The Plaintiff caused a writ to be issued out of the Registry of this court against the Defendant for an amount of GH¢36,600.00 being total amount of money advanced to him together with interest at the prevailing bank rate from 1^st April 2013 till date of final payment.

It was the Plaintiff’s case that between March 2012 and March 2013, she advanced sums of money to the Defendant which he was supposed to repay on or before 1^st April 2013. He had failed to do so.

The Defendant in his defence said he had only received an amount of GH¢7,000.00 from the Plaintiff which he had requested for payment of his children’s school fees and for repairs he had undertaken on his car. He said he was never made aware that these sums had been given to him as a loan which had to be repaid.

He contended in his defence that he had entered into an amorous relationship with the Plaintiff in which she prepared food and bought him gifts which included a watch, mobile phone and rice cooker. When the relationship fell on the rocks, she had decided to issue this writ claiming the amounts endorsed on the writ.

The Plaintiff in her Reply denied the Defendant’s version of events saying she had been happily married for 19 years and reiterated that the Defendant owed her the amounts as claimed. She stated that he even introduced his friend, one Kenneth Danso to her and the said Kenneth Danso had even borrowed GH¢50,000.00 off her.

Five issues were set down for trial which are:

1. Whether or not the Defendant solicited various amounts from the Plaintiff amounting to GH¢36,600.00?

2. Whether or not such amounts collected were borrowings from the Plaintiff?

3. Whether or not the Defendant had refunded any of such amounts borrowed from the Plaintiff to the Plaintiff?

4. Whether or not the Defendant introduced his friend Kenneth Danso to obtain a loan from the Plaintiff?

5. Whether or not the Plaintiff is entitled to her claim?

Whether or not the Defendant solicited various amounts from the Plaintiff amounting to GH¢36.600.00?

The Plaintiff has given oral evidence in respect of her claim. She also tendered in evidence Exhibits A and B which she says evidences the fact that she gave out money to the Defendant. Exhibit A consists of recordings she has made in her diary. Exhibit B is a tabulation of the amounts indicated against the dates she says she gave out the loans. The Defendant has cast aspersions on these recordings in his cross examination of the Plaintiff. This is what transpired on 14^th April 2015 at pp 1-3:

Q. You brought a diary which year is that diary?

A. 2012

Q. I put it to you that you did not make any recordings in the whole diary except for the note section.

A. It is not true My Lord

Q. What recordings did you make in the diary apart from the notes side of the diary?

A. My Lord. I have my diary here as my witness. And I have other recordings in it which I can submit right now. And most of them are money transactions. And most at times I do record all my money transactions in my diary. I can therefore bring my diary right now as a witness.

Q. You want the court to believe that the recordings you made in the diary and not the note side commensurate to the date that transaction took place?

A: Yes My Lord.

Q. So tell the court why the ones you did with the Defendant are all in the notes part of the diary but not in the main diary where it will be commensurate with the date the transaction took place?

A: My Lord as I said, my diary is here to bear me witness, there are equally other transactions that are at the note side of the diary. That is the way I decide to write in the diary.

It was the Defendant’s contention that the matters entered in the diary were not true as they were at the notes side of the diary and not in the main diary against the dates when the transactions took place. In the case of Fosua & Adu-Poku v. Dufie (deceased) and Adu-Poku Mensah (2009) SCGLR 316, the court held that Section 11(4) of the Evidence Act, 1975 NRCD 323 put the obligation in civil proceedings of producing evidence on a party to produce sufficient evidence so that on all the evidence, a reasonable mind could conclude that the existence of the fact was more probable than its non-existence.

Have any of the parties been able to lead such evidence?

The court has examined Exhibit A. There are many transactions ranging from dates in 2012 and 2013. The pages of Exhibit A showed quite a number of recorded transactions. Some of the recorded transactions in the Defendant’s name do not all relate to money given to him as loans. Some of the transactions are monies given to the Defendant for the construction of 2 bathrooms at Tafo, some are for plumbing and electrical materials (see page 2 of Exhibit A). Some transactions refer to other people who are not before the court. See pages 3 and 4 which record transactions in the name of Daddy for Maame Dufie’s and Yaa’s project and money given to one Attabo (p. 2). The Plaintiff and the Defendant in their various testimony did say that the Defendant did carry out some building works for the Plaintiff at Tafo.

