GRACE OWUSU vs. AUGUSTINE OPOKU
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    KUMASI - A.D 2017
GRACE OWUSU - (Plaintiff/Appellant)
AUGUSTINE OPOKU - (Defendant/Respondent)

DATE:  12TH APRIL, 2017
SUIT NO:  H1/67/2016
JUDGES:  E. K. AYEBI J.A. (PRESIDING), G. TORKORNOO (MRS) J.A., A. M. DOMAKYAAREH (MRS.) J.A.
LAWYERS:  DANIEL ANKOMAH FOR THE APPELLANT
JUDGMENT

DOMAKYAAREH (MRS) J A

1. This appeal is between a creditor and a debtor but with more nuances than that which require unraveling. The trial was held at the High Court, Kumasi, Commercial Division and judgment was delivered on 31st March 2015.

 

2. The appellant, who was the plaintiff in the trial court, had a very simple case. She sued the defendant/respondent for recovery of an amount of US$30,000.00 or its cedi equivalent of GH¢90,000.00 being financial assistance given to the defendant to boost his business but which amount the defendant had refused/failed to refund despite repeated demands and for interest thereon from 31st January 20012 till the date of final judgment.

 

3. She stated the basis of her claims per her Statement of Claim as follows: She averred that she is ordinarily resident in the United States of America. She therefore brought the action per her Lawful Attorney, one Daniel Ankomah. She said the defendant is a trader who plies his trade between Ghana and the United States of America. She stated that on 24th November 2010, at the request of the defendant, she gave him US$10,000.00 as financial assistance to boost his business. The Agreement Note evidencing this was tendered at the trial as Exhibit ‘B’. The plaintiff said she subsequently gave an additional US$20,000.00 to the defendant to bring the total to US$30,000.00. The document executed to that effect was tendered in evidence as Exhibit ‘C’. The plaintiff said when the time became due for the defendant to refund the money he failed to do so and all calls made to him to refund the money proved futile hence her claims against the defendant as per her Writ of Summons which she filed on 3rd June 2014.

 

After some early skirmishes in the trial including the issuing of an absconding warrant against the defendant, the defendant filed his Statement of Defence and a Counterclaim 3rd July 2014.

 

4. The defendant generally denied the plaintiffs’ claims. He said he rather plies his trade between Ghana and Germany. In answer to the US$10,000.00 he averred that the plaintiff rather gave him GH¢14,600.00 to boost his business so that they will share the profit that will accrue from the business. Regarding the additional US$20,000.00 the defendant averred that the plaintiff shipped two (2) cars – Toyota Matrix and Toyota Camry from the United States to Ghana for him to take delivery, sell same and remit the amount realized to her, which he did. The defendant mounted a hostile monetary counterclaim on nine different headings all totaling Gh¢59,550.00 and US$1,000.00. The various headings will be detailed during the course of this judgment.

 

5. The case went through full trial at the end of which the learned trial judge entered judgment for the plaintiff for GH¢51,000.00 based on the admission of the defendant and dismissed the defendant’s counterclaim in its entirety.

 

Both parties were obviously aggrieved by the judgment because the plaintiff has appealed and the defendant has also cross-appealed.

 

6. The plaintiff/appellant is seeking a complete reversal of the said judgment and an order that the defendant/respondent pays the whole amount stated in the Writ of Summons as well as interest to be awarded in her favour. The plaintiff/appellant based her claim for these reliefs on two grounds of appeal namely, that:

(i) The learned trial judge erred when he entered judgment for the sum of FIFTY-ONE THOUSAND GHANA CEDIS (GH¢51,000.00) instead of the amount stated in the writ of summons and

(ii) The learned judge erred when he failed to award interest in favour of the plaintiff.

 

7. The defendant/respondent cross-appealed seeking the relief that the judgment in respect of the counterclaim be set aside and judgment entered for him. His grounds of cross-appeal are:

(1) That the High Court erred when it dismissed the defendant’s entire counterclaim

(2) That the High Court erred when it held that save the defendant telling the court he used the plaintiff’s name for the preparation of the document because of the trust he had in the plaintiff, he did not lead any further evidence

(3) That the High Court erred when it held that the defendant could not have raised the amount claimed because he had gone for financial assistance of GH¢51,000.00.

