EVELYN BALFOUR vs HUSTON KUUNIEYEBB LEBET & AMATUS KUUNYEEH
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT
    ACCRA - A.D 2019
EVELYN BALFOUR - (Plaintiff)
HUSTON KUUNIEYEBB LEBET - (Defendant)
AMATUS KUUNYEEH - (Defendant)

DATE:  5TH JULY, 2019
SUIT NO:  GJ 441/17
JUDGES:  HIS LORDSHIP ERIC KYEI BAFFOUR ESQ
LAWYERS: 
JUDGEMENT

In the Hebrew Bible, Jeremiah, nicknamed the weeping Prophet in about 630 B.C. had the occasion to state these words about prophecy which is recorded in Jeremiah 23: 16 that:

“Thus says the Lord of Hosts, hearken not unto the words of the prophets that prophecy unto you. They make you vain, they speak a vision of their own heart, and not out of the mouth of the Lord….21. I have not sent these prophets, yet they ran. I have not spoken to them, yet they prophesied...”

As to whether false prophecy had been uttered by the 1st Defendant and use same to delude Plaintiff to part with her monies is at the heart of this suit.

Plaintiff issued her writ on the 28th March, 2017 against the Defendants claiming the following reliefs:

a. Recovery of an amount of GH¢46,000 being monies owed by the Defendants and guaranteed by the 2nd Defendant from the 30th day of January, 2015 to date of final payment [sic].

b. Interest on the aforesaid sum of GH¢46,000 from January 30th [sic] to date of final payment.

c. Cost,

 

Plaintiff’s cause of action as she relates in her statement of claim is founded on an alleged faith and trust which she reposed in 1st Defendant as a man of God which 1st Defendant, according to her, took advantage of to defraud her to the tune of Gh¢56,000 out of which Gh¢10,000 has been paid with 2nd Defendant having given an undertaking to pay the rest. And it started with 1st Defendant claim of exorcising evil spirits alleged to having bedeviled her son wherein 1st Defendant succeeded in extorting various sums of monies. That 1st Defendant vacated his house when he completed executing his extortionist agenda in July, 2013 until he was arrested in 2015 where part of the money was paid and 2nd Defendant gave a guarantee to be responsible for the payment of the outstanding Gh¢46,000 which he has failed to abide by.

 

Defendants traversed the claim of Plaintiff as untrue by stating that whatever monies that changed hands was valid consideration for spiritual interventions made by 1st Defendant before God to avert dangers that portended for Plaintiff and her family in the spiritual realm and the monies were voluntarily given as gifts to a genuine man of God in the exercise of his spiritual gifting but not parted or induced as result of deceit or fraud.

Defendants further respond that any money paid to Plaintiff as well as any document that purport to claim any admission of indebtedness was begotten out of coercion of will, duress and threats from Plaintiff working through the airport Police as 1st Defendant was detained for several days on his landing at the airport from Bangkok where he is based and it was the purported undertaking extorted from 2nd Defendant that gave 1st Defendant his freedom and hence that undertaking is worthless.

With issues joined the following were adopted as the issues for determination:

a. Whether or not 1st Defendant is indebted to the Plaintiff an amount GH¢46,000 and the 2nd Defendant has undertaken to pay.

b. Whether or not Plaintiff paid money to the 1st Defendant for service rendered to her by the 1st Defendant due to a contract.

c. Whether or not Plaintiff is entitled to his claim.

d. Any other issues that may arise from the pleadings

 

EVIDENCE

Plaintiff testified in person and did not call any witness. She tendered Ex ‘A’ as the undertaking given by 2nd Defendant, a letter written by Plaintiff to withdraw the suit from court based on Ex ‘A’ as Ex ‘B’ and a letter from the lawyers of Plaintiff to 2nd Defendant as Ex ‘C’. 1st Defendant did not appear for the trial even though learned counsel for Defence in his notice of appearance claim to have entered appearance for both Defendants. 2nd Defendant who testified did not tender any document.

