ABOSO GOLDFIELDS LTD. vs. EKOW ESSUMAN (DECD) & 2 OTHERS
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    CAPE COAST - A.D 2018
ABOSO GOLDFIELDS LTD. - (Defendant/Appellant)
EKOW ESSUMAN (DECD) & 2 OTHERS - (Plaintiffs/Respondents)

DATE:  27TH JUNE, 2018
CIVIL APPEAL NO:  H1/23/2018
JUDGES:  JUSTICE IRENE C. LARBI (MRS) J.A. (PRESIDING), JUSTICE L. L. MENSAH J.A., JUSTICE ANGELINA M. DOMAKYAAREH (MRS) J.A.
LAWYERS:  DOE TSIKATA FOR DEFENDANT/APPELLANT
JOHN MERCER FOR PLAINTIFF/RESPONDENT
JUDGMENT

LAWRENCE L. MENSAH, J.A.

This is an appeal by the Defendant/Appellant (who will be referred to as Defendant in this appeal) against the judgment of the High Court, Sekondi dated the 21st day of June 2017 in favour of the Plaintiffs/Respondents (who will be referred in this appeal as the Plaintiff).

 

Facts:-

The facts which begot this appeal can be summarized as follows: It is the claim of the original Plaintiff (deceased) that sometime in January 2009 the Defendant which is a gold mining company in the Prestea-Huni Valley District of the Western Region, agreed and indeed released to Plaintiff the control, possession and management of its sand deposits or old tailings on their concession in the Bompieso area also in the same District. The Plaintiff was then charged by Defendant with re-gravelling the public road from a town called Atta Ne Atta to the Bogoso Junction in the Prestea Huni Valley District of the Western Region aforesaid.

 

It is the further case of the Plaintiff that in consideration for release of the sand deposits or old tailings to him by Defendant, he also made available to the Defendant, sand to the officers of the Defendant upon presentation of chits signed by their Human Resource Manager, with same countersigned by the Plaintiff. He also maintained private roadways linking the Defendant’s concession to the area of the said deposits. Plaintiff tendered some of the signed chits as Exhibit A series.

 

The Plaintiff claimed that he paid compensation to farmers who were affected by his operation of lifting the old tailing from the Defendant’s concession. The Defendant asked him to use the profit realized from the sale of the sand or old tailings to defray the cost of the re-shaping and re-gravelling the road from Atta Ne Atta to Bogoso Junction. Plaintiff said by reason of this arrangements, he secured a credit facility from his bankers in the sum of GH¢900,000.00 at an interest of 35% all to the knowledge of Defendant in or about July 2015. This is because his sale of the tailings was woefully inadequate to fund the reshaping and re-gravelling of the 16 kilometre long Atta Ne Ata - Bogoso Junction road.

 

It is the further case of the Plaintiff that he executed the re-shaping and re-gravelling of the road from Atta Ne Atta to Bogoso under the supervision of the Defendant’s engineers. However, in or about November 2015, the Defendant unilaterally and without just cause abrogated the agreement/arrangement and immediately repossessed the sand deposits and rather handed over same to third parties. Aggrieved by the conduct of the Defendant, the Plaintiff instituted action in the registry of the court below seeking the following reliefs:

(1) The recovery of the sum of GH¢900,000.00 being the cost incurred by the Plaintiff in re-gravelling the road from the town of Atta Ne Atta to Bogoso Junction at the instance of the Defendant.

(2) Interest at 35% on the said sum from January, 2015 to date of payment.

 

The Defendant completely denied the claim of the Plaintiff. According to the Defendant the arrangement to win sand from the Defendant’s concession was at the instance of the Bompieso Stool, the Stool on whose land the Defendant was doing its business. According to the Defendant, the Plaintiff was representing the Stool and he did not act as a private individual but all discussions which were held with Plaintiff were conducted by the Plaintiff on behalf of the Stool. By the said arrangement or agreement, the Stool subjects, that is citizens from Bompieso were permitted access to the Defendant’s Damang concession to win sand from its old tailing dump for a brief period.

 

As regards the road-works, the Defendant denied that there was any contract between the parties in respect of reshaping and the re-gravelling of the Atta Ne Atta to the Bogoso Junction. Further, there was also no contract for Plaintiff to construct private roadways to link Defendant’s concession area of the sand deposits as claimed by the Plaintiff.

