Hanson v Otabil [2024] GHACC 406 (20 September 2024)

IN THE CIRCUIT COURT HELD AT AGONA SWEDRU ON FRIDAY THE 20TH DAY OF SEPTEMBER, 2024 BEFORE HIS HONOUR JONATHAN DESMOND NUNOO ESQ. CIRCUIT JUDGE. SUIT NO. A2/14/2020 ALEX KWAME OSMAN HANSON . . . PLAINTIFF VS. KWEKU OTABIL . . . DEFENDANT JUDGMENT The Plaintiff filed this suit in this court against the Defendants claiming severally and jointly for the following reliefs a) A refund of GHc46,000.00 paid to the defendants for a purchase of land situated at Jacob near Agona Swedru b) Payment of interest accruing on the GHc46,000.00 paid to the 1st defendant from December 2016 c) legal cost d) Any other relief as the honourable Court may deem fit The plaintiff writ of summons was accompanied by statement of claim in which the Plaintiff alleges that:- 1. The plaintiff is the a businessman at Agona Mensakrom 2. The 1st defendant is also a businessman and a resident of Agona Mensakrom 3. The 2nd defendant acted as an agent to the 1st defendant and at evry material time he was actively involved in the transaction set forth hereafter 4. The plaintiff says that he entered into a land purchase agreement with the 1st defendant 5. That the 1st defendant agreed to sell his piece of land as described as 11 plot of land situated at Jacobs in the Central Region 6. Plaintiff states that various payments have been made to the defendants in the year 2016 totaling an amount of GHc46,000.00 7. Plaintiff states that there are receipts to prove the various payments that were made to the defendants and plaintiff shall at the trial refer to them. 1 8. Plaintiff contends that the defendants have sold the same parcel of land described in paragraph 5 to another individual without his prior consent and permission and upon confronting them they promised to refund what they have taken from the Plaintiff 9. The Plaintiff states that defendants have not been candid in the whole process of the transaction 10. Plaintiff states that he is no longer interested in the parcel of land and wishes to rescind the contract as the defendants no longer have any interest in the said land to transfer same to him 11. plaintiff says that all attempts to get the defendants to refund his consideration paid for the transaction have been unsuccessful 12. Plaintiff says that the defendants are not going to refund his money unless compelled by a court of competent jurisdiction The defendants entered appearance by a lawyer but failed to file a defence and an application on notice for final judgment in default of defence was brought against the defendants which was granted and entry of judgment was served on the defendants. The defendants engaged another lawyer who filed a motion to have the judgment set aside which was granted The defendants filed amended statement of defence alleged as follows:- 1. … 2. Defendants are not in the position to admit or deny paragraph 1 of the Plaintiff s statement of claim and will put Plaintiff to strict proof of the said averment 3. Paragraph 2 of the Statement of Defence (sic) is vehemently denied, 1st Defendant states further that he used to engage as business man but is currently unemployed due to ill-health. He is also ordinarily resident at North Kaneshie, Accra and not in Agona Mensakrom 4. Paragraph 3 of the Statement of Claim is vehemently and Plaintiff will be put to strict proof of the said averment 5. 1st Defendant additionally states that at no material point in time was 2nd Defendant his agent with respect to the transaction that ensued between the plaintiff and 1st defendant. Indeed the 2nd Defendant, who is a friend of the plaintiff was in the company of the later the first time the Plaintiff approached the 1st Defendant in his residence at North Kaneshie, Accra to make the offer to buy the land in dispute from the 1st Defendant 2 6. Paragraphs 4and 5 of the Statement of Claim are admitted, 1st defendant states further that in or around June 2015, the Plaintiff approached him in his residence at North Kaneshie , Accra and made an offer to purchase two plots of his 11 plots of land situate and lying at Agona Mensakrom 7. 1st Defendant additionally sates that he agreed to plaintiff’s offer on the condition that the Plaintiff would not take more than six months from the date of the land sale agreement, in paying him the full amount of sixty-six thousand cedis (GHc66,000.00) being the purchase price of the land. 8 1st Defendant also states that although the agreement between the plaintiff and himself was not witnessed in writing, there were persons present who witnessed the said transaction including the 2nd Defendant 9. Paragraphs 6and 7 of the Statement of Claim are denied and Plaintiff will be put to strict proof of the said averment, 1st Defendant states that the Plaintiff only paid him twenty-seven thousand Ghana Cedis (Ghc27,000.000 as part payment of the land in dispute 10. Paragraph 8 of the Statement of claim is denied, 1st Defendant states further that since the Plaintiff has failed to honour the terms of the payment with respect to the sale contract of the disputed land, title of the said land had not passed to the plaintiff and so 1st Defendant did not need the prior consent or permission of the Plaintiff to sell the land 11. 