Ayongo v Bokom (A2/16/2024) [2024] GHADC 665 (31 October 2024)

BEATRICEAYONGOVABRAHAMBOKOM INTHEDISTRICTCOURTHELDATFOMENAONTHURSDAYTHE31STDAYOF OCTOBER,2024BEFOREHERWORSHIPLINDAFREMAHBOAMAH-OKYERE,ESQ. SUITNO.A2/16/2024 BEATRICEAYONGO V ABRAHAMBOKOM 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.PlaintiffalsourgesthecourttoawardinterestonthesaidGHC.50,000.00aswellas costs. 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 that the parties enteredintowhenthePlaintifflentthemoneytohim. Page1of14 BEATRICEAYONGOVABRAHAMBOKOM 3. It is against this backdrop that the matter proceeded to trial. The Plaintiff gave evidence byherselfandalsocalledtwootherwitnesstocorroborateherclaim.TheDefendantalso gave evidence by himself and called on one other witness to corroborate his claim. Both partiesaswellastheirwitnessesdidnotrelyonanyformofdocumentaryevidence. ISSUE(S)FORDETERMINATION: 4. Theissuesarisingfromthefactsofthiscaseare: i. Whether or not the Plaintiff gave financial assistance to the tune of GHC.50,000.00totheDefendant ii. Whether or not the Defendant has defrayed his entire indebtedness to the Plaintiff iii. WhetherornotthePlaintiffisentitledtoherclaims BURDENOFPROOF: 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 probabilitiesas statedinSection12of theEvidenceAct,1975(Act323).Section12(2)of Act323defines thepreponderanceof probabilities as thatdegreeof certaintyof belief in themindof thetribunal offactorthecourtbywhichitis convincedthattheexistenceof afactis moreprobablethanits non-existence. TheburdenmayshiftfromthePlaintiffto the Defendant or vice versa and this is the position of the law in Section 14 of Act 323 reproducedthus, Page2of14 BEATRICEAYONGOVABRAHAMBOKOM “Except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasionastoeachfacttheexistenceornon-existenceofwhichisessentialtotheclaimordefencehe 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 required evidence of facts in issue that has the quality of credibility short of which his claim may fail.Itistritelearningthatamatterthatiscapableofproofmustbeprovedbyproducing sufficientevidencesothatonalltheevidence,areasonablemindcouldconcludethatthe existenceofafactismoreprobablethanitsnon-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 establishtherequisitedegreeofcredibilityconcerningafactinthemindofthecourt.See alsoAdjetey&AgosuvKotey&Others[2003-2004]SCGLR420.Itisalsotritelearning that, generally, a person who is making a negative averment does not have to prove the negativeaverment. 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 Page3of14 BEATRICEAYONGOVABRAHAMBOKOM receivedsame,thentheonus wouldfallon theDefendant toshowthathehas paidback 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 anditwouldbeabsurdforthecourttoexpecthertoprovethatnegativeaverment. ANALYSIS/EVALUATIONOFEVIDENCEANDTHELAW 9. ThePlaintiff’s evidenceas given byherwitness statement filedon 3rd July,2024is to the effect that she has a business relationship with the Defendant. According to her, the Defendant usually purchases cocoa from her. She states that about six (6) years ago, her lateson bynamePaaNii informed herthattheDefendant hadrun aloss in his business andneededfinancialassistanceofGHC.50,000.00withapromisetopaybackthemoney. 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 gatheredthemoneyandgaveittoPaaNii tobegiventotheDefendant. Uponreceiptof 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 a business partner to her and asaresultofthat,theyhadestablishedagoodrelationshipwitheachother. 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 Page4of14 BEATRICEAYONGOVABRAHAMBOKOM support of her case. When there was an enquiry into the whereabout of the said document,thisiswhatthePlaintiffsaid: Q. You stated that there was a written agreement in respect of the transaction but you did not exhibitsame A.ThepersonwhoprepareditformeisdeadsoIcannotfindthedocument 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 summoninghimbeforethechiefof Adansi NyankumasewheretheDefendant allegedly admittedowing 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 DefendantpresentedhiscopyofthewrittenagreementandadmittedowingthePlaintiff GHC.50,000.00. The Plaintiff states that she was advised by the police to institute a civil actionagainsttheDefendantandhencetheissuanceoftheinstantWritofSummons. 12. FromtheevidenceledbythePlaintiff,itappears thathersurestwayof provingthatshe 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 thatdocument. Her other witness, PaaNii, is deceased and this is not in doubt from the evidenceadducedbybothparties.PW1’sevidencewastotheeffectthatthePlaintiffhad 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 Page5of14 BEATRICEAYONGOVABRAHAMBOKOM 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 paybackthemoney.TheDefendantdidnotpaythemoneyashehadpromisedto. 