 

It is the case of the Defendant that the Plaintiff voluntarily offered to assist the Defendant in a community project that the Defendant embarked on in 2015 to rehabilitate the Atta Ne Atta to Bogosu Junction road. The Defendant also denied knowledge of the credit facility of GH¢900,000.00 which the Plaintiff claimed to have obtained with the knowledge of the Defendant to re-gravel and re-shape the aforesaid road. Defendant said the voluntary construction of the disputed road was one of series of voluntary activities undertaken by the Plaintiff to help the Bompieso community.

 

In his judgment delivered on the 21st day of June 2017 aforesaid, the High Court found for the Plaintiff and awarded in part the claim of GH¢900,000.00 but rejected Plaintiff’s claim that he had received an undocumented loan of GH¢470,000.00 from Freedom Micro Finance Company Limited, Tarkwa in respect of which an action was subsequently brought against him in the Circuit Court, Tarkwa. Indeed no process was produced from the Circuit Court, Tarkwa to substantiate that claim.

 

Aggrieved by the decision, the Defendant appealed against same as amended with the following grounds of appeal found at pages 129 to 131 of the record of appeal:

1. The judgment is against the weight of evidence adduced at the trial.

2. The learned judge’s finding that the Plaintiff’s alleged loan was applied to the roadworks the subject-matter of the suit is not supported by the evidence on record, in particular the loan documentation before the court.

3. The learned judge’s finding that the Plaintiff dealt with the Defendant in his personal capacity and not as a representative of the Bompieso Stool on the basis inter alia that “as a civil contractor he is capable of engaging in business with the Defendant”, is not supported by the evidence on record.

4. The learned judge’s finding that the Bompieso Stool’s representatives had to be dealt with collectively by the Defendant is not supported by the evidence on record.

5. The learned judge erred in awarding interest on the Plaintiff’s alleged loans from January 2015 when there was no evidence that the same attracted interest from that date.

6. The trial judge misconstrued the law relating to the burden of proof by requesting the Defendant rather than the Plaintiff to establish that the loan allegedly taken by the Plaintiff was applied to the road-works the subject-matter of the suit.

7. The learned judge erred in finding that the Plaintiff could not have executed the project “without some form of loan or financial assistance”, in the absence of evidence from the Plaintiff establishing the cost of the alleged road-works as against profits from the sale of sand from which the Plaintiff alleges the works were to have been funded; and

8. The learned judge erred in awarding the Plaintiff the sum of GH¢500,000.00 for services allegedly provided by him in the absence of any evidence regarding the objective market price of the said services.

 

It is not only the Defendant who appealed against the judgment of the High Court. The Plaintiff also cross-appealed against the said judgment as per the notice filed on the 7th of September, 2017 found at pages 159 and 160 of the record of appeal on the following grounds:

1. The trial court held wrongly that the part of the claim amounting to GH¢470,000.00 was unproven.

2. The trial court ought to have entered judgment for the Plaintiff for the whole of the claim, alternatively in quantum meruit having regard to the evidence adduced at the trial.

3. Additional ground(s) of appeal may be filed.

 

No such additional ground(s) was however filed by the Plaintiff.

 

It is pertinent to mention here that before considering the merit of this appeal, the learned Plaintiff’s counsel in his written submission in answer to that of Defendant argued that the Defendant filed its Notice of Appeal on 26th June 2017 found at pages 120 - 121 of the Record of Appeal.  The Defendant filed a process on 7th July 2017 which it termed “Amended Notice of Appeal” at pages 129 - 131 of the record of appeal.

 

It is the contention of Plaintiff’s counsel that “there is no indication on the face of the record that leave was granted for the Defendant to amend its Notice of Appeal of 22nd June 2017”. Further that there is nothing on record to show that the Defendant had applied for leave to amend its Notice of Appeal. Counsel contended that since the said Notice of Appeal was filed without leave, same is invalid and cannot be considered in this appeal. Counsel backed his contention with the case of Diabuo v. David Kwaku Bank (2016) 98 GMJ 157 @ 170-178. Counsel confirmed his argument with rule 8(7) of C.I. 19 1977 which provides as follows:-

The Appellant shall not, without the leave of the court, urge or be heard in support of any ground of objection not mentioned in the notice of appeal, but the court may allow the Appellant to amend the grounds of appeal upon such terms as the Court may think just.

