ANAMOO VRS AYAMBA (UE/BG/DC/A2/290/2024) [2024] GHADC 615 (4 December 2024)

*HWMNJ@DC/BLG-04/12/2024* CORAM: HIS WORSHIP MAWUKOENYA NUTEKPOR (DISTRICT MAGISTRATE), SITTING AT THE DISTRICT COURT, BOLGATANGA IN THE UPPER EAST REGION OF GHANA, ON WEDNESDAY, THE 4TH DAY OF DECEMBER, 2024. SUIT NO. UE/BG/DC/A2/290/2024 SIMON ANAMOO PLAINTIFF OF HOUSE NO. ZR105, ZUARUNGU, BOLGATANGA VRS. AYAMGA PETER DEFENDANT OF BOLGATANGA TIME: 09:28AM PARTIES PRESENT NO LEGAL REPRESENTATION FOR THE PARTIES JUDGMENT Introduction 1. The Plaintiff commenced this action on 30th July 2024 and claimed against the Defendant as follows: - a. Recovery of an amount of GHC11, 900.00 from the Defendant being money the Defendant borrowed from the plaintiff on 19/10/2023, but which the Defendant has failed to pay to the plaintiff. b. An order directed to the Defendant to pay the said sum of GHC11, 900.00 the plaintiff with interest. c. Cost. *JUDGMENT-SIMON ANAMOO VRS. S. AYAMGA PETER (SUIT NO. A2/290/2024) * Page 1 of 9 *HWMNJ@DC/BLG-04/12/2024* d. Any other orders this Honourable may deem fit to make. Background facts 2. Plaintiff says somewhere in 2023 defendant borrowed GHC5,000, GHC3,000.00 and GHC550 from him on different occasions at an interest rate of 40% per month. Plaintiff says the total amount is GHC8,550 with interest of GHC3,420.00 amounting to GHC11,970.00 but Defendant pleaded with him to take out 70 which he did leaving the balance of GHC11,900. The plaintiff says that the defendant filled a loan Agreement form or Undertaking for the sum of GHC11,900.00 dated 19/10/2023, but has failed to pay same to him. Plaintiff says that several demands and all efforts have been made to recover the said sum of GHC11, 900.00 from the Defendant but all to no avail. Plaintiff says that the defendant is capable of paying the said sum of GHC11, 900.00 to him but unless compel by this Honourable Court the Defendant will not pay the said sum of GHC11,900.00 to him. The plaintiff therefore prays for the above stated reliefs. 3. The defendant on the other hand denies Plaintiff’s claims and says that he went to plaintiff for a financial support in the sum of GHC2,000.00 to pay his wife’s school fees. He filed a form in the presence of a witness who introduced him to plaintiff. Defendant says he asked for a copy of the form but plaintiff did not give it to him because Plaintiff says some people do not like taking it. Defendant says he was not having a phone to take a picture of the form. It is the Defendant’s case that the loan attracted an interest of 40% per a month or GHC800 a month totaling GHC2,800 (principal plus interest), so he told Plaintiff that his salary was not up to GHC2,800.00 and plaintiff agreed to give him two (2) months to pay. Defendant says after the two (2) months, he was not able to pay plaintiff the sum *JUDGMENT-SIMON ANAMOO VRS. S. AYAMGA PETER (SUIT NO. A2/290/2024) * Page 2 of 9 *HWMNJ@DC/BLG-04/12/2024* of GHC2,800 and that it took him six months to pay GH₵2,700.00 leaving the balance of GHC100 which he paid when the matter came to court. He maintains that he never took GHC5,000.00, GHC3,000 and GHC550.00 as loans on different with interest amounting to GHC11,900.00 from plaintiff. He therefore prays for Plaintiff action to be dismissed. Burden of Proof 4. The obligations or duties of parties to lead evidence; and to persuade the court, as to the credibility of their allegations are covered both by statute and plethora of authorities. The law is that he who alleges must prove. Under sections 10, 11, 12 and 14 of the Evidence Act 1975 (NRCD 323) the burden of who has the responsibility to lead evidence is clearly set out. These are burdens of leading evidence and the burden of persuading a tribunal by leading credible evidence. Sections 11(1)(4) and 14 of the Evidence Act 1975 (NRCD 323) provides as follows: 11(1) For purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue. (4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence. 14 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-existence of which is essential to the claim or defence he is asserting.” 5. There are two parts to the duty to discharge the burden of proof. Thus, the twin burdens of proof and standard of proof contained in the provisions are: (a) There *JUDGMENT-SIMON ANAMOO VRS. S. AYAMGA PETER (SUIT NO. A2/290/2024) * Page 3 of 9 *HWMNJ@DC/BLG-04/12/2024* is the burden of leading evidence to back an assertion; and (b) the burden of persuasion i.e. leading evidence of sufficient standard to persuade a tribunal to rule in one’s favour. See the case of Isaac Alormenu vs. Ghana Cocoa Board, Civil Appeal No. J4/86/2022, delivered on 8th February 2023. 