1st Defendant also states further that indeed he alerted the Plaintiff several times, after the latter failed to advance the purchase money within the agreed period,that he would sell the land to an interested third party. 12. 1st defendant further states that three years later he sold the land to a third party who was willing to make a single full payment with respect to the purchase price of the land. 13. Paragraph 9, 10. 11 and 12 of the Statement of Claim are vehemently denied and plaintiff will be put to strict proof of the averment. 1st Defendant that he has pleaded several times to the plaintiff for same to exercise patience for 1st Defendant to pay back the debt owed the Plaintiff since 1st Defendant is presently incapacitated due to ill-health 3 14. 1st Defendant states further that it is rather the plaintiff who has behaved fraudulently towards him and that plaintiff breached the terms of the land sale agreement, which breach occasioned great inconvenience to the 1st Defendant as he relied on the said representation of the plaintiff to his detriment/ PARTICULARS OF TRAUD I Plaintiff knowingly or without belief the in the truth misrepresented to the 1st defendant that he would pay the purchase price of the sixty thousand –six cedis (GHc66,000.00) for the land in dispute within six months of the land sale agreement as agreed between the Plaintiff and 1st Defendant (sic) II. Plaintiff refused, neglected and /or failed to advance the full amount of sixty-six thousand cedis (GHc66,000.00 being the purchase price for the land in dispute within six (6) months as agreed between the Plaintiff and 1st Defendant. 15. Paragraph 13 of the statement of claim is denied and Defendants state that the plaintiff is entitled only to the amount of twenty –seven thousand Ghana Cedis (27,000.00) that jas so far been advanced to the 1st defendant with respect to the purchase of the land in dispute by the Plaintiff The Plaintiff filed a reply to the Amended Statement of Defence m which he denied paragraphs 5,6,7,9,10,11,13,14 and 15 of the Defendants amended statement of defence Plaintiff in response state that the 1st defendant was no stranger to him at all material times to the transaction in issue indeed Plaintiff regards and holds the 1st defendant as his father Plaintiff further states that 1st defendant agreed offer all the 11 (eleven) plots of land to him for sale at a total price of GHc66,000.00 and plaintiff made a deposit of the first trench of payment in the year 2016 and not 2015 as purported by defendants 4 The plaintiff states that there was no stipulated times of 6 months for the full payment of the agreed price to be paid indeed the 1st Defendant was receiving payments after more than a year from the date the agreement was reached The 1st Defendant duly issued receipts for all payments made by the Plaintiff and the plaintiff shall at the trial tender same Plaintiff further states that indeed there were two people who witnessed the transaction, one Mr Enunkra and the 2nd Defendant. The issue set out in the application for directions are as follows:- i. Whether or not the Plaintiff has paid GHc46,000.00 to the Defendants for the purchase a parcel of land situate at Jacob bear Agona Swedru ii. whether or not parties agreed that Plaintiff was to pay the full amount of Ghc66,000.00 within 6 months iii. Any other issue(s) that may arise out of the pleadings The law is that to enable a court to decide a case one way or the other, each party to the suit must adduce evidence on the issues to the prescribed standard as provided by statute. This position is buttressed by various provisions of the evidence Act 1975 (NRCD 323). Section 14 of the Act provides that “Except as otherwise provided by law, unless and until 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” The burden of providing evidence as well as burden of persuasion is on both parties and the standard required to discharge the burden of persuasion is “preponderance of probabilities” see Section 12 (1) of the Act. Section 12 (2) of the same Act defines “preponderance of probabilities” to mean degree of certainty of belief in 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”. Section 11 (4) of evidence Act (NRCD323) provides that a burden of providing evidence is discharge when a party provides sufficient evidence, so that on all the evidence a reasonable mind could conclude that the existence of a fact is more probable than its non-existence. 