLICK OH 43004 U.S.A. SUING PER HER LAWFUL ATTORNEY NANA AYIM BUABENG KWAKU H/NO. TAY TAWIAH 18, DANSOMAN- ACCRA … PLAINTIFF VRS. FELIX OFOSU BOAHENE HOUSE NUMBER 22/5 AMASAMAN- ACCRA … DEFENDANT ___________________________________________________________________________ ___________ PARTIES: PLAINTIFF’S ATTORNEY PRESENT DEFENDANT ABSENT BOTH PARTIES IN PERSON JUDGMENT Page 1 of 11 By an Amended Writ of Summons and Statement of Claim filed on 4th November, 2022 Plaintiff claims against Defendant the following reliefs: a) “Cash the sum of USD10,000.00 or its current cedi equivalent being amount defendant received from plaintiff in April, 2021 for a plot of land defendant sold to plaintiff at Amasaman which said land does not belong to defendant. b) Interest on the said sum from April, 2021 at current banking rate till date of final payment. c) General damages for breach of agreement. d) Any order or orders deem fit by this court.” Plaintiff says that she is a Surgical Technician ordinarily resident in the USA and institutes the instant action per her Attorney. Plaintiff says that she got to know Defendant through her deceased husband after he helped him acquire an estate house. She says that since then, she and the Defendant became good friends. Plaintiff says that sometime in April, 2021, Defendant approached her that he had land for sale at Amasaman and she earlier on informed him that she was not interested in the land. She says that Defendant mounted pressure on her to buy the land and due to the food relationship and trust she had for Defendant she agreed to buy the land. Plaintiff says that Defendant informed her after she asked that the price of the land was Ten Thousand United States Dollars ($10,000.00USD). According to her, sometime in April, 2021, she transferred an amount of Five Thousand Dollars ($5,000.00 USD) to the Defendant through his UMB account number. She says that on 18th June, 2021 she sent Five Thousand Dollars ($5,000.00 USD) to the Defendant. She says that Defendant had no land documents on respect of the land and also the land Defendant showed to her was not one plot as claimed. Plaintiff says that all demands for the recovery of her money proved futile and Defendant has shown a clear intention not to pay back the money unless compelled by this court hence the instant action. The reliefs endorsed on the Statement of claim are as follows: Page 2 of 11 a) “Recovery of the principal sum of US$10,000.00 b) Interest thereon at commercial bank lending rate and till date of final payment. c) Costs, any other relief(s) as to this honourable court may seem fit.” Defendant entered appearance in person on 15/08/2022. He filed a Statement of Defence and Counterclaim on 29/08/2022. He contends that Plaintiff is not his friend and that it was the deceased husband of Plaintiff who was his friend. He says that there was an existing Agreement between Plaintiff’s husband and himself in respect of an estate which Plaintiff’s husband was paying monies to him. He says that after the passing of Plaintiff’s husband, Plaintiff continued to make the payments. He says that anytime Plaintiff wanted to send him money, she would call on phone and thereafter send the money. He contends that in April, 2021, Plaintiff called him on video and at the time he was at his site so Plaintiff asked where he was and when he informed her, she stated that she would be happy if she got a property close to him. He says that it was Plaintiff who said she was interested in the Amasaman property and that he did not approach Plaintiff. According to him, he explained to Plaintiff that there was no vacant land at that site, but he would explain to one of the occupants and if there is agreement he would get back to her which he did. He says that he convinced one of the occupants of the land who agreed to vacate the property on condition of paying back the value of the land being Sixty-Two Thousand Ghana Cedis (GHȼ62,000.00). He says that Plaintiff upon hearing this made a part payment through his UMB account to be given to the occupant. He contends that the transactions were not in USD but rather Ghana Cedis and further that he does not operate a Dollar account from the said UMB Account. He contends that on 18/06/2021, Plaintiff was in Ghana and said she had no Ghana Cedis to pay the balance of Thirty-One Thousand Ghana Cedis (GHȼ31,000.00) so she gave him Five Thousand Dollars ($5,000.00 USD) to be