Therefore the recordings before the court cannot have been manufactured just for this case against the Defendant. Exhibit A in addition to the transactions with the Defendant also has transactions of other persons who have not been shown to be connected to the Defendant. Therefore if such recordings are made available to the court, it only shows that the Plaintiff did make recordings in the note portion of her diary and that these recordings were not all in relation to the Defendant. But why would the Plaintiff make unilateral recordings to suit herself if this is a diary in which other transactions unconnected to the Defendant are made?

These transactions were recorded in Exhibit A. The act of recording in Exhibit A was contemporaneous in times to when the transactions took place between 2012 and 2013. In the case of Ghana Ports and Harbours Authority v. Nova Complex Ltd (2007/2008) SCGLR 806 a contemporaneous event was described as:

“one which took place at the same time as another event or immediately after the event, so that the two could be regarded as having occurred at the same time”

The Court finds the recordings as a trustworthy source. These amounts indicated against the Defendant’s name were indeed money he had asked for and received from the Plaintiff.

The next issue would now be:

Whether or not these were borrowings from the Plaintiff?

As stated above, there were recordings made in furtherance of the building contract between the Plaintiff and the Defendant. These recordings were distinct from the recordings made and indicated as personal loans either for the Defendant’s car, payment of school fees and other sundry expenses.

However whilst the Defendant insists that he only took GH¢7,000.00 from the Plaintiff, she insists that he is liable for all the amounts recorded in her diary. The Defendant also in his Statement of Defence postulates that the Plaintiff had commuted the gifts she had given him i.e. a watch, mobile phone, television and a rice cooker into cash and added it onto the amount of GH¢7,000.00 as well as food she had cooked for him to arrive at the sum of GH¢36,600.00.

It was the Defendant’s version of events that he knew nothing about these recordings. His recollection of monies he had taken from the Plaintiff was GH¢7,000.00. He denied the contention that he had ever promised to take a loan from UT Bank to pay off the money. He also denied ever telling either the Plaintiff or PW1 that he intended to pay off his indebtedness with proceeds from a contract from the Ghana Cocoa Board. He admitted in his evidence that he took his friend to the Plaintiff for a loan. He and his Counsel even had to seek police assistance to ensure the repayment of this loan. He told the court he was in a relationship with the Plaintiff and it was because he decided to end the relationship that had resulted in this suit.

The Defendant herein has admitted requesting for and receiving funds from the Plaintiff. He said he did not receive GH¢36,600.00 but received GH¢5,000.00 on one occasion for payment of his children’s school fees and on another occasion, received the sum of Gh¢2,000.00 for repairs to be carried out to his vehicle. He has not denied receiving money but it is the quantum he is complaining about. The Plaintiff also gave evidence that she gave the Defendant money for his vehicle, school fees and for other sundry requests.

Whilst the Plaintiff called a witness in support of her case, the Defendant did not.

PW1 told the court that she knew both parties. She had been introduced to the Defendant by the Plaintiff as a brother. She had since got to know the Defendant very well as she cooked for him frequently. She also got to know from the Plaintiff that the Defendant owed her over GH¢36,000.00. When she confronted the Defendant with that information, he admitted owing the Plaintiff but not to the tune of GH¢36,000.00. She also got to know from the Defendant that one of his friends, Kenneth Danso had also borrowed money from the Plaintiff. This is what transpired during her evidence-in-chief on 16^th April 2015 at pp 3-5:

Q: What did you ask Defendant?

A. My Lord I had a conversation with the Defendant and the Defendant explained to me that indeed he owed the Plaintiff. I advised the Defendant that we had a very good relationship and that he should not allow money to ruin that relationship that exists between us. My Lord in addition the Defendant pleaded that I should speak with the Plaintiff she wanted to bring the matter to court else they were going to disgrace themselves in court. So I enquired from the Defendant what he meant by the disgrace was going to come at the court and he explained that the Plaintiff was his girlfriend. My Lord I advised the Defendant to pay the Plaintiff the monies owed her and the Defendant explained to me that he was transacting business with CMB and that he would get money to pay in a month’s time.

