AYONGO V BOKOM (A2/16/2024) [2024] GHADC 521 (31 October 2024)

BEATRICEAYONGOVABRAHAMBOKOM INTHEDISTRICT COURT HELDAT FOMENAON THURSDAY THE31ST DAY OF OCTOBER, 2024BEFORE HERWORSHIP LINDA FREMAHBOAMAH- OKYERE,ESQ. SUITNO. A2/16/2024 BEATRICEAYONGO V ABRAHAM BOKOM JUDGMENT BACKGROUND: 1. This suit is one of recovery of money. The Plaintiff claims against the Defendant for the recovery of an amount of Fifty Thousand Ghana Cedis (GHC.50,000.00) which said money the Plaintiff claims to have lent to the Defendant to enable him purchase cocoa. According to the Plaintiff, the Defendant was supposed to have defrayed his indebtedness in 2019 but he has failed to do so despite repeated demands on him, till date. Plaintiff also urges the court to award interest on the said GHC.50,000.00 aswell ascosts. 2. The Defendant does not admit liability of any of the claims made by Plaintiff. He avers that he borrowed an amount of GHC.5,000.00 from the Plaintiff and not GHC.50,000.00. According to the Defendant, he has paid the said GHC.5,000.00 together with any interest that accrued on it, in accordance with the terms of agreement thatthe parties entered into when thePlaintiff lentthe money tohim. 3. It is against this backdrop that the matter proceeded to trial. The Plaintiff gave evidence by herself and also called two other witness to corroborate her claim. The Defendant also gave evidence by himself and called on one other witness to Page1of14 BEATRICEAYONGOVABRAHAMBOKOM corroborate his claim. Both parties as well as their witnesses did not rely on any formofdocumentary evidence. ISSUE(S)FORDETERMINATION: 4. The issues arising fromthe factsofthis case are: i. Whether or not the Plaintiff gave financial assistance to the tune of GHC.50,000.00 tothe Defendant ii. Whether or not the Defendant has defrayed his entire indebtedness to the Plaintiff iii. Whetherornot thePlaintiff is entitled to herclaims BURDENOF PROOF: 5. The general rule in civil cases is that the party who in his pleadings or his writ of summons raises issues essential to the success of his case assumes the onus of proof. In civil cases as this one, this onus of proof is on the preponderance or balance of probabilities as stated in Section 12 of the Evidence Act, 1975 (Act 323). Section 12 (2) of Act 323 defines the preponderance of probabilities as that degree of certainty of belief 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 may shift from the Plaintiff to the Defendant or vice versa and this is the positionofthe lawin Section 14of Act323reproduced thus, “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 defencehe isasserting” 6. In the case of Sarkodie v FKA Co. Ltd [2009] SCGLR 65, it was held that it is a basic principle of the law of evidence, that burden of proof is to produce the Page2of14 BEATRICEAYONGOVABRAHAMBOKOM required evidence of facts in issue that has the quality of credibility short of which his claim may fail. It is trite learning that a matter that is capable of proof must be proved by producing sufficient evidence so that on all the evidence, a reasonable mind could conclude that the existence ofa fact is more probable than itsnon-existence. 7. In the case of Ackah v Pergah Transport Ltd. (2010) SCGLR 728, the Supreme Court held that the method of producing evidence is varied and it includes the testimonies of the party and material witnesses, admissible hearsay, documentary evidence 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 mind of the court. See also Adjetey & Agosu v Kotey & Others [2003-2004] SCGLR 420. It is also trite learning that, generally, a person who is making a negative averment does not have to prove the negative averment. 8. The Plaintiff bears the burden of adducing sufficient evidence to demonstrate that she indeed gave the amount of GHC.50,000.00 to the Defendant especially since the Defendant has denied receiving such amount. Once she is able to convince the court on the balance of probabilities that the said money was given to the Defendant and that he received same, then the onus would fall on the Defendant to show that he has paid back that money to the Plaintiff. The Plaintiff does not bear any burden to prove that she has not received the money back from the Defendant because that is a negative averment and it would be absurd forthe courtto expecther toprovethat negative