converted into cedis which was Thirty-One Thousand Ghana Cedis (GHȼ31,000.00) at the time. He says that the balance was given to the said occupant, and he vacated the land for Plaintiff to take Page 3 of 11 possession of same. He says that he constructed a fence wall around the land on the instruction of Plaintiff with his own funds at the cost of Twenty-Four Thousand Ghana Cedis (GHȼ24,000.00). He contends that Plaintiff visited the land with a certain man and after the documents were made available for, he to sign, she indicated to him that she was no longer interested in the land and wanted a refund of her money paid. He says that as Plaintiff was aware that the said payments were not with him, Defendant had to wait for the property to be sold before her money could be given back to her and this was in September, 2021. He says that Plaintiff is not entitled to her claim and counterclaims as follows: a) “A refund of GHȼ24,000.00 being the expenditure incurred during the construction of the fence wall. b) Interest at the prevailing bank rate” Plaintiff filed a Reply on 02/09/2022. She contends that she became friends with Defendant after his assistance offered to her late husband. She maintains that in April, 2021, Defendant approached her that he had a plot of land at Amasaman for sale and the agreed purchase price was Ten Thousand Dollars ($10,000.00 USD). She says that Defendant convinced her that he was the real owner of the land and based upon this she transferred Five Thousand Dollars ($5,000.00 USD) to Defendant’s UMB Account. She denies the claim of Defendant that she caused him to put up a fence wall around the said land with his funds at her instruction. Pleadings closed and after court connected alternative dispute resolution having broken down, the following issues were set down as the issues for trial: 1. “Whether or not there was an Agreement for the sale of land between the parties at a cost of $10,000.00. 2. Whether or not Defendant breached the Agreement. 3. Whether or not Plaintiff has so far made a total payment of Ten Thousand United States Dollars ($10,000.00 USD) to Defendant.” Page 4 of 11 The burden of proof in a civil matter is provided for in the EVIDENCE ACT, 1975 (NRCD 323). The relevant provisions are set out below: “10. Burden of persuasion defined (1) For the purposes of this Act, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the Court. (2) The burden of persuasion may require a party (a) to raise a reasonable doubt concerning the existence or non-existence of a fact, or (b) to establish the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt. 11. Burden of producing evidence defined (1) For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party. (4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence which on the totality of the evidence, leads a reasonable mind to conclude that the existence of the fact was more probable than its non-existence. 12. Proof by a preponderance of the probabilities (1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities. (2) “Preponderance of the 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 explanation of the standard of proof required in a civil action was set out in the case of BISI AND OTHERS v. TABIRI ALIAS ASARE [1987-88] 1 GLR 360; SC as follows: Page 5 of 11 “The standard of proof required of a plaintiff in a civil action was to lead such evidence as would tilt in his favour the balance of probabilities on the particular issue. The demand for strict proof of pleadings had however never been taken to call for an inflexible proof either beyond reasonable doubt or with mathematical exactitude or with such precision as would fit a jig-saw puzzle. Preponderance of evidence became the trier's belief in the preponderance of probability. But "probability" denoted an element of doubt or uncertainty and recognised that where there were two choices it was sufficient if the choice selected was more probable than the choice rejected.” Since Defendant has a counterclaim, he assumes the same burden of proof on the counterclaim as Plaintiff. See. TANOH VRS. ABBAN-MENSAH [1992–93] 1 GBR 308 CA I note that the wording of reliefs ‘a’ and ‘b’ on the Writ of Summons and Statement of Claim differ. I note also that relief ‘c’ on the writ of summons which is a claim for general damages for breach of agreement is not repeated in the statement of claim. In the case NYARKO AND ANOTHER v. BANK OF GHANA [1973] 1 GLR 70 it was stated per curiam as follows: “Where a plaintiff in his statement of claim drops any cause of action mentioned or any relief claimed on the writ, he will be deemed to have abandoned it. The plaintiffs here make no mention of their claim for a declaration that they were wrongfully dismissed, and also of their claim for reinstatement. These reliefs are therefore deemed abandoned and nothing further need be said about them.” In view of this, Plaintiff is deemed to have abandoned relief ‘c’ as endorsed on the Writ of Summons. To the extent that reliefs ‘a’ and ‘b’ though differently worded are for the recovery of the sum of $10,000.00 and interest thereon, the said reliefs as endorsed on the Writ of summons shall stand. Page 6 of 11 I shall consider issues 1 and 3 together. Issue 1 is ‘whether or not there was an Agreement for the sale of land between the parties at a cost of $10,000.00. and issue 3 is ‘whether or not Plaintiff has so far made a total payment of Ten Thousand United States Dollars ($10,000.00 USD) to Defendant. Plaintiff’s Attorney testified by means of a witness statement filed on 9th August, 2023. He stated that in April, 2021, Defendant approached Plaintiff that he had one plot of land for sale and mounted pressure on her to purchase the said land. According to him, Plaintiff earlier told Defendant that she was not interested but based on the pressure and the cordial relationship between the parties, Plaintiff decided to buy the land at a cost of Ten Thousand Dollars ($ 10,000.00 USD). Defendant on the other hand testified by means of a Witness Statement filed on 10/10/2023 that he agreed to sell one plot to Plaintiff, and they agreed on a price of Sixty Thousand Ghana Cedis (GHȼ60,000.00). He tendered WhatsApp chats between himself and Plaintiff as Exhibit 2 Series and an audio recording as Exhibit 6. He testified that they agreed on two instalments payments being Twenty-Eight Thousand Five Hundred Ghana Cedis (GHȼ28,500.00) as the first installment and Thirty-One Thousand Five Hundred (GHȼ31,500.00) as the second instalment. He stated that Plaintiff paid Seventeen Thousand Five Hundred and Fifty Ghana Cedis (GHȼ17,550.00) as the first instalment, leaving a balance of Ten Thousand Nine Hundred and Fifty Ghana Cedis (GHȼ10,950.00) to complete the payment of the first instalment. From Exhibit 2C, there is an indication from the chat that an amount of GHȼ17,550.00 was said to have been received. From Exhibit 3, which is a UMB Bank Statement bearing Account Name MEGFEL Properties Limited, with account number, 0021503684017, I note that an amount of Seventeen Thousand Five Hundred and Fifty Ghana Cedis (GHȼ17,550.00) was credited to that account on 23/03/2021. During cross examination of Plaintiff’s Attorney by Defendant the following ensued: “Q: What was the contract sum of the subject Page 7 of 11 A: $10,000 USD Q: I put it to you that Plaintiff and I did not have any contract in dollar terms A: That is so … Q: I put it to you that the 1st amount Plaintiff paid was GHS 17,550 A: That is correct Q: That amount was not paid in dollars but in Ghana Cedis A: That is correct Q: According to the agreement Plaintiff was supposed to pay GHS28,000 but she paid GHS 17,550 in the first payment A: That is true Q: And that was also paid in cedis A: That is true Q: So why did she pay in cedis if she could have paid in dollars A: She is in the US so when she is transferring the money we receive it in Ghana Cedis Q: I put it to you that the transaction was in cedis and not in dollars A: That is not true. Initially the transaction was in Ghana Cedis but when Plaintiff came to Ghana she gave Defendant $5,000 USD as part of the transaction” In the case of WEST AFRICAN ENTERPRISES LTD v WESTERN HARDWOOD ENTERPRISE LTD [1995-96] 1 GLR 155 it was held as follows: “Where an averment made by one party in his pleadings was denied by the other in his defence or reply, it was necessary for the one who made that averment to produce evidence in proof of it. However, no principle of law required a party to prove an admitted fact.” Page 8 of 11 In this case, though Plaintiff’s Attorney claims in his pleadings and evidence in chief that the that contract sum was in Dollars, he failed to produce evidence of this fact. However, under cross examination as disclosed by the above extract, he admitted that the said contract was in Ghana Cedis and not dollars. In the case