(4) Additional grounds will be filed upon receipt of the Record of Proceedings

 

No additional grounds were subsequently filed. The appellant filed her written submission on 16th May 2016. The defendant/respondent/ cross-appellant did not file any.

 

8. As every appeal is by way of rehearing per statute and a plethora of decided cases, we shall now consider the respective grounds of appeal and grounds of cross-appeal. See:

Rule 8 (1) of the Court of Appeal Rules, 1997, C I 19

AWUKU VRS. MUMUNI & SULEMANA [2014] 70 GMJ 144

BROWN VRS. QUARSHIGSH [2003 – 2004] SCGLR 93

PRAKA VRS KETEWA [1964] GLR 423

 

GROUND (I)

The learned trial judge erred when he entered judgment for the sum of FIFTY-ONE THOUSAND GHANA CEDIS (GH¢51,000.00) instead of the amount stated in the writ of summons.

9. Counsel submitted that the plaintiff gave evidence of giving the defendant US$30,000.00 in two tranches of US$10,000.00 and US$20,000.00. He said the trial judge found that the defendant admitted receiving the same and that having come to that conclusion, he should have granted the reliefs the plaintiff was claiming from the court as endorsed on the Writ of Summons which is US$30,000.00 or its cedi equivalent GH¢90,000.00.

 

What is on record in respect of this? First of all, in respect of the US$10,000.00 the defendant averred in paragraph 4 of his Statement of Defence and Counterclaim that he received the amount in cedis being GH¢14,600.00. This is what he said in his evidence-in-chief at page 56 of the Record of Appeal.

 

“The plaintiff gave me GH¢14,600.00 and not US$10,000.00. I am signatory to Exhibit B. At the time the GH¢14,600.00 was equivalent to US$10,000.00, I therefore used the dollar equivalent to enable the plaintiff appreciate the money involved”.

 

Under cross examination at page 58 of the Record of Appeal, this is what transpired:

“Q.Exhibit B never captured any Gh¢14,600.00?

A. Yes. But I was given the money in cedis”

 

10. This amounts to a denial of receiving the amount in dollars. The onus therefore shifted to the plaintiff/appellant to prove that the amount was given in dollars. What is the evidence of the plaintiff/appellant on this issue? The Plaintiff’s Lawful Attorney testified in His evidence-in-chief at page 46 of the Record of Appeal that the plaintiff gave the defendant US$10,000.00 to work with in 2010 but this is what transpired under cross examination at page 48 of the Record of Appeal:

“Q. When did plaintiff last come to Ghana?

A. 2010

Q. You did not personally give the US$10,000.00 to the defendant?

A. That is so

Q. It was GH¢14,600 which was given to the defendant and not GH¢10,000.00?

A. That is so”

 

11. PW1, Solomon Baffoe, is a pastor and also a half-brother of the defendant. He witnessed the Agreement Note, Exhibit ‘B’ for the defendant. He said when he demanded to know the contents of the document, the defendant told him the plaintiff has given him some money being US$10,000.00. Hear his evidence under cross examination at page 53 of the Record of Appeal.

“Q. Per your evidence you never saw the plaintiff give the US$10,000.00 to the defendant”

A. No

Q. Did the defendant tell you where and when he went for the money in issue?

A. He did not tell me. Because he is my brother I did not ask for the details

Q. So you cannot tell whether the money was given to the defendant in dollars?

A. No.”

 

This state of affairs cannot amount to proving, on the balance of probabilities as required by law that the amount was paid in US dollars. On the contrary the explanation given by the defendant that the amount was designated in dollars to enable the plaintiff appreciate the amount involved is reasonably probable and we so hold that the US$10,000.00 was paid in cedis.