 

In reaction to the above, the learned Defendant’s counsel filed a Reply pursuant to Rule 20(5) of the Court of Appeal rules C.I. 19 as amended. She submitted that the Defendant filed the Amended Notice of Appeal within the time stipulated for the filing of an appeal. And that since in its (original) Notice of Appeal filed a day after the judgment and the Defendant intimated that it would file additional grounds of appeal, the Defendant is within the time and the additional grounds of appeal filed are not void as contended by Defendant’s counsel. It is for the same reason that the case of Diabuo v. David Kwaku Bank (supra) is inapplicable to this case because as rightly contended by Defendant’s counsel, the facts and circumstances of the Diabuo case cannot be applied to this instant case.

 

One other preliminary issue raised by the Defendant has to do with the capacity of one Nana Asare Bediako who claimed to be the Head of Family of the Royal Abradze Royal Family to which the deceased Plaintiff belonged and he was substituted for the Plaintiff who died while this appeal was pending. The Defendant rightly raised issues with the substitution of the Plaintiff with the Head of Family in terms of sections 1 and 108 of the Administration of Estates Act, 1961 (Act 63).

 

This court had upheld the submission of the Defendant and the appeal was stayed pending the substitution of the proper person to prosecute the appeal. Accordingly on the 16th of April 2016, the deceased Plaintiff was substituted by his widow Ruth Serwa Essuman, Bodja Essuman and Nana Asare Bediako. Indeed this court gave a reasoned ruling on this issue raised by the Defendant on the capacity of the said Nana Asare Bediako which culminated in the above three persons being substituted. The said ruling by this court was dated 20th March 2018.

 

Arguments:

Having disposed of the preliminary issues as considered above, we now come to the substantive issues and arguments raised in this appeal. The appeal will be considered according to how the Defendant argued same. In her written submission the learned Defendant’s counsel first argued grounds 1 and 2 together. These are:

1. The judgment is against the weight o evidence.

2. The learned judge’s finding that the Plaintiff’s alleged loan was applied to the roadworks the subject-matter of the suit is not supported by the evidence on record, in particular the loan documentation before the court.

 

In her submission on the first two grounds of the appeal, the learned Defendant’s counsel argued that the High Court’s judgment is against the weight of evidence adduced at the trial.

 

It is trite that an appeal is by way of rehearing, particularly where the Appellant alleges in his notice of appeal, as the Defendant in this instant case, that the judgment is against the weight of evidence. In such a situation, the burden is cast on the Appellant to demonstrate from the record of appeal that the trial judge failed to rightly apply certain pieces of evidence in his favour and that if same had been properly applied, judgment would have been entered in his favour. In such a situation, the appellate court which is in the same position as the trial court is to analyse the entire record of appeal to satisfy itself, that on the balance of preponderance of the probabilities, the evidence supports the conclusion reached by the trial judge. The appellate court in evaluating the entire evidence is in the same position as the trial court to make its own inferences from the established facts of the case. See Tuakwa v. Bosom (2001-2002) SCGLR 61; Djin v. Baako (2007-2008) SCGLR 686 and Acquah v. Pergah Transport Ltd. & Others (2010) SCGLR 728.

 

The Defendant’s counsel in this instant case submitted that the High Court’s finding that the Plaintiff obtained loans totalling GH¢500,000.00 which were all applied to the roadworks is not supported by the evidence on record.

 

Counsel argued further that the learned judge misconstrued the law relating to the burden of proof when he required that the Defendant rather than the Plaintiff establish that the loan allegedly taken by the Plaintiff was applied to the roadworks. What is more, the onus was on the Plaintiff to prove that there was an agreement between the parties, a term of which required him to do the road-works, that he obtained loans pursuant to the said agreement, and that he spent all the loans acquired by him on the said roadworks. Counsel referred to the case of Majolagbe vs. Larbi (1959) GLR 190 @ 192 which is a well-known case on what constitute proof in law.

