JUDGMENT

By his endorsement on the writ of summons and statement of claim filed on 14/11/14, the plaintiff sought to recover the sum of GH¢ 13,000.00 and interest thereon from the Defendant.

The Plaintiff's case is that he paid a total sum of GH¢13,000.00 to the Defendant for a space to operate a pharmacy shop but immediately the Pharmacy Council refused to grant him the license to do so, he informed the Defendant who promised to refund the money. It is the persistent failure of the Defendant to refund the said amount to the Plaintiff that has brought about the instant suit.

Even though the Defendant did not deny receipt of the amount claimed, he pleaded that the Plaintiff took possession of the premises in January 2014 by mounting a banner " pharmacy to open soon". He alleged that the tenancy agreement was for ten years at a monthly rent of GH¢200.00 and it was when he demanded the outstanding amount in October, 2014 that the Plaintiff informed him of the Pharmacy Council's refusal to give him a license to operate. The Defendant therefore counterclaimed against the plaintiff for the sum of GH¢2000.00 being rent for the ten (10) months that the Plaintiff was in possession.

The only issues to be determined are: (i) Whether or not the Defendant owes Plaintiff GH¢13,000.00? and (ii) whether the Defendant is entitled to his counterclaim.

Whereas the onus of proof of the first issues rests on the Plaintiff, the Defendant bears the burden of proof of his counterclaim. This is so because each party who has made positive allegations which have been denied must necessarily prove the same. The nature of this burden was expounded by Kpegah JA (as he then was) in Zambrama V Segbedzie (1991) 2 GLR 221 as follows:

"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 or assertion determines the degree and nature of that burden"

A party on whom the evidential burden rests is expected to lead concrete and convincing evidence so that by the preponderance of the evidence on record, the court will find his case to be more probable than not. If his case is not convincing on the balance of probabilities, he losses.

Certain matters have to be resolved before the issue of the quantum of Defendant's indebtedness could be determined. These are: (i) at whose instance and for whose benefit was the banner with the inscription "Pharmacy Shop Opening soon" mounted on the premises in issue and for what duration?

(ii) was the plaintiff in possession of the premises after payment of the GH¢13,000 to the Defendant and for what duration) ?

In the Plaintiff's evidence-in-chief, he told the court that the money was paid to the Defendant in two installments as a result of increasing pressure mounted on him by the Defendant who said he needed the money urgently. The Plaintiff said the Defendant advised him to place the banner with the inscription "Pharmacy Shop Opening Soon" to prevent people worrying him. Consequently, the Defendant caused the banner to be made and the Plaintiff said he paid for it. Following the refusal of the Pharmacy Counsel to give the Plaintiff a license on the basis that another Pharmacy shop existed less than 400 metres away, the Plaintiff said he immediately communicated with the Defendant and asked for a refund of his money and he agreed to refund same within three months. All this while, the Plaintiff said he never occupied the premises because the keys were with the Defendant.

The Defendant's version of the rival stories is that the plaintiff mounted the banner for ten months and thus prevented prospective tenants from taking up the place. This, according to the Defendant, has caused him a great deal of inconvenience. It was on that basis that the defendant counterclaimed for ten (10) months' rent at GH¢ 200.00 per month.

From the Plaintiff's statement of account tendered as exhibit A, the GH¢10,000.00 check issued to the Defendant cleared on 08/05/2014. And, per his exhibit B1, the GH¢3000.00 was paid to the Defendant on 10/03/14. The Defendant admitted in cross-examination that after receipt of the GH¢13,000.00, the Plaintiff did not place anything in the premises. However, the Defendant was emphatic that the banner was mounted in the year 2013 before the first installment was paid and that the same was removed in December, 2014. That notwithstanding, he conceded that in August, 2014, he received a telephone call from the Plaintiff's lawyer in respect of the amount claimed.

The Defendant's admission of communicating with the Plaintiff's lawyer in respect of a refund of the GH¢13,000.00 in August, 2014 is very significant. This is because the plaintiff has said in evidence that in May, 2014, he informed the Defendant of his inability to occupy the premises and the Defendant agreed to refund the amount paid within three months. The period from the end of may, 2014 to August, 2014 is approximately three months. This admission exposes the Defendant as a person who is not worthy of credit relative to the fact in issue. Hence, the Plaintiff's account is more probable than not. The Defendant's version does not add up. For instance, he said the banner was mounted in 2013 when he had not received any payment from Plaintiff; as of August, 2014, a demand for refund was made by Plaintiff's lawyer and yet he allowed the banner to remain until December, 2014. If genuinely, the banner was mounted to stop prospective tenants from asking for the use of the premises, why would the Defendant let the banner remain four months after notice had been given to him, albeit oral? In my view, this story does not make any economic sense, it is not credible and ought to be disregarded.

From the totality of the evidence on record, i find that thebanner in issue was mounted at the instance of the Plaintiff when he heeded to the defendant's advise to do so and it was to protect his interest in the rental unit. I reject the Defendant's story that the banner was mounted in December, 2013 and accept the Plaintiff's version that it was mounted at the time payment was made, i.e. May, 2014. By the preponderance of the evidence on record, I find that besides placing the banner at the premises, the Plaintiff did not physically occupy the store rooms but the Defendant was disabled from renting out the place. After analyzing the evidence of both parties, I conclude that irrespective of the duration of the tenancy, the agreed rent was GH¢ 200.00 per month.

Even though the Plaintiff did not occupy the store rooms physically, the mounting of the banner per se prevented the Defendant from letting the premises out to prospective tenants until the Plaintiff notified him of his inability to occupy the place. In the ordinary course of business, it would have taken a while to put another tenant in possession. The Pharmacy Council's refusal to give a permit to the Plaintiff is through no fault of the Defendant. If the Plaintiff had done due diligence, he would have known of the existence of other pharmacy shops in the area before entering into the tenancy agreement with the Defendant. The evidence shows that the Plaintiff did the due diligence after parting with money to the Defendant who reasonably believed that the Plaintiff will occupy the premises for the duration of the tenancy.

Obviously, the Defendant did suffer a detriment before he eventually found another tenant. Whilst under cross-examination, the Defendant indicated that three tenants had to be turned down because of the Plaintiff's interest. From the foregoing, I will allow a refund of the GH¢13,000.00 which the Plaintiff paid to the Defendant less three months rent at the rate of GH¢200.00 per month, making a total of GH¢ 600.00. In effect, the Defendant's counterclaim succeeds in the amount of GH¢600.00. The outstanding balance will then be GH¢12,400.00. I therefore enter judgment in favour of the Plaintiff in the sum of GH¢12,400.00.

It is highly probable that based on the fact that the Plaintiff was to be in occupation for the agreed period, the Defendant put the rent money to use. In other words, that was a genuine income to him. The evidence does not show the exact date that the Defendant put another tenant in occupation but it was prior to this suit and he ought to have refunded the Plaintiff's money. Yet, he failed to do so. Certainly, the Defendant has denied the Plaintiff of the use of his money and on the authority of Akoto v Gyamfi Addo (2005/2006) SCGLR 1018, he is entitled to interest. Accordingly, I award interest on the GH¢12,400.00 at the prevailing bank rate from the date the writ of summons was filed, that is 14/11/14, till date of delivery of judgment and post Judgment interest at the same rate from the date of delivery of judgment till date of final payment. For the avoidance of doubt, the 91 days Bank of Ghana Treasury Bill rate is to be used as the prevailing bank rate.

Taking into consideration the circumstances of this case and the provisions of order 74 of C.I 47 on the award of cost, I award cost of GH¢ 1000 against the Defendant in favour of the Plaintiff.