 

12. On the balance of the US$20,000.00, the evidence of the plaintiff’s Lawful Attorney in his evidence-in-chief at page 47 of the Record of Appeal was that the plaintiff gave two cars to the defendant to sell at US$20,000.00 The Plaintiff’s Lawful Attorney contradicted himself at page 49 of the Record of Appeal by saying that the entire US$30,000.00 was given in dollars when he had earlier testified that the US$10,000 was paid in Ghana Cedis. The vehicles were sold in Ghana and the legal tender for payment in Ghana is the Ghana cedi. If the plaintiff/appellant did not want a ruling against her that the cars were sold in cedis, she should have offered cogent proof of the sale in dollars. She could have served a notice on the defendant to produce at least, copies of the receipts he issued when he sold the two cars.

 

13. Exhibit C is the primary document on which the money realized from the sale of the two cars is hinged. In it, the defendant acknowledged receipt on 17th January 2012 of the sum of GH¢51,000.00 (being the primary currency) or US$30,000.00 from the plaintiff. This Exhibit C subsumes Exhibit B dated 24th November 2010 in respect of the US$10,000.00. The defendant’s explanation as to how he arrived at the GH¢51,000.00 as the equivalent of US$30,000.00 is very plausible. His evidence-in-chief is at page 56 et seq of the Record of Appeal.

 

“The plaintiff later shipped a Toyota and Camry to me to sell. I sold the Toyota Matrix at Gh¢12,000.00 and the Camry at Gh¢24,400. In sum I had Gh¢36,400.00. I added this to the Gh¢14,600.00 making GH¢51,000.00 in total. At the time the equivalent of GH¢51,000.00 was US$30,000.00”.

 

This is what the learned judge said at page 5 -6 of his judgment which can be found at pages 82 – 83 of the Record of Appeal.

 

“In the case under consideration, not only did the defendant admit the claim of the plaintiff during cross examination, he also admitted same in his evidence-in-chief. I therefore enter judgment based on the admission by the defendant for the plaintiff for the sum of GH¢51,000.00. …”

 

14. As explained above, the record shows that the defendant/respondent admitted receiving the amount in Ghana cedis and the plaintiff could not prove by cogent evidence that she gave the money in dollars. The trial judge came to the conclusion that defendant/respondent admitted the claim but not in dollars. Therefore, he did not err when he entered judgment for the plaintiff in Ghana cedis instead of the amount of US$30,000.00 stated in the Writ of Summons. In any event, the plaintiff claimed its cedi equivalent of GH¢90,000.00 in the alternative and the judge could have elected the alternative. The sum he gave judgment for was what the defendant admitted and which was corroborated in Exhibit ‘C’. The plaintiff/appellant did not prove the balance of GH¢39,000.00.

 

The nature of Exhibit ‘C’I itself needs to be commented upon. Exhibit ‘B’ is subsumed in it. Is exhibit ‘C’ a receipt for financial assistance or capital contribution to a partnership business? The heading of Exhibit ‘C’ is “An Agreement for Financial Assistance” The body of Exhibit ‘C’ however says in part the defendant/respondent received a cash sum of GH¢51,000.00 or US$30,000.00 from the plaintiff to enter into partnership business and that any outcome (profit) will be shared into parts with one part for the donor and the other part for the second party. The ratio of the profit to be shared was not indicated.There is no evidence in the Record of Appeal that the parties actually entered into the partnership business as no partnership agreement or any other evidence to that effect was tendered in evidence. This presupposes that the transaction was actually “financial assistance” as per the heading and therefore liable to be refunded.

Ground (I) of the appellant’s grounds of appeal fails and is consequently dismissed.

 

GROUND (II)

The learned judge erred when he failed to award interest in favour of the plaintiff.

