IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2015
PETER AMOFA - (Plaintiff)
KWAME ASANTE - (Defendant)
DATE: 3RD MARCH, 2015
SUIT NO: P/RPC/03/15
JUDGES: HER LADYSHIP ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
IDDRISU MUSAH ABDULAI FOR PLAINTIFF
SARFO GYAMFI FOR DEFENDANT
In this action, the Plaintiff herein is demanding payment of the sum of GH¢12,580.00 being the cedi equivalent of CFA 1,700,000.00 and GH¢8,700.00 from the Defendant herein. He is also claiming interest on the sums claimed.
The Plaintiff’s case is that the Defendant requested for CFA 1,700,000.00 as a loan and GH¢8,700.00 was paid to the Defendant’s creditor who had caused his detention at the Central Police Station, Kumasi.
In the statement of Defence filed by the Defendant on 28/08/2014, he averred that the Plaintiff was his business partner and he invested the sum of CFA 1,700,000.00 in their joint business which entailed bailing of second hand clothing for export. He further pleaded that the cedi equivalent of this amount in the year 2008 was GH¢4,100. Besides the above, the Defendant averred that the Plaintiff later invested GH¢4000.00 and GH¢4700.00 into their joint business bringing his total investment to GH¢12,800.00. It is also in his statement of defence that an amount of GH¢12,000.00 was used to buy a bailing machine for their joint business; GH¢4000.00 as warehouse rental charges; GH¢1400.00 for “change over” and electrical wiring. He again asserted that the Plaintiff has been paid a total amount of GH¢9,100 as his fair share of the profit: GH¢7400 was paid to the Plaintiff in person and GH¢1,700.00 was paid through the Plaintiff’s sister. The Defendant further stated in his defence that the joint business was moved to another shop but unfortunately, the shop was razed by fire which destroyed all their trading wares and machinery.
By way or reply, the Plaintiff averred that the Defendant approached him for a loan to purchase a bailing machine from Accra to resell in Kumasi but he did not have money. Thus, he borrowed GH¢5000 from one Amaaddo and the Defendant topped it up with his GH¢5000. After the sale of the machine at GH¢20,000.00, the proceeds were shared among them equally.
These are the issues set for trial:
Whether or not the Defendant borrowed CFA 1,700,000.00 from the Plaintiff in 2008?
Whether or not the Plaintiff advanced the sum of GH¢8,700.00 to the Defendant?
Whether or not the amounts stated in paragraphs 1 and 2 supra was invested in the Defendant’s business by the Plaintiff as a partner?
Whether or not the parties herein have any joint business?
Whether or not the Plaintiff received a profit of GH¢9,100.00 from the Defendant?
Whether or not the Plaintiff is entitled to his claims against the Defendant?
Hearing notices were served on both counsel to appear in Court on 13/01/2015. To be specific, counsel for the Defendant was served with the hearing notice on 06/01/2015 at 11:40am through his secretary by name Joyce. Mr. Sarfo Gyamfi however failed to attend court on 13/01/2015 as scheduled. The court gave directions for the trial and caused another hearing notice to be served on counsel for the Defendant to appear in court on 05/02/2015. Again, Mr. Sarfo Gyamfi was duly served through his Secretary, Joyce, at 9am on 16/01/2015 but neither the Defendant nor counsel appeared in court when the case was called for hearing on 05/02/2015.
At this point, the court proceeded to hear the Plaintiff’s case under order 36 rule (1) (2) (a) of the High Court (Civil Procedure) Rules, 2004 C.I. 47. It provides as follows:
Rule (1) (2) where an action is called for trial and a party fails to attend, the trial judge may:
(a) Where the Plaintiff attends and the defendant fails to attend, dismiss the counterclaim, if any, and allow the plaintiff to prove the claim.
Irrespective of the fact that the Defendant waived his right to participate in this trial, the Plaintiff must proof his claims to be able to succeed. In Zambrama v Segbedzi (1991) 2 GLR 221, Kpegah JA (as he then was) noted:
“The correct proposition is that, a person who makes an averment or assertion, which is denied by his opponent, has the burden to establish that his averment or assertion is true. And, he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of each averment determines the degree and nature of that burden.”
Again, in Takoradi Flour Mills v Samir Faris (2005-2006) SCGLR 882 at 884, the court held as follows (holding 5):
“ It is sufficient to state that this being a civil suit, the rules of evidence require that the plaintiff produces sufficient evidence to make out his claim on a preponderance of probabilities, as defined in section 12(2) of the Evidence Decree, 1975 ( NRCD 323). In assessing the balance of probabilities, all the evidence, be it that of the plaintiff or the defendant must be considered and the party in whose favour the balance tilts is the person whose case is the more probable of the rival versions and is deserving of a favourable verdict.”
Usually, the burden of persuasion lies on the same party who bears the burden of producing evidence as was held in the case of Sumaila Bielbiel v Adamu Dramani & AG (2012) SCGLR 370.
When the Plaintiff mounted the witness box, he recounted how the financial assistance of CFA 1,700,000.00 was given to the Defendant in the year 2008. The Plaintiff said he was resident in La Cote D’Ivoire where he sells his second hand goods whilst the Defendant is resident in Ghana. However, the parties met in Burkina Fasso based on a prior arrangement and the CFA 1,700,000.00 was given to the Defendant. He promised to pay back the money in four months but failed to do so.
Concerning the claim for GH¢8,700.00, the Plaintiff testified that he received a call from the Defendant that he had been arrested in Kumasi in connection with his indebtedness to one Mr. Frimpong. Again, the Plaintiff said he advanced the sum of GH¢ 8,700.00 to the Defendant to settle his indebtedness to the said Mr. Frimpong but he reneged on his promise to refund the money.
