Padi Vrs Eric [2022] GHADC 154 (18 November 2022)

IN THE DISTRICT COURT HELD AT SOMANYA ON FRIDAY THE 18TH DAYOF NOVEMBER, 2022 BEFORE HIS WORSHIP MICHAEL DEREK OCLOO SUIT NO. A2/48/2020 GIFTY PADI AWUETEY ERIC PARTIES VRS PLAINTIFF DEFENDANT PRESENT - - JUDGEMENT The Plaintiff instituted the instant action against the Defendant for the following relief: 1. Recovery of GH₵10,200.00 being financial assistance the Defendant sought from the Plaintiff since the year 2016 but has failed to pay despite persistent Demand. 2. Interest on the GH₵10.200.00 from 2016 till date of final payment. The case of the Plaintiff per her witness statement is that she was in concubinage relation with the Defendant in the year 2016 at Asamankese during which the Defendant requested a financial assistance of GH₵10,200.00 in a form of a loan to enable him pursue further studies because his salary was locked up. She added that she gave the said money to the Defendant because the Defendant promised to marry her. She further stated that in the year 2017 she told the Defendant to take her to his Parents for introductory purpose but the Defendant started giving excuses and requested for additional loan but she refused to give him the money. According to the Plaintiff, the Defendant stopped picking her calls and when she visited the Defendant’s house at Osino she found out that the Defendant had relocated to another place and investigations that her brother, herself, her aunt and husband conducted revealed that the Defendant was married and was staying with his wife and children at Nsawam. They went to Nsawam and met the Defendant, his wife and children and he admitted that he owed such an amount and he wrote a promissory note in which he stated the terms of payment in terms of payment by installments which is marked as Exhibit A. It was agreed that the Defendant will pay the money to the Plaintiff’s aunt’s husband but the Defendant failed to do so within the accepted or agreed period hence the instant action. In the evidence of the Defendant he confirmed or corroborated the Plaintiff’s assertion that they had a concubinage relation and added that the Plaintiff never granted him any financial assistance as such the Plaintiff was wasting the time of the court. He concluded that any document that the Plaintiff claimed he had signed was made under duress because the Plaintiff came to his matrimonial home in the company of some of her family members and was making noise to attract the attention of the general public so he was compelled to sign the purported document. He did not call any witness and therefore closed his case. The legal issues for determination by the court are: 1. Whether or not there was a contract between the Plaintiff and the Defendant involving a loan of GH₵10,200.00 and its repayment. 2. Whether or not the Defendant’s vacation of his former house and relocation to a new place to avoid repayment of the loan constitutes a breach of contract. 3. Whether or not the Plaintiff is entitled to the reliefs sought from the court. The general rule in every civil case including the instant one is that the burden of proof rests upon the party, whether Plaintiff or Defendant, who substantially asserts the affirmative of his case. In the case of LAMPTEY ALIAS NKPA V. FANYIE & OTHERS [1989-90] 1 GLR 286 the Supreme court held that: “On general principles, it was the duty of a Plaintiff to prove his case. However, when on a particular issue he had led some evidence, then the burden will shift to the Defendant to lead sufficient evidence to tip the scale in his favour” Also in the case of BANK OF WEST AFRICA LTD V. ACKUN [1963] 1 GLR 176-182, SC. It was held that: “The onus of proof in civil cases depends upon the pleadings. The party who in his pleadings raises an issue essential to the success of his case assumes the burden of proof... But the burden frequently shifts, as the case proceeds, from the person on whom it rested at first to his opponent. This occurs whenever a prima facie case has been established on any issue of fact or whenever a rebuttal presumption of law has arisen… The issue must be proved by the party who alleges the affirmative in substance, and not merely the affirmative in form.” Evidence adduced during hearing is indicative of the fact that the Plaintiff and the Defendant were in a concubinage relation in the pendency of which the Plaintiff gave a financial assistance of GH₵10,200.00 in the form of a loan, on request, to the Defendant. In the case of KOBAKU ASSOCIATE V. OWUSU (2006) 2 MLRG 228 CA 247 a contract was defined as: “An agreement constituted by an offer and an acceptance with the mutual intention that it should be binding and enforceable at law”. By the operation of offer and acceptance the Plaintiff and the Defendant entered into an agreement in which the Plaintiff granted a loan of GH₵10,200.00 to the Defendant. The terms of the agreement was that the Defendant will pay later. This contract was however not reduced into writing. The