Adjei-boye Vrs Fiave [2022] GHADC 224 (8 November 2022)

IN THE DISTRICT MAGISTRATE COURT HELD AT N. A. M. A. NSAWAM ON 8TH NOVEMBER, 2022 BEFORE HER WORSHIP SARAH NYARKOA NKANSAH MAGISTRATE SUIT NO. A2/156/20 REV. GODFRED ADJEI-BOYE ------- OF NSAWAM PLAINTIFF VRS TOGBUI STEPHEN FIAVE ------- DEFENDANT OF AVAGAH PARTIES: PRESENT. NO LEGAL REPRESENTATION JUDGEMENT The Plaintiff claims against the Defendant as amended is for cash the sum of GH¢10,000.00 in the following manner: a. GH¢8,000.00 being money Plaintiff gave to the Defendant as financial assistance to offset at debt in a land issue at the Nsawam Police Station since 4th February 2019. b. GH¢2,000.00 being balance of land sale amount the purchaser paid to the Defendant and he (Defendant) failed to render account on same in November 2019. c. Interest on the said amount from February, 2019 at the current commercial bank rate till date of final payment. The Defendant then counter claimed against the Plaintiff as follows; Page 1 of 8 a. Cash the sum of GH¢2,260.00 made up as follows; i. GH¢1,700.00 being an accumulation of agent fee of 10% of every transaction which the Plaintiff promised to pay but willfully refused to pay same. ii. GH¢560.00 being series of amounts Plaintiff borrowed but has failed to pay in spite of persistent demands. PLAINTIFF’S CASE According to the Plaintiff, he financially assisted the Defendant with an amount of GH¢8,000.00 in February 2019 which the Defendant has refused to pay upon several demands. Plaintiff added that, on his blindside, the Defendant entered into a transaction and sold Plaintiff’s land to one Gillian Abgosege for which Defendant received part payment of GH¢2,000.00 and has not accounted for it to the Plaintiff. Plaintiff however added that he sometimes allowed Defendant to sell Plaintiff’s family lands and account for same. Plaintiff subsequently exhibited receipts issued for each of the above-mentioned transactions. Plaintiff closed his case thereafter. DEFENDANT’S CASE Defendant strongly denied any indebtedness to the Plaintiff explaining that he has been a land agent for the Plaintiff and Plaintiff promised him a plot of land in exchange Page 2 of 8 of work done. The Defendant added that for his services, he was entitled to ten percent (10%) of the proceeds from sale of each plot. Defendant continued that the Plaintiff later decided to give him cash the sum of GH¢8,000.00 instead of the plot of land promised. According to the Defendant, he sold five (5) plots of land worth GH¢40,000.00 to a buyer for which he was entitled to ten percent (10%) yet same was not given him. On the issue of the GH¢2,000.00, the Defendant mentioned that Gillian Agbosege made part payment for a piece of land awaiting documentation from Plaintiff which was not done so the money was returned to the named buyer. Defendant concluded that Plaintiff rather owes him a series of percentages which he has willfully refused to pay. DW 1 DW 1 stated that the Defendant was Plaintiff’s land agent and that Plaintiff gave the Defendant a sum of GH¢8,000.00 from a sale of land. DW 1 averred that the Plaintiff asked Defendant to settle his debt to one Francis Adjewuda with the said money. DW 1 mentioned that the said money was paid to the Defendant by Plaintiff as compensation for work done and not a loan. DW 2 DW 2 asserted that the Plaintiff employed the services of Defendant as a land agent and promised to reward Defendant with a plot of land if Defendant could get buyers for Plaintiff’s land. DW 2 continued that the Defendant got buyers for the land and the Plaintiff gave GH¢8,000.00 being cost of a plot of land as compensation to the Defendant. DW 2 stated that the money given to the Defendant was his reward for securing prospective buyers for the land. Page 3 of 8 Issues set down for discussion; i. Whether or not GH¢8,000.00 received by Defendant from Plaintiff was a loan or financial assistance. ii. Whether or not the Defendant owes Plaintiff additional GH¢2,000.00. iii. Whether or not Plaintiff owes the Defendant GH¢2,260.00 It is not in issue that the Defendant received GH¢8,000.00 from Plaintiff. The Defendant does not deny that Plaintiff paid an amount of GH¢8,000.00 to him. What is in issue is the purpose for which the GH¢8,000.00 was paid to Defendant. According to the Plaintiff, he gave the said amount to the Defendant as a loan, which amount the Defendant was to repay. The Defendant on the other hand maintains that Plaintiff paid the said GH¢8,000.00 to him as remuneration for work done for the Plaintiff. The Plaintiff attached Exhibit “A” which is a receipt of GH¢8,000.00 issued in Plaintiff’s name. There is however no name by the signature of the person who signed the receipt. The Court however, noted that the said receipt narration stated as follows; “Monies paid to Togbe Stephen as surety at the Nsawam police Station” Irrespective of this narration, the Court cannot assume that it is the Defendant who issued the said Exhibit “A” to the Plaintiff with that narration. The Court cannot find the name of the Defendant on the face of Exhibit “A” as the issuer of Exhibit “A”. Page 4 of 8 In the absence of