 

Counsel further submitted that the claim of the Plaintiff is in the form of special damages which needs to be specifically proved as against general damages which need not be specifically proved. She confirmed her argument with the case of Ambrose Dotse Klah vs. Phoenix Insurance Company Ltd. (2012) 2 SCGLR 1139. Counsel also referred to sections 11 and 14 of the Evidence Act, 1975 (NRCD 323) which deal with burden in proof.

 

Referring extensively to Exhibit “B” series and the clauses in Exhibit “B” which are the documents evidencing the loan transaction, the learned Defendant’s counsel contended that “Exhibit B2 is a facility from Stanbic Bank to the Respondent (trading as Eksu Ventures) dated 20th October 2015 and headed “Business Term Loan”. It states that the aggregate maximum of the loan being offered is GH¢200,000.00, which amount is defined as “the limit”.

 

Counsel contended that by clause 2.1 of Exhibit “B2” on page 41 of the record of appeal proves as follows:-

2.1 The loan is to be used by the Borrower exclusively to enable customer hire additional trucks to support business operations.

 

Counsel submitted that Exhibit “B2” is not sufficient evidence to establish that a loan of GH¢200,000.00 was actually granted or disbursed to the Plaintiff. That the above statement is not proof that (i) the Plaintiff in fact hired additional trucks to support his business operations, or more importantly that the trucks if any were hired at all, these were used by the Respondent for re-gravelling the road in question.

 

Further there were also no evidence that the Plaintiff fulfilled the conditions in clause 10 of Exhibit “B2” precedent to the disbursement of the loans. Further, there were no receipts, no demand notice loan from Stanbic Bank of Plaintiff’s indebtedness to that bank or any other institution.

 

In reaction on these grounds of the appeal the Plaintiff’s counsel dismissed the above submissions of the Defendant’s counsel that the Plaintiff failed to lead the requisite evidence to merit the judgment which is the subject-matter of this appeal. According to the Plaintiff’s counsel these submissions of the defendant’s counsel as to whether or not the Plaintiff actually took the loan from Stanbic Bank and how same was applied is misplaced. He submitted that “whether the Plaintiff took a loan or not, the fact was that it was the Plaintiff who wholly undertook the road project in issue and the trial court rightly so found”. And that the Plaintiff expended huge sums of money on the project and it is just, fair and equitable that Plaintiff recovers judgment on his claim, or in the alternative at least in quantum meruit.

We have examined the arguments of both counsel whether or not the Plaintiff actually and really took a loan from the Stanbic Bank, and if so how same was applied. We have noticed that whereas the Defendant painted a detailed picture with huge submission with quotations from the record of appeal with documentary evidence to back it, the Plaintiff’s counsel, with all due deference, was content to dismiss this all important segment in this appeal with a few lines.

 

While saying that the Plaintiff’s counsel made a passing comment with respect in arguing the appeal on the loan contracted by the Plaintiff, we must be quick to say, that this by itself does not mean that the argument of the Defendant on these grounds of the appeal is sustainable. We say so because the learned trial judge on page 117 of the record of appeal found as a fact that “Plaintiff led evidence to support his claim that he took some loan from his bankers, Stanbic Bank and some financers (sic) to be able to undertake the job”. The trial judge held that since the Plaintiff tendered some documents from the Bank evidencing the loan he took from the bank at the time, the burden shifted in terms of section 14 of the Evidence Act, 1975 (NRCD 323) unto the Defendants to rebut his claim.

 

We entirely agree with the trial judge that the Plaintiff successfully tendered Exhibits “B” series which are authentic bank documents from Stanbic Bank to confirm the fact that he did in fact take the loan to execute the road project in issue. As aforementioned, the learned Defendant’s counsel relentlessly attacked and impugned the integrity of the bank loan and was expecting the Plaintiff to lead further evidence to substantiate his allegation that he indeed took the actual physical cash. The argument of Defendant’s counsel that Exhibits “B” series are at best evidence that the Bank was willing to extend the GH¢200,000.00, and not actually gave the loan to the Plaintiff to execute the project, is of no moment. Further the argument that the Defendant had the burden of establishing that he in fact fulfilled all the relevant conditions precedent and the other requirements of Stanbic Bank as isolated in clause 10 of Exhibit “B2” is irrelevant. Other arguments of Defendant’s counsel that the Plaintiff failed to call any officer of the Stanbic Bank as a witness to establish such facilities were in fact granted and remain outstanding and accruing interest are with respect, ill-conceived. Or that there was no demand letters from Stanbic Bank, is unfortunately not a legal argument.