5 In the case of Ababio V Akwan III (1994-95) GBR 774 the Supreme Court reiterated the part pleading, at page 777, Akins JSC delivered the lead opinion of the court thus; The general principle of law is that it is the duty of the plaintiff to prove his case he must prove what he alleges, in other words, it is a party who raises in his pleadings an issue essential to his case who assumes the burden of proving it. The burden only shift to the defence to lead sufficient evidence to tip the scale in his favour when on particular issue the plaintiff leads some evidence to prove his claim. If the defendant succeeds in doing this he wins, if not he loses on that particular issue. The plaintiff called two witnesses including the 2nd defendant and tendered in evidence Exhibits A, B, B1 –B4 The lawyer acting for the defendants in the course of the proceedings withdrew her representation from the 2nd defendant and he was ordered to file his own defence since he was on record as the 2nd defendant but he failed to do so. The case of and the Plaintiff is that he entered into a land purchase agreement with the 1st defendant to buy his 11 plots of land and the 2nd defendant acted as an agent of the 1st defendant and he paid a total sum of GHc46,000.00 out of an agreed purchase price of GHc66,000.00 According to the Plaintiff the 1st defendant has sold the land to another person and he has failed to refund the GHc 46,000.00 to him and that unless the 1st defendant is compelled by this court he will not refund his money to him The 1st defendant case is that the land he entered agreement to sell to the plaintiff is two plots and the agreed period for the plaintiff to complete the payment of the purchase price of GHc66,000.00 was six (6) months which the plaintiff breached . 1st defendant case further is that the plaintiff acted fraudulently because he misrepresented to the 1st defendant that he was going to pay the GHc66,000.00 timeously with the agreed period of six (6) months but he refused, failed and or neglect to make the payments within the stipulated period The issues that are germane to the resolution of this dispute between the parties are as follows:- 1. Whether or not the Plaintiff has paid GHc46,000.00 to the Defendants for the purchase a parcel of land situate at Jacob near Agona Swedru 6 2. Whether or not parties agreed that Plaintiff was to pay the full amount of GHc66,000.00 within 6 months 3. Whether or not the Plaintiff acted fraudulently I issue will be discussed together but not seriatim. The Defendants in the course of trial failed, neglect and or refused to participate fully in the proceedings in that they stopped attending court and failed to give evidence though they filed their witness statements, therefore the witness statements cannot be considered as evidence and they remain mere allegations which the court cannot evaluate and attached any weight to it so the Court was left with no choice than to consider the case of the Plaintiff alone. In the case IN RE ASHALLEY BOTWE LANDS: ADJETEY AGBOSU & ORS. VRS. KOTEY & ORS. [2003 – 2004] SCGLR 420. In his supporting opinion Brobbey JSC stated in Holding 5 as follows: “The effect of Sections 11(1) and 14 and similar Sections in the Evidence Decree 1975 may be described as follows: A litigant who is a Defendant in a civil case does not need to prove anything. The Plaintiff who took the Defendant to court has to prove what he claims he is entitled to from the Defendant. At the same time if the court has to make a determination of a fact or of an issue, and that determination depends on evaluation of facts and evidence, the Defendant must realize that the determination cannot be made on nothing. If the Defendant desires the determination to be made in his favour then he has the duty to help his own cause or case by adducing before the court such facts or evidence that will induce the determination to be made in his favour. The logical sequel to this is that if he leads no such facts or evidence, the court will be left with no choice but to evaluate the entire case on the basis of the evidence before the court, which may turn out to be only the evidence of the Plaintiff. If the court chooses to believe the only evidence on record, the Plaintiff may win and the Defendant may lose…” 7 There was no disagreement between the parties in respect of the purchase price of the GHc66,000.00 but there was a contention as to the number of plots that is in issue. The Plaintiff alleged that the land is 11 plots but 1st Defendant assertion contrary to that of plaintiff is that they settled on two plots of land but whether or not the land was 11 plots or two plots is inconsequential because the Plaintiff is seeking for a refund of the amount he advanced to