IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2018
VICTOR KUSI BOATENG - (Plaintiff)
COLLINS ADDAE AND ANOTHER - (Defendants)
DATE: 16 TH OCTOBER, 2018
SUIT NO: P/RPC 81/2015
JUDGES: DR. RICHMOND OSEI-HWERE JUSTICE OF THE HIGH COURT
KOFI EDUSEI FOR THE PLAINTIFF
DR. EMMANUEL HARRY TAWIAH FOR MARY NSIAH ASARE FOR THE DEFENDANTS
By an amended writ of summons dated 19th May 2016, the Plaintiff claims the following reliefs:
(a) Recovery of cash the sum of One Hundred Thousand Dollars (USD $100,000) being loan defendants took from the Plaintiff to enhance their gold business on the 15th day of April, 2013, which the Defendants have failed to repay to the Plaintiff despite several and repeated demands.
(b) Interest on the said amount at the current bank rate from the 15th day of April, 2014 till date of final payment.
The Plaintiff’s Case
It is the case of the Plaintiff that the Defendants were introduced to him by one Richmond Osei Tutu when the Plaintiff expressed interest in the gold trade. He stated that in the course of discussions with the Defendants, they asked for a loan of One Hundred Thousand Dollars (USD $100,000) to invest in their business which had gone down and that the money was advanced to the defendants in return for 2kg of gold per month in repayment of the loan till the loan is paid off. The money was transferred into the account of the defendants as evidenced by Exhibit A. That after the grant of the loan, the Defendants could not be traced. According to the plaintiff, he later got into contact with the Defendants and admonished them to adhere to the terms of the agreement. After the said conversation, the defendants disappeared again. That he lodged a complaint with the Regional Criminal Investigation Department of the Police Service, Kumasi and the Defendants were arrested about a year later. Upon arrest, the Defendants promised to repay the loan but have since failed hence the present action.
The Defendant’s Case
The defendants denied liability to the claim. They stated that they are partners in the gold mining trade and that they had challenges which led to the collapse of their mining operation. That the Plaintiff was introduced to them by one Mr Osei Tutu. It is their case that they had discussions with the Plaintiff upon which he (the plaintiff) invested in their gold mining trade. It is also the case of the Defendants that they together with the Plaintiff opened a joint account at Fidelity Bank Ahodwo Branch and transferred an amount of USD $100,000 into the account and that out of the USD $100,000, GHC5,000.00 was paid to the agent Mr. Osei Tutu upon the instruction of the Plaintiff. Also, GH18, 000.00 was paid to farmers as part of social commitment and compensation.
The defendants also stated that although production was low, whatever gold that was mined was sent to the Plaintiff and the Plaintiff was fully aware of the low production and losses. The defendants also said that profit was to be shared equally but unfortunately the business could not yield any profit as expected.
After an unsuccessful attempt at settlement, the following issues were set down for determination:
Whether or not the sum of Hundred Thousand Dollars ($100,000) advanced to the Defendants by the Plaintiff was given as a loan for the Defendants gold business?
Whether or not the Plaintiff advanced the sum of Hundred Thousand Dollars ($100,000) to the Defendants as an investor in the Defendants gold business?
Whether or not the Plaintiff is entitled to his claims against the Defendants?
I shall proceed to discuss the issues to ascertain whether the Plaintiff has led cogent evidence to establish his claim. In doing so, I shall tackle the issues together since they are intrinsically linked.
From the evidence on record, there is no doubt that the plaintiff advanced US$100,000.00 to the defendants. However, while the plaintiff insists that the said amount was given to the defendants as a loan, the defendants also insist that the plaintiff invested the money in their business. In effect, the defendants are alleging that there was a partnership arrangement between them and the plaintiff.
The plaintiff called two witnesses i.e. Richmond Osei Tutu and George Sackey who testified to the fact that the plaintiff advanced the US$100,000.00to the defendants as a loan facility.