Q: Do you know how much money was involved?

A. My Lord, the Plaintiff mentioned an amount of GH¢36,000.00 as the money involved, but the Defendant denied that it is not up to that amount and that the Plaintiff had added rice cooker and watch.

Q: On how many occasions did you have discussions on that matter?

A. My Lord the Defendant visited me frequently because I normally cook for him and on certain occasions, when I am on my way to Kasoa, he gives me a lift and whilst in the car going and we discuss the matter.

Q. You said, he said he was waiting for money from a CMB contract to pay the debt. Did he identify any other way of paying the debt?

A. My Lord, the Defendant told me that the Plaintiff had asked him to use his house to secure a loan from UT, which he the Defendant had objected to but rather that he was going to use his tipper truck to pay the debt. It was later on that the Defendant informed me that he was having some business transaction with CMB and that in a month’s time he was going to get the money and pay.

Q. In your dealings with the Plaintiff and the Defendant did the name Kenneth Danso ever come up?

A. That is so my Lord, but I don’t know him.

Q: Who mentioned it to you and in what connection?

A:My Lord the name came to me when the Plaintiff told me that the Defendant had brought Kenneth Danso to her to take some money from her and that he did not pay back.

Q: Did you ask the Defendant about this issue also?

A. Yes My Lord I enquired from the Defendant and he explained to me that Kenneth Danso normally takes money to supply. On that occasion he did not have money on him so he took Kenneth Danso to the Plaintiff to lend him some money and that he was going to pay in 2 weeks time.

In cross-examination of the same witness on 2^nd June 2015 at pp 3-4 the following ensued:

Q. You told the court that you have known the Defendant for just about 2-3 years do you still stand by that?

A: Yes. My Lord.

Q. And you claim that he frequently visits you at your house is that true?

A. No. My Lord, the Defendant only comes to the house to pick his food.

Q. I put it to you that the assertion that he told you he wanted to sell his house to pay the deht is not true?

A. The Defendant did not tell me he was going to sell his house, rather he indicated to me that the Plaintiff had suggested to him to use his house to secure a loan from UT and that he will not do it.

Q. I further put it to you that it is not true that the Defendant told you he was going to sell his tipper truck to pay the debt?

A. It was the Defendant who told me he was going to sell his tipper truck to pay his debt. And further indicated that the tipper truck is in Tafo and not Accra.

Q. And I further put it to you that the Defendant never told you about payment of any debt within 1 month?

A. … the Defendant indicated to me that he was undertaking a project for CMB and that upon receipt of his money he will pay the debt on two weeks basis.

Q. I put it to you that the Defendant never told you about any matter between one Kenneth Danso and the Plaintiff?

A. It was the Defendant who informed me about the issue between Kenneth Danso and the Plaintiff. He even told me that the said Kenneth Danso was his friend and that with the help of Counsel they had caused his arrest. And that he had been sent to the police headquarters and had been made to pay for monies he owed.

The questions that arise at this juncture are:

1. How did the PW1 know the details about the transaction between the Plaintiff and Kenneth Danso? Even if the Plaintiff had told her of the transaction, how would PW1 have got to know that the Defendant had with the assistance of Counsel sought police assistance to retrieve the money from Kenneth Danso?

2. How did PW1 get to know that the Plaintiff had asked the Defendant to go for a loan from UT using his house as collateral and that he was not in agreement with this suggestion?

3. How did she know that the Defendant had a tipper truck in Tafo which he intended selling to redeem his indebtedness?

In the case of Nyame v. Tarzan Transport (1973) 1 GLR 8 CA, the court held:

“There is a distinction between pure conjecture and reasonable inference. A conjecture may be plausible but it is of no legal value for its essence is that it is a mere guess. An inference in the legal sense on the other hand, is a deduction from the evidence and if it is a reasonable deduction, it may have the validity of legal proof. The attribution is always a matter of inference.”

