FRIMPONG VRS GADASU (C2/13/2022) [2024] GHACC 203 (14 June 2024)

IN THE CIRCUIT COURT HELD AT BEREKUM ON FRIDAY THE 14TH DAY OF JUNE, 2024 BEFORE HIS HONOUR OSEI KOFI AMOAKO ESQ. CIRCUIT COURT JUDGE. SUIT NO. C2/13/2022 GABRIEL FRIMPONG - PLAINTIFF VRS. 1. ARKU GADASU 2. YAW PHIIP - DEFENDANTS J U D G M E N T The plaintiff commenced this action jointly and severally against the defendants on 11th of June, 2020 claiming the following reliefs: (i) Recovery of GH¢41,000.00 being balance of GH¢52,000.00 the first defendant owed the plaintiff which the second defendant guaranteed and undertook to pay and consequently made part- payment of GH¢8,000.00 leaving an outstanding balance of GH¢4,000.00 unpaid. (ii) Interest on the amount of GH¢44,000 supra calculated from 29th day of February, 2020 at the prevailing bank rate till the final date of payment. The plaintiff in this suit is a businessman and resides at Berekum. The first defendant was a fire service officer and the second defendant works with the forestry services. The plaintiff's statement of claim with his writ of 1 summons disclosed that the first defendant sought for financial assistance without interest which amounted to a total sum of GH¢52,600.00. and was to be re-paid on the 22nd day of April, and the 3rd day of May, 2019 respectively. When the first defendant defaulted in paying the money to the plaintiff, the second defendant who was a brother to the first defendant undertook or pay the money (GH¢52,000.00) by instatements with effect from 11th November, 2019 but he also failed. Explaining further his assertion, the plaintiff averred that in or around 2019, the first defendant requested for some financial assistance from him to clear her goods at the Tema Harbour and he acceded to her request by advancing to her the sums of GH¢28,000.00 on 22/03/2019, GH¢14,000.00 on 03/04/2019 and GH¢7,000.00 on 24/05/2019, all amounting to GH¢49,000.00 to enable the first defendant clear her goods. The plaintiff further averred that he personally sent GH¢3,600.00 via mobile money to the first defendant on MTN No.0542555292 upon her request but no document was executed to cover the transaction and so the total sum of money the first defendant was to pay to the plaintiff stood at GH¢52,600.00. According to him, he subsequently advanced GH¢28,000.00, GH¢14,000.00, GH¢7,000.00 and GH¢3,600.00 to the first defendant at her requests, but after collecting the monies, the first defendant went into hiding and would not pick the calls made by the plaintiff until he had the information that the first defendant had been arrested at Sampa on the charge of defrauding by false pretenses. The plaintiff disclosed in his evidence that it was at the Sampa police station that he met the second defendant who verbally undertook to pay the money (GH¢52,600.00) by instalments and to prove his readiness to pay the money, 2 the second defendant executed a "memorandum of understanding” in respect of the money and pledged to pay same. It in the case of the plaintiff that on the 11th day of November and 21st of December 2019, the second defendant made part payments of GH¢6,000.00 and GH¢2,000.00 respectively to defray part of the debt and still the defendants were owing him GH¢44,600.00. In support of his evidence, the plaintiff tendered in evidence six (6) promissory notes to prove his case and vehemently denied the defendants’ assertion that he sent somebody to either threaten the first defendant or to kill her. Nana Kumi, a licensed public secretary was the witness who testified on behalf of the plaintiff in support of his case. The evidence of the witness (PW1) was to the effect that on the 21st day of November 2019, the second defendant asked him to prepare a promissory note (exhibit F) of GH¢44,600.00 which he duly executed. The witness added that, the second defendant used his cashew farm situate at ‘Mu-Adaamsu’ bounded by the properties of Mad. Agartha Ankamah, Boadiwaa Mary and Mr. Baah Amponsah as a security for the financial assistance. It ought to be taken note that, both the defendants filed a joint statement of defence and witness statements on 30/07/2020 and 20/01/2021 which clearly debunked the assertion of the plaintiff, but it is sad to state that, the first defendant passed away after she had cross-examined the plaintiff. Thus, considering the evidence in chief of the first