CLOTTEY VRS. BOATENG (GJ/200/18) [2024] GHAHC 411 (21 October 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, LAND COURT NINE, HELD IN ACCRA, ON 21ST OCTOBER, 2024, BEFORE HER LADYSHIP, JUSTICE BARBARA TETTEH-CHARWAY, HIGH COURT JUDGE. SUIT NO: GJ/200/18 EMMANUEL CLOTTEY - PLAINTIFF Versus DEREK BOATENG - DEFENDANT JUDGMENT 1] Both the plaintiff and the defendant are professional footballers who have played for the Ghana National team, the Black Stars on different occasions. 2] It the plaintiff’s case that in or around February 2013, he and the defendant participated in the African Cup of Nations which was held in South Africa. In the course of their stay in South Africa, plaintiff claims that he needed to send money to his uncle in Ghana urgently and inquired from defendant whether he knew someone who could assist him. According to plaintiff, defendant told him he knew someone who could assist him. He therefore handed over an amount of USD$25,000 to the defendant to be given to his uncle. 3] Plaintiff claims that when he arrived in Ghana after the tournament, he realized that his uncle had not received the money. When he confronted the defendant, he admitted that he had spent it and agreed to pay it back. It is the further case of plaintiff that defendant became evasive. As a result, he reported the case to the police. Plaintiff claims that during investigations, defendant promised to pay back the money to him and indeed repaid an amount of USD $2,000. Plaintiff further claims that defendant will not 1 pay back the outstanding amount unless he is compelled by the court to do so. He therefore prayed for the following reliefs; a. Recovery of an amount of Twenty Three Thousand United States Dollars (USD$23,000.00) being the amount owed and due plaintiff b. Interest on the said amount from 2012 to date of final judgment c. General Damages d. Costs 4] The defendant filed an amended statement of defence in which he denied plaintiff’s claim. He stated that during the African Cup of Nations tournament which was held in South Africa in 2013, he shared a room with plaintiff. According to defendant, his friend, John Paintsil, borrowed an amount of $25,000 from him and promised to pay it back. Subsequently, he discovered that John Paintsil had gambled with the plaintiff and lost and the loan was to be used to pay plaintiff. He claimed that after John Paintsil had given the money to plaintiff, plaintiff handed the money back to him but told him that in the event that John Painstil repaid the loan, he should give the money to him. He claimed that after the African Cup of Nations, he travelled to Greece to continue with his football career and for many years, plaintiff did not make any demand for his money. According to defendant, plaintiff began to make demands for the money when he fell out with John Paintsil and also fell on hard times. Defendant claims that when he approached John Paintsil for repayment of the loan he gave him, John refused to pay because plaintiff had told John Paintsil that he returned the money to defendant. 5] Defendant asserts that he never agreed to send any money to plaintiff’s uncle and that owing to the harassment he suffered at the hands of plaintiff and also based on the advice of the police, he gave the plaintiff USD$2,000. According to defendant, several attempts had been made by relatives and other footballers to resolve the issue but 2 plaintiff and John Paintsil had made it impossible for the matter to be settled. Defendant maintained that plaintiff had no claim against him. 6] Plaintiff filed a reply in which he denied defendant’s story. He maintained that he gave defendant money to send to his uncle and that it was not unusual for team members to transfer money in that manner. He further stated that defendant admitted to the Police that he gave him $25,000 in South Africa and started refunding the money by making two payments of $1,000 each. Plaintiff claimed that defendant’s defence was an afterthought and maintained his claim. 7] At the close of pleadings, the sole issue set down by the trial judge was: “whether or not the amount of USD23,000 was owed the plaintiff by defendant.” 8] Both parties filed their respective witness statements and pre-trial checklists. However, the defendant and his counsel failed to show up without any explanation for the trial. As a result, the plaintiff was allowed to lead evidence in proof of his claim. 9] In his witness statement, plaintiff asserted that he gave USD$25,000 to the defendant to be given to his uncle to complete a house he was putting up in Ghana for his personal occupation. He claimed that when he returned to Ghana, he discovered that defendant had not sent the money to his uncle and on confronting defendant, he admitted that he had spent the money and agreed to pay it back. Owing to defendant’s evasive behavior, he reported the matter to the police and attached as Exhibit A series, the police investigative report. 