15. Among the reliefs claimed by the plaintiff/appellant was interest on the sum due from 31st January 2012 till date of final judgment. The judgment appealed against is silent on this relief. This means that by implication, the learned trial judge has denied same. Counsel for the appellant therefore submitted that the learned trial judge erred in failing to give any reason for refusing to award any interest on the sum of money being claimed. We could not agree more with Counsel for the appellant in this regard. Interest is a legitimate demand for a party who has been deprived of the use of his money by another party. The amount of interest payable may be agreed on by the parties. In the absence of any express agreement as to the interest rate and how it is to be computed, the law makes provision for interest to be paid at the prevailing bank interest rate and calculated at simple interest. This is provided for in the COURT (AWARD OF INTEREST AND POST JUDGMENT INTEREST) RULES, 2005 C. I. 52 as follows:

 

“Rule I-Order for payment of interest

1. If the court in a civil cause or matter decides to make an order for the payment of interest on a sum of money due to a party in the action, that interest shall be calculated

(a) at the bank rate prevailing at the time the order is made, and (b) at simple interest but where an enactment, instrument or agreement between the parties specifies a rate of interest which is to be calculated in a particular manner the court shall award that rate of interest calculated in that manner.

 

Rule 2-Post Judgement interest

2. (1) Subject to subrule (2) each judgement debt shall bear interest at the statutory interest rate from the date of delivery of the judgement up to the date of final payment.

(2) Where the transaction which results in the judgement debt

(a) contained in an instrument,

(b) evidenced in writing, or

(c) admitted by the parties

and the parties specify in the instrument, writing or admission the rate of interest which is chargeable on the debt and which is to run to the date of final payment, then that rate of interest shall be payable until the final payment.”

 

Ground (ii) of the plaintiff/appellant’s grounds of appeal is therefore upheld and this court awards interest as per Rules 1 and 2 of C I 52 from 31st January 2012.

 

16. Now to the defendant/respondent/cross-appellant’s cross-appeal. The relief he is seeking is for the judgment for the plaintiff to be set aside and judgment entered for him. His first ground of cross-appeal that is the High Court erred when it dismissed the defendant’s entire counterclaim. This demands that we evaluate his entire counterclaim in the light of the Record of Appeal and the relevant law and come to our own conclusion as to whether or not the trial judge was right.

 

As indicated earlier on, the defendant/respondent counterclaimed on nine separate headings which will be considered seriatim. Counterclaims 1 & 2 will however be considered together since they relate to the same subject matter.

 

Counterclaim for GH¢21,000.00 being the cost of the parcel of land at Denkyemouso New Site he used his personal money to purchase for the plaintiff.

 

Counterclaim for GH¢23,000.00 being cost of building materials, labour cost and expenses the defendant incurred in putting a house structure up to lintel level on the parcel of land aforementioned for the plaintiff.

 

17. The defendant/respondent testified in his examination-in-chief at page 57 of the Record of Appeal that he bought the land from one Allotey through one Estate Agent for GH¢21,000.00. He tendered Exhibits 1 and 1A in support. Exhibit 1 is a receipt for GH¢20,000 for the purchase of the land which is issued in the name of the plaintiff/appellant. The Defendant/respondent however testified that he made an additional payment of GH¢1,000. 00 to the agent who assisted him in the acquisition of the plot. Going on, he testified as follows: “…… I put up the structure on the land to window level. In sum I expended GH¢23,000.00 on the structure.” Under cross-examination, the defendant/respondent could not stand his ground. He was literally at sea while obeying the wind. This is what transpired at page 59 -60 of the Record of Appeal.

“Q. In your defence you stated that you remitted the proceeds from the sale of the car to the plaintiff, see paragraph 6 of your statement of defence?

A. It was a mistake

Q. And these moneys were still with you before the issue of buying the plot cropped up?

A. Yes but I had not started trading with the money

Q. Where was the money?

A. It was with me.

Q. You bought the plot for the plaintiff on 26th April 2012?

A. Yes

Q. I put it to you that before the purchase of the plot you were trading with the money?

A. No

Q. As of now the money is still sitting somewhere?

A. No

Q. Where is it?

A. I used some to buy the land and put up the structure on it. I also gave portions to some people per the instruction of the plaintiff.

Q. The plot you bought for the plaintiff, she was the one who paid for same?

A. I did

Q. The money was given to you by the plaintiff which you used to pay for the land?

A. No

Q. It was one Auntie Aggie who brought the money to you in the U.S.A.?

A. I used my personal money to pay for the land.

Q. Exhibit I series does not say that you bought the land personally for which reason the receipts were issued in her name?