averment. ANALYSIS/EVALUATIONOF EVIDENCE AND THELAW 9. The Plaintiff’sevidence asgivenby herwitness statement filed on3rdJuly, 2024 is to the effect that she has a business relationship with the Defendant. According Page3of14 BEATRICEAYONGOVABRAHAMBOKOM to her, the Defendant usually purchases cocoa from her. She states that about six (6) years ago, her late son by name Paa Nii informed her that the Defendant had run a loss in his business and needed financial assistance of GHC.50,000.00 with a promise to pay back the money. Plaintiff states that she called the Defendant who confirmed that indeed he needed the money just as Paa Nii had told her. About a week later, the Plaintiff says that she gathered the money and gave it to Paa Nii to be given to the Defendant. Upon receipt of the money, Defendant went to the house of Plaintiff to personally thank her and affirm his promise of paying back the money the following year. The Plaintiff states that she offered to assist the Defendant financially because he was abusiness partnerto her and as a result ofthat,theyhad established agoodrelationship witheach other. 10.According to the Plaintiff, the transaction in respect of this said GHC.50,000.00 was subsequently put into writing and executed by them and their witnesses. It is pertinent to point out that the Plaintiff did not submit the said written agreement to the court in support of her case. When there was an enquiry into thewhereabout ofthe said document, this is what the Plaintiff said: Q. You stated that there was a written agreement in respect of the transaction but you didnot exhibitsame A. The person whoprepared it forme is dead soI cannotfindthe document 11.The Plaintiff’s evidence is that the Defendant defaulted in the payment of the money contrary to what had been agreed upon so she took steps to coerce the Defendant by summoning him before the chief of Adansi Nyankumase where the Defendant allegedly admitted owing her the amount of GHC.50,000.00 and promised to pay back the money after two (2) weeks. The Defendant still did not pay the money after the two weeks had elapsed so the Plaintiff states that she reported the matter to the police where the Defendant presented his copy of the Page4of14 BEATRICEAYONGOVABRAHAMBOKOM written agreement and admitted owing the Plaintiff GHC.50,000.00. The Plaintiff states that she was advised by the police to institute a civil action against the Defendant and hence the issuance oftheinstant Writ ofSummons. 12.From the evidence led by the Plaintiff, it appears that her surest way of proving that she gave the GHC.50,000.00 to the Defendant was to have produced the written agreement which she said was unavailable to her. She however called PW1 who, according to the Plaintiff, had signed the said document as one of her two witnesses in the execution of that document. Her other witness, Paa Nii, is deceased and this is not in doubt from the evidence adduced by both parties. PW1’s evidence was to the effect that the Plaintiff had given GHC.50,000.00 to the Defendant and a written agreement had been executed in respect of that transaction. Plaintiff also called PW2 who is the Krontihene of Adansi Nyankumase before whom the Plaintiff summoned the Defendant in respect of this same money. According to PW2, when the matter was heard, Defendant admitted owing the Plaintiff the amount of GHC.50,000.00 and pleaded to be given some time to pay back the money. The Defendant did not pay the money ashe had promised to. 13.It is not in dispute that both Plaintiff and Defendant had copies of the said written agreement. The Plaintiff has explained the absence of her copy of the written agreement. The Defendant also did not produce his copy and his reason/explanation is that he was not able to produce the agreement because he had destroyed same. This is what ensued during cross examination of Defendant by Plaintiff: Q. Do you remember that you presented your document to the police commander when I reported the matter and itwas GHC.50,000.00 A. Iremember. Itwas GHC.5,000.00that was on the document. Page5of14 BEATRICEAYONGOVABRAHAMBOKOM Q.Doyou rememberthat when you brought the document, they advised me to sue you in courtin the presence of Sowah A. They said so. The policesaid ifyour documentis missingthen you should goto court Q. Do you remember that it was after I sued you in court