The resolution of the first issue as to whether or not 1st Defendant is indebted to the Plaintiff in an amount of GH¢46,000 for which 2nd Defendant has undertaken to pay will virtually resolve the rest of the issues in this suit. Plaintiff in her evidence in chief claim that between October, 2012 and July, 2013 the 1st Defendant under the guise of exorcising evil spirits that were bedeviling her, the son and husband succeeded in taking various sums from her being a total sum of Gh¢56,000 out of which an amount of Gh¢10,000 has been paid. For this is what Plaintiff answered to a question of extortion:

Q: Your complaint against him [1st Defendant] was that he has duped you of various sums of monies

A: That is correct. After the last monies that he took from me and disappeared in July, 2013 that was the last straw that broke the Carmel’s back. I informed him about a transaction that I had with somebody in UK amounting to £5,500 and I had issues with the transaction… I asked him to support me with prayers so that I can get the money back from the person. I prayed myself about it and once I was confident with my prayers, I contacted the person about the need to get a refund of the money. The money was refunded within one month and I informed the pastor about the money that had been paid to my husband in the UK. And with that information, the 1st Defendant took plans of how to take that money from me and asked that I bring that money down for him to pray over it… after pursuing me and giving me fearful prophecies about what will happen to me, because he said the man I dealt with was an occult and a spiritualist and that I think I am a difficult person, so he will show me. I will take the money but I will not spend the money. So with that information, I had to get the money to be sent down… I went with him to withdraw the money. So he took the money with the agreement to pray to pray over it and for him to return the money and he disappeared with the money”.

 

In the statement of defence the Defendants claim that whatever monies that exchanged hands was monies that Plaintiff voluntarily gave to 1st Defendant as a result of fervent and incessant intercessory prayers by a saint and a prophet made to God on behalf of Plaintiff and cannot be expected to pay back those monies given to a man of God for his spiritual activities. In a time like this when charlatans masquerading as men of God have taken over the priesthood ministry, a claim like this deserves some thorough investigations. Did the Plaintiff produce any corroborative evidence to affirm her claim?

Under cross examination on the 8th of May, 2019, the following were her answers:

Q: You told this court earlier on that in your petition to the Police, you included the exhibits of payment slips that were made to the 1st Defendant, you remember?

A: Yes I said that.

Q: Do you have any evidence of the slips you made mention of?

A: My Lord I don’t have them with me, at the time I presented all of them to the Police, because of that my counsel made a request for police report to support my claim but unfortunately that was not ready before filing…”

 

On that score the principle of law that is applicable and being a civil case is that Plaintiff who bore the burden of proof and the persuasive burden to discharge in accordance with the rules of evidence under sections 11, 12, 14, 15, 16 and 17 of the Evidence Act, NRCD 323 appears not to have discharged the burden. And cases like ACKAH v PERGAH TRASPORT LTD [2010] SCGLR 728; MAJOLAGBE v LARBI [1959] GLR 190 speak to the need for the requisite burden. For in the case of KLAH v PHOENIX INS. CO. LTD [2012] 2 SCGLR 139 – at holding 2 the Supreme Court noted as follows:

“The pleadings of a party would constitute allegation and not evidence. Thus where an averment in a statement of claim has been positively denied, it would be incumbent upon the party asserting those averment to substantiate them by leading evidence in compliance with the cardinal rule of pleadings under Rule 7(1) of Order 11 of the HCCPR, 2004, CI 47, namely that the material facts relied upon by a party for his claim but not the evidence by which those facts were to be proved should be contained in the statement of claim”

 

If that was the whole story, I would have found as a fact that the Plaintiff’s claim had collapsed. However, a consideration of Ex ‘A’ that Plaintiff tendered in evidence deserves some analysis before I can find as fact whether or not Plaintiff fully discharged the burden cast on him. Ex ‘B’ is captioned ‘Undertaking’ wherein 2nd Defendant admitted that he signed that document admitting that 1st Defendant is indebted to Plaintiff in an amount of Gh¢46,000 and undertook to pay and even provided a Ford Ranger Pickup and documents covering it as a guarantee.

2nd Defendant has impugned Ex ‘A’ by claiming that 1st Defendant had been locked up by the Police and the only way that 1st Defendant was to regain his freedom was for him to have provided that undertaking. That Ex ‘A’ was procured by duress and fraud as Plaintiff asked him to sign it as a condition for the withdrawal of the case from court. For 2nd Defendant further clarified his claim under cross examination in the following:

Q: You indicated by paragraph 15 of your witness statement that you signed the undertaking due to blackmail and duress, what do you mean?