A. I personally paid for the land. Because of the cordial relationship between me and the plaintiff I used her name in the receipts.” (Emphasis added)”

 

18. The credibility of the defendant is highly suspect here. As a trader, he received GH¢14,600 on 24-11-2010 to boost his business but as at 25-12-2015 when he was in court to testify, he said as at 26-4-2012 when he bought the land for the plaintiff he had not yet started trading with the money. He also said he used the money to buy the land and put up the structure on it but in the next breath said he used his personal money to buy the land and put up the structure. Certainly the two scenarios cannot co-exist. Earlier on in his pleadings he said he sold the cars and remitted the proceeds to the plaintiff only to turn round and say it was a mistake under cross-examination. We must say that pleadings are a very critical part of any litigation since they form the foundation as well as the fulcrum on which the action is built and revolves round. Pleadings must therefore be taken seriously. To make such a fundamental averment only to turn round and say it was a mistake leaves much to be desired. The lawyer who drafted the pleadings acted on the instructions of the client and cannot take any blame in this regard. In the maze of all these contradictions, we find this counterclaims for the purchase of the land and the cost of the structure on it to have completely failed and the learned trial judge was right in dismissing same.

 

3. Claim of GH¢1,200.00 being money paid by defendant to one Florence Amobea, the caretaker of the children of the plaintiff for the upkeep of the plaintiff’s children then resident in Ghana during the year 2011 on the directions of the plaintiff.

 

19. The evidence on record is that the defendant/respondent said in his evidence-in-chief that he gave GH¢1,200 to Florence for the upkeep of the Plaintiff’s children. He said out of this figure he gave GH¢750 and the balance subsequently she gave to a lady she used to live with at the time he knew the plaintiff Attorney. (See page 57 of the ROA) The said Florence, whose full name is Florence Adwoa Amoabia gave evidence as PW2, starting from page 53 of the Record of Appeal. She denied that the defendant ever brought her the said GH¢1,200.00 for the upkeep of the Plaintiff’s children. She said it was the plaintiff’s husband who remitted the children from abroad through Western Union. She tendered some of the receipts in Evidence marked as the Exhibit D series i.e. Exhibit D and D1 to D10. On this matter, she was unshaken under cross-examination. The defendant made no effort to prove this counterclaim by any positive or cogent evidence. The trial judge was right in dismissing same.

 

4. Claim of GH¢1,700.00 the defendant paid to Florence Amoabea for her to rent a room for herself on the directions of the plaintiff.

 

20. The defendant/respondent did not lead any evidence concerning this claim. It was only under cross-examination at page 61 of the ROA that he said he gave GH¢1,700.00 to Florence. The said Florence who testified as PW2 said that the defendant gave her GH¢1,700.00 and aside from that the defendant/respondent did not give her any other money. She however qualified it by saying that it was the plaintiff who told her that the defendant was to bring her some money for her to rent a place to live in. She said the plaintiff ordered the defendant to give her this money after the time the plaintiff had come for her children who she used to take care of. The natural and most probable inference from the explanation given by Florence is that the plaintiff sent money to her through the defendant. On the balance of probabilities therefore, the respondent failed to make out this head of counterclaim as he made no effort to prove otherwise. The trial judge was right in dismissing same.

 

5. Claim of GH¢3,000.00 the defendant paid to Daniel Ankomah, the plaintiff’s Lawful Attorney as directed by the plaintiff.

 

21. The defendant/respondent testified in his examination-in-chief at page 58 of the ROA that he gave GH¢3,000.00 to the plaintiff’s Lawful Attorney. He said he gave him GH¢1,000.00 personally and the balance of GH¢2,000.00 was given to him to be given to the parents of the plaintiff. This is a mere repetition on oath of what he averred in his counterclaim. Daniel Ankomah admitted receiving only GH¢1,000.00 from the defendant in his evidence-in-chief. Aside this, he denied the claim of GH¢3,000.00 as captured in paragraph 12 of the Statement of Defence and Counterclaim. The question however still remains as to whether the money was that of the defendant or whether the plaintiff sent the money to her Lawful Attorney through the defendant. In order to avoid a ruling against him, the defendant should have moved to the next step of providing cogent and positive evidence to that effect. This he failed to do. The learned trial judge remained on course when he declined this relief.

