Owusu v Brempong and Another (BA/KPO/16/2024) [2024] GHADC 798 (30 December 2024)

IN THE DISTRICT COURT KINTAMPO HELD ON WEDNESDAY 30TH DECEMBER2024BEFORE HIS WORSHIP KWAMEADJEI MANU ESQ. SUITNO:BA/KPO/16/2024 OWUSU ASANTEERNEST - PLAINTIFF VRS 1. BREMPONG KRU TAKYIII - DEFENDANTS 2. YAWDONKOR JUDGMENT 1. INTRODUCTION Admitted facts 1.1. The admitted facts are that parties agreed that Plaintiff be sold a parcel of land lying at a place called Zabrama within Abease traditional area for valuable consideration of GHS 30,000.00 of which Plaintiff paid GHS 15,000.00. When Plaintiff proceeded to the disputed land to be shown same, it subsequently came to Plaintiff's attention that this land was occupied by third parties being farmers who drove him out of the land on account of their possession thereof and claim of interest therein. Plaintiff is in substance on the strength of this discovery seeking to resile from Page1of 21 parties' undertaking regarding the sale of the land and to recover the purchase price paid. 1.2. It is also in admission that 1st Defendant refunded GHS 5,000.00 to Plaintiff on account of the failure of parties’ agreement leaving a balance of GHS 10,000.00. Defendants’ defence to Plaintiff's claim is that they performed their part of parties’ bargain and that Plaintiff's desire to resile from it was as a result of the latter's subsequent discovery of a more suitable land for his eandeavors. However, even if the court admitted this to be true, it is in admission that there was some agreement to refund Plaintiff’s money tohim. 1.3. The principal issue for settlement in this suit is accordingly whether Plaintiff is entitled to recover the balance of GHS 10,000.00 from Defendants. A settlement of this issue in the positive shall render all other issuesmaterially moot. 2. BURDENAND STANDARDOF PROOF 2.1. The settled law is that parties in civil litigation must succeed on the strength of their own case and not by a reliance on the weaknesses in that of their opponent. To this end, Section 10(1) of the Evidence Act, 1975 (NRCD323)provides that: Page2of 21 “For the purposes of this Decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning afactin the mindof the tribunalof fact or the Court”. 2.2. Additionally, Section 11(1) of the Evidence Act 1975 (NRCD 323) sets out the burden on a party to produce evidence in a matter before the Court in thefollowing terms: “For the purpose of this Decree, the burden of producing evidence meansthe obligation of aparty to introducesufficientevidence to avoid aruling againsthim on an issue”. 2.3. In the case of Ackah v. Pergah Transport Ltd. & Ors (2010) SCGLR 728, theSupreme Courtexplained the lawonthis evidential burdenthus; “It is abasic 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 will fail. The method of producing evidence is varied and it includes the testimonies of parties 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 Page3of 21 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 sufficient 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(2) and (4) of the EvidenceAct, 1975(NRCD323)” 2.4. This rule was also applied in Ishack v. Praba (2007) 12 MLRG 172 at 181, where theCourtofAppealexplained thus: “The general principle of law is that it is the duty of a plaintiff to prove his case, ie. he must prove what he alleges. In other words, it is the party who raises in his pleadings an issue essential to the success of his case who assumes the burden of proving it. The burden only shifts to the defendant to lead sufficient evidence to tip the scales in his favour when on a particular issue Plaintiff leads some evidence to prove his claim. If the defendant succeeds in doing this, he wins, if not he loses on that particularissue.” Page4of 21 2.5. In Memuna Moudy and Others v Antwi [2003-2004] 2 SCGLR 967 at 974- 975, the Supreme Court speaking through Wood JSC elucidated the point asfollows: “A cardinal principle of law on proof as enunciated in the age-old case of Majolagbe v Larbi (1959) GLR 190 and reiterated in a number of cases, including Zabrama v Segbedzi (1991) 2 GLR 221 at 246, is 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. And 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.” 2.6. The effect ofthe above is that at law, theparty who allegesaparticular fact bears the burden of proving it and where this fact is denied by his opponent, an issue arises for determination. As reasoned in case just cited, it is the party who has introduced a fact, which is denied, who has the burden of proving the denied fact. This point is supported in statute by section 14oftheEvidence Act, 1975(NRCD323) which provides that: Page5of 21 "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- existenceof which isessential to the claimor defence he is asserting." 