Darko Vrs Amankwaa [2022] GHADC 85 (29 June 2022)

1 IN THE DISTRICT COURT, HELD AT GOASO ON 29TH JUNE, 2022 BEFORE HER WORSHIP MAGDALENE THOMPSON DISTRICT MAGISTRATE SUIT No. A11/5/2019 NANA KWAKU DARKO PLAINTIFF VRS (1)KWADWO AMANKWAA ) DEFENDANTS (2) NANA DANQUAH ) _________________________________________________________ PLAINTIFF PRESENT DEFENDANTS PRESENT ADDAE AKWABOA ESQ. FOR PLAINTIFF PRESENT DEFENDANTS NOT REPRESENTED __________________________________________________________ JUDGMENT Plaintiff claims against the Defendants jointly and severally is as followings: (a) An order of the Honourable Court compelling the Defendants to refund to the Plaintiff an amount of Eighteen Thousand Ghana Cedis (GHc18,000.00) being monies the Defendants made the Plaintiff to incur by engaging legal services and other incidental expenses in suit titled: IN THE CIRCUIT COURT OF GHANA GOASO BRONG AHAFO REGION NANA BAFFUOR AWUAH AND ANOR, ETC ……. PLAINTIFFS NANA KWAKU DARKO AND 2 ORS, ETC …….. DEFENDANTS (b) Interest on the said amount in relief “A” supra from the year 2015 till date of final payment (c) Costs Defendants did not file any defence and pleaded not liable to the claims by the Plaintiff. THE CASE OF THE PLAINTIFF This is a civil case filed by the Plaintiff on the 7th August, 2018 against the Defendants. Plaintiff contended that he is a Kontihene of Akrodie Traditional Council and the Defendants are brothers of which the second Defendant is an ex-Omanhene of the Akrodie Traditional Area. According to the Plaintiff the Defendants owed the entire land of Akrodie and people were alienating the land without their consents and therefore contracted him to institute civil action on their behalf in his capacity as a Caretaker of Arodie Stool land. He contended that because the Defendants were financially handicap and could not finance the litigation then told him as a Regent of the town to litigate on their behalf and he accepted same and finances the litigation process including all the legal fees, documentations and the lawyer’s fee and thereafter the two Defendants will reimburse the Plaintiff. It is the Plaintiff case that after agreeing to finance the suit at Circuit Court of which the Defendants were declared victorious have refused to refund his money of GHc18, 000.00 to him upon several demands. He told the court that upon persistent demands the Defendants then made part payment of GHc6, 000.00 leaving a balance of Ghc12, 000.00. Plaintiff further maintained that he paid GHc6,000.00 to the Lawyer Akwasi Asante Foster and foot all the legal filing fees and other transportation charges and many other expenses. He contended that the Defendants after the suit went in to alienate the entire land without carving a portion for the Plaintiff even to put a house on it and yet have deliberately refused to refund the remaining balance of GHc12, 000.00 to him. The Plaintiff tendered the following receipts to support his case: a} 10th August, 2015 ----- GHc 4,000.00 b} 15th June, 2016 ------ GHc 8,000.00 c} 19th August 2016 ------ GHc 6,000.00 The Plaintiff closed his case. IST DEFENDANT CASE It is 1st Defendant case that there was a land dispute between him and one Mr. Addai a nephew of the Plaintiff. According to him Addai was putting up a filling station on the disputed land but there was a chieftaincy issue which has halted the opening of the filing station. 1st Defendant in his evidence opine that due to the chieftaincy issue confronting the Akrodie township made one of the faction took them to court and the Plaintiff and his nephew finance the legal process by engaging a lawyer to prosecute the case for them and the Plaintiff incurred some costs and they have not paid the Plaintiff but he was able to pay part of the cost at GHc6,000.00. According to 1st Defendant he has paid his share of the Plaintiff debts. 1ST Defendant closed his case and did not call any witness. 2ND DEFENDANT CASE It is the 2nd Defendant case that there was a land dispute at his traditional area Akrodie and the Plaintiff litigated for them at the Circuit Court and they won. He further stated that he was the chief at Akrodie traditional area in 1969 and he was gifted with a land from his grandfather Kofi Daai. In 2013 the land reached the outskirt of the town for development. He was indisposed due to some sickness and told his brother Kwadwo Amankwa (D1), his own son Akwasi Adu Atta and Kofi Sarfo alias Officer to demarcate the entire land at the Town and Country Planning for plotting. According to D2 two of the inhabitants Kwaku Aboagye and Kofi Awuah took civil suit at Circuit Court against the Plaintiff as Omanhene and the 1st Defendant for the division of the land into three parts and give two thirds to the Akrodie township and one third to the 1st Defendant and his family and again the 1st Defendant share of the land be divided into two thirds and give two to the Akrodie township and one to the 1st Defendant. He stated further that there was financial constraint for the demarcation at the Town and Country Planning Office so the 2nd Defendant told the 1st Defendant and his son Officer to sell some of the land to enable them raised money for the plotting. 2nd Defendant told the court that Akwasi Addai from Akrodie expressed his desire in the land and requested for four (4) plots of land for filling station and he paid GHc2,000.00 to the 1st Defendant but the first Defendant has spent the money. According to D2 they were having a pending suit at the Circuit Court and because he was not fit to litigate and his family were financially brook then contacted the Plaintiff to finance the suit for them. He reiterated that 1st Defendant and Plaintiff went to Sunyani to engaged a lawyer and the Plaintiff foot all the legal filing fees and its processes including the lawyer’s fees at an estimated cost of GHc18,000.00. He further argued that they agreed for the Plaintiff to bear all the litigation costs and thereafter they reimburse the Plaintiff. They were declared victorious in the case at the Circuit Court. D2 stated that the 1st Defendant after the suit at the Circuit Court declaration then went ahead to sell all the Three Hundred [300} plots of land without giving even a plot to the Plaintiff who litigate for them. He further stated that the 1st Defendant has paid GHc6,000.00 out of the GHc18, 000.00 with a balance of GHc12,000.00 and has refused to pay the Plaintiff as he has single handily sold all the 300 plots of land and have enjoyed the money. 