that you claimed the document had gotten missing A. Ihave destroyed the documentlong ago. Ipaid the moneyin 2017 Q.Who were those whosigned the documents you prepared A. My wife, my son Obed, Ialso signed, PaaNii alsosigned,Nartey Andrewalsosigned 14.This is also what ensued when the courtmade an enquiryfromthe Defendant: Q.When didPlaintiffreport you to the policecommander concerningthe money A. It was lastyear Q.When didyou destroy the document A. Last year. I destroyed it after Plaintiff told the police that her document was missing. I destroyed itbecause Plaintiffwas lying when shesaid herdocument was missing 15.The evidence led shows that it is not in dispute that the matter was reported at the police station. It is also not in dispute that the Defendant presented his copy ofthe writtenagreement which said document the Plaintiff admitted as being the agreement that was executed by them in respect of the transaction. All that the Defendant had to do was to show this document to the court which he believes showed his indebtedness of GHC.5,000.00 but Defendant did not only fail to produce the said document, he boldly informed the court that he had deliberately destroyed the written agreement that covered that transaction betweenhimself and the Plaintiff. This still leavesto be answered, the question of whether the amount involved in the transaction was GHC.50,000.00 or GHC.5,000.00. Page6of14 BEATRICEAYONGOVABRAHAMBOKOM 16.The evidence of the parties herein boils down to the oaths of the Plaintiff and her witnesses against the oaths of the Defendant and his witness. It is trite learning that in such a situation, the decision of the court may safely be based on the trial court’s impression of the credibility of the parties and their witnesses. This was the established principle in Praka v Ketewa [1964] GLR 423, SC. See also In re YendiSkin Affairs: Yakubu II VAbudulai (No 2) [1984-86] 2GLR239,SC. 17.The decision in the case of Ntim v Essien [2001-2002] SCGLR 451 empowers the trial court to decide which set of facts or whose version of the facts or which of the parties should be believed or disbelieved; thus, the trial court undertakes an exercise of deciding onissues ofcredibility. This decision in the Ntim case (supra) hasbeen codified inthe Evidence Act, 1975(Act 323), Section 80thus, “(1) Except as otherwise provided by this Decree, the court or jury may, in determining the credibility of a witness, consider any matter that is relevant to prove or disprove the truthfulnessof his testimony atthe trial (2) Matters which may be relevant to the determination of the credibility of the witness include,butare notlimitedto the following: - (a) the demeanourof the witness (b)the substanceof the testimony (c)the existenceor non-existenceof any facttestifiedto by the witness (d) the capacity and opportunity of the witness to perceive, recollect or relate any matter aboutwhich hetestifies (e)the existenceor non-existence of bias, interestor other motive (f)the character of the witness as totraits of honesty or truthfulnessor theiropposites (g) a statement or conduct which is consistent with the testimony of the witness at the trial (h)the statementof the witness admitting untruthfulness or asserting truthfulness” Page7of14 BEATRICEAYONGOVABRAHAMBOKOM 18.In exercising my discretion in this matter, I find the evidence of Plaintiff more credible than that of the Defendant. I am of the view that the Defendant’s conduct of destroying the only piece of documentary evidence in this matter is repugnant to good conscience and he must not be made to benefit from such act. In fact, the act of the Defendant destroying the document is contrary to his allegation that he owed the Plaintiff an amount ofGHC.5,000.00. It appears to me that the Defendant upon becoming aware that the Plaintiff’s copy of the agreement was missing, decided to take advantage of that situation and avoid paying his debt. It sounds ridiculous to me for the Defendant to assert essentially that even though he knew that the police had advised the Plaintiff to go to court, and even though at that time he had a document showing that he collected way less than the Plaintiff was alleging and that the Plaintiff had acknowledged that document as the agreement between them, he still thought it wise to tearthe said agreement into pieces simply because he