the 1st Defendant and not specific performance. There is also no contention as to whether the land has been sold to another person. The Plaintiff denies the assertion of the 1st defendant that they agreed that the Plaintiff is to pay the purchase price of GHc66,000.00 to the 1st Defendant within six months so the burden was on the 1st defendant to adduce evidence to establish that assertion but he failed neglect or refused to appear in court so all that he has stated in his witness statement remains mere allegation since he did not mount the box to produce evidence. When the plaintiff was cross examined by counsel for 1st Defendant on this issue this was what transpired Q. You are aware that 1st Defendant sold the land to another person in the year 2018, correct A. I do not know anything about that because in 2018 he was still demanding that I pay the difference Q. Look at the process you have filed and tell the court what you have annexed that in 2019 the 1st defendant was still demanding that you pay the difference A. He was calling me on phone there was no writing to that effect Q. I am suggesting to you that from what you have told the court that 1st defendant was insisting that you pay the balance land is not true A. I disagree I have a witness to that Q. I am suggesting to you that paragraph6 of your witness statement you are fully aware that the 1st defendant sold the land to another person in 2018 A. I do not agree to that 8 Q. I am further suggesting to you that the reason why 1st defendant sold the land to another person was that for three years you refused to make any further payment to him A. I disagree because he was sending messages to pay and I also respond that he should exercise restraint and that I am hard up Q. Tell the court did the 1st defendant ever send the 2nd defendant to tell you that because of the delay on your part he intends to sell the land to another person A. Kwame Idan did not tell me that, what the 2nd defendant tells me is that 1st defendant said I should bring his money and I also tell him to go and tell the 1st defendant that he should be patient with me because I am hard up Q. I am suggesting to you that the reason why you got the land has been sold to another person is because of the messages that 1st defendant gives the 2nd defendant to convey to you in respect of the land A. I disagree because with you Q. How were you sending the monies o the 1st defendant A. The agreement was that if I have money and I cannot bring it myself, I should give it to the 2nd defendant to bring and take receipt for me The Plaintiff said that after three years the 1st defendant was still demanding for the balance and he has been sending him messages to him directly and through the 2nd defendant so even if there was an oral agreed period of six months between the parties for the Plaintiff to pay the all the GHc66,000.00 which he defaulted the 1st defendant should have either gave the Plaintiff and extension of time within which to pay the balance or made it clear to the Plaintiff that since he has defaulted he will no longer wait for him to settle the debt and that he is going ahead to sell the land and refund his money. Paragraph 6 of the statement of claim is that various payments have been made to the defendants in the year 2016 totalling an amount of GHc 46,000.00 The defendants pleaded in paragraph 6 of his statement defence as follows Paragraphs 4and 5 of the Statement of Claim are admitted, 1st defendant states further that in or around June 2015, the Plaintiff approached him in his residence at North Kaneshie , 9 Accra and made an offer to purchase two plots of his 11 plots of land situate and lying at Agona Mensakrom In paragraph 7 of his statement of defence he asserted that 1st Defendant additionally sates that he agreed to plaintiff’s offer on the condition that the Plaintiff would not take more than six months from the date of the land sale agreement, in paying him the full amount of sixty-six thousand cedis (GHc66,000.00) being the purchase price of the land. What can be inferred from the pleadings above is that the Plaintiff approached the 1st defendant in sometime in June 2015 and made an offer to buy two lots of land and he agreed and told the plaintiff to complete the payment within six months but by the year 2016 the Plaintiff has made payment of GHc46,000.00 though the 1st defendant has challenged the quantum of money received from the Plaintiff. To enable the court to enable the Court to ascertain which of the rival version or claim to accept regarding this issue, the court will take a look at the date on which some of the receipts were issued though the 1st defendant challenges some of the receipts has not coming from him because. The plaintiff as gathered from his pleadings sates that by 2016 he has paid an amount