As regards the issue of partnership, the Plaintiff said in evidence that the Defendant has never been his business partner, except on one occasion when he approached him for a loan of GH¢5,000.00 for the purchase of a machine. Continuing, the Plaintiff told the court that he borrowed GH¢ 5,000.00 from one Amaaddo and after the sale of the machine, they shared the profit. He denied receiving the sum of GH¢9,100.00 from the Defendant as his share of profit from any joint venture. At a point in time, the Plaintiff said he lost contact with the Defendant. He then sent his sister to pursue the Defendant to recover the loan. Over a two year period, the Defendant is said to have given a total amount of GH¢1,470.00 to the Plaintiff’s sister.
The Plaintiff called four witnesses to corroborate his testimony. PW1 said the Defendant is his nephew and that he was present when the Plaintiff gave the sum of GH¢8,700.00 to the Defendant at the Kumasi Central Police Station where the Defendant had been detained in respect of his indebtedness to Mr. Frimpong. PW2 is the lady called Amaaddo who lent GH¢5,000.00 to the Plaintiff as part of the purchase price of the bailing machine which the Defendant bought from Accra and resold in Kumasi. She testified that the Plaintiff gave her GH¢2,000.00 as her share of the profit from the sale of that machine.
PW3 told the court that the Plaintiff came to him in Burkina Fasso and informed him that the Defendant had requested for a loan of CFA 1,700,000.00 from him. PW3 said he was present when the Plaintiff gave the said amount to the Defendant. Describing the process, PW3 said the Plaintiff gave the money to him first; he recounted it, and then handed the same over to the Defendant.
PW4, Angelina Osei, gave evidence to the effect that the Plaintiff is her elder brother. She also narrated her endless trips from Mankranso to Kumasi in search of the Defendant. Each time she got to the place as directed by the Plaintiff, she said she met a man who gave his name as Mr. Asante; the said Mr. Asante would say to her that the Defendant was unavailable and give her an envelope containing amounts such as GH¢100 for transportation. Over the two years that PW4 came to Kumasi to demand the money, she indicated that the man who described himself as Mr. Asante gave her a total amount of GH¢1,470.00 for her transportation. After two years of pursuing the Defendant and not seeing him, PW4 gave up.
I accept the testimonies given by the Plaintiff’s witnesses as credible. PW2 is a blood relative of the Defendant and it is inconceivable that he will tell lies against his own nephew. His evidence corroborated that of the Plaintiff on the GH¢8,700.00 advanced to the Defendant to settle his indebtedness to Mr. Frimpong and I accept the same as the truth. Similarly, I have had no cause to doubt the testimony of PW1 to the effect that he witnessed the payment of CFA 1,700,000.00 to the Defendant as a loan. Thus, I find that the defendant borrowed the said sum from the Plaintiff but has refused to repay the same.
On the totality of the evidence on record, I find that the parties to this suit are not business partners as the Defendant would want the court to believe and that the monies loaned to the Defendant cannot be described as the Plaintiff’s investment in any joint venture. I also accept the Plaintiff’s testimony that the Defendant did not pay the sum of GH¢9,100.00 to him as his share of profit from any partnership.
Ordinarily, a total stranger will not pay monies totaling GH¢1,470.00 to another stranger to be used as transportation expenses over a period. It is my considered opinion that the monies given to PW4 were actually paid by or on behalf of the Defendant and must be used to reduce his indebtedness to the Plaintiff. Thus, the Defendant’s total indebtedness to the Plaintiff will be as follows: i) GH¢12,580.00 which is the Cedi equivalent of CFA 1,700,000.00 and GH¢8,700.00, less GH¢1,470.00.
Accordingly, judgment is entered against the Defendant in the sum of GH¢19, 810.00.
Next, I deal with the question of interest. In Akoto v Gyamfi Addo (2005-2006) SCGLR 1018, the court emphatically stated thus:
“The general principle for the award of interest to a party was that such a party had been unjustifiably kept out of the money due to him or her for the relevant period…”
This seems to be the general position even at Common Law. Thus in Harbutt’s Plasticin Ltd v Wayne Tank & Pump Co. Ltd (1970) 1 All ER 225 at 336, Denning MR had this to say:
“ … The basis of an award of interest is that the defendant has kept the plaintiff out of his money; and the defendant has had the use of it himself so he ought to compensate the plaintiff accordingly.” See also Chatham & Dover Railway Co. v South Eastern Railway Co. (1893) AC 429, Per Lord Herschell.
I have no doubt in my mind that the Plaintiff before me deserves to be paid interest on the judgment debt. He has been denied the use of his money since the year 2008. I will use January, 2009 as the basis for calculating the interest because the Plaintiff gave the Defendant a period of four months within which to pay the money. If the Defendant had done so, the debt would not have attracted interest during the four- month period. Thus, it will be unjust to calculate the interest from September, 2008.
Guided by the Court (Award of Interest and post Judgment Interest) Rules, 2005 C.I. 52, I award interest on the judgment debt of GH¢ 19,810.00 at the prevailing bank rate and at simple interest from January, 2009 till date of final payment.
I am mindful of the fact that cost of GH¢ 500.00 was awarded against the Defendant on 13/01/2015 when he and his lawyer failed to appear in court. Having looked at the provisions of order 74 rule 2 of C.I. 47, I award GH¢1,500.00 as cost against the Defendant in favour of the Plaintiff.