2.7. Guided by the Supreme Court in Memuna Moudy v Antwi (supra), section 14 of the Evidence Act, and the statutory provisions found at section 17 of the Evidence Act, I must say that the foregoing is not the whole of the law on the point. In stating the general position of the law on the burden of proof, the authorities have been careful to clarify the point that, the burden of producing evidence in any given case is not fixed, but shifts from party to party at various stages of the trial, depending on the issue(s), and the facts asserted and or denied as explained in In Re Ashalley Botwe Lands; Adjetey Agbosu & Ors v. Kotey & ORS [2003- 2004]1SCGLR 420..Section17ofNRCD323provides asfollows: “17.Allocationof burdenofproducing evidence Exceptas otherwise provided by law, (a)the burden of producing evidence of a particular fact is on the party against whom a finding on that fact would be required in the absence of furtherproof; Page6of 21 (b)the burden of producing evidence of a particular fact is initially on the party with the burden of persuasionas to that fact.” 2.8. Futhermore, in assessing evidence led by parties, the Court is mindful of the settled rule of law as applied in Takoradi Flour Mills v. Samir Faris [2005-2006] SCGLR 882 by Ansah JSC at page 890 referring to the following case Tutu v. Gogo, Civil Appeal No 25/67, dated 28 April 1969, Court of Appeal, unreported; digested in (1969) CC 76, where Ollenu JA said that: “in law, where evidence is led by a party and that evidence is not challenged by his opponent in cross-examination, and the opponent did not tender evidence to the contrary, the facts deposed to in the evidence are deemed to have been admitted by the party against whom it is led, and mustbe accepted by the court.” 2.9. It was held in Samuel Okudzeto Ablakwa & Anor v. Jake Obetsebi Lamptey & Anor[2013-2014] 1SCGLR 16, that where a matter is admitted proof is dispensed with. The effect of an admission of a fact advantageous toan opponent’scase was discussed inthe case ofin re Asere Stool; Nikoi Olai Amontia IV (substituted by Tafo Amon II) v. Akotia Oworsika III (substituted by)Laryea Ayiku III [2005-2006] SCGLR 637at656,thus: Page7of 21 “Where an adversary has admitted a fact advantageous to the cause of a party, the party does not need any better evidence to establish that fact than by relying on such admission, which is an exampleof estoppel byconduct.” 2.10. The Court will also apply the rule in Faibi v State Hotels Corporation [1968] GLR 471 that “Where a party would not produce evidence which evidence is available and within his peculiar knowledge, itcould be inferred inlaw that that evidence is against him", in reaching its conclusion that any evidence that Defendant could have given is squarely against him. I am mindful of all the above in the discussion of the issues in this suit. I will now proceed to discuss theissues raised by the Courtin this suit. 3. DISCUSSION OF THE ISSUE Whether Plaintiff is entitled to recover the balance of GHS 10,000.00 from Defendants 3.1. Plaintiff testified by himself and called no witness. Defendants were also represented by 2nd Defendant who gave evidence in support of their case. In view of the admissions made on both sides as already discussed in the Page8of 21 foregone, I find this to be sufficient evidence for the purpose of making findings of fact on the balance of probabilities in this suit. The test of satisfactoriness or sufficiency of evidence is the degree of belief that the party creates in the mind of the trial court concerning the fact or facts in issue. At the end of assessment of facts on all the evidence adduced, a reasonable mind should come to conclusion that the existence of a fact in issue is more probable and reasonable than its non-existence. This standard has been applied in a plethora of cases including Ababio v. Akwasi v. [1994-95] GBR 774, Ackah v. Pergah Transport Ltd [2010] SCGLR728,731and Faibi v. State Hotels Corp. [1968] 471. 