NYOBON VRS GYATO & ANOTHER (A2/278/2024) [2024] GHADC 642 (13 December 2024)

IN THE DISTRICT COURT HELD AT DAMBAI ON FRIDAY 13TH DECEMBER, 2024 BEFORE HIS WORSHIP ALHASSAN DRAMANI, ESQ. DISTRICT MAGISTRATE CASE NO: A2/278/2024 NTEGLINI NYOBON PLAINTIFF OF DAMBAI OLD TOWN VRS 1.SIMON GYATO DEFENDANT 2.TIMOTHY GYATO OF DAMBAI JUNCTION PLAINTIFF PRESENT 1ST DEFENDANT PRESENT 2ND DEFENDANT ABSENT --------------------------------------------------------------------------------------- JUDGEMENT The Plaintiff herein claims against the Defendants for the following reliefs: (a) “Recovery of GH¢6,200.00 (b) Interest on the said amount from July, 2023 till date of final payment. (c) An order compelling the Defendant to pay an amount of GH¢450 being money the Plaintiff spent at the Chief palace to pursue Defendant for the recovery of the above stated amount without success. (d) Costs”. The Defendants denied liability of all the claims and stated that they had a reasonable defence. THE CASE OF THE PLAINTIFF The Plaintiff’s case was that he is a farmer and lives at Dambai junction whilst the 1st and 2nd Defendants are farther and son respectively. According to Plaintiff somewhere in July, 2023 he acquired a piece of land at GH¢6,200.00 from the Defendants. Plaintiff said the plot of land is situated near the ECG office, Dambai. Plaintiff stated further that it was the 2nd Defendant who led him and other persons to the land for demarcation and measurements thereafter he paid an amount of GH¢6,000.00 to Defendants through his brother Nilamor and Kwame Asiam. According to Plaintiff the Defendant’s further demanded for GH¢200.00 as “signing fees” which he paid to them. Plaintiff said when they went to take the measurements on the land he realized that there were already some boundary pillars mounted on the land and when he questioned 2nd Defendant he explained that the pillars were mounted on the land by Defendants to ward off encroachers. According to Plaintiff when he later tried to develop the land he was confronted by another person who also claim ownership of the land. Plaintiff said he brought this to the attention of the Defendants and 1st Defendant went to the land with him and his brothers and after inspection 1st Defendant told him that the said land was indeed already acquired by someone. But 1st Defendant assured him that he will grant him another land so Plaintiff should give him some time to search for a vacant land. Plaintiff added that he has made several demands on the Defendants for the new allocation but the two kept tossing him so he eventually made a demand for a refund of his money but the Defendants failed to do so. The Plaintiff call two (2) witnesses as PW1 and PW2. PW1 was Kwame Asiam, a bicycle repairer. He told the court that somewhere in July, 2023 he was at his shop when the 1st Defendant approached him with the information that he had a piece of land near the ECG office for sale and so PW1 should assist him look for a buyer. According to PW1 he in turn spoke with Nilamor Gembah (PW2) who is his friend and Nilamor also informed Plaintiff who is his brother. PW1 said after Plaintiff expressed interest in buying the land, 1st Defendant made 2nd Defendant to lead them to the land where measurements were taken. PW1 said after they return from the site, Plaintiff gave an amount of GH¢6,000.00 to he and Nalimor (PW2) and they sent same to the 1st Defendant and he made 2nd Defendant to collect the money. According to PW1 1st Defendant further demanded for GH¢200.00 which he said was signing fees which was also paid to the Defendant making a total of GH¢6,200.00. PW1 stated further that the Plaintiff went into possession of the land but someone also claimed ownership of same and when 1st Defendant’s attention was drawn to this happening he promised to allot a different plot to Plaintiff but failed to do so. PW2, was Nalimor Gembah, he basically corroborated the account of PW1. He testified that he was present when the GH¢6,200.00 was paid to the Defendants. He further testified per his witness statement that he and PW1 were among others who went to the land for the demarcation. Thereafter the Plaintiff brought his case to close THE CASE OF THE DEFENDANTS The Defendants filed a joint defence and witness statement. The defendants case as can be gleaned from their pleadings and evidence was that sometime in July, 2023 the PW1 approached them and