Kyere v Appiah (A2/14/2023) [2024] GHADC 789 (17 December 2024)

INTHEDISTRICT COURT HELDAT BEREKUMON TUESDAYTHE 17TH DAYOF DECEMBER,2024. BEFORE HIS WORSHIP AUGUSTINE AKUSA-AMTHE DISTRICT MAGISTRATE. SUITNO. A2/14/2023 HAYFORDKWABENAKYERE == PLAINTIFF VRS MAXWELL APPIAH == DEFENDANT JUDGMENT The plaintiff instituted the instant action against the defendant seeking the reliefs hereunder; (a) An order of the court to compel the defendant to refund an amount of GH¢6,033.00 being an amount the defendant convinced the plaintiff to invest in a jointteak business but the defendant has swindled theplaintiff. (b) An order of the court to compel the defendant to account for and give the plaintiff a fair share of a 40 footer container containing full 8 feet teak logs which said logs the plaintiff herein invested in but the defendant has sold same without his consent. 1 THECASE OF THE PLAINTIFF The plaintiff, who is a pastor and a farmer testified that the defendant approached him and proposed to do a joint teak business. After pondering over the proposal and having been convinced that the business was profitable, he invested an amount ofGH¢6,033.00into thebusiness. According to the plaintiff, the defendant had intimated to him that his business strategy was to supply sawn teak to his white customers on credit. But after investing in the business, he cautioned the defendant not to supply teak on credit any longer. It was thereforeagreed that their customerswould paycash before delivery. The plaintiff alleged that the defendant went against their agreement by supplying some quantity of sawn teak to some customers but failed to share the profit with him. Several demands on the defendant to do the needful failed so he approached one Kofi Takyi at Nkrankwanta to talk to the defendant but that too yielded no fruitful result. The plaintiff decided to take this action for the recovery of his capital of GH¢6,033.00 cum anexpected profit ofGH¢2,383.00. The plaintiff produced two witnesses. The first witness for the plaintiff was Francisca Kyeremaa (PW1) mobile money vendors she testified that she did not know any business relationship between the parties. She said she got to know the plaintiff through the defendant with whom she had been doing business. According to PW1, 2 the plaintiff had on two occasions instructed her to transfer an amount of GH¢500.00 and GH¢200.00respectively tothedefendant. On one occasion both parties came to her and the plaintiff collected an amount of GH¢750.00 from her and gave same to the defendant. PW1 further disclosed that the plaintiff once called her to give an amount of GH¢350.00 to the defendant to feed some operators. The sum totalofallmoneysgiven tothe defendant was GH¢1,800.00. The last witnessfor the plaintiff was KwasiEmmanuel aliasTogoman. He testified that both parties once engaged him to cut some teak trees for them but it was only the plaintiff who paid him cash. He said he did not know any business arrangements betweenthe parties. THECASE OF THE DEFENDANT The defendant describes himself as a teak merchant who does his business at Nkrankwanta but a resident of Berekum. The defendant averred that the plaintiff once approached him and complained that one Wofa Attah had dumped him after he had partnered him to doteakbusiness. After discussions, the plaintiff promised to introduce the defendant to some teak farmers. The defendant thus promised to use his operators to cut the teak into logs for the plaintiff. The plaintiff was solely responsible for the funding of the business. The defendant denied ever taking an amount of GH¢6,033.00 to do business with the plaintiff. He saidthere had neverbeenany partnership betweenthem. 3 The defendant explained that he had loaded half container of teak trees to be supplied to his customers and because he was short of teak logs he borrowed a quantity of teak logs from the plaintiff and filled the container and supplied same to his customers. According to the defendant, because he had assisted the plaintiff by introducing him to the teak farmers and helping him to cut the teak into logs for the plaintiff, he was entitled tosome share oftheplaintiff’steak legsin aaccordance with tradepreacher. The defendant admitted borrowing an amount of GH¢500.00 from the plaintiff to foot themedical bills ofhis wife. The defendant clarified that the teak logs he collected from the plaintiff was a share he was entitled toby agreement because he used hisown resourcestocut the teakinto logs forthe plaintiff. ISSUEFOR DETERMINATION After carefully examining the pleadings and the totality of evidence adduced in court I amofthe considered opinion thatthe issues for determinationare; (a) Whetheror notthedefendantowes theplaintiffanamount ofGH¢6,033.00. (b) Whether or not the defendant should be compelled to account for and give the plaintiffafair shareofa40feet containerof teaklogs. BURDENOF PERSUASION 4 Before I deal with the issues for determination I shall briefly touch on the burden of proof. In civil cases, the general rule is that the one who in his pleadings or writ raises issues essential to the success of his case assumes the onus of proof. The civil onus is on the balance of probabilities. See BANK OF WEST AFRICA LTD. V ACKUN (1963) GLR176)and Section 12ofthe EVIDENCE ACT,1975(ACT 323. Therefore, in the instant case the burden lies on the plaintiff to adduce sufficient credible evidence toconvince the courtthat his claim is moreprobable thannot. In his writ of summons, the plaintiff is claiming an amount of GH¢6,033.00 but in his evidence in chief he projected that he was entitled to a profit of GH¢2,383.00 from one container load of Teak logs. In this regard, the plaintiff is claiming a total sum of GH¢8,416.00 fromthe defendant. But the question that must first be answered is, did the plaintiff really partner the defendant in his lumber business? The plaintiff could not demonstrate any partnership agreement between him and the defendant. For instance during cross examination of theplaintiff on09/09/2024, the following ensued; Q. Do you know the total sum owed me is GH¢6,033.00 which was documented and we bothsigned. A. Ihave notexecuted any document withyou. 5 Having claimed that they had executed a document regarding his investment, the court expected the plaintiff to provide sufficient proof of his claim but he could notproduce any such document. Throughout his cross examination of the defendant, the plaintiff could not ask any meaningful question. He was rather interested in a motor bike he gaveto the defendant to conduct his business. His cross examination centered on an amount of GH¢600.00 he gave to the defendant the defendant explained that he rather took an amount of GH¢500.00 to takecare ofhis wife’s health. The first witness for the plaintiff Francisca Kyeremaa (PW1) testified that the plaintiff had on several occasions instructed her to give a total sum of GH¢1,800.00 to the defendant. After the witness had testified, the defendant did not cross examine her. The inference is that the defendant admitted the import of the evidence of PW1. See FORI VRS AYIREBI (1966)GLR 627SC. I have found as a fact that there had never been any partnership between the parties to warrant the defendant to account for a 40-feet container of logs. The plaintiff approached him for assistance from all indications, the plaintiff was doing his own business. After the trial, I have found as a fact that the defendant borrowed an amount of GH¢500.00 from the plaintiff. Furthermore he took an amount of GH¢1,800.00 from 6 PW1 on the instruction of the plaintiff. The defendant could not account for the money he tookfromPW1. In the result I will order the defendant to pay a total amount of GH¢2, 300.00 to the plaintiff since he (the plaintiff) could not sufficiently prove his case. Costs of GH¢400.00for theplaintiff. SGD H/W AUGUSTINEAKUSA-AM MAGISTRATE 7