 

The best practice in a borrower and lenders transaction in the banking industry in what has been confirmed in Exhibits “B” series where, upon application by the borrower, the bank makes an offer which when accepted more or less concludes the transaction as the scenario in the instant case. Exhibit “B2” clause 10 should not be read in isolation by the Defendant’s counsel. Clause 9 is also important if the Defendant believes that before a facility is credited to a borrower, he has to fulfill other obligations and particularly clause 16 of Exhibit “B2”.

 

Further clause 4 of Exhibit “B” spells out the security for the loan where the Plaintiff’s financial obligations to repay the loan were charged to “Assignment of receivables from Abosso Goldfields Ltd.,” Defendant herein. What is more the taking of the loan as revealed by Exhibit “B” series is contemporaneous with the 2015 time Plaintiff said he entered agreement with the Defendant to repair the road.

 

Finally if the Defendant can pounce on any clause of Exhibit “B” series, then the Plaintiff might as well use the last clauses on pages 35 and 40 of the record of appeal where we have the following: “The agreement created upon acceptance of the facility letter by the Borrower shall constitute the whole agreement between the Bank and the Borrower relating to the subject matter of the facility letter”. This should settle the matter. We think the Plaintiff has led the requisite evidence that he entered into a Business Term loan from the Stanbic Bank as adequately spelt out in Exhibit “B” series. He need not have to call a Bank official or tender any other documents to show that he had accessed the loan. As held by the learned trial judge, the Plaintiff having led the requisite evidence, the onus shifts to the Defendant to discharge the burden cast on it. See the case of In re Ashalley Botwe Lands; Adjetey Agbosu & Others vs. Kotey & Others (2003-2004) SCGLR 420 h.5 where Brobbey JSC (as he then was) expounded the law on the burden of producing evidence on the parties in any given case which is not fixed but shifted from party to party as the evidence unfolds. We think the Defendant failed to discharge its burden.

 

Related to the above is the submission of Defendant’s counsel that Plaintiff failed to give evidence as to what items he purchased for the road-works with the GH¢500,000.00. Also he failed to produce any receipts in support of purchases he made, and he called no relevant suppliers to give evidence in support of his case, particularly a witness from the Ghana Highway Authority to give estimates of how much such roadworks would cost to execute. All the above arguments, with all due deference are misplaced.

 

From the totality of the evidence on these grounds of the appeal, the learned Defendant’s counsel was turning Plaintiff as a civil claimant into a prosecutor in a criminal trial. Asking the Plaintiff to call a plethora of witnesses to sustain his case such as calling a bank staff when the documents speak for themselves, is like asking him to prove his case beyond all reasonable doubts as is the case in a criminal trial. There being no legal argument on these grounds of the appeal, we think the appeal on these ground fails and same are hereby dismissed.

 

The next grounds of the appeal are grounds 3 and 4. These are:

3. The learned judge’s finding that the Plaintiff dealt with the Defendant in his personal capacity and not as a representative of the Bompieso Stool on the basis inter alia that “as a civil contractor he is capable of engaging in business with the Defendant”, is not supported by the evidence on record.

4. The learned judge’s finding that the Bompieso Stool’s representatives had to be dealt with collectively by the Defendant is not supported by the evidence on record.

 

In her submission on these grounds of the appeal, Defendant’s counsel argued that in his judgment, the learned trial judge found that the defendant dealt with the Plaintiff in his personal capacity and not as a representative of the Bompiese Stool. The counsel contended that this finding of the learned judge is belied by Exhibit “1”, tendered by the Defendant. And that Exhibit “1” names the Plaintiff as one of the persons who was held out as leaders in the Bompieso community which the Defendant could deal with in any discussions or meetings relating to the issues of Bompieso until the time that a substantive chief was enstooled. Counsel contended that the DW1 Robert Siaw testified that he was present at the meeting where the arrangement on sand winning by Stool subjects were made, and the Plaintiff was at those discussions as a representative of the Bompieso Stool. Counsel said the Plaintiff led no evidence to refute the Defendant’s stand that by Exhibit “1”, the Plaintiff did not act in his personal capacity, but as a representative of the Bompieso Stool as aforesaid.