13. It is not in dispute that both Plaintiff and Defendant had copies of the said written agreement.ThePlaintiffhasexplainedtheabsenceofhercopyofthewrittenagreement. 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 duringcrossexaminationofDefendantbyPlaintiff: Q.DoyourememberthatyoupresentedyourdocumenttothepolicecommanderwhenIreported thematteranditwasGHC.50,000.00 A.Iremember.ItwasGHC.5,000.00thatwasonthedocument. Q. Do you remember that when you brought the document, they advised me to sue you in court inthepresenceofSowah A.Theysaidso.Thepolicesaidifyourdocumentismissingthenyoushouldgotocourt Q. Do you remember that it was after I sued you in court that you claimed the document had gottenmissing A.Ihavedestroyedthedocumentlongago.Ipaidthemoneyin2017 Q.Whowerethosewhosignedthedocumentsyouprepared A.Mywife,mysonObed,Ialsosigned,PaaNiialsosigned,NarteyAndrewalsosigned 14. ThisisalsowhatensuedwhenthecourtmadeanenquiryfromtheDefendant: Q.WhendidPlaintiffreportyoutothepolicecommanderconcerningthemoney Page6of14 BEATRICEAYONGOVABRAHAMBOKOM A.Itwaslastyear Q.Whendidyoudestroythedocument A. Last year. I destroyed it after Plaintiff told the police that her document was missing. I destroyeditbecausePlaintiffwaslyingwhenshesaidherdocumentwasmissing 15. Theevidenceledshowsthatitisnotindisputethatthematterwasreportedatthepolice station. It is also not in dispute that the Defendant presented his copy of the written agreement 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 between himself and the Plaintiff. This still leaves to be answered, the question of whether the amount involved in the transaction was GHC.50,000.00orGHC.5,000.00. 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 Yendi Skin Affairs: YakubuIIVAbudulai(No2)[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 Page7of14 BEATRICEAYONGOVABRAHAMBOKOM should be believed or disbelieved; thus, the trial court undertakes an exercise of decidingonissuesofcredibility.ThisdecisionintheNtimcase(supra)hasbeencodified intheEvidenceAct,1975(Act323),Section80thus, “(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 truthfulnessofhistestimonyatthetrial (2) Matters which may be relevant to the determination of the credibility of the witness include, butarenotlimitedtothefollowing:- (a)thedemeanourofthewitness (b)thesubstanceofthetestimony (c)theexistenceornon-existenceofanyfacttestifiedtobythewitness (d) the capacity and opportunity of the witness to perceive, recollect or relate any matter about whichhetestifies (e)theexistenceornon-existenceofbias,interestorothermotive (f)thecharacterofthewitnessastotraitsofhonestyortruthfulnessortheiropposites (g)astatementorconductwhichisconsistentwiththetestimonyofthewitnessatthetrial (h)thestatementofthewitnessadmittinguntruthfulnessorassertingtruthfulness” 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 Page8of14 BEATRICEAYONGOVABRAHAMBOKOM amountofGHC.5,000.00.ItappearstomethattheDefendantuponbecomingawarethat 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 tear the said agreement into pieces simply because he believed that the Plaintiff’s allegation that she hadmisplacedhercopywasfalse 19. The Defendant did not stop there. He invited his wife, DW1 to assist him to make his storybelievable. Inparagraph11ofherwitnessstatement,sheaverredthatinrespectof thetransaction between her husband and thePlaintiff, “an agreement was documented and put in writing”. However, after her husband had told the court on record that the said agreement was witnessed by his wife (DW1) and his son, DW1 when confronted by the Plaintiffincrossexamination,withtheexecutionoftheagreementDW1hadthistosay: Q.Doyouhaveanydocumentevidencingthetransaction A.Idonothaveanydocumentevidencingthetransaction Q.Iamputtingittoyouthatyourhusbandhasdestroyedthedocument A.Hehasnottoldmethathehasdestroyedanydocument.Idonotknowanythingaboutit Q.Doyourememberthatinparagraph11ofyourwitnessstatement,yousaidthattheagreement wasputinwriting,doyoustillstandbythatassertion A.YesIdo Page9of14 BEATRICEAYONGOVABRAHAMBOKOM Q.Whereisthatdocument A.ItistheDefendantwhocananswerthisquestion 20. DW1alsohadthistosaywhenanenquirywasmadebythecourt: Q.Whosignedthe documentthatevidencedthe factthatPlaintiffhadgiven somemoneyto your husband A.Plaintiff,DefendantandthelateApoko Q.Wereyoupresentduringtheexecutionofthatdocument A.NoIwasnot 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 thetrueandaccuraterepresentation of theagreement between them,theDefendant had a duty as per section 14 of Act 323 to produce that document to establish the fact which healleges,buthefailedtodoso. 