cure to this defect was provided in the case of KOBAKU V. OWUSU (Supra) where it was held that: “An oral contract not reduced into writing in binding nevertheless so long as there is clear evidence as to the essential terms and the actual intention of the parties.” It is also clear from the evidence adduced that the Defendant denied ever collecting a loan of GH₵10,200.00 from the Plaintiff. It is a fundamental principle of law of evidence that cry trial, a party who makes an assertion has a duty imposed upon him by law to persuade the court that his assertion is true. This falls in line with the saying, statement or principle that he who asserts must prove. Section 14 of the Evidence Act, 1975 (NRID 323) provides as follows: 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. The import of the above provision was upheld in the case of BILSON V. RAWLINGS AND ANOTHER [1993-94] 2 GLR 423 where it was held that: “ The law has always been that he who alleges that certain state of facts exist must prove it”. In the instant case the Defendant made the assertion that he never collected any loan from the Plaintiff. The burden was therefore upon him to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact that the Defendant did not collect any loan from the Plaintiff was more probable than its non-existence. The standard of proof on the Defendant is on a balance of probabilities since the instant suit is civil in character. The Defendant was expected to satisfy this requirement however when he was cross- examined by the Plaintiff the following ensued. Q. In the year 2017 you told me to give you a loan to enable you pursue a course and that your salary was locked up. A. That is not true Q. I gave you a loan of GH₵10,200.00 A. That is true however it was not a loan. Q. When I came to you at Nsawam you admitted that you owed me. A. That is true but it was at a time that my wife was present and you put me under duress to admit and I signed. Q. You proposed a date to pay and signed same on paper. A. That is true. Q. I am putting it to you that the date you proposed to pay has elapsed and that is why I took the instant action against you. A. That is true. Also when the Defendant cross-examined the Plaintiff the following transpired: Q. Did you give me the GH₵10,200.00 in full. A. No I gave you GH₵5,000.00 in 2016 and in the year 2017 I gave you GH₵5,200.00. Q. I am putting it to you that you gave the GH₵10,200.00 to enable me marry you A. That is not true. It is clear from the above that the Defendant has admitted collecting a loan of GH₵10,200.00 from the Plaintiff. Furthermore, after collecting the loan of GH₵10,200.00 from the Plaintiff the Defendant stopped picking the Plaintiff’s calls and put the Plaintiff’s phone number on blacklist. He again relocated from Osino to Nsawam to stay with his wife and children. It was through investigation that the Plaintiff herself, her brother, her aunt and husband found the Defendant at Nsawam. This means that at the time of cohabitation with the Plaintiff, the Defendant had a wife but failed to disclose same to the Plaintiff which constitutes deceit and by extension the relation was not built on trust. When he was finally located at Nsawam, the Defendant prepared Exhibit A, a promissory note, in which he stated that he will commence repayment by installment from September 2018 and complete same in February 2019 but he failed to honour same. The conduct of the Defendant constitutes a lack of commitment to repay the loan. The failure to repay the loan constitutes a breach of contract existing between him and the Plaintiff as espoused in the case of ADAE V. EYIAH [1972] 2 GLR 358 (HC) In the case of C. C. W. LIMITED V. ACCRA METROPOLITAN [2007- 2008] SC GLR 440 which relied on the provisions of the court Rules 2005 (CI 52), it was held that restitution shall be paid with interest. In the instant case the Defendant will have to pay the interest on the GH₵10,200.00. The challenge here is that Plaintiff stated the year 2016 in relief 2 without specifying the particular month and date. The court will therefore rely on Exhibit A in which the month of September is stated as the reference point for repayment of the loan. It is my finding after considering all the evidence adduced during the hearing that there was a contract between the Plaintiff and the Defendant which was breached by the Defendant. Also, the Plaintiff led evidence to discharge the burden of proof but the Defendant was unable to lead sufficient evidence to tip the scale in his favour. In the circumstance and on the balance of probabilities I enter judgment in favour of the Plaintiff and order as follows: 1. That the Defendant shall pay GH₵10,200.00 to the Plaintiff 2. That the Defendant shall pay interest on the GH₵10,200.00 to the Plaintiff at the current Bank of Ghana Rate from 1/9/2016 till date of final payment. A cost of GH₵2,000.00 is awarded in favour of the Plaintiff. (SGD) ……..………………………….. MICHAEL DEREK OCLOO DISTRICT MAGISTRATE 18TH NOVEMBER, 2022