Moses Vrs Adu [2022] GHADC 116 (5 September 2022)

IN THE DISTRICT COURT HELD AT BEREKUM ON MONDAY, THE 5TH DAY OF SEPTEMBER, 2022 BEFORE H/H SIMON GAGA ESQ SITTING AS ADDITIONAL MAGISTRATE SUIT NO. A2/42/2021 AGYEI MOSES OF H/NO. KE. 182, KATO-BEREKUM VRS: 1. JOSEPH ADU 2. GRACE POMAA, ALL OF H/NO. A. 79, KATO-BEREKUM J U D G E M E N T:- The plaintiff in his writ claims against the defendants for the following reliefs:- 1. Recovery of cash, the sum of Five Thousand Ghana Cedis (GH₵5,000.00) or recovery of Plot Number 246 Block É’ Sector 9, Kato-Berekum and Plot No. 106 Block ‘D’ Sector 2, New Biadan-Berekum. 2. Any other order/orders the court deems fit to make. PLAINTIFF‘S CASE:- The plaintiff’s case is that on the 18th day of April, 2019 he gave financial assistance of GH₵5,000.00 to the 1st defendant. The 2nd defendant who is the wife of the 1st defendant stood in as surety. According to the plaintiff the 1st defendant on his own went to a letter writer and prepared a promissory note to that effect. Per the contents of the promissory note, the 1st defendant is to offset the GH₵5,000.00 within six months from the date he took the money. The promissory note further stated that both defendants have secured the said amount with their own two building plots with numbers Plot No. 246, Block ‘É’ Sector 9, Kato- Berekum and Plot No. 106, Block ‘D’ Sector 2, New Biadan, Berekum. The plaintiff tendered the said promissory note in evidence as exhibit “AM1”. According to the plaintiff, after he expiration of the period, the 1st defendant failed to pay off the money despite persistent demands. He therefore craved the indulgence of the court as per the reliefs endorsed on the writ of summons. The plaintiff did not call any witness. THE CASE OF THE DEFENDANTS:- The 1st defendant testified for himself and on behalf of the 2nd defendant. He averred that he went to the plaintiff in the company of Samuel Obeng Kwabena and collected a loan of GH₵2,500.00. Before the plaintiff granted him the loan, the plaintiff asked him to execute a promissory note with a face value of GH₵5,000.00 According to the 1st defendant because he and the 2nd defendant who is his wife were in dire need of the money he went and prepared the promissory note with the face value of GH₵5,000.00 even that the plaintiff granted him GH₵2,500.00. The 1st defendant denied ever taking financial assistance of GH₵5,000.00 from the plaintiff but rather it was a loan of GH₵2,500.00. He called on the court to dismiss the plaintiff’s reliefs. The 1st defendant called one witness to support his case. ISSUES:- At the close of the evidence from the parties, the following issue, were set down for the trial of the case. (1) Whether or not the plaintiff granted financial assistance of GH₵5,000.00 to the defendants. (2) Whether or not the defendants took a loan of GH₵2,500.00 from the plaintiff. (3) Any other issue to be determined by the court. APPLICABLE LAW:- In civil cases, the general position is that the burden of leading evidence is always on the person alleging an issue. For instance in the case of Ababio V Akwasi III (1994/95) GBR 775 it was held that a party whose pleadings raised an issue essential to the success of his case assumes the burden proving such issue and the burden only shifts to the defendant when the plaintiff has adduced evidence to establish the claim. Also sections 11 and 12 of the Evidence Act, NRCD 323 of 1975 have provided that the standard of proof in all civil action is proof by preponderance of probabilities. EVALUATION:- I have decided to discuss issues (1) and (2) together since they are intertwined. The plaintiff evidence on records is that he gave financial assistance of GH₵5,000.00 to the defendants on the 18th October, 2019. That the defendants were to pay same within six months thus by 18th April, 2020, which the defendants have failed/refused to pay back. It is also part of the plaintiff’s evidence that the defendants on their own prepared and executed a promissory note to the effect that both the 1st defendant was owing the plaintiff the said amount and was prepared to pay back the plaintiff on the due date which the 2nd defendant stood as surety. He tendered the said promissory note in evidence as exhibit AM1. However, the 1st defendant refuted the claim of the plaintiff and said that the plaintiff granted him a loan of GH₵2,5000.00 and not financial assistance of GH₵5,000.00 even though the 1st defendant in his evidence admitted preparing and executing Exhibit AM1 which is the promissory note. The fundamental question that one may ask is that, are the defendants bound by the contents of the promissory note? To unravel this question, let us assess the cross examination of the 1st defendant by the counsel for plaintiff. Q. Have you seen Exhibit AM1 (thus the promissory note? A. Yes. Q. Who made or prepared Exhibit AM1? A. I made it. Q. In Exhibit AM1 you indicated that you received an amount of GH₵5,000.00 from the plaintiff? A. Yes, but I was told by the plaintiff to prepare it so but he gave me GH₵2,500.00 Q. It is not correct that the plaintiff instructed you to make Exhibit AM1? A. It is correct that the plaintiff ask me to prepare it that way. Q. Did you understand the content of Exhibit AM1 before signing it? A. I did not understand it well. Q. Are you saying that Exhibit AM1 was not read and interpreted to you? A. It was read and interpreted to me. Flowing from this cross-examination, I invite you to the case of Wilson V. Brobbey (1974) 1 GLR 250. In this case, it is established that a party of full age and understanding would be bound by his signature or mark to a document whether he read and understood it or not. The general rule is that when a document containing contractual terms is signed 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 SEE the case of Estrange V Graucob Ltd [1934] KB 394. The 1st defendant during cross-examination, admitted that he prepared and executed Exhibit AM1. A careful look at the Exhibit shows that he signed it after same has been read and interpreted to him and the 2nd defendant by one Owusu Kumi commissioner for oaths in Berekum. In the circumstances therefore the evidence of the plaintiff is more probable than that of the defendants. I therefore enter judgment in favour of the plaintiff to the effect that the 1st and 2nd defendants are to refund the GH₵5,000.00 to the plaintiff. The plaintiff did not claim interest on the amount as part of his reliefs. However under Rule 1(1) of CI 52 the court has power to award interest on the sum due the plaintiff even where parties did not initially plead interest in his claim. On the strength of this principle, the 1st and 2nd defendants are ordered to pay interest on the GH₵5,000.00 from 18th April, 2020 up to the date of judgment at a prevailing commercial bank rate. I also award cost of GH₵1,000.00 against the defendants. SGD. H/H SIMON GAGA ESQ (CIRCUIT COURT JUDGE) SITTING AS ADDITIONAL MAGISTRATE Parties Plaintiff – present Counsel for Plaintiff Owusu Sae – present Defendants – present 6