 

In his reaction to the above submission of the Defendant, the learned Plaintiff’s counsel argued that Exhibit “1” which was tendered through the DW1 Robert Siaw aforesaid has no probative value. This is because the Plaintiff had long taken possession of the tailings prior to Exhibit “1” which was dated the 21st day of June 2010. Counsel referred to the cross-examination of the DW1 to confirm his position on pages 84 – 85 of the record of appeal that the arrangement with the Defendant company commenced in 2009.

 

From the above arguments traded by the parties, it is clear that Exhibit “1” alone cannot vindicate the position of the Defendant. Indeed Exhibit “1” is not the fulcrum around which the claim of the Plaintiff, and for that matter this appeal revolves but Exhibits “B’ series. Apart from this, credibility of the case of each party ought to be used to consider the issues in these two grounds of the appeal. For example if one examines the witness statement of the Defendant’s representative Abdel Razak Yakubu, who is the Community Affairs Manager of Defendant found at page 54 of the record of appeal, and his evidence at pages 86 – 92 of the record of appeal with the cross-examination testing his testimony, it is clear that the Defendant’s representative is not a truthful witness and this has soiled the case of the Defendant.

 

In paragraph 3 of the witness statement of Abdel Razak Yakubu, he wrote that “In 2015 the Defendant embarked on a community development project involving the rehabilitation of the public road connecting Atta Ne Atta to Bogoso Junction in the Prestea-Huni Valley District… The project involved resurfacing work to restore the road to a good and motorable condition” (our emphasis). Razak Yakubu further said that Plaintiff “offered to, and on his own volition conveyed gravel and laterite for the said roadwork from the Defendant’s concession to which at the Bompieso Stool’s request, its subjects had been granted access to win sand”. It is as if the Plaintiff had carried a few trucks of sand and literite to a building project site and not to work on a 16 kilometre long public road. If Mr. Abdel Razak Yakubu’s evidence lacks credibility, the cross-examination by the Plaintiff’s counsel exposed his evidence as incredible and with respect, concocted to deceive the trial court.

 

Although an appellate court has not the advantage to see in person a witness in the box such as a trial court judge, because the appellate court has only the script of the record of appeal, this does not mean that appellate judges cannot discern whether or not a witness is truthful or otherwise. Indeed sections 80 to 84 of the Evidence Act is not meant exclusively for trial judges to assess the credibility of a witness’ evidence.

 

In the instant case the cross-examination of the Defendant’s representative tore into shreds his testimony. For example although the wrote in his witness statement that the Atta Ne Atta to the Bogoso Junction road was bad and needs resurfacing, he denied the road was poor and needed rehabilitation. Pressed further that it was only the Plaintiff who single-handedly constructed the road, he said the Prestea-Huni Valley District Assembly also had a hand in the construction of the disputed road. Still pressed on further, Mr. Razak Yakubu said he was the supervisor of the said road work when he confessed earlier that he has no degree in civil engineering to supervise road construction. This is against the evidence of Plaintiff that his construction of the road in issue was superintended by Iddi Adams and Thomas Nyamesis @ Okelemgbe, the latter who is still in the employ of the Defendant company. Mr. Razak Yakubu also admitted that Iddi Adams and Thomas Nyamesis are in charge of constructing roads for the company.

 

One other lack of credibility of the Defendant’s case is the allegation of Defendant that Plaintiff has been offering voluntary services to the Bompieso community and the resurfacing and re-shaping of the Atta Ne Atta – Bogoso Junction road is one of the voluntary jobs executed by Plaintiff for the community. This is a defence which is too banal and too simple to be taken seriously. Granted the Plaintiff donated air-conditioners for the consulting rooms of Bompieso clinic and computers for Abosso Catholic School in Abosso as submitted by the Defendant, does it mean that the 16 kilometres road in a terrain like the Prestea-Huni Valley area should also be done voluntarily free by the Plaintiff? What about the use of graders, bull-dozers, tipper trucks and rollers all of which were provided by the Plaintiff without any contribution from the Bompieso Stool?