According to Richmond Osei Tutu, he introduced the defendants to the plaintiff and he was present when the plaintiff agreed to advance the money to them in return for 2kg of gold a month as payment of the loan till the debt is totally liquidated. He told the court that the plaintiff later informed him that he had agreed to transfer the money to the defendants’ Fidelity Bank accounts and that when the money was finally paid into their account, the defendant informed him and thanked him with an amount of GHC 5,000.00.
He also confirmed the fact that the plaintiff could not trace the defendants after the transaction and that they defendants were arrested a year after a complaint was lodged against them with the police. George Sackey also told the court that the plaintiff asked him to go to Fidelity Bank Ahodwo Branch to commence an internal transfer process to credit the defendants’ account with US$100,000.00, which he obliged. He stated that the amount was a loan facility advanced to the defendants by the plaintiff for the former’s gold business. While the plaintiff called witnesses to corroborate the fact that the money advanced to the defendants was a loan, the defendants’ version that it was plaintiff’s capital contribution towards a partnership stood uncorroborated. The 2nd defendant’s assertion that they opened a joint account with the plaintiff where he (the plaintiff) deposited the money is inconsistent with the evidence on record. This is because exhibit A shows clearly that on 15th April, 2013 the plaintiff transferred US$100,000.00 from his Fidelity Bank account into the joint account of the defendants at the same Ahodwo Branch of the Fidelity Bank.
Where there is a documentary evidence and oral evidence on the same transaction, the rule is that the court should consider both the oral and documentary evidence, but must lean favourably towards the documentary evidence, especially where the documentary evidence is authentic and the oral evidence is conflicting. See Hayfron v Egyir (1984 to 86 1GLR 682, CA. In the instant case, I find the documentary evidence credible whilst defendants’ assertion on the transaction is clearly inaccurate. The profound question remains: was there a partnership agreement between the plaintiff and the defendants? Under Ghanaian law, partnership comes into existence after incorporation. Section 4(1) of the
Incorporated Private Partnerships Act, 1962 (Act 152) provides:
“After the expiration of three months from the commencement of this Act, it shall not be lawful for a partnership to carry on business unless the firm shall have been duly registered in accordance with section 5 of this Act and not struck off the register under section 51, 52 or 53 of this Act.”
From the evidence on record, no partnership agreement was executed by the parties. Consequently, no partnership agreement was incorporated. It therefore goes without saying that there was no partnership between the plaintiff and the defendants. Also, there is no evidence to show that there was any form of joint venture between the plaintiff and the defendants in respect of the said gold business. If indeed the plaintiff had a stake in the defendants’ business and the money was advanced to them to advance the cause of the business, the Fidelity bank account which was opened in the name of the defendants for the purpose of the transfer would have borne the name of the plaintiff as well as suggested by the 2nd defendant. The result is that the plaintiff is not a partner of the defendants insofar as the purported gold business is concerned. All the plaintiff did was to assist them with a loan. He did not advance the money to them as an investor in their business. The defendants’ assertion that they advanced gold to the plaintiff in lieu of the purported partnership is also inconsistent with the evidence on record. The plaintiff is therefore entitled to a refund of his money.
All in all, the plaintiff has discharged the burden of proof imposed on him by law as espounded in Ackah v. Pergah Transport Limited and Others  SCGLR 728 at page 736 by Adinyira, JSC as follows:
“It is a basic principle of 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…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 a fact is more reasonable than its non-existence. This is the requirement of the law on evidence under section 10 (1) and (2) and 11 (1) and (4) of the Evidence Act, 1975 (NRCD 323).”
From the reasons above, the plaintiff’s claims succeed.
Accordingly, I enter judgment in favour of the plaintiff against the defendants in the amount of US$100,000.00 plus interest at the commercial bank rate from 15thApril, 2014 till date of final payment. Costs of GH¢8,000.00is awarded against the Defendants.