3.2. I am also guided closely by what was said by Her Ladyship Mrs. Wood,as she then was, in Yeboah vrs. Amofa (1997-1998) 1 GLR 674 specifically at 682-684atpage683concerning the sufficiency ofevidence thus: “I notice from section 11 of NRCD 323 that the statute does not attempt any definition of “sufficient evidence”. In other words no attempt is made in disclosing what evidence will be deemed sufficient and what could be classified as insufficient. The reason is not difficult to find. It is definitely a question of fact determinable on the peculiar facts of each particular case. So that what constitutes sufficient evidence in case A may not necessarily be sufficient evidence in case Page9of 21 B.............. I think when the two cases are read in the light of sections 11(1) and (4) and 12 of NRCD 323, all the law required of a person who seeks declaration of title is to lead such particular or sufficient evidence as the circumstances of the case would permit, so that on all the evidence a reasonable mind would conclude the probabilities of the existencerather than the nonexistenceof the fact”. 3.3. The duty of the Court in this suit is to assess all the evidence on record to determine in which of the parties’ favour the balance of probabilities is tilted. In the discharge of this duty, I rely on the mind of the Court in the case of In re Presidential Election Petition (No. 4)Akuffo-Addo &Ors. v. Mahama & Ors. [2013] SCGLR (Special Edition) 73, where the Supreme Courtheld at page322asfollows: “Our understanding of the rules in the Evidence Decree, 1975 on the burden of proof is that in assessing the balance of probabilities, all the evidence, be itthat of the plaintiff, or the defendant, must be considered and the party in whose favour the balance tilts is the person whose case is the more probable of the rival versions and is deserving of a favourable verdict.” Page10of 21 3.4. As explained in Kama Health Services Limited v. Unilever Ghana Limited (2013) JELR68603(SC): “The vendor has an obligation to sell property free from all encumbrances except those that were known to the purchaser. The position of the lawas stated in the book titled Lawof Property authored by Megarry & Wade, 6th edition, pp. 686-7, para. 12-067 is that “A vendor is under a two-fold obligation as to title of the property which he is selling. First, he must disclose to the purchaser prior to contracting all latent defects in title save those of which the purchaser is aware. Secondly, by the contractual completion date he must both have the title which he has contracted to give and be able to prove that fact.”” 3.5. Plaintiff’s claim in this suit is for the recovery of the purchase price of the disputed land paid to Defendants to secure their fulfilment of their promise to deliver to him vacant possession of the land purchased by him, and without any undisclosed encumbrances. This promise I find Defendants to have made in which case it would be inequitable to permit them to renege on it. The principle of promissory estoppel as referred to by some as equitable estoppel was explained by Denning J (as he then Page11of 21 was) in the case of Central London Property Trust Ltd v. High Trees House Ltd [1947] KB 130where it was held, asstatedin the headnotethus: “... where parties enter into an arrangement which is intended to create legal relations between them and in pursuance of such arrangement one party makes a promise to the other which he knows will be acted on and which is infact acted on by the promisee, the court will treat the promise as binding on the promisor to the extent that it will not allow him to act inconsistently with it even although the promise may notbe supported byconsideration inthe strictsense ...” 3.6. Though this court was initially inclined to excuse 2nd Defendant from liability by reasonofhis being just an agentof 1stDefendant, 2nd Defendant admits personal ownership of the land he purported to sell to Plaintiff. 2nd Defendant is also described by parties as a subchief under the domain of 1st Defendant for which reason Defendants’ liability ought to be joint and several since they acted in furtherance of trite customary practices and received payment together. Regarding 2nd Defendant’s admission of ownership, this was what transpired while he was under cross- examination byPlaintiff: Page12of 21 Q:Do you agree that you have sold land measuring thirty (30) acres at GHS30,000.00to me? A: Iagree. Q:Did you doinvestigations aboutthe land before you sold itto me? A: The land is my personal property so there is no need for investigationbefore selling ittoanybody. Q: At what point do you go and demarcate the land you have sold to someone? A: The land is mine, so if you express interest in it, I go straight ahead and demarcate same for you. 3.7. On