A: My Lord on a request for the 1st Defendant to pay an amount of Gh¢5,000 for his release, the Plaintiff insisted that she will not accept Gh¢5,000 and that the 1st Defendant should pay Gh¢10,000 before he would be released, upon payment of Gh¢10,000 she further said no unless an undertaking is signed by the family and 1st Defendant. In doing all these, she was still not ready to release the 1 st Defendant. I had no option because he needed to have his freedom and have his travelling documents released to him to enable him get back to his country of residence”.

 

First I take note that Plaintiff is not a Police officer but works with Korle Bu Teaching Hospital. The power to grant bail is not vested in Plaintiff as a complainant and she does not have the power to dictate to a body like the Ghana Police and if the contrary is so, then the burden is on Defendants to prove that indeed it was Plaintiff that took over the duty of the Police and dictated the pace of the criminal complaint that resulted in the undertaking.

At common law contracts or agreements proved to have been procured by duress or illegitimate forms of pressure or threats or intimidation is voidable. Duress under common law consist of actual or threatened violence to a person, threats of imprisonment or prosecution or threats of violence to a person. Lord Scarman sums up the effect of duress in the case of PAO ON & OTHERS v LAU YIU LONG [1980] A.C 614 that:

“Duress, whatever form it takes, is a coercion of will so as to vitiate consent… There must be present some factor which could in law be regarded as a coercion of his will so as to vitiate his consent. In determining whether there was coercion of will such that there was no true consent, it is material to inquire whether the person alleged to have been coerced did or did not protest, whether at the time he was allegedly coerced into making the contract, he did or did not have an alternative course open to him such as an adequate legal remedy, whether there he was independently advised, and whether after entering into the contract he took steps to avoid it. All these matters are relevant in determining whether he acted voluntarily or not”.

 

The presumption operates that Ex ‘A’ having been admitted by 2nd Defendant to have been authored by him is deemed to be his voluntary act. See section 38 of the Evidence Act, NRCD 323. This being a rebuttable presumption, the burden is on the 2nd Defendant to prove that Ex ‘A’ is not his voluntary act but was procured under duress. Save by pleading duress and repeating same in his witness statement, there was nothing in the form of evidence before court to show that Ex ‘A’ was procured by duress. If indeed it was true that it was Plaintiff who dictated to the Police the terms upon which 1st Defendant was to regain his freedom, then any of the police officers or any person that witnessed the show of power by Plaintiff to dictate the bail terms of 1st Defendant should have been called by 2nd Defendant to testify to corroborate his claim of duress and blackmail visited on him by Plaintiff.

Accordingly I will find as a fact that Ex ‘A’ was not procured by means of any duress or blackmail as alleged by 2nd Defendant but was genuinely obtained. Second, I find as a fact that even though Plaintiff failed to produce the pay slips she claimed she had and which she gave to Police, that failure has not occasioned a failure on her part to discharge the burden of proof of monies due her from the Defendants in view of the admissions made and contained in Ex ‘A’ as it amounts to admission of the debt.

 

Much energy was spent by learned counsel for Defendants in cross examination on Ex ‘B’ which is a request to withdraw the case. Counsel claim that there was no criminal case pending at the Commercial Court and therefore Ex ‘B’ is a fabrication to deceive the court. Plaintiff explained that she wrote the letter as a result of the undertaking provided in Ex ‘A’ to withdraw the case and addressing it to Commercial Court 6 was a mistake as there was no criminal suit in that court. The claim of Ex ‘B; being made to deceive, with respect was uncalled for and I accept the explanation of Plaintiff as sufficient reason to settle whatever disagreement with the authorship of Ex ‘B’.

I find Defendants liable and decree recovery of GH¢46,000 from the Defendants together with interest from January, 30th 2013 till date of final payment at the treasury bill rate.

 

COST

I awarding cost, I am guided by the principles stated in Order 74 and cannot fail to take note of the reluctance of Defendant to agree to the amicable settlement of a simple case like this that should ordinarily not be made to clog a busy commercial court like this court with a relatively paltry claim of Gh¢46, 000 that is well within the jurisdiction of a Circuit Judge and I award cost Gh¢10,000.00 in favour of Plaintiff.