 

This however is not all. The Plaintiff has tendered Exhibits “B” series as evidence that he had contracted a bank loan for the road project. The question is did the Plaintiff take the loan on behalf of the Bompieso Stool or he took it to fund the comparatively big road construction like the Atta Ne Atta Bogoso Junction road all by himself? Certainly there is no evidence that the Plaintiff took the loan on behalf of the Bompieso community as the Defendant is trumpeting per Exhibit “I”. And given the evidence of the PW1 David Badu Bow the Area Manager of the Ghana Highway Authority, Tarkwa, that a kilometre of re-gravelling a road like the disputed road in issue is quite expensive, it is absurd to think that same would be like buying two or three air conditioners for consulting rooms of the clinic and a few computers for a basic school as the Defendant is asking the court to believe

 

Further, the Defendant forgot that the circumstances which culminated in this appeal is not generated by Exhibit “1” but rather the construction of the disputed road which Plaintiff rightly claimed was “awarded” in 2015 albeit without a formal contract.

 

We entirely agree with the trial judge that from the available evidence on record he found as a fact that the Plaintiff dealt with and or engaged the Defendant in his personal capacity and not as a representative of the Bompieso Stool. We also agree with the trial judge that it is quite absurd for a huge mining company that claims to have all the resources to maintain the motor road as their social responsibility to take the Plaintiff on board to re-shape and or re-gravel the road because the Plaintiff volunteered to assist the Defendant. And as aforementioned, the Defendant was desperately trying to shop for defences that would stultify its obligations to the Plaintiff. Because as aforementioned, no single individual would invest in a relatively modest capital-intensive job as reshaping and re-gravelling a busy 16 kilometre motor road as the Defendant is making the court to believe.

 

There is an extent to which a volunteer would pump his personal resources into a project, but certainly not a road construction as a 16 kilometres road free of charge.

 

The problem with Defendant is that it believed that once it was the Plaintiff who initiated the action the onus of proof rests on him throughout. The trial court has found as a fact that the Plaintiff surmounted the hurdle of proving that he acted personally and not on behalf of the Bompieso Stool. The onus therefore shifts to the Defendant to displace the onus which it failed to do. We think the Defendant’s submission on these grounds of the appeal is too tenuous to admit upsetting the trial judge’s finding. In the result these grounds of the appeal are hereby dismissed.

 

The next ground of the appeal is ground 5. This is that the learned judge erred in awarding interest on the Plaintiff’s alleged loans from January 2015 when there was no evidence that the same attracted interest from that date.

On this ground of the appeal, the Defendant’s counsel submitted that the Plaintiff did not lead any evidence to show that the rate of interest of 35% per annum was ever communicated to the Defendant which was accepted by Defendant. Counsel contended that since Exhibits “B1”, “B2” and “B3” were dated 31st July 2015, 29th September 2015 and 20th October 2015 respectively, it was wrong for the trial judge to grant the interest to Plaintiff from January 2015 since the loan transaction did not emanate from January 2015.

 

In his reply in answer to the submission of the Defendant, Plaintiff’s counsel contended that the presentation to the Plaintiff to undertake the work in issue was in January 2015. It is therefore just proper and fair that the interest is awarded to start from that date, whether the money was Plaintiff’s personal money, or same was secured as a loan from elsewhere is not relevant.

 

We think the finding of fact by the trial judge on this ground of the appeal that the interest should be awarded from January 2015 should not be disturbed despite the fact that the three Exhibits “B”, “B1” and “B2” in connection with the loan were written between July and October 2015. This is because the learned trial judge made a finding of fact that the arrangement between the parties commenced in January 2015.

 

The final ground of the Defendant’s appeal is that the learned judge erred in awarding the Plaintiff the sum of GH¢500,000.00 for services allegedly provided by him in the absence of any evidence regarding the objective market price of the said services.

 

In this ground of the appeal, the learned counsel for Defendant seems to be rehashing the arguments she had presented in the preceding grounds of the appeal. However she added in this ground of the appeal that the Plaintiff did not prove how much the project actually cost him and what the contract price was. Counsel contended that the Plaintiff failed to personally provide information about the scope of the disputed work such as was expounded by the PW1 David Badu Bow. The scope of work include the nature of the road prior to its rehabilitation, the nature of works, the materials used; the activities to be undertaken, the nature of the terrain and the length and width of the road to be reshaped and re-gravelling.