 

6. Claim of US$1,000.00 the defendant sent to the plaintiff in the United States through one Wofa Yaw of Buokro, Kumasi who was going to the United States.

 

22. The defendant/respondent led no evidence on this counterclaim. This is however what transpired when he was cross-examined at page 61 of the ROA.

“Q. I suggest to you that it is not true the plaintiff owes you Gh¢59,550 and US$1,000?

A. It is true. She owes me the said figure

Q. You only cooked up this figure to create the impression that the plaintiff owes you?

A. No. She owes me the said figure.”

 

Surely this does not meet the burden of proof on the balance of probabilities on the face of it. The defendant/respondent was however saved because even though the plaintiff had denied same in her Reply and Defence to Counterclaim, in the evidence-in-chief of her Lawful Attorney, he admitted the claim. See page 48 of the ROA where he admitted paragraph 13 of the defendant’s Statement of Defence and Counterclaim. Again, in cross-examining the defendant/respondent at page 62 of the ROA, Counsel for plaintiff put it to the defendant thus:

“Q. The US$1000 you gave to the plaintiff was part of the profit that accrued from the investment of the money she gave you?

A. No. She was in financial distress.”

 

With his last answer by the defendant/respondent, the plaintiff/appellant should have gone on to show that she was not in financial distress and to prove by cogent means that she was entitled to the US$1,000.00 as put to the defendant. This, Counsel failed to do. The plaintiff is thus deemed to have admitted that she was in financial distress, hence the need for the money. We therefore find that the defendant gave US$1,000 of his own money to the plaintiff and we so hold. The trial judge therefore erred in disallowing this head of counterclaim.

 

7. Claim of GH¢760,000.00 being cost of kente cloth and jewels the defendant purchased and sent to the plaintiff in the United States.

 

23. Plaintiff/Appellant’s Lawful Attorney admitted this claim except to say that the items bought were a gift to the plaintiff when she gave birth to a baby girl. See page 48 where he admitted paragraph 14 of the defendant/respondent’s Statement of Defence and Counterclaim on same. The defendant/respondent however denied that the items were a gift. The Plaintiff/Appellant’s Lawful Attorney went on to declare his readiness under cross-examination at page 50 of the Record of Appeal to refund GH¢500.00 to the defendant in respect of the kente and the jewelry as the cost of the items. The plaintiff thus admitted this claim partially and should therefore be held liable for the GH¢500.00. The defendant ought to have proved the balance of GH¢260.00 possibly by way of a receipt or some other cogent evidence like calling the vendor(s) of the item(s) to give evidence about their value. By failing to do so, defendant is not entitled to the entire GH¢760.00. He is only entitled to the portion admitted which is GH¢500.00. The trial judge erred by missing out on this.

 

8. Claim of GH¢800.00 being cost the defendant incurred in renovating the plaintiff’s house at Kwanwoma, Ashanti as directed by plaintiff.

 

24. The defendant/respondent did not lead any evidence on this matter in his evidence-in-chief. The matter was only broached during cross-examination thus by Counsel for the plaintiff/appellant.

Q. I suggest to you that you never expended GH¢800.00 in renovating the plaintiff’s house?

A. I did

 

The plaintiff/appellant’s Lawful Attorney denied this claim in his Reply and Defence to Counterclaim filed on 9th July 2014 as well as his evidence-in-chief at page 48 of the ROA where he denied paragraph 15 of the defendant’s Statement of Defence and Counterclaim.

 

The defendant/respondent, being in the same position as a plaintiff in respect of his counter-claim can hardly be said to have proved this head of claim. The trial judge was right in dismissing same.

