AMOAFO VRS. MACKEOWN (A2/80/2023) [2024] GHADC 573 (16 December 2024)

IN THE DISTRICT COURT HELD AT PRESTEA ON MONDAY THE 16TH DAY OF DECEMBER, 2024 BEFORE HIS WORSHIP IDDI ADAMA, ESQ SITTING AS THE DISTRICT MAGISTRATE SUIT NO. A2/80/2023 BETWEEN KOFI AMOAFO OF STAR OIL **** PLAINTIFF SANKOFA, PRESTEA AND DOMINIC AMPONSAH MACKEOWN SANKOFA, PRESTEA **** DEFENDANT JUDGEMENT The Plaintiff per a writ together with a statement of claim filed on the 8/5/2023 prays for the following reliefs against the Defendant: i. Recovery of an amount of GH₵19,000.00 being debt owed the Plaintiff since January 2022. ii. Interest on the said amount at the current commercial bank rate. iii. Cost occasioned by this action. iv. Any further relief(s) or order(s) as the Honourable Court may deem fit. The Defendant filed his defence on the 26/6/2023 and the Court subsequently directed the parties to file their respective witness statement and witness statements of witnesses 1 | P age they intend to rely on to testify on their respective behalves which was duly complied with. In his witness statement filed on the 7/8/2024 as well as the averments made in his statement of claim, Plaintiff indicates that he is the manager of star oil and double as a gold buying agent and the Defendant known to him as a gold miner/explorer. It is the position of Plaintiff that in and around August, 2020 Defendant offered him gold to buy on a couple of occasions and subsequently took monies in advance to supply same to which he supplied in bits and pieces till a debt of GH₵10,000.00 accrued. Plaintiff stated that Defendant further implored on him for a soft loan of GH₵10,000.00 to repair his rented excavator to sustain his exploration work. His indebtedness then increased to GH₵20,000.00 but Defendant was to supply Plaintiff gold to defray this debt within a couple of months. It is the position of Plaintiff that Defendant on the 2/5/2021 repaid GH₵1,000.00 of the loan, leaving an outstanding balance of GH₵19,000.00 and several demands to defray same has proved futile. Plaintiff further indicates that he called his lawyer who invited Defendant whereupon the Defendant signed an undertaking on the 9/8/22 to liquidate the outstanding loan in instalment over 8 months period, ending 3/3/23. Attached and marked as Exhibit ‘A’ is a handwritten note, headed “undertaking” tendered in evidence. A critical scrutiny of the attached note depose to a statement of undertaking by one Dominic Amponsah Mackeown, the Defendant herein admitting to owing Mr. Kofi Amoafo an amount of GH₵19,000.00 and undertaking to pay same within 8 months from 1st August, 2022. The note is dated as 09/8/2022 at Star Oil, Ankobra. This was signed by the parties and witnessed by Bronzy Kwabena Boateng, Esq. When testifying during cross examination Plaintiff indicated that though the relationship between him and the Defendant was that of sponsorship Defendant quotes the purchase price for the gold and he Plaintiff pays accordingly. Further to this, Plaintiff indicated that the agreement between them was to the effect that Defendant 2 | P age will repay the money he owes Plaintiff with gold and it’s instructive to quote the interactions between Defendant and Plaintiff during cross examination of Plaintiff. “Q. Before you started giving me money, there was an agreement in respect of that. A. The agreement was that you will repay my money with gold. Q. During the time of making the agreement with you, I came along with one Collins. A. You came with Collins but you collected the money and promised to pay.” This position or statement was not further controverted by the Defendant. In his statement of defence and witness statement filed on the 26/6/23 and 14/8/23 respectively, Defendant admitted knowing the Plaintiff as a gold buyer and that he entered into an agreement with Plaintiff to be his sponsor in the gold mining business. Defendant further asserted that it was agreed for the Plaintiff to buy the extracted gold at a reduced price lower than that of the market price and for the Plaintiff to deduct his investment in bits until the whole amount is recouped. Defendant admitted further in his witness statement that the GH₵20,000.00 initial owing to the Plaintiff was as to the repairs of the excavator machine used for the exploration and that he had managed to repay GH₵1,000.00 leaving an outstanding balance of GH₵19,000.00 to be settled. Though the Defendant stated he owed the Plaintiff GH₵19,000.00, he on the other hand indicates that, that amount was for the sponsorship of the gold exploration business. It is further the position of the Defendant that though he signed a document prepared by the lawyer of the Plaintiff, he did not know the content and moreover the lawyer misrepresented the content to him to sign and that it does not reflect the content of the meeting so held. This is in respect of Exhibit ‘A’ attached to the Plaintiff’s witness 3 | P age statement. The Defendant indicated that he does not owe the Plaintiff any money by way of a loan