IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
ACCRA - A.D 2016
CHARLES OWUSU SEKYERE - (Plaintiff)
ANITA TWUM BARIMA - (Defendant)
DATE: 17RD JUNE, 2016
SUIT NO: BFS/88/2014
JUDGES: SAMUEL K. A. ASIEDU, JUSTICE OF THE HIGH COURT
CAPTAIN (RTD) NKRABEA EFFAH DARTEY FOR THE PLAINTIFF
KWAME BAOFO AKUFFO FOR THE DEFENDANT
By a writ of civil summons the plaintiff claims against the defendant
a. Recovery of the sum of $46,000.
b. Interest from September 2011 to date of final payment.
The defendant entered appearance and later filed a statement of defence. After an unsuccessful pre-trial settlement proceeding, the matter was set down for trial. However, the defendant failed to turn up for the trial despite the service on her of hearing notice. After taking evidence from the plaintiff, the court entered judgment in his favour against the defendant. Upon application however, the said judgment was set aside and the defendant given leave to cross examine the plaintiff after which the defendant gave evidence and announced the closure of his case.
The facts of the case are that the plaintiff and the defendant were in a love relationship which started from the year 2009. From the evidence on record it appears he gave numerous gifts to the defendant who also gave gifts to the plaintiff. Indeed, the defendant lives in the United States of America and comes down to Ghana occasionally. The plaintiff alleges that he gave money to the defendant to buy him a BMW X6 in 2011 but the defendant failed to buy the car. The plaintiff then demanded a refund of the money but the defendant kept telling him stories and refused to refund the amount. As a result the plaintiff broke up the relationship with the defendant and later issued the instant writ against the defendant for the recovery of the amount. The defendant says that the money was a gift from the plaintiff and that it was not given to her for the purchase of a car for the plaintiff.
From the pleadings therefore two main issues crops up for determination of the court. The first issue is whether or not the plaintiff gifted the US$46,000 to the defendant. The second issue which is closely related to the first issue is whether or not the defendant is indebted to the plaintiff in the sum of US$46,000 and consequently whether or not the plaintiff is entitled to his claim against the defendant herein.
In his statement of claim the plaintiff pleaded in paragraph 2 that in September 2011 he gave the sum of $46,000 to the defendant to buy him a BMW X6 car. In response, the defendant pleaded in paragraph 3 of her statement of defence the “the defendant denies paragraph 2 of the statement of claim and says that the $46,000 given to her by the plaintiff was for her to purchase a car for her own use. In further answer defendant will say that the money was a gift from the plaintiff which was given to the defendant due to the love and affection the plaintiff had for the defendant”
It is therefore clear, in the opinion of the court, that from the pleadings the defendant does not deny the reception of the sum of $46,000 from the plaintiff in September 2011. What is in dispute, as already pointed out, is whether or not the money was given to the defendant for purpose of the defendant using the amount to buy a car for the plaintiff or whether the money was given to the defendant as a gift. In the opinion of the court, the plaintiff has the initial burden to lead concrete and convincing evidence to prove that he gave the money to the defendant so that the money will be used to acquire a car for him. This is so in view of the provisions in section 14 and 17 of the Evidence Act, 1975, NRCD 323 which states that
“14. Allocation of burden of persuasion
Except as otherwise provided by law, unless it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence that party is asserting.
17. Allocation of burden of producing evidence
Except as otherwise provided by law,
(a) The burden of producing evidence of a particular fact is on the party against whom a finding on that fact would be required in the absence of further proof;
(b) The burden of producing evidence of a particular fact is initially on the party with the burden of persuasion as to that fact.”
In explaining the above provision the court in Ababio vs. Akwasi III [1994-1995] GBR 774 where it was held that:
“A party whose pleading raised an issue essential to the success of the case assumed the burden of proving such issue. The burden only shifted to the [other party] when [such a party] had adduced evidence to establish the claim”
Indeed, in Ackah vs. Pergah Transport Ltd  SCGLR 728, the court pointed out that
“It is a basic principle of the law of 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 it 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 providing 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.”
From the evidence on record, the court finds that the plaintiff and the defendant were lovers and in a love relationship. Apart from saying that he gave $46,000 to the defendant to buy him a car the plaintiff could not tender any document in evidence and in proof of his allegation that the money was to be used by the defendant to buy a car for the plaintiff.