believed that the Plaintiff’s allegation thatshe had misplaced her copy was false 19.The Defendant did not stopthere. He invited hiswife, DW1 toassist him tomake his story believable. In paragraph 11 of her witness statement, she averred that in respect of the transaction between her husband and the Plaintiff, “an agreement was documented and put in writing”. However, after her husband had told the court onrecord that the said agreement was witnessed by his wife (DW1) and his son, DW1 when confronted by the Plaintiff in cross examination, with the executionofthe agreement DW1had this tosay: Q.Do you have any documentevidencing the transaction A. Ido nothave any documentevidencing the transaction Q.I am putting ittoyou that your husband has destroyed the document Page8of14 BEATRICEAYONGOVABRAHAMBOKOM A. He has not told me that he has destroyed any document. I do not know anything about it Q. Do you remember that in paragraph 11 of your witness statement, you said that the agreementwas putinwriting, doyou still stand bythat assertion A. Yes Ido Q.Where isthat document A. It isthe Defendantwhocan answer this question 20. DW1 also had this tosay when anenquirywas made by thecourt: Q. Who signed the document that evidenced the fact that Plaintiff had given some money toyour husband A. Plaintiff,Defendantand the late Apoko Q.Were you presentduring the execution of that document A. NoIwas not 21. These pieces of evidence and their inconsistency with Defendant’s own evidence only adds to the incredible nature of the Defendant’s case. In any case, once the two parties had agreed at the police station that the document in the custody of the Defendant was the true and accurate representation of the agreement between them, the Defendant had a duty as per section 14 of Act 323 to produce thatdocument to establish thefact which he alleges, but he failed todo so. 22.Without belaboring the point, I find that the Defendant’s story lacks candor and the existence of the Plaintiff’s version of the facts when placed on the scale of probabilities is more likely than its none existence. I find further that the Plaintiff gave an amount of GHC.50,000.00 to the Defendant and there is no evidence led by the Defendant toshow thathe has repaid thesaid moneyto the Plaintiff. 23.Section 1 of the Moneylenders Act, 1941 (Cap 176) is to the effect that a person who lends money at a higher interest is presumed to be a moneylender until the Page9of14 BEATRICEAYONGOVABRAHAMBOKOM contrary is proved. See also the case of Duah v Afriyie [1971] 1 GLR 260 at 262- 263. Section 3 of Cap 176 provides that, “any person who lends money at interest or who lends a sum of money in consideration of a larger sum being repaid shall be presumed to be a moneylender until the contrary is proved.” This provision was interpreted in the case of Dua v Afriyie (supra) to mean that ‘the statute creates a rebuttable presumption in favour of a person who alleges that another is a moneylender provided he shows that, that person lent money on one occasion at interest. Once the presumption is raised, the onus shifts to the lender to show that he is not a moneylender or to take his case out of the application of Cap 176. If he fails to do that by evidence, he will be caught up within the clutches of the Moneylenders Act. When so caught up, the court may order the transaction to be re-opened and the harsh, excessive and illegal portions amended, cancelled or declared null and void and unenforceable. The decision will be given by the court but as dictated by what is justand reasonable on the particular facts and circumstances of the case.’ 24.The Defendant alleged that the Plaintiff is a money lender and that she gave him an amount of GHC.5,000.00 at 100% interest rate. The Plaintiff denies this allegation and maintains that she gave him an amount of GHC.50,000.00 with no interest. She avers that she gave the money to the Defendant because of the cordial relationship between them. Defendant in an attempt to prove that Plaintiff lends money to people at interest rates, mentioned one Elia who allegedly received money from the Plaintiff at 100% interest. The Plaintiff again denied this and stated in cross examination that she gave him the money because he asked for it to support his father’s funeral and that she gave it to him out of benevolence. The said Elia was not