22. Without belaboring the point, I find that the Defendant’s story lacks candor and the existenceofthePlaintiff’sversionofthefactswhenplacedonthescaleofprobabilitiesis 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 to show thathehasrepaidthesaidmoneytothePlaintiff. 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 contrary is proved. See also the case of Duah v Afriyie [1971] 1 GLR 260 at 262-263. Section 3 of Page10of14 BEATRICEAYONGOVABRAHAMBOKOM 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 Cap176. Ifhe fails to do thatby evidence,he will be caught upwithin the clutches oftheMoneylendersAct.Whensocaughtup,thecourtmayorderthetransactiontobe re- openedandtheharsh,excessive andillegalportions amended,cancelledor declarednull and void andunenforceable. The decisionwill be given by the court but as dictated by what is justandreasonableontheparticularfactsandcircumstancesofthecase.’ 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 himthemoneybecauseheaskedforittosupporthisfather’sfuneralandthatshegaveit to him out of benevolence. The said Eliawas not called neither was any evidenceled by Defendant in proof of this allegation. Defendant could also not lead any evidence to Page11of14 BEATRICEAYONGOVABRAHAMBOKOM show the alleged interest at which the Plaintiff had lent him money. 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 crossexaminationofDW1byPlaintiff,DW1statedasfollows: Q.DidIhaveanybusinesswithyourhusband A.Youdonothaveanybusiness withhim.Youareinthebusinessoflendingmoneytopeopleat 100%interestrate This answer is inconsistent with Defendant’s own averment in paragraph 6 of his StatementofDefencethatheisoneofthePlaintiff’scocoapurchasers. 25. Again,DW1statedincrossexaminationbyPlaintiffasfollows: Q. Do you remember that I gave the money to your husband because he told me he had sold his cocoaandhadrunatalosssoheneededhelp A.Idonotrememberthat Q. Do you remember that you came to tell me that the person who was responsible for your husband’slosshadbeenarrested A.Itwasjustaconversationsincewealreadyhadthatkindofrelationship 26. The evidence above makes the Plaintiff’s assertion that she gave the money to the Defendant due to the good relationship she had with him more believable than the Defendant’sassertionthathewenttotakethemoneyfromherbecauseheknewherasa moneylender.ItappearstomethattheDefendantdeniedtakingthemoneyforpurposes of his cocoa buying business in order to make it believable that he took GHC.5,000.00 Page12of14 BEATRICEAYONGOVABRAHAMBOKOM from the Plaintiff and not GHC.50,000.00 because GHC.5,000.00 is barely sufficient for a cocoapurchasingclerk tobuy enough cocoa with. There is noevidencethatthe Plaintiff gavemoneyatoneinstanceataninterestrateandthereforeIfindthattheallegationthat sheisamoneylenderisill-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 foundtobedue.Suchinterestispayablefromthedateonwhichtheclaimarose.”SeealsoRoyal DutchAirlines(KLM)vFarmexLtd[1989-90]2GLR623,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 shouldnot injusticebepermittedto benefit by havingthatmoneyinhis possession and additionally enjoying the use of it. This principle of law was established in the case of London, Chatham& Dover RailwayCo.v SouthEasternRailwayCo.[1893] AC429at 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 establishedthatunlessthereisjustificationforkeepingthemoney,interestinpayable. 29. Inspecificanswertotheissuesraised: i. Issue 1- The evidence shows that the Plaintiff gave an amount of GHC.50,000.00 totheDefendantasfinancialassistance ii. Issue 2- There is no evidence that the money has been paid by the Defendant. I findthattheDefendanthasnotpaidhisindebtednesstothePlaintiff. Page13of14 BEATRICEAYONGOVABRAHAMBOKOM iii. Issue 3- The allegation that the claim arose in 2019 is uncontroverted. The Plaintiffisthereforeentitledtotheinterestclaimedaswellasallherotherreliefs. 30. Fortheforegoingreasons,judgmentisenteredinfavourofthePlaintiffasfollows; 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 hasfailedand/orrefusedtopaybackdespitepersistentdemandsonhimsotodo b. Interest on the said amount of GHC.50,000.00 from December 2019 till date of final paymentattheprevailingcommercialbankrate c. CostsofGHC.2,000.00againstDefendant d. Judgmentdebttobepaidwithinthirty(30)daysfromthedateofthisjudgment. SGD MRS.LINDAFREMAHBOAMAH-OKYERE MAGISTRATE Page14of14