Admittedly, parties in such relationships generally conduct their affairs on the basis of trust and in the normal course of life receipts are hardly demanded when money passes from one lover to the other. Hence, it will amount to stepping out of the ordinary to expect that the plaintiff would have demanded a receipt from his ex-lover the defendant when he gave the said amount to the defendant. However, according to the plaintiff he first gave $30,000 to the defendant through the defendant’s friend called Annette and later the remainder $16,000 was given to another friend of the defendant in Kumasi to be given to the defendant. The plaintiff did not call any of these friends of the defendant to give evidence as to the purpose of the money although the defendant does not deny receipt of the said amount.
The evidence of the defendant is that the $46,000 was given to her by the plaintiff as a gift and mainly to make the defendant happy. According to the defendant
“Around July 2011, I came to Ghana and travelled back to New York and we were having a conversation over the phone, and he asked me what he could do to make me happy and I told him I wanted a BMW X6 if only he could buy it and he told me to give him some time to think about it and I gave him time and he said he will tell me at the end of September. So at the end of September he told me yes I will buy you the car. I did not force him; I did not push him to do something he didn’t want to do. He just promised me that he will buy me the car and he gave the money to my friend.”
Again, this piece of evidence coming from the defendant is not supported by any documentary proof and the court does not hold the defendant strictly to her allegation because like the plaintiff, matters between lovers are hardly backed by documents. However the plaintiff has admitted under cross examination that he sought to make the defendant happy during their relationship. For instance during cross examination counsel put the following questions, among others, to the plaintiff:
“Q. Did you ever seek to make the defendant happy in the relationship?
A. No my Lord.
Q. Do you understand the question? Did you ever seek to make her happy in the relationship?
A. Yes my Lord.
Q. How did you do that?
A. Sometime if she asked me anything that I have I gave it to her. There was a time that her father was sick I called her and she said she wasn’t happy and I asked her about her problem and she told me that her father is sick so she needed money to go and pay the hospital bill I gave her Gh₵6,000 and later gave her mother too Gh₵3,000. The Gh₵6,000 I gave it to her straight and the second one I gave it to her mother.”
Again in furtherance of his desire to make the defendant happy the plaintiff stated under cross examination that he received gifts from the defendant and also gave many gifts to the defendant including buying plane tickets for his lover. Under cross examination the plaintiff was asked:
“Q. These plane tickets were in thousands of dollars
A. Yes my Lord
Q. You had no problem expending thousands of dollars on the defendant.
A. I have no problem because I wanted to make her happy.”
The question which the court wishes to ask is that if the plaintiff could shower so much gifts on his lover, the defendant, including the purchase of plane tickets for her all in a bid to make her happy and if the plaintiff had no problem in expending thousands of dollars on the defendant, then what is wrong with the plaintiff seeking to buy a car for his lover also in a bid to make her even more happy? Love, they say is beautiful; love is sweet!
At any rate there is evidence on record that sometime past the plaintiff gave money to the defendant to buy him a car and the defendant in fact, on that occasion, bought the car in the United States of America and shipped it to the plaintiff. The plaintiff admitted this fact in cross examination. Without seeking to make capital out of this fact, one could say without so much trepidation that when the plaintiff gave money to the defendant to buy him a car the defendant actually bought the car for the plaintiff.
From the totality of the evidence on record it is clear, as already pointed out, that the transaction that took place between the plaintiff and the defendant was between two lovers and was not backed by any documentary evidence. It is therefore almost difficult to say with absolute certainty that the $46,000 given to the defendant by the plaintiff was given to the defendant for the purpose of the defendant using same to buy a car for the plaintiff. It is also difficult for one to say with absolute certainty that the $46,000 given to the defendant was a gift from the plaintiff to her lover.
In Yormewu vs. Awute and Others [1987-1988] 1 GLR 9, the Court of Appeal had the occasion to point out that:
It was settled law that when at the close of a case the judge came to the conclusion that the plaintiff’s case was weak and that of the defendant’s too was weak, the judge could not prefer the plaintiff’s weak case to that of the defendant and it would be wrong to grant to the plaintiff the reliefs he sought. Where the defendant did not call any evidence at all the position would not be different unless there was a counterclaim. In which case, the evidence which would be required from the defendant would be the evidence to establish the counterclaim and not evidence in rebuttal of the plaintiff’s claim.
As already observed there is little to choose from the respective cases of the parties before the court. In the opinion of the court therefore the plaintiff has failed to adduce that degree of evidence to tilt the scales of probability in his favour. Accordingly, the plaintiff’s claim is dismissed. Each party is ordered to bear his or her own costs.