defendant, she admitted borrowing various sums of money from the plaintiff who at all material times doubled the monies. She mentioned that, all those monies stated in Exhibits A, B, C, D, E F G and G1 are/were doubled. The first defendant asserted that the last loan she 3 took from the plaintiff was GH¢17,000.00 and that was what she owed the plaintiff together with the alleged accumulated interest making the total debt of GH¢52,000.00 out of which the second defendant had paid GH¢8,000.00. The evidence of the defendants further revealed that the plaintiff threatened the first defendant with death if she did not pay the money and this brought the second defendant into the case who agreed to sign an undertaking executed by the plaintiff to pay an amount of GH¢52,600.00 (Exhibit D) to avert to death of the first defendant when the second defendant had not even heard of the side of the story of the first defendant. The second defendant contended that he made a part payment of GH¢8,000.00 on two instalments (exhibits G and G1) and later made an additional payment of GH¢3,500.00 which summed up the payment he had made to GH¢11,500.00 leaving an outstanding amount of GH¢5,500.00 to be paid to the plaintiff and not GH¢44,600.00 as the plaintiff would want the Court to believe. Significantly, it must be noted that in considering the application for directions filed by the plaintiff on 19/10/2020 and the additional issue filed by defendants on 30/11/2020, the following determinable issues are/were identified. 1. Whether or not first defendant is indebted to the plaintiff. 2. Whether or not the amount owed the plaintiff by first defendant was GH¢52,600.00. 3. Whether or not the second defendant undertook to pay the debt of GH¢52,600.00 owed by the first defendant 4. Whether or not the defendants are not owing the plaintiff, in the sum of GH¢44,600.00 5. Whether or not the plaintiff is entitled to his claim as endorsed on his writs of summons. 4 6. Whether or not the actual amount the first defendant borrowed from the plaintiff was GH¢17,000.00 7. Whether or not the defendants have paid GH¢11,500.00 to the plaintiff 8. Whether or not the defendants now owe the plaintiff the sum of GH¢5,500.00. Sections 10 and 11 of the Evidence Act 1975 (NRCD 323) states the law 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. He does not discharge his burden unless he leads admissible and credible evidence from which the fact or facts he asserts can be properly and safely inferred, failure of which the assertion is not true, see MEMUNA AMONDY V KOFI ANTWI (2006) 3 MLG 183 CA, ZABRAMA V SEGBEDZI (1991) 2 GLR 221-247. Thus, the standard of proof required of a plaintiff in a civil action as the instant case is to lead such evidence as would tilt in his favour the balance of probabilities on the particular issue. See BISI AND OTHER TABIRI @ASARE GLRD 1987-88 SC. A careful perusal of the record will reveal that, indeed. The second defendant came into the case when as a result of the alleged threat of the first defendant, the second defendant undertook to settle the first defendant's indebtedness to the plaintiff, hence the execution of EXHIBIT 'D’ and other subsequent documents executed by the parties, such as Exhibits ‘E’ and ‘F’. So without any doubt, I hold that it was the indebtedness of the first defendant that brought the second defendant into the matter and he pledged at all material times to pay the debt. I will proceed to combine issues ii, iv, vi, and viii and discuss them as appropriately as possible. The plaintiff contended that at all material times he first defendant sought financial assistance from him and in every financial 5 transaction they made, they executed a document to cover same. Consequently, he tendered Exhibits A, B, C, D, E, F, G and G1 in evidence to support his case. According to him the total sum to be paid to him was GH¢52,600.00 which the second defendant made a part payment leaving a balance of GH¢44,600.00 unpaid. But on the contrary, the defendants refuted the claim of the plaintiff and averred that, they paid the actual financial assistance/loans they took from the plaintiff except the GH¢17,000.00 they obtained from him and made a part payment leaving an outstanding balance of GH¢5,500.00. In fact, from the evidence, it is apparent to state that, whilst the plaintiff claimed that it was financial assistance