Owusu Vrs Asare & Another [2022] GHADC 84 (5 April 2022)

IN THE DISTRICT COURT, HELD AT GOASO COURT ON THE 5TH APRIL 2022 BEFORE HER WORSHIP MAGDALENE THOMPSON DISTRICT MAGISTRATE KWAKU OWUSU PLAINTIFF SUIT No. A2/40/2021 VRS KWAME ASARE DEFENDANT _________________________________________________________ PARTIES PRESENT PARTIES’ UNREPRESENTED __________________________________________________________ JUDGMENT Plaintiff claims against the Defendant is for the following reliefs: 1. Recovery of Nineteen Thousand Two Hundred Ghana Cedis (GHc19, 200.00 being Cocoa farm defendant sold and transferred to plaintiff but has taken over same 2. An interest at the prevailing bank rate from December 2020 to date of final determination of the suit. 3. Costs Defendant did not file any defence and pleaded not liable to the claims by the Plaintiff. EVIDENCE BY THE PLAINTIFF The gist of the Plaintiff’s case was that he is a Cocoa purchasing Clerk and the Defendant approached him for a loan of Ten Thousand Ghana Cedis (GHc10, 000.00) to exchanged it with Cocoa beans equivalent but the Defendant being a man of straw could not fulfill his promise and therefore failed to supply the GHc10, 000.00 worth of cocoa beans but only supplied Three Thousand Ghana Cedis (GHc3, 000.00) worth of Cocoa beans and leaving a money balance of GHc7, 000.00. According to the Plaintiff the Defendant sent his church member Mr. Augustine to tell the Plaintiff to buy his cocoa farm instead so that the Plaintiff could add a difference of GHc16, 000.00 to make a total price of GHc23,000.00 for the cocoa farm the Defendant is demanding but the Plaintiff refused same and told the Defendant to find a buyer himself to pay off the Plaintiff balance of GHc7,000.00. The Plaintiff contended that the Defendant sold the cocoa farm to him at GHc23.000.00 when the Defendant could not get a buyer and was to add balance of GHc16,000.00 to the Defendant. He then made an advance payment of GHc10,000.00 to the Defendant to make a total payment GHc17,000.00 for the cocoa farm with a remaining balance of GHc6,000.00 to be paid to the Defendant to take the cocoa farm for good and he promised the Defendant to pay him in a month’s time but unfortunately he fell sick and pleaded with the Defendant’s to give him extension to pay off the balance of GHc6,000.00 but the Defendant refused same and summoned the Plaintiff at the Chief palace for arbitration and they ruled in favour of the Defendant that the Plaintiff should yield vacant possession of the cocoa farm to the Defendant and they added that the Defendant refund the GHc17,000.00 including interest of GHc2,200.00 to the Plaintiff and take his cocoa farm back. According to the Plaintiff the Defendant was to refund GHc19, 200.00 to him as ruled by the arbitrators and when the time was due for the Defendant to refund the money to the Plaintiff the Defendant could not refund the money and the arbitrators told the Defendant to yield vacant possession of the cocoa farm to the Plaintiff because the Defendant has be in possession of the cocoa farm for a year and must yield vacant possession to the Plaintiff to off-set the GHc6,000.00 but the Defendant refused to adhered to the arbitrators suggestion hence the court action. Plaintiff called PW1 who corroborated the Plaintiff evidence that the Defendant approached them for a loan of GHc10,000.00 and promised to pay off with his cocoa beans and pods but the Defendant rather brought a dried cocoa beans and a fresh cocoa beans he has harvested amounting to GHc3,000.00. It then came to their notice that the Defendant has harvested all the cocoa beans in his farm. The Plaintiff then demanded his money from the Defendant and the Defendant told Plaintiff that he is selling off his cocoa farm at an amount of GHc23, 000.00 and if the Plaintiff is interested to buy but her husband the Plaintiff told the Defendant to look for a buyer. PW1 Emelia Owusu wife of the Plaintiff testified further that her husband then promised to buy the cocoa farm when the Defendant was unable to get a buyer and paid GHc10, 000.00 to the Defendant to add up to the GHc7, 000.00 the Defendant owed the Plaintiff to make a total payment of the cocoa farm at GHc17,000.00 with a remaining balance to the Defendant at GHc6,000.00 for the cocoa farm. PW1 told the court that the Plaintiff fell sick and was unable to make prompt payment of GHc6,000.00 and pleaded with the Defendant to give him time to pay off the balance but the Defendant refused and sent the matter to the chief palace and it was ruled in the favour of the Defendant that the Plaintiff should yield vacant possession of the Defendant cocoa farm and the Defendant also should pay back the Plaintiff money of GHc17,000.00 including an interest of GHc2,200.00 to make a total of GHc19,200.00 for the Defendant to pay to the Plaintiff. According to PW1 the Defendant made a documentation to that effect of the agreed amount of GHc19,200.00 at the arbitration ground. She testified further that at the palace the elders ruled that