of GHc46,000.00 but he did not give the date in the year he paid that amount and added that the 1st defendant was still demanding his balance after some time before the land was sold in 2018 to another person The date on which Exhibit B on which the amount of GHc5000.00 was paid to 1st defendant was 20th July 2016 at 1:15 Pm Exhibit B1 has 14/08/2016 of GHc5000.00 Exhibit B2 is dated 15/9/16 the face value is GHc6000.00 Exhibit B3 has a face value of Ghc5000.00 dated 12th October 2016 exhibit B4 is dated 5th November 2016 and the amount said to have been paid was GHc25000.00 Under cross examination counsel foe 1st defendant disputed B2 B3 and B4 and indicated why he disputed it which I will deal with but for purposes of resolving this issue since there is a dispute I respect of the above mention Exhibit I will limit myself to Exhibit B and B1. If the Plaintiff approached the 1st Defendant in June 2015 to buy his 2 plots of land or 11 plots of land and their agreement is that plaintiff is to finish payment in 6 month time then plaintiff is to complete payment on or before December 2015 so how come 1st defendant received monies on 20th July 2016 and 14th August 2016? 10 From the evidence adduced under cross examination there was an admission that Plaintiff paid some monies as the receipts shows and the 1st defendant sold the land in 2018. The question then is if there was any agreement for the plaintiff to complete payment of the GHc66,000.00 within six months, why would the 1st defendant wait for two solid years before selling the land if he was not expecting the Plaintiff to pay the balance after the period allowed to pay under the agreement has elapsed? In fact the 1st defendant in paragraph 10 of his statement of defence said he informed the Plaintiff after some three years later that he would sell the land to third party who was willing to make a single full payment with respect to the purchase price of the said land and pay the plaintiff his money that he has so far advanced to the 1st defendant. So the question still remains, what was he waiting for if not waiting for the money and if he was waiting for the plaintiff to pay the balance and it was not forth coming. was he not sending messages to ask for the money as the plaintiff alluded to. If anything at all the evidence shows that the plaintiff was expected to complete payment of the purchase price within a reasonable time and even if the parties contemplated the reasonable time to be within six months the 1st defendant led the plaintiff into thinking that he can pay the amount left at a later date considering his conduct that is waiting for three whole years before telling the plaintiff that he was going to sell the land. 1st defendant did not tell the court when the payment was to commence and end so the inference made above that if the 1st defendant was approached by plaintiff in June 2015 then the payment should have commenced after the approach and if the period for payment was six months as 1st defendant want this court to believe then the schedule date to finish payment should be in December 2015 so why did payment started in 2016 and not immediate after June 2015?. Did the 1st defendant give the plaintiff any grace period to start paying for the land? In his statement of defence paragraph 5, 1st defendant stated that at no material point was the 2nd defendant his agent with respect to the transaction that ensued between the plaintiff and 1st defendant. Indeed the 2nd defendant who is a friend of the plaintiff was in the company of same, the first time the plaintiff approached Plaintiff (sic) in his residence at North Kaneshie Accra to make the offer to buy the land in dispute from the 1st defendant 11 1st defendant pleaded in paragraph 8 of his statement of defence that although the agreement between the plaintiff and the defendant was bot witnessed in writing, there were persons present who witnessed the said transaction, including the 2nd defendant, I believe the term agent that the Plaintiff has used is not in the legal sense and it may have been used because Pw1 may be the one who told the plaintiff about the land 1st defendant was selling and not that 2nd defendant acted as an agent within the remits of the law I say so because the evidence adduced only shows that the 2nd defendant was present from the onset of the transaction and according to the plaintiff the agreement was that if he cannot bring the money to the 1st defendant personally then he can channel it through the 2nd defendant to be given to the 1st defendant and collect receipt and I believe that was why he was sued as 2nd defendant and because he acted as agent qua agent for the 1st defendant. Pw1 (2nd defendant) and Pw2 who was a care giver of the 1st defendant said in their witness statement that in the year 2016 1defendant