this issue, I must also settle positively the question whether Defendants undertook to refund Plaintiff’s partly paid purchase price to him. This question can in the circumstances of this suit only be properly determined oath on oath since neither side has corroborating evidence of their case. In Oxyair Ltd & Darko v. Wood [2005-2006] SCGLR 1057, it was held that in an oath against oath situation, it is the duty of the trial Page13of 21 court, or any court to consider the evidence adduced to form a judgment as to what version of events was more credible. In an oath against oath situation, the determination of a crucial fact involves the court’s choice of belief based on the comparative credibility of opposing parties and their witnesses. 3.8. Additionally, in Lutterodt v. Commissioner of Police [1963] 2 GLR 429, SC, it was held that in an oath against oath situation, it is incumbent upon the trial court to examine the evidence before preferring one to the other and give reasons for the preference. The trial judge cannot be faulted on his decision once it is based on the evidence on record. Her Ladyship Afia Serwaa Asare-Botwe (Mrs.) relied on these rules in Lydia Tetteh v. Madam Akweley &Anor(2019) JELR107108(HC). 3.9. I have settled that between the parties who gave evidence in this suit, Plaintiff is more credible, and his evidence ought to be preferred by the court. Defendants’ evidence contains inconsistencies which are of such a nature that I cannot gloss over them and find favourably for them. Concerning inconsistencies of such nature, Lamptey JA. (As he then was) in Obeng v. Bempomaa [1992-93] 3 GBR p 1029 had this to say on the matter: Page14of 21 “Inconsistencies, though individually colourless, may cumulatively discredit the claim of the proponent of the evidence. The conflict in the evidence of Plaintiff and his witnesses weakened the merit of his case and proved fatal tohis claim.” 3.10. However, I have cautioned myself that not every inconsistency makes a witness a stranger to truth as held in Apaloo v. The Republic (1975) 1 GLR 156 at 173. Conflicts and inconsistencies in evidence should they matter to the judgment, must relate to material evidence, that is evidence related to the issues in contention. It is for this reason also, that in The Republic v. Adekura [1984-86] 2GLR 345, CA,it was stated inter alia, that evidence offered to prove a matternot in issue or not probative of a matter in issue is immaterial and conflicts in such evidence can have no relevant bearingonthe judgment. 3.11. Additionally, under Section 80 of the Evidence Act, NRCD 323 this Court may determine the credibility of a witness and consider same in determining the probative valueofthe witness’ testimony. Itreads: “80.Attackingor supportingcredibility Page15of 21 (1) Except as otherwise provided by this Act, the Court or jury may, in determining the credibility of a witness, consider a matter which is relevant to prove or disprove the truthfulness of the testimony of the witnessat the trial. (2) Matters which may be relevant to the determination of the credibility of the witness include,but are notlimited to …(c)the existenceor non-existenceof afacttestified to by the witness; (g) a statement or conduct which is consistent or inconsistent with the testimony of the witness atthe trial;” 3.12. 2nd Defendant prevaricated substantially while under cross-examination, even on issues that are in admission by Defendants in terms of their statement of Defence filed on 25th January 2024 such as the presence of third parties on the disputed land. This was what transpired whilst 2nd Defendant was under cross-examination: Q: Do you know there were some farmers already cultivating the land you demarcated to me? A: The land I demarcated to Plaintiff had no farmers on it though the farmersare there. Page16of 21 Q: I put it to you that that the land you and your surveyor demarcated tome had farmsalready on itas admitted in your testimony? A: That is true. There are lands meant for Plantation farming whereas other lands are meant for cultivation, so if someone comes for land for either cashew or mango plantation and the land has crop farms on it, the purchaser of the land can agree with the crop farmer and sometimes provide the crop farmer with weedicide to clear the land. After the crop farmer harvests his crops from the land, it becomes the bona fide property of the purchaser. Q: Do you agree that the farmers on the land hooted at me and did not want to surrender the land to me at the time you