establishing the Defendant as the issuer of Exhibit “A”, then the Plaintiff cannot rely on same to prove his version of the story. And even if the Defendant was to be determined by the Court to be the issuer of the said Exhibit “A”, there is no indication on Exhibit “A” to suggest that, Exhibit “A” is a receipt of a loan from Plaintiff to Defendant. It only states that the said sum was paid to the Defendant as surety at the Nsawam Police Station. In the first place, the Court takes judicial notice of the fact that bail is free. It is therefore not clear to the Court why the Plaintiff purportedly paid GH¢8,000.00 to the Defendant as surety. Whatever the case may be, the Court has pointed out that the Defendant has not denied receiving GH¢8,000.00 from the Plaintiff. It is the plaintiff’s claim that same was a loan to the Defendant that Defendant is disputing. The Plaintiff in the face of this contrary evidence by the Defendant, however failed to adduce further evidence to prove to the Court that the said GH¢8,000.00 was a loan other than remuneration. On the first issue the Plaintiff has failed to prove his case on the preponderance of probabilities. The Court shall proceed to discuss whether or not the Defendant owes the Plaintiff an additional GH¢2,000.00. it is the Plaintiff’s case that the Defendant failed to account for an amount of GH¢2,000.00 which he took from one Gillian Agbosege in respect of plaintiff’s land that Defendant sold to the said Gillian. The Defendant has again admitted that he received GH¢2,000.00 from the said Gillian Agbosege as agent for the transaction. According to the Defendant, although the Plaintiff collected a signing fee, the Plaintiff failed to execute the document for the purchase so he (the Defendant) refunded the GH¢2,000.00 to the said Gillian Abgosege. The Defendant added that the said purchaser sent the money to the Page 5 of 8 Plaintiff herself but Plaintiff refused to accept same but rather told the said Gilian he had sued the Defendant over the said amount. With both parties giving opposing evidence and both mentioning Gilian Ogbosege in the respective accounts, the Court will be right to conclude that, Gilian Ogbosege could be considered as a material witness in the resolution of this issue. However, neither of the parties called her to testify in support of their case. In the case of Owusu v. Tabiri (1987-88) 1GLR 287; “ It was a trite principle of law that he who asserted must prove and must win his case on the strength of his own case and not on the weakness of the defence. Since the original complaint was made by the plaintiff to the chief and at the time of making the complaint the Defendants and their witnesses were not present as the evidence disclosed, the only person who could have assisted the trial Court to resolve the issue as to whether what happened before the chief was an arbitration, as alleged by the Defendants, or a negotiated settlement or an attempt to demarcate the boundary between the plaintiff and the Defendants as claimed by the plaintiff, was the chief. Therefore the non-calling of the said chief as a witness was fatal to the case of the Defendants because the onus was upon them to prove on the preponderance of probabilities that a valid arbitration was held.” Having failed to call a material witness, Plaintiff failed to prove his averment to the Court. In Boakye v. Asamoah [1974] 1 GLR 38 @ 45, the Court held that: “the legal or persuasive burden is borne by the party who would lose the issue if he does not produce sufficient evidence to establish the facts to the requisite standard imposed under Page 6 of 8 section 10 of the Evidence Act, 1975 NRCD 323 that is, by a preponderance of probabilities.” On the second issue too, the Court find that the Plaintiff has failed to discharge the onus to prove same on a preponderance of probabilities. The Defendant made a counterclaim for GH¢2,260.00. The Plaintiff has denied vehemently opposed Defendant’s counterclaim. According to the Plaintiff, he does not owe the Defendant a dime. Having denied same he, the Defendant had the onus to produce sufficient evidence to establish his counterclaim against the Plaintiff. The Defendant failed to produce in Court, sufficient evidence to support the terms of the contract which Defendant claimed Plaintiff had breached. Defendant also failed to produce proof of the monies that he claimed Plaintiff had borrowed from him and failed to repay. It is trite learning that, he who alleges must prove. In the absence of sufficient evidence, I find that Defendant has failed to prove his counterclaim. I hold that Defendant is not entitled to recover GH¢2,260.00 from Plaintiff. In the case of In the case of Nartey v. Mechanical Lloyd Assembly Press Ltd [1987- 1988] 2GLR pg 314 Adade JSC stated that: ‘A person who comes to Court, no matter what the claim is, must be able to make a good case for the Court to consider, otherwise he must fail’. In view of forgoing, Plaintiff’s claim and Defendant’s counterclaim are hereby dismissed. There will be no order as to cost. ……………………………………………. H/W SARAH NYARKOA NKANSAH MAGISTRATE Page 7 of 8 08/11/2022 Page 8 of 8