Adukono and Another v Owusu [2024] GHACC 401 (3 June 2024)

INTHE CIRCUITCOURTOF JUSTICE,SITTINGATASHAIMANONFRIDAY THE 3RD DAY OFJUNE, 2024BEFOREHIS HONOURSIMONNKETIAHGAGA CIRCUITCOURTJUDGE SUITNO: C2/17/20 1.WILSONADUKONO PLAINTIFFS 2.WILLIAM ADUKONO VRS: CHIEFINSPECTOR BENOWUSU DEFENDANT COMMUNITY1POLICE STATION J U DGMEN T: The plaintiffs hereinonthe 22ndday ofJanuary, 2020filed aWrit ofSummons against thedefendant forthe following reliefs. a. Refund ofGH₵20,000.00being value oflandlying, situate and being at Community22Annex, Tema which money thePlaintiffs paid tothe defendant onthe 17thday ofFebruary, 2016. b. Interest onthe said GH₵20,000.00at the commercialbank interest rate from the17th day ofFebruary, 2016till the date offinaljudgment. c. Refund ofGH₵4,532being money expensed by the plaintiffs ontheland lyingsituate and being atCommunity 22Annex, Tema and sold tothemby Defendant. d. Interest onthe said GH₵4,532.00fromthe 1stday ofOctober,2016at the currentcommercial bank interest ratetill the dateoffinal payment. e. Refund ofGH₵5,000.00paid to oneMohammed onbehalf ofthe Defendant being moneyDefendant owed the said Mohammed. Page1of8 f. Interest onthe said GH₵5,000.00fromthe 6thday ofSeptember, 2016at the prevailing commercialinterest rate tillthe date offinalpayment. g. Costs h. Anyfurther orderor ordersas this Honourbale Court may deemfit. THECASE OF THE PLAINTIFFS The 2nd plaintiff, who is the father ofthe1stplaintiff testified onhis ownbehalf and onbehalf ofthe 1stplaintiff. He averredthat throughoneKwesi Owusu, he gottoknowthatthe defendant was selling abuilding plotwhich is situate at Community 22Annex,Tema. According tothe2nd plaintiff, he negotiated for the purchase ofthe land onbehalf of the1stplaintiff and onbehalf ofthe 1stplaintiff, he paid GH₵20,000.00tothe defendant inFebruary2016for theland. The defendant issued areceipt to acknowledgereceipt ofthe saidamount in thename ofthe 1stplaintiff. The defendant also added aSite Plan tothereceipt whichborethe name ofone AgnesBaffoe and the defendant premised to transfer the saidland into the name of the1stplaintiff. Attached arethe copiesofthe receipt and the Site Planmarked as Exhibit“A, and ‘A1”. According tothe2nd plaintiff, upongetting thefull assurance fromthe defendant thatthe land was not encumbered,he started todevelopsame for the 1stplaintiff. He thereforeengaged artisans who dug trenches onthe land, bought some quantity ofironrods, cement blocks, trip ofsandetc. tocommence the said development. The 2nd plaintiff furtheraverredthat assoonashe starteddeveloping the land, he washarassed by land guardsand theTask Force fromthe Tema Development Company. Page2of8 He paid GH₵100,00tothe land guardsasland guardfee. He paid GH₵300.00tothe Tema Development CompanyTask Force and otherexpenseswhichreceipts were notissued tohim. Allthese amounted toGH₵4,532.00whichhe typed and gavea copy tothedefendant. The 2nd plaintiff tendered intoevidence the said typed out expensesmarkedas Exhibit‘B’. He furthersaid thatone Mohammed came to the2nd plaintiff and toldhim thatthe defendant is owing his company called AllFamily RealEstate Development CompanyLimited anamount ofGH₵5,000.00. Withthe consent ofthe defendant, the2nd plaintiff paid the said amounttothe said Mohammed intrancheswhich Mohammed issued receipt to that. The receipts were tenderedin evidence asExhibit “C and C1”. The 2nd plaintiff said that he gotto knowthat the landdid not belongtothe defendant so he asked him torefund the money but he failed to. According tothe2nd plaintiff, since thedefendant isaserving Police Officer, he lodgedacomplainant withthe police Unit called Pips but nothing came out. He thereforeprayed thecourt togrant thereliefs as endorsed onthe Writ of Summons. The 2nd plaintiff called