10] Per Exhibit A series, the plaintiff on August 2016, filed a petition at the Documentation and Visa Fraud Unit of the CID headquarters. In the said petition he stated that he gave his colleague footballer Derrick Boateng USD$25,000 to be brought to his uncle during the African Cup of Nations which took place in South Africa in 2013, however, his colleague failed to deliver the money. He therefore reported the matter to 3 the Police. Per exhibit A series, the Police arrested the defendant on 20th October 2017 and took statements from him and one Felix Amoah Ansong. In his statement, defendant stated that John Paintsil borrowed an amount of USD$25,000 from him to settle a gambling debt he owed plaintiff. He claimed that plaintiff gave the money back to him and informed John Paintsil accordingly. Since then John Paintsil had refused to pay the money back. Felix Amoah Ansong also stated that to the best of his knowledge the money in question was a loan defendant took from plaintiff. The Police per Exhibit A series, advised plaintiff to file a civil action since his allegation of stealing could not be substantiated and indicated that the defendant had refunded USD$2,000 which was handed over to plaintiff. 11] Plaintiff attached Exhibit B series as evidence of refunds made by defendant. Exhibit B was evidence of payment of USD $1,000 by Derek Boateng to plaintiff on 30th October 2017. The amount was described as part payment in the case of Rep v Derrick Boateng. Exhibit B (1) was dated 5th December 2017 and was evidence of receipt of USD$1,000 paid by Derrick Boateng as part payment of an amount of USD$25,000 owed plaintiff. The receipt was signed by Emmanuel Clottey and one John Awiabobo. Plaintiff further testified that he had had to rent a house at GHC36,000 because the money meant for completion of his house was spent by the defendant. 12] In his witness statement, defendant claimed that he paid USD$2,000 to plaintiff because “plaintiff had no money at that time and since we were all friends, I felt the need to pay and again, I was thinking I could take the gambling money from Paintsil and take my 2000USD from it” 13] The law is that the burden is on the party who makes an allegation to adduce evidence to substantiate it. In the case of Zabrama v. Segbedzi (1991) 2 GLR 221 at 246 Kpegah JA (as he then was) stated aptly that; 4 “…a person who makes an averment or assertion, which is denied by his opponent, has a 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 the burden”. Additionally, in the case of Ackah v. Pergah Transport Ltd & Ors (2010) SCGLR 728 at 736 the Supreme Court per Adinyira JSC that: “it is a basic principle of the law on 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 short of which his claim may fail. The method of producing evidence is varied and it includes the testimonies of the party, material witnesses, admissible hearsay, documentary and things (often described as real evidence) without which a party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the Court or tribunal of fact such as a jury” 14] In the instant case, the plaintiff adduced evidence of part payment of a total of USD$2000 made by defendant on two separate occasions to plaintiff after the matter had been reported to the police. This evidence, in the view of the court, enhanced the probability of plaintiff’s claim that defendant owed him USD$25,000. This is because per Exhibit B series, the monies paid by defendant to plaintiff were described as “part payment” and not tokens. If indeed the payments were a mere gratuitous gesture, they would have been described as such. The court therefore finds that plaintiff adduced documentary evidence from which it can be safely inferred that defendant owed him the amount of USD$23,000. The court so holds. 15] As regards plaintiff’s claim that the USD$25,000 was meant for completion of his house, plaintiff led no evidence to prove this claim. He did not call his uncle who was the intended recipient or adduce any evidence of the state of his building when he came back to Ghana. This court therefore finds that the plaintiff’s claim for rent was rather farfetched and same is dismissed. 5 16] In the circumstances, judgment is entered for plaintiff against defendant. NOW THEREFORE THIS COURT ORDERS THAT; 1. Defendant is to pay the amount of USD$23,000 to plaintiff 2. Interest on the said amount at the prevailing bank rate from date of judgment to date of payment 3. Costs of GHC 10,000 awarded against defendant in favour of plaintiff. ………………. BARBARA TETTEH-CHARWAY (MRS) JUSTICE OF THE HIGH COURT COUNSEL 1. DORIS LARTEY WITH SAEED FADLULAHI HOLDING BRIEF FOR KOFI BENTIL FOR PLAINTIFF – PRESENT. 2. AUGUSTINE GYAMFI FOR DEFENDANT – ABSENT. 6 7