Missah v Agyemang (A9/208/24) [2025] GHADC 118 (24 March 2025)

IN THE DISTRICT COURT AT LA HELD ON MONDAY THE 24TH DAY OF MARCH, 2025 BEFORE HER WORSHIP ADWOA BENASO ASUMADU-SAKYI, SITTING AS MAGISTRATE SUIT NO: A9/208/24 PATRICK DARKO MISSAH OF COMMUNITY 14, LASHIBI >>> PLAINTIFF VRS. MABEL AGYEMANG OF OSU, ACCRA >>> DEFENDANT PARTIES: Plaintiff present Defendant absent JUDGMENT _______________________________________________________________ INTRODUCTION Counsel for the Plaintiff filed this instant suit on the 15th of May, 2024 against the Defendant and prayed for the following reliefs; 1. An order from the Honourable Court to compel the Defendant to refund an amount of GH¢ 25,000.00 to the Plaintiff being amount owes Plaintiff. 2. Cost The Defendant was served with the writ of summons and hearing notice on the 15th of May, 2024. Both parties were ordered to file their witness statements on the 13th of June, 2024 and the Plaintiff complied with the orders of the court and filed his witness statement on the 26th of June, 2024. The Defendant also complied with the orders of the court and filed her witness statement on the 19th of July, 2024. Although both parties were referred to Court Connected ADR they were unable to reach an agreement. Case management was therefore conducted on the 25th of July, 2024 and hearing commenced on the 11th of September, 2024 and was completed on the 18th of November, 2024. PLAINTIFF’S CASE The Plaintiff’s case is that the Defendant is a friend who is into the business of selling provisions requested for a loan from him which she informed him she intended to rent a new shop as she was being evicted from her shop by her landlord. He states that he because he not in the country during that period he asked the Defendant to go and see an officer at the prison headquarters who he had asked to give her an amount of Seven Thousand Ghana Cedis (GH¢ 7,000.00) and she did. He states that when he returned to Ghana the Defendant asked him once again asked him for another loan so he went to the Agriculture Development Bank in the company of the Defendant and withdrew an amount of Fifteen Thousand Ghana Cedis (GH¢ 15,000.00). He also states that he took the Defendant to the Commercial Bank at Spintex and gave her another amount of Thirteen Thousand Ghana Cedis (GH¢ 13,000.00) which brought the total amount he loaned the Defendant to Thirty Five Thousand Ghana Cedis (GH¢ 35,000.00). He states that the Defendant promised to refund the total money he loaned her in instalments of Five Thousand Ghana Cedis (GH¢ 5,000.00) each month beginning from January 2024. He states that the Defendant has only refunded an amount of Ten Thousand Ghana Cedis (GH¢ 10,000.00) in two instalments in the 2nd week of February 2024 and March 2024 and has since refused to pay the rest of the money. DEFENDANT’S CASE The Defendant’s case is that she and the Plaintiff have been friends for a long time and that anytime she was in need the Plaintiff was always there to support her. She states that although the Plaintiff gave her money there was no agreement to repay the money. She states that she was on her way to her site when she informed the Plaintiff that she was having some issues in respect of her site and that she was on her way to resolve those issues. She states that Plaintiff asked if she had money which she answered no and that he stated that he was ready to help her. He then asked her to go to his office for an amount of Five Thousand Ghana Cedis (GH¢ 5,000.00). She states that on another occasion the Plaintiff came to her shop and noticed she lacked some items and as a result he took her to the bank and gave an amount of Twenty Five Thousand Ghana Cedis (GH¢ 25,000.00) to support her business. She further states that late last year the Plaintiff called her and requested for the money but she informed him that she was facing some financial difficulties and she requested for some time to gather money so she could pay the money in instalments. She also states that she made part payment of Ten Thousand Ghana Cedis (GH¢ 10,000.00) to the Plaintiff and even though the Plaintiff has been requesting for the remaining amount she is unable to pay as the Plaintiff failed to inform her that he was loaning the money to her and would require for same to be refunded. DISCUSSION OF THE LAW The law is trite that a party who asserts a fact assumes the responsibility of proving same and thus the burden of producing evidence as well as the burden of persuasion is therefore cast on that party and the standard required is provided for by the virtue of sections 10,11 and 12 of the Evidence Act, 1975 (NRCD 323). The above stated provisions have received judicial blessings by the Supreme Court who has pronounced on them in the past to be the nature and standard of proof in civil cases. This position of the law has been reiterated in the case of Ackah v. Pegrah Transport Ltd And Others [2020] SCGLR 728 where in unanimously dismissing an appeal, the Supreme Court held as follows: “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 carried and it includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things (often described as real evidence), without which the 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. It is trite law that matters that are capable of proof must be proved by producing 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. This is a requirement of the law on evidence under sections 10(1) and (2) and 11(1) and (4) of the Evidence Act, 1975 (NRCD 323),” See Ababio v. Akwasi IV [1994-1995] GBR 774. The Court has a duty to examine the evidence on record and determine whether the Plaintiff has met the burden of proof. It is settled law that he who alleges must prove his case on the strength of his own case. This principle was enunciated in the case of Owusu v. Tabiri and Another [1987-88] 1 GLRR as follows: “It was a trite principle of law that who asserted must prove and win his case on the strength of his own case and not the weakness of the defence”. The Plaintiff testified on oath and relied on his witness statement on the 11th of December, 2024 by repeating his assertions against the Defendant. The Defendant cross examined the Plaintiff and a careful perusal of the record of proceedings clearly indicates that the instant case is not the first time the Plaintiff has given the Defendant money. This is what came up during the Defendant’s cross examination on the 18th of November, 2024; Q. Can you tell the court whether the instance case before the court is the first