 

9. Claim of GH¢8,000.00 being the amount the defendant spent in clearing and repairing the Toyota Camry and Toyota Matrix the plaintiff shipped from the United States of America to Ghana and asked the defendant to pay for the expenses, take delivery of them, sell them and remit the amount realized to her.

 

25. The defendant testified to same and said both cars were “accident” vehicles and he repaired them to put them in shape before they were sold. This was denied by the plaintiff in her pleadings as well as the evidence-in-chief of her Lawful Attorney where he categorically stated that the cars were not accident vehicles. See page 48 of the ROA. From this denial, defendant could have demonstrated the condition of the cars by producing the shipping and other customs documents on same or calling the mechanic(s) who worked on same to give evidence but none of this was done. Again hear the defendant under cross-examination at page 61 of the ROA.

Q. You never expended GH¢8,090 in repairing the 2 cars

A. I did

Q. How much did you expend on the clearance of the cars?

A. I cannot tell now

Q. How much did you expend on the repairs?

A. I cannot recall the figure”.

 

Although judicial notice can be taken of the fact that there are clearing charges at the Ports of Ghana yet these answers provided by the defendant confirm that he is on slippery grounds in making that counterclaim. He would have been on firm grounds if he provided the break down demanded by counsel and tender some receipts for clearance of the vehicles and also the repair works. In the absence of all these, he cannot be said to have met the burden of proof on the balance of probabilities.

The trial judge got this right by denying same.

 

In totality, ground (1) of the grounds of cross-appeal is only partially allowed in respect of the US1000.00 paid by defendant to the plaintiff and GH¢500 being the cost of Kente and Jewelry bought by the defendant for the plaintiff.

 

GROUND (2) OF THE CROSS-APPEAL

That the High Court erred when it held that save the defendant telling the court he used the plaintiff’s name for the preparation of the document because of the trust he had in the plaintiff, he did not lead any further evidence

26. This statement was specific to the purchase of the land and this is what the learned trial judge said at pages 6 -7 of his judgment which can be found at pages 83 -84 of the Record of Appeal.

 

“Exhibit I is a receipt covering the payment of the GH¢21,000.00 Exhibit I clearly shows the GH¢21,000.00 was paid by the plaintiff and not the defendant as alleged by him.

 

The law is that where there is in existence a written document and oral evidence on the same transaction, the rule is that the bench should consider the oral and documentary evidence, but to lean favourably towards the documentary evidence, especially where the documentary evidence is authentic while the oral evidence is conflicting. See Hayson v Egyir (1984 -86) 1 GLR 682.

 

In the instance case save the defendant telling the court he used the plaintiff’s name for the preparation of the document because of the trust he had in the plaintiff he did not lead any further evidence”.

 

We have combed through the entire Record of Appeal and what the trial judge said is exactly what we found relative to who paid for the purchase of the land. There is no other evidence on same on the part of the defendant. This second ground of cross-appeal is summarily dismissed.

 

GROUND (3) OF THE CROSS-APPEAL:

That the High Court erred when it held that the defendant could not have raised the amount claimed because he had gone for financial assistance of GH¢51,000.00.

 

27. At page 8 of the learned trial judge’s judgment which can be found at page 85 of the ROA, he wrote thus:

 

“I wonder how the defendant who claims to be financially sound could go for financial assistance of GH¢51,000.00 from the plaintiff but according to him never made use of same because of the fluctuations in the dollar-cedis rate, could still raise the amount claimed”.

 

The basis of this opinion is not clear from the record. It is not always the case that only indigent people or financially distressed businesses that go in for financial assistance. A solvent business/person could go for financial assistance if the terms of the credit are favourable. Perhaps, because the defendant is financially sound, that is why he did not see the need to use the financial assistance given by the plaintiff. There being no solid foundation for this opinion of the learned judge, this ground of appeal is upheld.

 

In conclusion, the appeal is partly upheld by the award of interest to the appellant and the cross-appeal is also partly upheld by the granting of the following counterclaims of the respondent:

·         US$1,000.00 sent by respondent to the appellant.

·         GH¢500 for the purchase of the kente and jewelry.