but the money advanced was an agreement reached between them for the Plaintiff to sponsor the mining business. The Defendant however further asserted his willingness to continue the exploration if Plaintiff will further sponsor the business to enable him pay his indebtedness to the Plaintiff. When cross examined by Counsel for Plaintiff, Defendant asserted that there was an agreement with the Plaintiff to be a part-owner of the mining business. It is worthy of notice that the Defendant admitted to the fact that he supplied gold to the Plaintiff to defray part of the loan granted by the Plaintiff to him and that the debt he owes to the Plaintiff stands at GH₵19,000.00 and further affirmed signing an undertaking to repay his indebtedness. This is what transpired between Counsel for the Plaintiff and the Defendant. “Q. You supplied gold to the Plaintiff to defray part of the loan granted to you by the Plaintiff. A. That is correct. Q. So your outstanding debt as at 9/8/22 stood at GH₵19,000.00, I put it to you. A. That is correct. Q. And you signed an undertaking to that effect. A. That is correct when I resiled from the agreement, I only had to work with some boys without a machine and therefore I was only able to pay GH₵1,000.00 to him that is why I signed the agreement. DW1, Kofi Atta Arkoh was unavailable to be cross examined on his statement though two opportunities was granted him to do so. The Defendant on the second adjourned date indicates to the Court that DW1 was in Sunyani and was indisposed as such 4 | P age unable to attend Court to be cross examined. Witness statement of DW1 is therefore stands withdrawn as incompetent. In determining the issues, I will ascertain as to whether the amount of GH₵19,000.00 advanced to the Defendant is refundable to the Plaintiff by way of an agreement to that effect. Before I address the core issue in the matter, it is trite that an agreement is the essence of every contract with its outward manifestation being an agreement between parties with regards to a common objective. Such manifestation may be made wholly or partly in writing, orally, by conduct or by a combination of the three. See “The Law of Contract published in 2011 @ page 5 by Christine Dwuona-Hammond. It therefore stands that contractual relationship can be oral, so can it be written or by conduct or all three instances. This position is buttressed under Section 11 of the Contract Act 1960 (Act 25) to the effect that no contract shall be void or unenforceable by reason only that it is not in writing or that there is no memorandum or note thereof in writing. It therefore stands to state that there was a contractual agreement between the parties to the suit as such enforceable under the law. Further to this for such agreement to be determined by the Court to be enforceable the external appearance rather than the actual intent or state of mind of the parties is irrelevant. I will therefore in a bid to ascertain the type of agreement entered into by the parties the intent or mental state of any of the parties is irrelevant but will objectively explore the conduct of the parties or what has been written. The basis of such agreement must be the actual intent of the parties being in ad idem or “meeting of minds”. The absence of “Consensus ad idem” puts the parties at cross purpose unless actual agreement is deduced by way of evidence offered by the parties and by conduct otherwise it will be deemed non-existence. See Turqui & Bros v Lamptey (1961) 1 GLR 190. This shall be ascertained by the preponderance of probabilities. 5 | P age It is trite that, in civil cases, the burden of proof is on the Plaintiff to proof his claim by the preponderance of probabilities. Section 12(1) and (2) is it instructive; “12(1) Except as otherwise provided by Law, the burden of persuasion requires proof by a preponderance of probabilities. (2) Preponderance of probabilities means that degree of certainly of behalf in the mind of the Tribunal of fact or the Court by which it is convinced that the existence of a fact is more probable than its non-existence” The burden of persuasion is to determine as to whether or not the party with the burden of producing evidence on the issue has all the evidence to satisfy the Court of the probable existence of the fact in issue. By virtue of the relevant provisions in NRCD 323 in all civil cases, judgement is to be given in favour of the party on the preponderance of probabilities. See Gihoc v Hanni Assil (2005/06) 1 SCGLR 458. In the present case the Plaintiff is seeking for the recovery of a debt of GH₵19,000.00 and interest thereof from January 2022. The Plaintiff asserted that he is a gold buying agent and the Defendant approached him to advance them some funds for their mining exploration and they would intend sell the extracted gold to the Plaintiff. It is an admitted fact by both parties that the Plaintiff stock in trade is into the buying of gold and it can further be deduced that the Defendant is aware of the business activity of the