called neither was any evidence led by Defendant in proof of this allegation. Defendant could also not lead any evidence to show the alleged interest at which the Plaintiff had lent him money. Page10of14 BEATRICEAYONGOVABRAHAMBOKOM Defendant and his wife tried to make the court believe that Defendant went for the money from Plaintiff only because she was known for giving loans at interest rates, however, their own evidence makes it difficult for the court to believe this assertion. For instance, during cross examination of DW1 by Plaintiff, DW1 statedas follows: Q.Did Ihave any business with your husband A. You do not have any business with him. You are in the business of lending money to people at100% interestrate This answer is inconsistent with Defendant’s own averment in paragraph 6 of his StatementofDefence that he is one ofthePlaintiff’s cocoa purchasers. 25.Again, DW1 stated in crossexamination byPlaintiff asfollows: Q. Do you remember that I gave the money to your husband because he told me he had sold hiscocoa and had runata loss sohe neededhelp A. Ido notremember that Q. Do you remember that you came to tell me that the person who was responsible for your husband’s loss had been arrested A. It was justaconversation since we already had that kindof relationship 26.The evidence abovemakes the Plaintiff’s assertion thatshe gave themoney to the Defendant due to the good relationship she had with him more believable than the Defendant’s assertion that he went to take the money from her because he knew her as a moneylender. It appears to me that the Defendant denied taking the money for purposes of his cocoa buying business in order to make it believable that he took GHC.5,000.00 from the Plaintiff and not GHC.50,000.00 because GHC.5,000.00 is barely sufficient for a cocoa purchasing clerk to buy enough cocoa with. There is no evidence that the Plaintiff gave money at one Page11of14 BEATRICEAYONGOVABRAHAMBOKOM instance at an interest rate and therefore I find that the allegation that she is a moneylenderis ill-conceived. 27.On the issue of award of interest, the Supreme Court in the case Delle & Delle v Owusu-Afriyie [2005-2006] SCGLR 60 (holding 4) stated that “…under the existing statutory regime in Ghana, the courts have the power to award interest on sums claimed and found to be due. Such interest is payable from the date on which the claim arose.” See also Royal Dutch Airlines (KLM) v Farmex Ltd [1989-90] 2 GLR 623, SC. 28.It is also trite learning that one of the grounds for the award of interest is that a person who has unjustifiably kept money which properly ought to have gone to its owner should not in justice be permitted to benefit by having that money in his possession and additionally enjoying the use of it. This principle of law was established in the case of London, Chatham & Dover Railway Co. v South Eastern Railway Co. [1893] AC 429 at 437, HL which was applied in Holland West Africa v Pan African Trading Co. [1976] 2 GLR 179 at 183. The case of Akoto v Gyamfi-Addo [2005-2006] SCGLR 1018 also established that unless thereis justification forkeeping the money, interest in payable. 29.Inspecific answer tothe issues raised: i. Issue 1- The evidence shows that the Plaintiff gave an amount of GHC.50,000.00 tothe Defendant asfinancial assistance Page12of14 BEATRICEAYONGOVABRAHAMBOKOM ii. Issue 2- There is no evidence that the money has been paid by the Defendant. I find that the Defendant has not paid his indebtedness to the Plaintiff. iii. Issue 3- The allegation that the claim arose in 2019 is uncontroverted. The Plaintiff is therefore entitled to the interest claimed as well as all her other reliefs. 30.For the foregoing reasons, judgment is entered in favour of the Plaintiff as follows; a. Recovery of the amount of Fifty Thousand Ghana Cedis being financial assistance the Plaintiff gave to the Defendant to purchase cocoa and repay within a year but has failed and/or refused to pay back despite persistent demands onhim so todo b. Interest onthe said amount ofGHC.50,000.00 fromDecember 2019 till date of final paymentat the prevailing commercialbank rate c. CostsofGHC.2,000.00 against Defendant d. Judgment debt to be paid within thirty (30) days from the date of this judgment. Page13of14 BEATRICEAYONGOVABRAHAMBOKOM SGD MRS. LINDAFREMAH BOAMAH-OKYERE MAGISTRATE 23/10/2024 Page14of14