2nd Defendant closed his case. In the course of trial Counsel’s for Plaintiff submitted Written address filed on 1st June, 2022 setting out his legal arguments urging the court to enter judgement for the Plaintiff. The legal issues that emerged for determination are as follows: i. Whether or not the parties entered into oral agreement for the Plaintiff to litigate and pay all the legal fees including the lawyer fees of the suit pending at the Circuit Court at GHc18, 000.00 for them? ii. Whether or not Defendants has made part payment of GHc6.000.00 to the Plaintiff? iii. Whether or not Plaintiff is entitled to the reliefs endorsed on his writ of summons. In every civil case, the general rule is that the burden of proof rests upon the party, whether plaintiff or defendant, who substantially asserts the affirmative of his case. In 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”. SOME EXTRACTS OF CROSS EXAMINATION BETWEEN PLAINTIFF COUNSEL AND 1ST DEFENDANT: Q. How much did you pay to the Lawyer? A. I did not pay anything. Q. The litigation which was brought against you and Plaintiff and his nephew paid GHc18, 000.00 A. I did not challenge the figure Q. You agree with me that the plaintiff paid all the expenses being legal fee, court filing fee in respect of that case which you and your family were declared the lawful owners of the land. A. I agree with you. My explanation is that they brought the matter up. Now they are benefiting from the filling station. Q. It is not only the land on which the petrol shell was built alone that you and your family were declared winners? A. That is so. What brought about the matter were the land and not the petrol station. Q. You agree with me that it is not for the plaintiff to pay for the legal expenses and filing fees for you and your family? A. I don’t agree with you. If he had not carved the land, the litigation would not have come Q. You have paid GHc6,000.00 out of the GHc18,000.00 because you agree from the onset? A. It was my brother who withdrawn the matter upon second thought, I decided that even the GHc6,000.00 paid should be refunded. Q. You agree with me Monies were paid to the lawyer in respect of that case in which you were a defendant? A. That is so. It was his nephew who paid. From the above cross-examination the 1st Defendant admitted that the Plaintiff and his nephew sponsored the payment of the Suit at Circuit Court and also confirmed that they have even made part payment of the Plaintiff’s money spent on the litigation. I shall now examine and evaluate the evidence adduced by the Plaintiff in support of this case and the Defendants defence within the context of their respective burdens as I have stated earlier in this judgement to enable me resolve the issues before me. From the evidence on record Plaintiff adduced that he acted in his capacity as Kontehene of Akrodie Traditional area and upon confirmation and agreement between him and the Defendants that he should finance the legal fees processes for the pending Civil Suit at Circuit Court. He also intimated that the land in dispute that he spent his money to litigate does not belong to him but for the benefits of the Defendants and this was corroborated by both Defendants and they could not tip the scale in their favour. In 1st Defendant evidence he admitted that he has made part payment of GHc6,000.00 as his share of the debts owed. In the case of NYAMEKYE V. TAWIAH AND ANOTHER (1979) GLR 266-269 it was held that:..... “A party could prove his case by admissions from the mouth of his opponent or his adversary’s witness”. The admission by the 1st Defendant in the instant case is consistent with the principle stated above. The evidence of 2nd Defendant clearly corroborated D1’s evidence that his family were facing finance hardship to prosecute the case at the Circuit Court and the Plaintiff agreed to finance the cost of litigation on behalf of the Defendants family. He again reiterated that the 1st Defendant has sold the entire 300 plots of land without his consent and therefore adduced that they really owed the Plaintiff because they elected him to finance the entire legal process on their behalf for the Defendants family. It is my finding that the Defendants could not lead sufficient evidence to tip the scale in their favour. From the receipts of payment of GHc18, 000.00 by the Plaintiff as stated above the 1st Defendant has made payment of GHc6,000.00. It is therefore clear that there is an outstanding balance of GHc12,000.00 that the Defendants owed the Plaintiff. In the case of SARKODIE V. FKA CO. LTD [2009] SCGLR 65 @ PAGE 69 it was held that“.... The main issue for the court to determine is simply that, on a preponderance of the probabilities, whose story is more probable than not?’ That question put differently is whose evidence had more weight and credibility?” In the instant case I find that the evidence of the Plaintiff is more probable than that of the Defendants. In the circumstance I enter judgement in favour of the Plaintiff to recover and order as follows: 1. That both 1st and 2nd Defendants should pay the remaining Twelve Thousand Ghana Cedis (GHc12,000.00) to the Plaintiff 2. That 1st and 2nd Defendants must pay an Interest on GHc12,000.00 at the prevailing Commercial Bank rate from July 2015 till date of final payment A cost of GHc3, 000.00 each awarded against 1st and 2nd Defendants respectively. ……………………………………… H/W MAGDALENE THOMPSON DISTRICT MAGISTRATE