once the Defendant has taken the cocoa farm back and has enjoyed same for one year that has defrayed the GHc6,000.00 that the Plaintiff owed the Defendant so the Defendant should give back the cocoa farm to the Plaintiff but the Defendant refused to yield vacant possession and told the Plaintiff to take any action he want. Plaintiff thereafter closed his case. COURT WITNESS According to the witness the Plaintiff is his landlord and the Defendant is his church member and he witnessed the purchasing of the Defendant’s cocoa farm. He testified that the Defendant was owing the Plaintiff some amount and sold his cocoa farm to the Plaintiff and the Plaintiff made payment of it and was left with GHc6,000.00 and Plaintiff pleaded with the Defendant to give him time to pay of the money but Defendant refused and summoned the Plaintiff at the chief palace and it was ruled in the Defendant favour and the elders told the Plaintiff to give back the cocoa farm to the Defendant once he has failed to pay all the cost and they also told the Defendant to refund all the monies the Plaintiff had paid to him to end the matter but the Defendant has failed to refund the Plaintiff’s money hence the court action. THE DEFENDANT CASE It is the Defendant case that he needed money to travel and approached the Plaintiff for a loan of GHc10, 000.00 and they made a payment plan that he would pay off the debt with his cocoa beans by drying the fresh cocoa beans in the plaintiff’s house but he defaulted the agreement and could not followed the plan but was able to supplied GHc3, 000.00 worth of cocoa beans to the Plaintiff and was left with GHc7 , 000.00 to pay to the Plaintiff. He told the court that the cocoa pods did not finish when the Plaintiff retracted the plan and started demanding his money. According to the Defendant because he could not pay of the Plaintiff’s money then offered his cocoa farm for sale and sold it to the Plaintiff at a price of GHc23,000.00 and Plaintiff was to add GHc16,000.00 to the remaining balance of GHc7,000.00 to make a full price of GHc23,000.00 for the cocoa farm. He testified further that the Plaintiff was able to pay GHc10,000.00 from the money and was left with GHc6,000.00. He said the Plaintiff took possession of the cocoa farm and harvested the cocoa pods for one year without paying the balance and promised to pay the remaining balance next year and he also refused same and took the matter to the chief palace because he was indeed of money to travel. He said at the palace the arbitrators told the Plaintiff to give back his cocoa farm to him because Plaintiff has failed to pay the agreed price of the cocoa farm. He said he was told to pay back the Plaintiff’s monies to him and sent GHc1,500.00 to the palace to be given to the Plaintiff but the Plaintiff refused same that he needed his bulk money of GHc17,000.00 but not by installment. He further stated that he told the arbitrators and the Plaintiff that he could not pay bulk money unless he paid it by installment as to when he harvested his cocoa. He further added that he was rather expecting the Plaintiff to pay back his balance of GHc6,000.00 to him for the Plaintiff to go for the cocoa farm. The court gave the Defendant an ample time to call a witness but he failed to call a witness. The legal issues that emerged for determination are: (1) Whether or not the Plaintiff was to pay back GHc6,000.00 as cocoa farm balance to the Defendant to take the farm back or the Defendant was to refund GHc19,200.00 to the Plaintiff? (2) Whether or not the Plaintiff is entitled to the reliefs sought? The standard of proof in civil cases is on a balance of probabilities as per sections 11(4) and 12 of the Evidence Act, 1975 (NRCD, 323); and the general rule is that the burden of proof rests upon the party, whether plaintiff or defendant, who substantially asserts the affirmative of the issue. In the case of BANK OF WEST AFRICA LTD. V ACKUN [1963] 1GLR 176-182, S. C., Sarkodee-Addo JSC stated: “…The party who in his pleadings raises an issue essential to the success of his case assumes the burden of proof . . . The issue must be proved by the party who alleges the affirmative in substance, and not merely the affirmative in form.” Below are some cross-examinations that ensued between Plaintiff and the Defendant: Q. I am putting it to you that there were no cocoa pods on the cocoa trees after you have harvested the cocoa before selling the farm to me? A. No there were cocoa pods on the trees. Q. Can you recall that when you came for the balance of GHc6, 000.00 I pleaded with you to give me some time to organize myself as I have loss my child but you refused and summoned me at the palace? A. It is not so Q. Can you recall that the chief told you he is adding GHc1,000.00 to the balance of GHc6,000.00 to make GHc7,000.00 that I should pay you after my bereavement but you refused his request? A. Yes but at that time I was indeed of the money so I rejected the additional money that you wanted to add. Q. Can you recall that you told