informed them that he is selling his 11 plots of land lying at Agona Jacob No where did they say that there was six months period given for the plaintiff to complete the payment Pw2 said he was the one who issued the receipts tendered by the plaintiff From these pieces of evidence from the Plaintiff as well as persons who witness the transaction, not only is it probable that there was no six months period stated in the oral contract for the sale and purchase agreement but has said the 1st defendant who made the allegation failed, neglect and or refused to participate fully in the proceedings ant that makes his case worse. In any case he alleged fraud but he did not lead evidence to substantiate same, Where fraud is alleged in a civil suit the standard of proof is proof beyond reasonable doubt and not probabilities Section 13 (1) of Evidence Act provides as follows In any civil or criminal action the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt. In Feniku v John Teye [2001-2002] SGLR 98, it was held (in holding 5) that: 12 “The law regarding proof of forgery or any allegation of criminal act in a civil trial was governed by section 13 (1) OF THE Evidence Decree 1975 (NRCD323) which provided that the burden of persuasion required proof beyond reasonable doubt.” In the instant suit the burden of persuasion lies on the 1st defendant who did not provide any shred of evidence to either proof that the Plaintiff was to pay the agreed purchase price of GHc66,000.00 within six months and for that matter failed to establish that the Plaintiff acted fraudulently. The evidence shows that id anything at all the plaintiff was unable to pay the balance of the purchase price because as he said he was hard up and not because there was any ,misrepresentation and that was why the 1st defendant sold the land after waiting for two years without any further payment from the Plaintiff. Whether or not the amount paid to the 1st defendant was GHc46,000.00. The Plaintiff case is that by 2016 the amount he has paid is GHc46,000.00 which was paid in bits and pieces by himself and thought 2nd defendant and receipts were issued to that effect 1st defendant admits that he received an amount of GHc27,000.00 ant not GHc 46,000.000 as the plaintiff is alleging but Pw1 and Pw2 said the amount Plaintiff paid to the 1st defendant was GHc46,000.00 Pw2 said in his paragraph 5 and 6 of his witness statement that The plaintiff expressed interest and made several payments amounting to GHc46,000.00 and he personally wrote the receipts which plaintiff has attached to his witness statement and marked as exhibits B1 B2 and B3and he witnessed the thumb printing of those exhibits by 1st defendant. Exhibit B4 was typed and printed and he was present at its execution. Pw1 who was alleged to be the 1st defendant agent said in paragraph 4 of his witness statement that it was agreed by the parties the land was being sold for GHc66,0000.00 and the plaintiff made a total payment of GHc46000.00 Pw2 said he was a care giver of 1st defendant and was not cross examined. 13 1st defendant did not say in his statement of defence how much he has received from the plaintiff but in his witness statement which he failed to present as his evidence in chief, he has stated that Plaintiff began making payments to him through the 2nd defendant who lives in Agona Swedru as Plaintiff felt was more practical and that at the time he sold the land to the third party the plaintiff gad advanced GHc30.000.00 to him contrary to what plaintiff alleges in his pleadings and he did not receive GHc46,000.00 and that his pleading that plaintiff had advanced GHc27000.000 to him was therefore inadvertence on his part I have stated this piece of evidence because of the counsel for 1st defendant disputed or challenged some of the receipts tendered as not coming from the 1st defendant. This was the evidence plaintiff gave under cross examination Q. How were you paying the monies to 1st defendant A. The agreement was that if I have money and I cannot bring it myself I should give it to the 2nd defendant to bring and take receipt for me Q. The receipt that you have attached that is exhibit B to B4 A. I got it from the 2nd defendant when he goes and to pay the money on my behalf as I have said Q. You are aware that the 1st defendant has disputed some of the receipt you have tendered in court A, I cannot tell you have told me now Q. I am suggesting to you that 1st defendant disputes Exhibit B2, B3, and B4 A. Why Q. Look at Exhibit B2 the 1st defendant issue is the thumbprint on it, it does not belong to him A. I disagree 14 Q. Exhibit B2 there is no signature from Kwesi Ofori unlike the other receipts which has Kwesi Ofori signature look at Exhibit B1 you can see Kwesi Ofori’s signature on it A. There is no signature Kwesi Ofori has