See also Section 18(2) of the Evidence Act, 1975 NRCD 323 which states:

“An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action.”

From the evidence, the PW1 knew the Defendant and contrary to the Defendant’s evidence he did have quite a number of discussions with her and those discussions are what she had recounted to the court. It could be inferred from the evidence that the PW1 was privy to the transaction between the parties although she was not present when money exchanged hands. She however got this information from separate discussions she had with both parties. Significantly, the Plaintiff never gave any evidence about the Defendant’s tipper truck. PW1 however knew that the Defendant had a tipper truck which he intended to sell.

Then the Defendant told the court he was a contractor who had worked on contracts for Feeder Roads and for Cocoa Research. Was it then by coincidence that the PW1 testified that the Defendant had told her he was in the process of executing a contract for Cocoa Marketing Board?

The Plaintiff’s, and PW1’s evidence was consistent in content and different enough in the telling that the court tended to believe them. There was no suggestion to show that their evidence was fabricated or a rehearsed cover-up as the defence would fervently wish this court to believe. Indeed, the Plaintiff and her witness proved unflappable and unshakeable in their evidence both in chief and in cross-examination. They stuck to the same story again and again when taken individually. Collectively, their evidence corroborated each other. Exhibits A and B were produced and dovetailed neatly into Plaintiff’s and PW1’s evidence. The evidence of the Plaintiff and her witness was credible, in line with the Plaintiff’s pleadings and had the ring of truth about it. In Zabrama v. Segbedzi (1991) 2 GLR 221 and re-affirmed in the case of Continental Plastics Ltd v. IMC Industries (2009) SCGLR 298 @ 306-307, a party who makes an assertion which is denied by his adversary has the burden to establish that his assertion is true. He can do so by leading admissible or credible evidence from which the fact he asserts could be inferred.

On the other hand the defence’s evidence was subtly layered with all sorts of distortions and embroidery all in a bid to escape liability. It is his case that the suit was filed out of spite because he had broken up a relationship with the Plaintiff. In PW1 answer in cross-examination on 16^th A;pril 2015 thus:

Q. Did you ever bring the parties together on this matter to talk about the money matters you said both of them explained to you?

A. No. … I did not meet the parties to discuss this issue. After meeting the Defendant who had disclosed to me that the Plaintiff is his girl friend, I inquired from the Plaitniff who got furious and denied that the Defendant was her boyfriend and so I couldn’t bring them together because the Plaitniff was at this moment very angry.

The court notes that the Defendant had told PW1 that the parties would disgrace themselves in court and that the Plaintiff was his girlfriend. Significantly this discussion he had with PW1 has manifested itself in the Defendant’s defence and his evidence on oath. But no corroborative evidence has been led in support of his version of events. In any case it is not the case that money which passes between boyfriend and girl friend or even husband and wife could not be loans that have to be redeemed.

In cross-examination of Plaintiff by the Defendant on 14^th April 2015 at pp. 5-6, the following testimony was elicited:

Q. So because you went to his house that is when you realized he had not got a television set, rice cooker and that is why you made shopping for him in that direction?

A. No My Lord. I can explain how those things got to him. My Lord in regard to the rice cooker he demanded it. That he had not got a rice cooker, so if I have any spare to give him and I willingly did. With the television, it is the old type 14” the small size. I was sending it to my hometown when he said he will have use of it so I should give it to him. And instantly I even did not. I took it to my hometown and when I installed a 14” plasma TV I gave that one to him. So he brought it from our hometown. And that is how these things got to him.

The burden of proof was initially on the Plaintiff to lead evidence that would entitle her to judgment. See Section 17(2) of the Evidence Act and Re Ashalley Botwe Lands; Adjetey Agbosu & Ors v. Kotey Ors (2003.2004) SGLR 420 @ 425. This burden during the trial continues to shift depending on the nature of evidence adduced by the parties and their witnesses.

Thereafter, it was up to the Defendant to lead evidence in proof of his contentions as described in his Statement of Defence.