6. In the case of In re Ashalley Botwe Lands; Adjetey Agbosu & Ors v Kotey & Ors [2003-2004] SCGLR 420, at pp. 464-465, Brobbey JSC explained the law on burden of proof thus: “The effect of sections 11(1) and 14 and similar sections in the Evidence Decree, 1975 may be described as follows: A litigant who is a defendant in a civil case does not need to prove anything: the plaintiff who took the defendant to court has to prove what he claims he is entitled to from the defendant. At the same time, if the court has to make a determination of a fact or of an issue, and that determination depends on evaluation of facts and evidence, the defendant must realize that the determination cannot be made on nothing. If the defendant desires the determination to be made in his favour, then he has the duty to help his own cause or case by adducing before the court such facts or evidence that will induce the determination to be made in his favour. The logical sequel to this is that if he leads no such facts or evidence, the court will be left with no choice but to evaluate the entire case on the basis of evidence before the court, which may turn out to be only the evidence of the plaintiff.” 7. In Ackah v Pergah Transport Ltd., 2010] SCGLR 728, Sophia Adinyira JSC stated on the burden of proof at p.736 as follows: “It is a basic principle of 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 varied and it includes the testimonies of the party and material witness, 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 minds 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 *JUDGMENT-SIMON ANAMOO VRS. S. AYAMGA PETER (SUIT NO. A2/290/2024) * Page 4 of 9 *HWMNJ@DC/BLG-04/12/2024* conclude that the existence of the fact is more reasonable that its non-existence. This is a requirement of the law on evidence under Section 10(1) and (2) and 11(1) and (4) of the Evidence Act, 1975 (NRCD 323)”. 8. Also, it is a settled principle of law that a bare assertion or merely repeating a party’s pleadings in the witness box without more does not constitute proof. In Klah V. Phoenix Insurance Co. Ltd [2012] 2 SCGLR 1139, this principle was reiterated: “Where a party makes an averment capable of proof 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 also the following cases on the burden of proof: Air Namibia (Pty) Ltd. V. Micon Travel & Tour & 2 Ors, [2015] 91 G.M.J, page 177, Majolagbe v Larbi & others (1959) GLR 190-195 and Klutse v. Nelson [1965] GLR 537 Evaluation of Evidence, Discussion of Issues and Legal Analysis 9. Plaintiff testified himself and called one witness. The Defendant testified herself and called one (1) witness. The plaintiff tendered in evidence an Undertaking dated 19/10/2023 as Exhibit A, Receipt dated 07/10/2024 as Exhibit B and ADB cheque booklet as Exhibit C. 10. The issues for determination in this case are: (a) whether or not the undertaking dated 19th October, 2023 is binding on the parties. (b) whether or not the defendant is liable to pay plaintiff the sum of GHC11,900.00 *JUDGMENT-SIMON ANAMOO VRS. S. AYAMGA PETER (SUIT NO. A2/290/2024) * Page 5 of 9 *HWMNJ@DC/BLG-04/12/2024* 11. it is settled law, that a person of full age and of sound mind would be bound by the contents of a document he has signed, whether he read it or not. This is particularly in the absence of any requisite evidence that he was misled to sign it. In other words, when a document containing contractual terms is signed, then in the absence of fraud or misrepresentation, a party of full age and understanding is bound to the contract to which he appended his signature. It is immaterial whether he read the document or not. See the cases of The Seed Funds Vs. Abass Haruna Appiah & Anor [2023] DLHC15120, Inusah V. D.H.L. Worldwide Express [1992] 1 GLR 267-271, Yaw Oppong V Anarfi [2011] 32 GMJ 118 SC, Twum v SGS Limited [2011] 30 GMJ 92 CA, L’Estrange v. Graucob Ltd. [1934] 2 K.B. 394. 12. In the instant case, plaintiff testified in his evidence in chief as captured in paragraphs 6 to 9 of his witness statement as follows: “6. The Defendant came to plaintiff somewhere in February, 2022, and borrowed an amount of GHc5, 000.00 from the plaintiff at 40% interest for a month but failed to pay to the plaintiff. 7. The Defendant came to the plaintiff somewhere in March, 2022, and borrowed an amount of GHC3,000.00 from the plaintiff at 40% for a month but failed to pay off the GHC5, 000.00 and the GHC3,000.00 … to the plaintiff. 8. The Defendant on the 3rd time came to the plaintiff again and borrowed an amount of GHC550.00 with an explanation that he wants to pay off his Bank Loan to enable him get a new Bank Loan and settle the plaintiff of a total sum of GHC8,550. 