requested to buy a plot of land from them. Defendants said they sold a plot of land to PW1 at the cost of GH¢6,000.00 out of which PW1 made a part payment of GH¢45,00.00 with an outstanding balance of GH¢1,500.00 to be paid. Defendants said they have not given out the plot to PW1 because he has failed to pay the balance of GH¢1,500.00 Defendants called one witness as DW1. DW1 was Abu Nuhu who is a grandson of 1st Defendant and nephew of 2nd Defendant. He told the court that one day he was in the house when PW1 came to the 1st Defendant and the two discussion about a plot of land. He said in the said discussion he overhead PW1 telling 1st Defendant that he brought GH¢4,500.00 and that he will pay the balance of GH¢1,500.00 later. Thereafter, the Defendants closed their case. The legal issue to be determined by this court is whether or not the Plaintiff paid GH¢6,200.00 to Defendants for a plot of land. Sections 11(4) and 12 of the Evidence Act, 1975 (NRCD 323) provides that the burden of proof on a party in a civil suit should be on a balance of probabilities. In the case of Adwubeng v. Domfeh [1996-97] SCGLR 660, the Supreme Court held that in all civil actions, the standard of proof is proof by the preponderance of probabilities, and there is no exception to that rule. Also, in the case of Yorkwa v. Duah [1992-93] GBR 281, the Court of Appeal decision per Brobbey J.A. (as he then was) stated that: “The provisions of the Evidence Decree, NRCD 323, require that in a case like the instant one, the obligation to adduce evidence should first be placed on the plaintiff”. In the instant case, it has not been disputed that the Defendants collected some money from Plaintiff in order to give Plaintiff a plot of land. At paragraphs 6 and 7 of his witness statement the Plaintiff stated as follows: “…when we return from the plot I handed over GH¢6,000.00 to my brother Nalimor and fitter Asiam and they went and gave the money to defendants in their house. Some few days later, I went to the defendants for the preparation of the land receipt and 2nd defendant demanded for GH¢200.00 which I gave to him together with my full name and address for the preparation of the receipt”. Both PW1 and PW2 have corroborated the account of Plaintiff. They told the court that it was GH¢6,000.00 they handed over to the Defendants. In paragraphs 7, 8 and 9 of their statement of defence filed on 13/08/2024 the Defendants admitted that they collected GH¢4,500.00 from PW1 in order to lease a plot of land to PW1. Defendants further admitted that they collected additional GH¢200.00 for the measurement of the plot. They stated as follows: “Defendants says at a point in time fitter Asiam brought GH¢4,500.00 instead of GH¢6,000.00 and we promised that if he top up the GH¢1,500.00 we will issue a receipt to him. Defendants avers that Plaintiff never approached them for any land receipt nor did they take GH¢200.00 from him to prepare land receipt for him. Defendants says it was fitter Asiam who brought GH¢200.00 as the fee for the Town and Country Planner for the measurement of the plot”. From the evidence adduced the Plaintiff has been explicit that he was the one acquiring the land from the Defendants and he was the one who gave the money to PW1, Kwame Asiam @ fitter Asiam and Nalimor to pay to the Defendants on his behalf. Both PW1 and PW1 have confirmed that they paid the money to Defendants on behalf of Plaintiff and the money was GH¢6,000.00. It is worth noting that in PW1’s witness statement he stated that he was the one 1st Defendant approached and told to look for a buyer for the plot of land for him. The Defendants have not introduced any evidence in this trial to suggest even remotely that PW1 was buying the land for himself and not on behalf of Plaintiff. I am therefore unable to accept Defendants posturing which suggest that the Plaintiff was a stranger in the transaction. In my view, at all material times, the Defendants were fully aware that it was the Plaintiff who was acquiring the plot of land and not PW1. The Plaintiff in his witness statement stated that when they went to the site with 2nd Defendant to take measurement of the plot, he realized that they were already some boundary pillars mounted on the land so he questioned 2nd Defendant and 2nd Defendant explained that they the Defendants mounted the pillars there to “ward off encroachers.” This assertion by Plaintiff was