and your surveyor were showingme the boundariesthe land? A: Some people cameto dothat. Q: Do you agree that I informed 1st Defendant that farmers who were on the land didnot agree to surrender itto me? A: That istrue, but itis notlike that. Page17of 21 3.13. The prevarications in 2nd Defendant’s responses are so glaring that it would be a waste of the court’s time to attempt to explain them any further. Plaintiff on the other hand did not in the view of the court exhibit any inconsistency in his case as brought before this court, his evidence-in- chief and his responses under cross-examination. I am therefore inclined to a belief that Defendants’ attempt to explain their liability away by response that Plaintiff hoped to resile from the agreement is because he had found some other land if at all it were relevant, is entirely an afterthought. The court finds Plaintiff’s evidence and narration of the facts more probable as a whole and finds as a fact that Defendants undertook to refund Plaintiff’sGHS 10,000.00to him. 3.14. Applying Ibm World Trade Corporation v. Hasnem Enterprises Ltd [2001-2002] 2 GLR 248, a promise made with the intention such as in this suit, that Plaintiff should rely on it, and which is in fact relied on by Plaintiff are all sufficiently proven. Defendants having failed to fulfill their part of the bargain between themselves and Plaintiff, it is only fair that Plaintiff should recover the purchase price delivered to Defendants and in such a manner that losses and potential losses occasioned by the passing of time are compensated in adequate measure. As stated in Holland West Africa & Anor v. Pan African Trading Company & Anor. (1976) 2 GLR Page18of 21 179 ‘if a breach of contract had deprived a plaintiff of the use of a sum of money or other capital asset, the defendant must be presumed to have agreed to pay interest for the period between the date when the cause of action arose and the date of the judgment’. For the foregone reasons, I find as a fact that Plaintiff is entitled torecoverthe sum ofGHS 10,000.00 fromDefendants withinterest. Interest 3.15. As explained by the Court in Kama Health Services Limited v. Unilever Ghana Limited (supra), Parties need not provide in their contract that interest shall be paid in the event of a breach. Interest payment follows failure of a contract under which payment has been made, as a form of damages for breach of contract. Additionally, by the Court (Award of Interest and Post Judgement Interest) Rules, 2005 (C.I. 52) it is provided at Rule 1 that if the court in a civil cause or matter decides to make an order for the payment of interest on a sum of money due to a party in the action, that interest shall be calculated (a) at the bank rate prevailing at the time the order is made, and (b) at simple interest, but where an enactment, instrument or agreement between the parties specifies a rate of interest which is to be calculated in a particular manner the court shall award that rate of interest calculated in that manner. In this suit there is no contractual or statutorily applicable rate. Rule 2(1) of C.I. 52 provides that Subject to subrule (2) each judgment debt shall bear interest at the Page19of 21 statutory interest rate from the date of delivery of the judgment up to the date of final payment. I have in this suit decided that is fair that all sums ofmoney ordered tobe paid must attract the appropriate interest. 3.16. The statutory or prevailing bank rate as provided under Rule 4(1) is the bank rate prevailing at the time the judgement or order is made by the court and where there is doubt as to the prevailing bank rate, the 91 days Treasury Bill interest rate as determined by the Bank of Ghana shall be the prevailing bank rate as provided by rule 4(2). I fall on the reasoning of the Supreme Court in Daniel Ofori v. Ecobank Ghana Limited (2020) JELR 92012 (SC), since to my mind Rule 4(2) of C.I. 52 is applicable in computing damages in this suit at the statutory rate of 28% per annum, which I have taken notice of as the Bank of Ghana 91-day treasury bill interestrateasat judgment. CONCLUSION Plaintiffs’ action succeeds, Plaintiff shall recover from Defendants jointly and severallyasfollow: a. The sum of GHS 10,000.00 with interest at the statutory rate of 28% per annumfromJune 2023till finalpayment. Page20of 21 b. I assess Plaintiff’s costs at GHS 2500.00 with interest at the statutory rate of 28% per annum from judgmenttill finalpayment. SGD. KWAMEADJEI MANU ESQ. (DISTRICTMAGISTRATE) Page21of 21