 

Concluding, counsel argued that the Plaintiff failed to prove that there was oral contract between the parties and its terms. Plaintiff, counsel said, also failed to establish that he secured the loans from the Stanbic Bank.

 

From the argument of counsel, though it is admitted that there was no formal written contract between the parties, there is no doubt that the Plaintiff had invested much in construction of the road. If the Defendant says that the re-gravelling of the road was undertaken by Defendant, Plaintiff and the District Assembly together, it was incumbent on the Defendant to lead the requisite evidence to back this reality because it is the Defendant which is affirming same. Indeed saying that the construction of the road was undertaken by the parties and the District Assembly was a material fact which Defendant ought to have pleaded.

 

In his reaction, the Plaintiff’s talk of the GH¢500,000.00 which the court awarded him was the quantum meruit since there was no other means of gauging the value to be put on the investment of the Plaintiff in the roadworks. This submission of Plaintiff’s counsel is not necessary because since Plaintiff proved by Exhibits “B”, “B1” and “B2” that he procured a bank loan and there is evidence that he did substantially a lot to fix the road he should be awarded the claim that he was entitled to. This ground of the appeal also fails and same is hereby dismissed.

 

This brings us to the cross-appeal of the Plaintiff found at page 159 of the record of appeal. The grounds of the cross-appeal are that:

(1) The trial court held wrongly that the part of the claim amounting to GH¢470,000.00 was unproven.

(2) The trial court ought to have entered judgment for the Plaintiff for the whole of the claim, alternatively in quantum meruit having regard to the evidence adduced at the trial.

 

In his submission on these two grounds of the cross-appeal which he argued together, the learned Plaintiff’s counsel submitted that the trial court dismissed the second leg of GH¢470,000.00 which Plaintiff secured from a micro-finance company for which the Plaintiff could not tender any document. That the Plaintiff also led evidence to the effect that he was being prosecuted at the Circuit Court, Tarkwa upon criminal complaint made by the said micro-finance company. That the Defendant never challenged the evidence of the Plaintiff on GH¢470,000.00 loan which he had contracted. Coming to the alternate claim on the basis of quantum meruit, counsel contended that the Plaintiff had led sufficient evidence to merit an award based on the quantum meruit principle.

 

We have considered the claim of the GH¢470,000.00 as loan which Plaintiff claimed he took from Freedom Micro Finance Ltd. Company, Tarkwa but he could not lead any convincing evidence on that loan because according to Plaintiff the transaction was not documented. If Plaintiff failed to provide documentary proof of that alleged GH¢470,000.00 loan, that was his own failure to do due diligence. We do not know which micro finance company would advance the huge sum of GH¢470,000.00 without any documentary evidence. What is more, the Plaintiff failed to lead a shred of evidence on his alleged prosecution at the Circuit Court, Tarkwa for non-payment of the said loan.

 

The learned trial judge found as a fact that the Plaintiff failed to lead any cogent evidence of that purported loan. In our opinion the learned trial judge rightly refused to award that claim because it was unproven. If the loan was undocumented, could not the criminal prosecution of the Plaintiff be documented for him to tender same to back his claim? This he failed to do.

 

We do not think the argument on the quantum meruit would avail the Plaintiff. Indeed in the closing paragraphs of his judgment, the learned trial judge awarded the GH¢500,000.00 sum on the quantum meruit basis. He took into consideration the authority of Quarcoopome v. Sanyo Electric Trading Co. (2009) SCGLR 213 and Hammond v. Ainooson (1974) 1 GLR 176. The same authorities were referred to in this appeal by Plaintiff’s counsel to persuade us for further award in respect of the GH¢470,000.00 and more. Or further that based on the evidence of PW1, the total cost of the execution of the road-works by Plaintiff was in excess of GH¢2 million. And therefore any sum below the over GH¢2 million will be reasonable. Unfortunately, we did not see the claim that way. In as much as there was a purported evidence which the Plaintiff had all the resources to lead and he failed to by way of documentary evidence, so be it.

 

We have considered the substantive appeal of the Defendant in its entirety and we think there is no merit in it. In consequence thereof the entire appeal is hereby dismissed and the judgment of the trial court is hereby affirmed.

 

In the same way, the cross-appeal has no merit and same is also dismissed.