If as the Defendant says, the Plaintiff only came up with the instant claim because he had broken off his relationship with her how come as many as 17 recordings were made in Exhibit A? This is not one single claim but a sum total for 17 times that he took money off her. The Plaintiff’s version is more probable as these 17 recordings were made over a period of time spanning one year and not at the point of the alleged breakup.

Moreover, the Defendant claimed that the Plaintiff had charged him for food she had cooked for him during the currency of their relationship. But no recording has been made in respect of food. From the recordings made in Exhibits A and B, he had borrowed money for school fees, for his vehicle and had taken other personal loans.  If the amount captioned as personal loans i.e. GH¢1,500.00 on 10^th May 2012, GH¢1,000.00 each on 30^th October 2012 and 24^th December 2012 and GH¢500.00 on 31^st December 2012 for example were meant for food, how much food and for over what period?

Furthermore, the Plaintiff gave evidence that she introduced the PW1 to the Defendant and the former used to prepare food for the latter. PW1 corroborated this evidence and confirmed that she had over a number of occasions prepared food for the Defendant. The Defendant denied this. In his evidence-in-chief given on 17^th June 2015, he said in answer to the following question:

Q. PW1 in her evidence said that you took a loan of GH¢500.00 from her and you paid the loan the following day, what have you got to say?

A. Not so. I have not taken any loan from her. I do not have any dealings with her apart from the food I go in for.

From this answer, the Defendant has made a Freudian slip, implying that he had no other interaction with PW1 save when he went in for food from her. It therefore cannot be true as he claimed that he only took food from her once and this was because he was travelling for a funeral. One is put in mind of the British novelist, Sir Walter Scott when he said:

“O what a tangled web we weave.

When first we practise to deceive.” .

After taking gifts from the Plaintiff, taking loans from the Plaintiff and even going so far as to introduce a friend to take a loan from the Plaintiff, the Defendant has painted a really dismal picture of himself. In this court’s opinion, he has lost credibility. He contacted the Plaintiff over and over as and when he needed money. He even went as far as introducing a friend to borrow money off the Plaintiff. He was so confident that he could fall upon the Plaintiff as and when he needed money that he could even extend the same privileges to his friend. It really is astonishing how the Defendant has conveniently lost all memory of all money he had taken from the Plaintiff when the evidence on record shows that he did receive money several times from the Plaintiff. These were recorded ostensibly because these amounts were meant to be paid back Shakespeare put it aptly in his play King Lear, Act 1 Scene IV when he said:

“Ingratitude thou marble hearted fiend.”

No matter how much the Defendant has sought to escape from paying his just debts, the evidence against him that he did receive that money outweighed his denials of having ever received same. Indeed the Defendant could not outdistance his liabilities no matter how fast he ran or how desperately he tried to muddy the waters by resorting to mudslinging. However mud, no matter how it is thrown sticks. In spite of his best efforts, the evidence on record announced the verdict unrepentantly.

The court holds that Exhibits A and B formed a true picture of what transpired between the Plaintiff and the Defendant. Exhibit A therefore is evidence that there was a transaction in which the Plaintiff paid to the Defendant various sums as loans totalling GH¢36,600.00

In the face of this evidence, the Defendant’s carefully constructed defence was a ploy to outwit the Plaintiff and to deprive her out of money he had taken off her between 2012 and 2013.

In Ackah v. Pergah Transport Ltd (2010) SCGLR 728 @ 736, the court held:

It is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. The method of producing evidence is varied and includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things (often described as real evidence) without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as a jury. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more reasonable than its non-existence.

The Plaintiff has satisfied the evidential burden placed on her by section 11(1) and 11(4) of the Evidence Act, 1975 NRCD323

11(1) “For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue.

11(4) “In other circumstances, the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence.”

The Plaintiff succeeds in her claim. The last payment Plaintiff made to the Defendant was on 26^th March 2013. The Defendant is ordered to pay to the Plaintiff the sum of GH¢36,600.00 payable with interest from 1^st April 2013 up to and inclusive of the date of final payment.

Costs of GH¢4,000.00 is awarded against Defendant.

(SGD)

JENNIFER A. DODOO (MRS)

JUSTICE OF THE HIGH COURT