one witness tosupport hisclaim. EVIDENCE OF PW1 One Prince Kwesi Owusu testified as PW1. He averred thatsomewhere in2016,the defendant approached him forfinancialassistance ofGh₵4,000.00.When he asked thedefendant what he was going touse the moneyfor, according tothe PW1, the defendant toldhim that hehas spent somemoney meant for “Exhibits”so he wanted torefund same. Throughconversation, the defendant told him that he had aland atCommunity 22 Annexwhich he would sell torepaythe loan. Page3of8 PW1averredthat he told the2nd plaintiff ofthe land who negotiated with the defendant and the price came toGH₵25,000.00. The 2nd plaintiff paid GH₵20,000.00onbehalf ofthe 1stplaintiff tothe defendant, the understanding was thatthe GH₵5,000.00would be paid later. THEEVIDENCE OF DEFENDANT The defendant who is aserving police officer in his evidence beforethe court averredthatone Nana Frank, who ishis family friend gifted him abuilding plot at Community22Annex Tema somewhere in 2015. According tothedefendant whenhe came inpossessionofthe land, he approached onePrince Owusu ifhe would buy the land. The said Prince Owusu agreed tobuy theland at theprice ofGH₵20,000.00andpaid thesaid amount tothe defendant. He prepared areceipt to thateffect andtoldme that he was buying the landforhis son, who isthe 1stplaintiff I accordingly signed the receipt, attached isacopy ofthe receipt marked asExhibit “C1BO1”. According tothedefendant, whenNana Frank gotto knowthat thedefendant sold theland forGH₵20,000.00toNana Frankwho negotiated for anewprice and they arrivedat GH₵25,000.00. Laterthe 1stplaintiff made acomplaint tothe Community 8police thatthe defendant had sold aland tohim and someonehad trespassed onsame. He again reported the defendant topips, where thedefendant paid GH₵10,000.00to thepips. The money is still withpips. He thereforeprayed thecourt todismiss theclaims ofthe plaintiff. ISSUES The following issues wereset downfor the trial ofthecase. Page4of8 1. Whetherornot theplaintiffs paid anamount ofGH₵20,000.00tothe defendant onthe 17thofFebruary, 2016tothe defendant forthe purchase ofa buildingplot at Community 22,AnnexTema. 2. Whetherornot thePlaintiffs paid GH₵5,000.00onbehalfofthe defendant to oneMohammed which thedefendant was owing the said Mohammed. 3. Whetherornot theplaintiffs expendedGH₵4,532.00onthe land at Community22,Annex Tema. BURDENOF PROOF Incivil cases, the generalrule is thatthe partywho allegescarries the burdenof proof. This position hasbeenechoed in the case ofBANK ofWEST AFRICALTD VRS ACKUN[1963]1GLR 176-182. Also, in ADWUBENGVRS DONFEH(1996-97) SCGLR the SupremaCourtamong othersheld that in allcivilactions, thestandard ofproofis by preponderance of probabilities andthereis no exceptiontothe rule. Seealso YORKWA VRS DUAH(1992-93) GBR 28. Inadditionto thecases mentioned supra, Section 11(4) oftheEvidence Act, (NRCD 323)of1975 provides that: “Inother circumstances, theburden ofproducing evidence requireda partyto producesufficient evidence which onthe totality ofthe evidence, leadsa reasonable mindto concludethattheexistence ofthefact wasmoreprobablethanitsnon- existence”. EVALUATION Ihave decided toanalysisissue oneseparatelyand afterthat Iwill discuss issues twoand three togethersince theyareinterwoven. Page5of8 ISSUEONE Withregardtoissue one, the 2nd plaintiffwho testified onhis ownbehalf and on behalf ofthe1stplaintiff averredthat he bought theland atCommunity 22Annex on behalf ofthe1stplaintiff fromthe defendant atthe cost ofGH₵20,000.00.he tendered Exhibit ‘A’ whichis apaymentreceipt issued by the defendant to theplaintiff coveringthe transaction. The defendant also in hisevident said that onePrince KwakuOwusu bought the landforhis sonat the cost ofGH₵20,000.00. however, when he broughtthe receipt, it wasthe 