the chief that you are no more going to sell the farm to me again and that you will pay me my money back? A. It is not so Q. Can you recall that you reduced your saying into writing and sent it to Nananom to endorse same that at the end of the 11th month you will pay my money to me? A. Yes it is true. I was indeed of my money due to the journey I wanted to embark upon and you told me you could get it immediately as I am demanding. Q. Can you recall that the chief said my money which is GHc17,000.00 has kept long and that he is adding GHc2,200.00 to it? Can you recall that? A. Yes From the above cross-examination there is an indication that the Defendant has deliberately taken possession of the cocoa farm he sold to the Plaintiff due to the financial constraint and was neither ready to pay off the Plaintiff’s money to him looking at the demeanour and conduct of the Defendant. Throughout the cross- examination it pointed out that the Defendant still needs his cocoa farm back hence his refusal to accept the Plaintiff plea. In the evidence both the Defendant and Plaintiff witness including the court witness corroborated the Plaintiff’s assertions. In the instant case, the parties relied on Exhibit ‘A’ which was the sales agreement between them and there is no doubt that there was a transfer of ownership of the cocoa farm when the Plaintiff made part payment of GHc17,000.00 to the Defendant with a remaining balance of GHc6,000.00 which the Plaintiff tendered in evidence. From the evidence the Defendant who was in dire need of money could not wait for the balance of the GHc6,000.00 to be paid to him at the end of May 2020 as stated in paragraph 4 of the agreement. The court can glean from the fact that the Defendant knew very well that the Plaintiff was in position to pay him after his bereavement but deliberately refused to accept the Plaintiff plea and at the arbitration ground it was also agreed between the arbitrators that once the Plaintiff has delayed in payment the Plaintiff should add additional money of GHc1,000.00 as penalty for not paying the balance in time but Defendant still refused and went ahead to claim his cocoa farm back. Accordingly, the court would lean favourably on the documentary evidence in Exhibit ‘A’ which supported the case of the Plaintiff that there was a written agreement between the parties. In FOSUA & ADUPOKU V. ADUPOKU MENSAH [2009] SCGLR, the Supreme Court held as follows: “…. The courts have established the principle of law to the effect that wherever there was in existence a written document and oral evidence over a transaction, the time - honoured principle is that the court was to lean favourably towards the documentary evidence, especially if it was authentic and the oral evidence conflicting” The parties in this case are men of full age and understanding who can read and write and fairly entered into the contract. They are therefore bound by Exhibit ‘A’. I consequently hold that the Defendant breached Exhibit ‘A’ and in Exhibit ‘A1’ which was the agreement the Defendant endorsed his signature and that of Nana and his elders that the Defendant would refund Nineteen Thousand, Two Hundred Ghana cedis (GHc19,200.00) to the Plaintiff. Plaintiff claiming recovery of GH₵19,200.00 as a refund of the sales of cocoa farm that the Defendant sold to him of which the Defendant has takes it back. Exhibit ‘A1’clearly shows that Defendant has accepted that he is to refund the above mentioned amount to the Plaintiff. As in the case of SCHANDORF V. ZEINI & ANOTHER [1976] 2 GLR 418-444, Kingsley Nyinah J. A. (as he then was) held that:”…. he who comes to equity must not only come with clean hands, but he must also be prepared to do what is fair, honest and right’ I therefore find as a fact that the Plaintiff came to this court with his hands clean and was not in breach of Exhibit ‘A’ as he has given the Defendant clear month notice for the payment of the remaining balance of GHc6,000.00 and even at arbitration ground it was decided that GHc1,000.00 be added to the remaining balance of GHc6,000.00 to make a total of GHc7,000.00 to the Defendant. However the money constraint that the Defendant was encountering could not enable him to wait for the extension period that the Plaintiff requested from him due to the grief moment the Plaintiff was going through and rather the Defendant forcefully took possession of the cocoa farm for almost a year to enrich himself therefore denying the Plaintiff free access to the cocoa farm In the circumstance, I enter judgment in favour of the Plaintiff for the refund of Nineteen Thousand, Two Hundred Ghana cedis (GHc19, 200.00) as per exhibit ‘A1’ that the Defendant has accepted same and has endorsed same to pay to the Plaintiff in full but not installment. At the arbitration ground an interest of GHc 2,200 .00 was added to the Plaintiff’s money of GHc17.000.00 to make a total amount of GHc19, 200.00. A cost of GHc1,000.00 awarded in favour of the Plaintiff. ………………………………..... H/W MAGDALENE THOMPSON DISTRICT MAGISTRATE 9