written his name just as he did on the other receipts Q. I am suggesting to you that in respect of Exhibit B3 the hand writing which is alleged to belong to Mr Wiafe is very dissimilar to Exhibit B2 which was alleged to have been written by the same Mr Wiafe A. What you are saying is not true Q,.I am also suggesting to you that if the 1st defendant has received the money has indicated by Exhibit B3 he would have thumb printed the receipt and kwesi Ofori would have signed A. I cannot tell whether he receive the money or not Q Why did Kwame Idan not put his thumbprint on Exhibit B2 B3 as he did for Exhibit B4 A. I cannot tell because I was not present Q. I suggest to you that 1st defendant received from you through his bankers the sum of GHC20000.00 and not GHc25000.00 as stated on Exhibit B4 A. I do not agree with you Q. I am further suggesting to you that Exhibit B4 was typed and the 1st defendant could not type this Exhibit B4 because of his ill health A. I do not agree with you 1st defendant admits that he received Ghc30,000.00 and not GHC46000.00 as alleged by the Plaintiff and dispute Exhibits B2, B3 and B4 has not emanating from him because these exhibits do not conform to Exhibit B but Exhibit B1 does not also conform with Exhibit B because there is no signature of the plaintiff and Exhibit B1 and B2 appears to 15 have been written by the same person so I do not know why 1st defendant is not disputing Exhibit B1 as well probably if he did that his admission of receiving GHc30000.00 from the plaintiff cannot be supported so he conveniently left out Exhibit B1 so that the face value of Exhibit B B1 and the partial agreement of face value of GHC2000.00 will add up to GFHc30000.00 Pw1 and Pw2 are ad idem to the fact that Plaintiff paid Ghc46,000.00 to the 1st defendant. Besides the plaintiff was not the person who paid tall the money directly to the 1st defendant so he cannot speak to the receipts regarding how they all emanated. The 2nd defendant who testified for the Plaintiff as Pw1 can be suspected to support the Plaintiff’s case to escape liability but what about Pw2, what does he also stand to gain by corroborating the plaintiff’s case? He said he was a care giver of the 1st defendant and if anything at all he will speak for the 1st defendant and not for the Plaintiff. He said he issued the receipts and said that Exhibit B4 was typed and printed he did not say it was 1st defendant who typed Exhibit B4. 1st defendant did not tell the court how the receipts were issued and who issued it but he said plaintiff was to pay the money through 2nd defendant to be given to him because that is more practicable since 2nd defendant resides in Agona Swedru so he is aware that plaintiff did not pay all the money to him directly so he is also supposed to inform the court how he recived the GHc 30000.00 he admitted receiving from the plaintiff 1st defendant asserted through cross examination that his bankers received GHC20,000.00 and not GHc25.000.00 but what does he have to show for it? He did not tender any documentary evidence to that effect. If his bankers received GHC20,000.00 and GHc25,000.00 he should have at least show the evidence from his bankers since he did not receive the cash himself but he was unable to do that. I am of the firm conviction that just as the 1st defendant conveniently failed to add Exhibit B1 to the exhibits he disputed, he also adopted the same method to reduce the 16 face value of Exhibit B4 to prop up his case that was why he was unable to produce any documentary evidence to back his assertion It is stated In Majorlagbe v Larbi (1959) GLR 190 as follows-: “…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 The defendant as said failed to participate in the proceedings though he has knowledge of the writ of summons against him he failed neglect or refused to defend himself. In applying the law to the evidence of the plaintiff. I am of the view that it is not contradicted or controverted and it is my conclusion that plaintiff has establish his case against the 1st defendant in accordance with the law and I enter judgment in favour of the plaintiff on all his reliefs against the 1st defendant only. The time that interest is to run on the GHc46,000.00 is varied because the land was sold in 2018 though the plaintiff paid the money in 2016. The 1st defendant should have refunded the money he has received to the Plaintiff as soon as he sold the land when plaintiff failed to pay the balance but he failed. 1st defendant is therefore ordered to pay the sum of GHc46,000.00 plus interest at the prevailing bank rate to commence from January 2018 till date of final payment. Cost of GHc8000.00 against the 1st defendant. BB Simpson for the Plaintiff. Nana Asaa Bonful Kesse-Tachi for 1st Defendant. (SGD) H/H JONATHAN D. NUNOO ESQ CIRCUIT JUDGE. 17