of MANU VRS. NSIAH [2005 -2006] SCGLR 25 it was held as follows: 'Where the evidence of a party on a point is corroborated by the witnesses of his opponent, while that of his opponent on the same issue stands uncorroborated even by his own witnesses, a court ought not to accept the uncorroborated evidence in preference to the corroborated one unless for some good and apparent reason the court finds the corroborated version incredible, impossible or unacceptable' In the instant case, the issue of the contract sum being in Ghana Cedis was corroborated by Plaintiff’s Attorney himself when he was cross examined by Defendant. Aside the said admission and corroboration by Plaintiff’s Attorney of the contract sum being in Ghana Cedis, I consider that on a balance of probabilities, Defendant adduced credible documentary evidence to support his testimony. I therefore answer issue one in the negative that the Agreement for the sale of land between the parties was not at a cost of $10,000.00. I find further that there is no credible evidence before the court indicating that Plaintiff has so far made a total payment of Ten Thousand United States Dollars ($10,000.00 USD) to Defendant. Issue 2 is ‘whether or not Defendant breached the Agreement.’ Plaintiff’s Attorney testified that in June, 2021, Plaintiff went to inspect the land and found that it was less than 100x 70 feet and further that Defendant had no land documents in respect of the land therefore after realizing that Defendant had deceived her, she demanded for a refund of the said $10,000.00 she paid for the land. Defendant testified that Plaintiff requested for an Agreement to be drafted so he did so and sent a copy to her on WhatsApp however Plaintiff was never available to sign the Agreement. He tendered the WhatsApp chat as Exhibit 4 and the draft Agreement as Exhibit 5. He testified that Page 9 of 11 after Plaintiff returned to the USA she informed him that she was no longer interested in the land so he should refund her money to her in dollars though he did not transact with her in dollars. From the evidence, there was an Agreement between the parties for the sale of a plot of land at a cost of Sixty Thousand Ghana Cedis (GHȼ60,000.00). From the evidence, payment for the land was made and Plaintiff was shown the land. I note from Exhibit 4 that Defendant communicated to Plaintiff as to the fact that documentation for the said land was being prepared hence, he needed her details for same. The said WhatsApp communication was not discredited under cross examination. In the case of ZABRAMA v. SEGBEDZI [1991] 2 GLR 221 it was stated per curiam as follows: “…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…” Besides repetition of her pleadings, Plaintiff failed to adduce credible evidence before this court to prove the claim that Defendant had breached an Agreement for the sale of land. I therefore answer issue 2 in the negative, that Defendant did not breach the Agreement. The Supreme Court held in the case of DON ACKAH VRS PERGAH TRANSPORT [2011] 31 GMJ 174 as follows: ‘It is a basic principle of the law of evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility Page 10 of 11 short of which his claim may fail. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more probable than its non- existence’. I fail to find on the entirety of evidence adduced by Plaintiff that she has presented sufficient evidence in proof of the facts in issue. On the basis of the foregoing, I find that Plaintiff has not discharged the burden imposed by law to be entitled to the reliefs sought. The result therefore is that the claim of Plaintiff fails in its entirety and Plaintiff’s claim is hereby dismissed. As already indicated, since Defendant has a counterclaim, he became a Plaintiff to the counterclaim and was also required to lead evidence in proof of the allegations. Though Defendant claimed to have constructed a fence wall around the land purchased with his resources at a cost of Twenty-Four Thousand Ghana Cedis (GHȼ24,000.00) on the instruction of Plaintiff, he failed to produce any evidence of the said wall constructed or evidence of the expenditure. Having failed to adduce sufficient evidence, I find that Defendant has failed to establish his counterclaim on a balance of probabilities. The counterclaim is accordingly dismissed. There shall be no order as to costs. (SGD.) H/H ENID MARFUL-SAU CIRCUIT JUDGE AMASAMAN Page 11 of 11