he offered to the defendants without any interest, the defendants on the contrary insisted that the plaintiff rather gave them loans and in their defaults in re-paying them, the plaintiff added some interests to the loans and executed documents to effectuate the transactions. It is to be explained that, the money lenders ordinance (Cap 176, 1951 Revised) is not intended to apply to every person who lends money at an interest to his friends by way of financial assistance. The ordinance applies only to persons who actually carry on the business of money lending as a business and this is a fact to be decided by the court upon the particular facts of the case. (See YEBOA V BOFOUR [1971] 2 GLR 199 CIT; AHENFIE SELLERS ASSOCIATION V PHILOMENA MENSAH AND ORS (2011) 34 GMJ 24 SC, per his Lordship Justice Brobbey JSC. Lending Money is a social phenomenon and even the Bible, the Holy Book endorses borrowing and lending in the Old Testament. In Exodus 22:25 it provides: 6 “If you lend money to any of my people who are poor, do not act like a money lender and require him to pay interest” Similarly, Luke 6:34-35 state "Love your enemies and do good to them. Lend and expect nothing back. You will then have a great reward and will be the children of the most High God". Significantly, some general guides have been set out over the years from decided cases to assist the Courts in the determination of money lending cases. It has been established that, in money lending transactions, the borrower assumes the initial onus to prove that the lender has lent money at an interest; when it is established that a person has lent money at an interest even on one occasion, the transaction is presumed to be money lending one under the Money Lending Ordinance, Cap 176, and once that presumption has been raised, the onus shifts to the lender to prove that the transaction is not a money lending one. If the lender is able to prove that, he is not a money lender his case is upheld and the appellant ordered to pay whatever he owns to the respondents But, if it is found to be unconscionable, the Court is empowered under Cap 176 section 13, and the Loans Recovery Ordinance CAP 175, section 3 to re-open the transaction. In C.F.CC CONSTRUCTION COMPANY V ATTITSOGBE (2006) 2 M L R G 18 and 19, the Supreme Court held: “Gathering all together, I would suggest that through all these instances there runs a single thread. They rest on “inequality of bargaining power”. By virtue of it, the English law gives reliefs to one who, without independent advice, enters into a contract upon terms which are very unfair… when his bargaining power is grievously impaired by reason of his own needs or desires, or by his own ignorance or infirmity, coupled with undue influence or pressures brought to bear on him by or for the 7 benefit of the other … the one who stipulates for an unfair advantage may be moved solely by his own self–interest, unconscious of the distress he is bringing to the other … the one who is in extreme need may knowingly consent to a most improvident bargain, solely to relieve the straits in which he finds himself.” According to the second defendant, the plaintiff consistently doubled the loans he gave to the first defendant which she defaulted in paying back to plaintiff. However, it is surprising to note that, in all the exhibits tendered by the plaintiff in support of his case which were also referred to by the defendants, they aptly revealed that the defendants received “financial assistances from the plaintiff without any interests” whatsoever. The case of the defendants is that, the initial amount of GH¢17,000.00 was borrowed from the plaintiff and out of this, they have since paid GH¢11,500.00 leaving an outstanding balance of GH¢5,500.00 to be paid to the plaintiff and with this bare assertion without any concrete proof with evidence in support of it, I find it very difficult in accepting same. But on the contrary, the plaintiff led sufficient evidence supported with documentary evidence (exhibits (A – G1) to establish that the defendants indeed owe him the sum of GH¢44,000.00 I will therefore enter judgment for the plaintiff for the recovery of the sum of GH¢44,000.00 from the second defendant. I will decline to award any interest on the above-stated sum. Cost of GH¢4,000.00 is awarded against the defendant. H/H OSEI KOFI AMOAKO CIRCUIT COURT JUDGE 8