00 at 40% which is GHC11, 970.00 and the Defendant pleaded with the plaintiff to take off GHC70.00 and that is how come the amount on the undertaking form is GHC11, 900.00 but the Defendant failed to pay same to the plaintiff. *JUDGMENT-SIMON ANAMOO VRS. S. AYAMGA PETER (SUIT NO. A2/290/2024) * Page 6 of 9 *HWMNJ@DC/BLG-04/12/2024* 9. That the plaintiff together with the Defendant met and the Defendant completed the undertaking Loan Form in his own hand writing on the finally sum of GHC11,900.00 and they both signed with a witness dated 19/10/2023.” 13. In addition, during cross examination of plaintiff by the Defendant on 19th November, 2024 the following transpired: Q. You claim I borrowed GH₵5,000.00 but I did not pay, I came again to borrow GHC300.00 and I did not pay and I came again to borrow GHC550,00. Do you have any document to show that I collected the monies from you as a money lender? A. He told me he was having problem with his salary that was how come I borrowed the money to him on three occasions. The loans were documented. It is true I followed him to school. We both agreed to put the amounts together in one document which is exhibit A [the undertaking]. We agreed to destroy the earlier documents. Q. I put it to you that I never collected GH₵11,900.00 from you and never agreed to destroy any documents. A. That is not true. We agreed to destroy the documents at TF office Bolga. 14. On 19th November, 2024, the Defendant under cross examination by Plaintiff, the following transpired: Q. I put it to you that what you just told the court is not true. A. That is the truth I am telling the court. I have a witness. Q. At the time we met at TF office, how much did you owe me? A. I owed you GHC100. Q. If you owed me GHC100, why did you sign the undertaking? *JUDGMENT-SIMON ANAMOO VRS. S. AYAMGA PETER (SUIT NO. A2/290/2024) * Page 7 of 9 *HWMNJ@DC/BLG-04/12/2024* A.I signed the undertaking because you were harassing me. I could not even sleep in the night. I was under pressure. I was not of myself. 15. From the evidence, the Plaintiff has demonstrated to this court how he arrived at the sum of GHC11,900.00 leading to the execution of the undertaking dated 19th October, 2023 between him and the defendant. The defendant did not deny meeting the plaintiff at TF office Bolga. He admitted signing the said undertaking but claims he signed it under pressure. He denies plaintiff claims for GHC11,900 and maintained that he borrowed GHC2,000.00 from plaintiff at an interest rate of 40% per month but used six months to pay the sum of GHC2,700 out GHC2,800 which was the principal and interest of GHC800. 16. It is worthy of note that the defendant herein is a literate trained professional Teacher, a man of full age, sound mind and responsibility. This court is of the view that if the defendant was owing the Plaintiff GHC100 as he claims, he would not have signed the undertaking covering amount of GHC11,900 when they met at the TF office Bolgatanga. From the evidence, the defendant did not convince the court that the said undertaking was procured by undue influence or pressure as well as fraud or misrepresentation. 17. This court therefore finds plaintiff’s evidence more probable than that of the defendant and holds that since the defendant admitted signing the undertaking dated 19th October, 2023 (Exhibit A), he is deemed to be bound by the provisions contained in it. The defendant is therefore liable to pay the Plaintiff the sum of GHC11,900.00. It is on record that the defendant paid the sum of one hundred Ghana Cedis (GHC100) when the matter came before this court, see Exhibit B. *JUDGMENT-SIMON ANAMOO VRS. S. AYAMGA PETER (SUIT NO. A2/290/2024) * Page 8 of 9 *HWMNJ@DC/BLG-04/12/2024* Accordingly, the defendant is hereby ordered to pay the outstanding balance of GHC11,800 to the Plaintiff. 18. Finally, the plaintiff claims he is a money lender. This court has taking judicial notice of the fact that he has been bringing many people to court for money they borrowed from him. It is advisable that people who operate money lending business keep proper documentation of the loans they give to people at all times, separating the principal from the interest. Conclusion 19. Having examined the whole evidence adduced by the plaintiff and the defendant on record in accordance with the foregoing authorities as well as the analysis, the court holds that plaintiff’s action succeeds. The defendant is hereby ordered to pay the remaining balance of Eleven Thousand Eight Hundred Ghana Cedis (GHC11,800.00) to the Plaintiff. There will be no order as to costs and interest. (SGD.) H/W MAWUKOENYA NUTEKPOR (DISTRICT MAGISTRATE) *JUDGMENT-SIMON ANAMOO VRS. S. AYAMGA PETER (SUIT NO. A2/290/2024) * Page 9 of 9