time I have given you money A. That is not the first time Thus from the above it is clear that there is an existing financial relationship between the parties. A careful perusal of the evidence also indicates that indeed that the Plaintiff gave the Defendant an amount of Thirty Five Thousand Ghana Cedis (GH¢ 35,000.00) and this was admitted by the Defendant. It is trite that where an opponent admits a fact in issue the other party need not proof that fact. Admission is defined by the 7th edition of the Black’s Law Dictionary as a voluntary acknowledgment of the existence of facts relevant to an adversary’s case. Justice Brobbey in his book, Essentials of Ghana Law of Evidence at page 112 explained admissions to mean the fact or issue which has been conceded and is no longer in contention. Also in the case of In Re Asere Stool; Nikoi Olai Amontai IV (Substituted by) Tafo Amon II v. Akotia Owirsika III (Substituted by) Laryea Ayiku III [2005-2006] SCGLR 637 at 656, which was quoted with approval in Fynn v. Fynn [2013-2014] SCGLR 727 at 738 the court held as follows; “Where an adversary has admitted a fact advantageous to the cause of a party, that party does not need any better evidence to establish that fact than by relying on such admission, which is an example of estoppel by conduct.” See Samuel Okudzeto Ablakwa and Another v. Jake Obetsebi Lamptey and Another [2013-2014] 1 SCGLR. Therefore the need by the Plaintiff to prove that an amount of Thirty Five Thousand Ghana Cedis (GH¢ 35,000.00) was given to the Defendant has been dispensed with. The question to be answered is whether or not the Plaintiff gifted the Defendant with expected the Defendant with an amount of Thirty Five Thousand Ghana Cedis (GH¢ 35,000.00) or that he expected the Defendant to repay the said amount. The Plaintiff maintained his assertion that the Defendant persistently requested for money from him and that he did not voluntarily give the Defendant money. This is what happened during cross examination of the Plaintiff on the 18th of November, 2024; Q. I never requested the GH¢ 5,000.00 from you. I was on my way to my site and you called me and you asked where I was going and I told him what was going on and you asked me if I have money and I responded no and you told me to go to your office and see a certain man and when I went he gave me GH¢ 5,000.00 A. I asked you to go to my office after you persistently requested money from me Q. I am putting it to you that I did not request for the money, you gave it to me A. That is not true Q. You were the one who called me and asked me to go for the money from your office. I was not the one who called you A. You called me on a number of occasions for the money and because I did not have money with me I had to arrange with other people. Fortunately when the gentleman called me that he can get me the GH¢ 5,000.00 I called you to go for the money. You called again that you needed money so I asked you to go back to the gentleman for an additional GH¢ 2,000.00 Q. I never called you for the GH¢ 2,000.00 and your allegation that I needed the money to rent a shop is never true. A. You called me and you requested for the GH¢ 2,000.00. On my return to the country, you were still worrying me for additional money for the rent. I was then having two treasuring account at Osu ADB and GCB Branch. When the ADB account matured, I went for GH¢ 15,000.00 and I gave it to you, then a week later the GCB account also matured so I again gave you GH¢ 13,000.00. It is clear that from the evidence adduced above that the testimony of the Plaintiff’s testimony was not discredited by the Defendant. It is clear that the Defendant was the one who requested for money from the Plaintiff and the Plaintiff in turn gave her a total amount of Thirty Five Thousand Ghana Cedis (GH¢35,000.00). That he expected the Defendant to repay the said money amount from his conduct and the conduct of the Defendant who admitted that she had refunded an amount of Ten Thousand Ghana Cedis to the Defendant (GH¢10,000.00) from the answers she gave during her cross examination. She also testified that she agreed to pay the amount in instalments. This is what she said during cross examination on the 18th of November, 2024; Q. You voluntarily agreed to pay GH¢ 5,000.00 each month and you even added that when market was okay you will pay GH¢ 7,000.00 each month A. You kept calling and threatening me that you will jail me and that was the week I was served with the writ of summons. I never agreed to pay you GH¢ 5,000.00 Q. Do you remember that in January you paid GH¢ 5,000.00 A. Yes I did because you kept on calling and threatening me Q. And in February you paid GH¢ 5,000.00 A. I do not remember paying you GH¢ 5,000.00 in February It is clear from the above answer given by the Defendant that there exists a prior relationship of the Plaintiff giving money to the Defendant on a previous occasion. This has been going on for a while now and even though the Defendant denied that the money was not a loan, she started making payments under duress. All the Defendant did was to enter the witness box and repeat her assertion which does not meet the burden of proof on her. In Klah v. Phoenix Insurance Company Limited [2012] SCGLR 1139, the Supreme Court held as follows; “Where a party makes an averment capable of proof in some positive way in some positive way e.g. by producing documents, description of things, reference to other facts, instances and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances from which the Court can be satisfied that what he avers is true.” See Majolagbe v. Larbi [1959] GLR 190 The Defendant therefore failed to prove that she made the payment of Ten Thousand Ghana Cedis (GH¢ 10,000.00) under duress and as a result I am inclined to accept the Plaintiff’s case as the true state of facts. From the discussion I have come to a conclusion that the money given to the Defendant was not a gift and that the Defendant tried to take advantage of her friendship with the Plaintiff when she refused to repay the money she was gifted. The Plaintiff’s testimony was not discredited and as such I hereby hold he has been able to proof his case on a preponderance of probabilities. CONCLUSION I hereby enter Judgment in favour of the Plaintiff and make the following orders; a. The Defendant is ordered to pay an amount of Twenty Five Thousand Ghana Cedis (GH¢ 25,000.00) to the Plaintiff b. Cost of Seven Hundred Ghana Cedis (GH¢ 700.00) is awarded against the Defendant. SGD H/W ADWOA BENASO ASUMADU-SAKYI MAGISTRATE