Plaintiff and nothing more, except that he the Defendant has agreed with the Plaintiff to advance them the money before the gold is delivered to Plaintiff. When cross examined by the Defendant, Plaintiff indicated it was agreed that the money to advanced was to be repaid with gold and it was further deduced that Defendant promised to repay in the presence of one Collins, which invariably corroborate the position of Plaintiff that the money so advanced was a loan. 6 | P age The rule is that where the evidence of one party on the issue in a suit is corroborated by witnesses of the opponent whilst that of his opponent on the same issue stands uncorroborated even by his own witness a Court ought not to accept the uncorroborated version in preference to the corroborated one unless for some good reason the Court found the corroborated incredible or impossible. See Yaw Augustine v Ama Nsiah [2005] SC Unreported Lartey JSC. In the present case the Defendant evidence that he had repaid GH₵1,000.00 out of the GH₵20,000.00 leaving an outstanding balance of GH₵19,000.00 and admitting to repay same if Plaintiff advances him more funds, corroborates the position of the Plaintiff that the said outstanding is a loan stands. In buttressing the above position, where the Defendant 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 example of estoppel by conduct. It is a rule whereby a party is precluded from denying the existence of some state of facts which he had formerly asserted. That type of proof is a salutary rule of evidence based on common sense and expediency. For the admission of the Defendant to repay the amount owed points to the fact the amount advanced represent a loan. The deposition of the Defendant to also assert that the said amount represents a sponsorship by the Plaintiff is neither here or there. The law is that the inconsistency in the testimony of a witness, though individually colourless may cumulatively discredit the claim of the proponent of the evidence. See Obeng v Obeng (1992/93) GLR 1027. This is to the effect that the continuous shifting of post by the Defendant depose to his assertion being less probable and his story is not in harmony with the balance of probabilities. 7 | P age It is trite that an important principle which should guide the tribunal of fact in determining the credibility of a witness is the need to test the story of the witness as to its consistency with the probabilities that surround the currently existing conditions. In short the test is whether the story of the witness is in harmony with the preponderance of probabilities which a practical and informed person would readily recognise as reasonable in those conditions. See Chantel v Koi (2011) 29 GMJ @ 51. One such condition is the note marked as Exhibit ‘A’ headed “Undertaking”. This is to the effect that Defendant has admitted owing the Plaintiff an amount of GH₵19,000.00 and further undertakes to repay same within a period of 8 months, ending the 31/3/2023. This was dated and executed at Star Oil, Ankobra on the 9/8/22 and signed by the parties to the present suit and further witnesses by Bronzy K. Boateng, Esq. Therefore, by the document of undertaking so signed by the parties coupled with the testimonies of the Plaintiff which are harmony, the Defendant cannot approbate and reprobate at the same time pertaining to the issues during cross examination. The settled principle of the law of evidence is that where oral evidence conflicts with documentary evidence which is authentic, the documentary evidence ought to be preferred over and above the oral evidence. See Agyei Osae v Adjeifio (2007/08) SCGLR 499. The oral testimony of the Defendant was manifestly inconsistent and thus less reliable. The Plaintiff has on all instances insisted that the money advanced to the Defendant was that of a loan. The evidence on record on proof of the Plaintiff’s claim of a loan advanced to the Defendant is very convincing as to the degree of certainty of belief in my mind. It is instructive to note that despite Defendant strenuous denial of owing the amount of GH₵19,000.00 and deposing it to be a sponsorship, the records indicates otherwise. It being so, I am enabled on the practice and procedure relating to admissions to take same into account in determining the matter. 8 | P age Having regard to Section 11(4) and 12 of NRCD 323 the Plaintiff claim is more probable than that of the Defendant and judgement is hereby entered in favour of the Plaintiff against the Defendant and the Plaintiff is granted all reliefs sought. Plaintiff to recover the amount of GH₵19,000.00 being debt owed to the Plaintiff by the Defendant since January, 2022. 2. Interest on the said amount at the current commercial bank rate till the date of final payment. 3. Cost of GH₵2,500.00 is further awarded in favour of the Plaintiff against the Defendant. The Defendant has the right of appeal to the High Court, Tarkwa. H/W. IDDI ADAMA, ESQ. (DISTRICT MAGISTRATE) BRONZY KWABENA BOATENG, ESQ., COUNSEL FOR PLAINTIFF 9 | P age