1stplaintiff who was the purchaser. Itisto be notedthat neitherthe plaintiffs northe defendant objected tothe tendering ofthe Exhibit which plaintiffs tendered asExhibit ‘A”and the defendant tendered asExhibit “C1B01”. This point tothe fact thatthere wasanagreement between the plaintiffs and the defendant. A look at the two Exhibits show that they are the same. Both are dated 17th February, 2016and have thedefendant signed asthe seller. The 1stplaintiff as buyerand Prince Owusu signed aswitness forthedefendant (seller)and the2nd plaintiff signed aswitness for the1stplaintiff (buyer) The purchase price oftheland in the agreement isGH₵20,000.00. The defendant in his evidence stated thatNana Frank who gifted him the land became annoyedwithhim because ofthe price. The defendant claimed he gavethe GH₵20,000.00tothesaid Nana Frankand the2nd plaintiff renegotiated withthe said Nana and arrived at GH₵25,000.00. Ineffect, the defendant is claiming that theearlier agreement he had withthe plaintiffs had become moot. Itisto be notedthat the defendant, could not provide any witness totestify tothat effect andalso could not provide any document tothateffect. The defendant is a Police Officer, and he canreadand write in English language. Page6of8 Itistrite learning thatapartyoffull ageand understanding will be boundby his signaturetoadocument. See:WILSONV BROBBERY (1974)1GLR250. The defendant is amatured personand he hasalso not doubted theexistence of Exhibit‘A”and C1BO1 thenhe isbound by thesaid agreement he enteredinto with the1stplaintiff. I thereforeentered judgmentin favourofthe plaintiffs onissue one. ISSUESTWOAND THREE Onissue two,the plaintiffs claimed thatonbehalf ofthe defendant theypaid an amount ofGH₵5,000.00toone Mohammed whichthe defendant wasowing the said Mohammed ofAll Family RealEstate Development Ltd. According totheplaintiffs thesaid Mohammed issued receipts tothat effect. The plaintiffs tendered themas Exhibit “CandC1”. The defendant did notraise anyobjection tothe twoExhibits. Onissue three, theplaintiffs averredthat whenthey tookpossession ofthe land, theystarteddeveloping same. They spent anamount ofGH₵4,532.000.00onit whenthey wereharassed by trespassersthe second plaintiff tenderedatyped expense ontheland which was marked as Exhibit“B” Itisto be notedthat when the2nd plaintiff mounted thewitness box,the defendant could not cross-examine orchallenged the2nd plaintiff onExhibit‘B’ “Cand C1”. Itistrite law thatfailure tocross-examine apartyinan evidence when the partyis in awitness boxamounts toad9+missionofthatevidence. See:DANIELLI CONSTRUCTION LTDVRS MABBELANDJOHNSON LTD (2007/08)ISCGLR 60@65. Flowingfromthe aboveanalysis, lenterjudgmentin favourofthe plaintiffs on issuestwo and three. CONCLUSION Page7of8 The effect oftheaboveanalysis ofissues one,two and threeis that,the plaintiffs havebeen able toprove their case onthebalance ofprobabilities morethan the defendant. I thereforeenterjudgment against thedefendant tothe effect that on issue one,the defendant is torefund the GH₵20,000.00tothe plaintiffs andinterest onsame at theprevailing commercial bank ratefromthe 12thofFebruary, 2016till date. Onissue two,the defendant is torefund the GH₵5,000.00tothe plaintiffs and interestonsame at the prevailing commercialbank ratefromthe 6thofSeptember, 2016whenthe money was paid toMohammed till date. Onissue three, thedefendant is torefund tothe plaintiffs anamount ofGH₵4,532.00 theplaintiffs spent ontheland. thedefendant is also topay interest onsame at prevailing commercialbank rate from1stOctober, 2016till date. Also taking intoconsideration the durationofthe litigation betweenthe parties, I ward cost ofGH₵5,000.00against the defendant for theplaintiffs. (SGD) H/HSIMONNKETIAHGAGA (CIRCUITCOURT JUDGE) Jt. Page8of8