not denied by the Defendants during the trial. In my respectful view the Defendants claim that it was PW1 they sold the land to is nothing but an afterthought. The Defendants case was that they received only GH¢4,500.00 from Kwame Asiam in respect of the plot of land and it was agreed that when the remaining balance of GH¢1,500.00 was paid they will issue a receipt to him. They stated further that they did not give out the land because the remaining balance have not been paid till date. However, at paragraph 9 of their Defence the Defendant stated “…It was fitter Asiam who brought GH¢200.00 as fee for the Town and Country Planner for the measurement of the plot”. The two statements supra by the Defendants have clearly exposed them as not only being untruthful but also as unreliable witnesses. On one hand they said it was agreed that the receipt will be issued after the balance of GH¢1,500.00 was paid. On the other hand, they also indicated that Fitter Asiam paid GH¢200.00 as fee for the Town and Country Planner. The question that naturally comes up at this point is why did the Defendants issued a receipt to Fitter Asiam when the balance of GH¢1,500.00 was not paid contrary to their earlier agreement? In my opinion, respectfully, the total amount of GH¢6,000.00 was paid to the Defendants that was why they issued the receipt. In the circumstances I find the Defendants claim that they received only GH¢4,500.00 from Fitter Asiam as a calculated fabrication designed to mislead this court. The Defendants’ own witness DW1 further exposed the lies in Defendants case. The following was what transpired when the DW1 cane under cross examination by Plaintiff on 23/10/2024 Q. Your case is that you were present when PW1 had a discussion with 1st Defendant with regards to payment of the money for the plot of land. A. Yes Q. In your witness statement you stated that you overhead PW1 telling 1st Defendant that he brought GH¢4,500.00 as part payment not so. A. No, I said PW1 brought GH¢4,000.00 Q. So it means PW1 still has a balance of GH¢2,000.00 to be paid correct. A. Yes. Q. The transaction between PW1 and Defendant happened at 1st Defendant’s house not so. A. Yes Q. Can you tell the court the date this happened. A. It is a long time, it is about three to four years. Q. I put it to you that you don’t know anything about this case. A. That is not true. Q. I again put it to you that you only came here to lie in support of the Defendants because they are your grandfather and uncle. A. No, I am being truthful to the court. From the above encounter I entirely agree with Plaintiff that DW1 either do not know anything about this case or he is just here to tell lies. Throughout this trial the Defendants have maintained that PW1 paid GH¢4,500.00 with a balance of GH¢1,500.00 yet to be paid. However, DW1 confidently told the court that Plaintiff paid GH¢4,000.00. Again, according to the evidence on record, the transaction took place in July, 2023, that is about a year and half ago, yet DW1 told this court that the transaction occurred about three to four years ago. In the case of Comfort Ofori V Kwame Appenteng CA No. J4/17/2017 delivered on 06th December, 2017 Benin JSC (as he then was) stated as follows: “at the trial the Defendant did not appear to be a witness of truth, a fact which should not have been glossed over by the court below. For the credibility of a witness is very critical in assessing and evaluating his evidence and what weight to attached thereto”. In my view, DW1 is a coached witness who was brought to mislead the court with untruth. Unfortunately, however he missed his lines and crashed the case of the Defendants. The inconsistency between DW1’s evidence and that of the Defendants is too serious to ignore. I shall therefore attach little or no weight at all to his evidence. From all the forgoing I find that the Plaintiff have successfully proved his case against the Defendants. Judgment is accordingly entered in favour of Plaintiff as follows: 1. Plaintiff is to recover the sum of six thousand two hundred Ghana cedi (GH¢6,200.00) being money the Plaintiff paid to Defendants for a plot of land. 2. Defendants are to pay interest on the GH¢6,200.00 at the prevailing commercial rate from July, 2023 till date of final payment. I award cost of GH¢2,000.00 in favour of Plaintiff against Defendants. SGD H/W ALHASSAN DRAMANI DISTRICT MAGISTRATE 13TH DECEMBER, 2024.