JONATHAN ARTHUR vs. KWAME DAVID
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT(COMMERCIAL DIVISION)
    ACCRA - A.D 2016
JONATHAN ARTHUR - (Plaintiff)
KWAME DAVID - (Defendant)

DATE:  29TH JANUARY, 2016
SUIT NO:  RPC/71/2014
JUDGES:  SAMUEL K. A. ASIEDU, JUSTICE OF THE HIGH COURT
LAWYERS:  MR. OPOKU BOATENG FOR THE PLAINTIFF
MR. KINGSLEY KWASITSU FOR THE DEFENDANT
JUDGMENT

By a writ of summons issued on the 18th February, 2014 the plaintiff claims against the defendant:

a. An order for the recovery of GH99, 900 being the outstanding amount owed plaintiff by the defendant as at 31st December, 2013.

b. Interest thereon at the prevailing bank rate from 1st January, 2014 up to the date of final payment.

c. Cost.

 

The defendant entered Appearance after the service on him of the plaintiff’s writ and its accompanying statement of claim and then filed a statement of defence, wherein he counterclaimed for

a. General damages against the plaintiff for malicious prosecution after the defendant suffered loss and damage assessed at GH150,000.

b. Legal cost.

 

When pre-trial settlement proceedings failed to yield any fruitful result, the matter was set down for hearing at which the plaintiff gave evidence and closed his case without calling any witness. Likewise, the defendant also gave evidence and announced the closure of his case without calling further evidence.

 

The facts of the case are that the parties became friends at a time when the plaintiff was a staff at the Standard Chartered Bank and the defendant a customer of the Bank. The defendant who was ordinarily resident in Cyprus, needed financial assistance to enable him pay for customs duties and other clearing charges at the port so he could take delivery of some goods he had shipped into the country. The defendant therefore contacted the plaintiff who arranged for some funds for the defendant. Later, when the defendant was not forthcoming with the repayment, the plaintiff reported the matter to the police who got in touch with the defendant through the Interpol in Cyprus. Finally, when the defendant came down to Ghana, the police arrested him and after sometime, the plaintiff issued the instant writ against the defendant claiming the sum endorsed on the writ of summons.

 

The first issue that crops up from the pleadings for determination is whether or not defendant requested for funding to which the plaintiff provided GH29,093 at an agreed interest of 8% per month. For, whereas the plaintiff has asserted in paragraph 5 of his statement of claim that he raised and gave to the defendant an amount of GH29,093 at an agreed rate of 8% per month, the defendant denies this allegation and asserts that the amount given him by the plaintiff was GH27,684.29 inclusive of interest. It is therefore the duty of the plaintiff to adduce relevant and cogent evidence to prove his claim in accordance with sections 14 and 17 of the Evidence Act of 1975, (NRCD 323) which provides 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.”

 

Thus in Ababio vs. Akwasi III [1994-1995] GBR 774 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”

 

The plaintiff had pleaded in paragraph 6 of his statement of claim that the parties agreed that the monies be paid to one Akua Afriyie the wife of the defendant. The defendant has admitted this allegation in paragraph 5 of his statement of defence that he instructed his wife to receive the monies from the plaintiff. The defendant, in the opinion of the court, is therefore bound by his admission. This is so because once a party admits an allegation made in a pleading, the allegation so admitted is deemed to have been proved and there was therefore no need for formal evidence to be adduced in proof thereof. The law was clearly stated in Fori vs. Ayirebi [1966] GLR 627 that

 

“When a party had made an averment and that averment was not denied, no issue was joined and no evidence need be led on that averment.”

 

In his evidence in chief and also under cross examination the plaintiff stated that he paid a total amount of GH17,600 into the bank account of the defendant’s wife. The plaintiff tendered in evidence as exhibit A the statement of account of Akua Afriyie from the Standard Chartered Bank.

From exhibit A the court finds that between 31st December 2009 and 26th February 2010 the plaintiff in fact paid a total sum of GH17,600 into the bank account of Akua Afriyie on the instructions of the defendant.

 

The plaintiff also testified that apart from the amount paid into the accounts of the defendant’s wife, he also paid cash in various currencies to the wife of the defendant. The plaintiff stated that he paid US$1,746; €1,965 and £2,000 cash directly to the wife of the defendant in the presence of the defendant’s younger brother. The plaintiff tendered in support of this allegation exhibit D, whiles the defendant also tendered exhibit 2.

 

Indeed exhibit D and 2 contain the same information up to the point where the parties have appended their signatures and dated it the 19th February 2010. The defendant relies on exhibit 2. From both exhibit D and exhibit 2, the court finds that the defendant has acknowledged and admitted the receipt of the sums of US$1,746; €1,965 and £2,000 as at 4th February, 2010. The defendant’s acknowledgment and admission is signified by the presence of his signature on both exhibit D and 2. The parties converted the foreign currencies paid to the defendant on the basis of the exchange rates stated on exhibit D and 2; bringing the total foreign currencies payment to a Ghana Cedis equivalent of GH11,494. When one adds the GH17,600 to the GH11,494, one gets the sum of GH29,094.

 

The court therefore finds and holds that the plaintiff has succeeded in proving that, contrary to the assertion made by the defendant in paragraph 4 of his statement of defence, the actual amount which the plaintiff paid to the defendant was GH29,094. In respect of the interest rate, there is no doubt that the defendant had acknowledged, by his signature on exhibit D and 2, that the rate of interest which the parties agreed to charge and pay was 8% per month and the court so holds.

 

From exhibit D and 2, as noted above, the payment of the foreign currencies was acknowledged on the 4th February 2010 and from exhibit A, the last payment into the defendant’s wife’s account was made on the 26th February 2010. When one works interest at 8% for the month of March 2010 it comes to GH194. It must be pointed out that the money was not advanced to the defendant in February 2010 but rather on installment beginning from December 2009 as shown by exhibit A.

 

From the pleadings and the evidence on record the court finds that the defendant made a re-payment of GH3,500 to the plaintiff in April 2010. If one does a subtraction of the amount paid by the defendant from the principal and the interest outstanding, one will be left with an outstanding amount of GH25,788 made up of only the principal sum owed. From the pleadings and the evidence adduced, the court finds that after the defendant had re-paid GH3,500 in April 2010 the defendant failed to make any further re-payment till he was arrested by the police in December 2013.

 

Meanwhile interest kept mounting on the debt. Interest at 8% per month, on the outstanding principal of GH25,788 from April 2010 to the end of that year, sums up to GH1, 547. Interest at 8% per month on the outstanding principal of GH25,788 for the whole of the year 2011 sums up to GH2,063. Again interest at 8% per month from January 2012 to December 2012 works up to GH2,063. And from January 2013 to December 2013 the interest at 8% per month sums up to GH2,063.

 

Hence, in the opinion of the court, the outstanding debt from April 2010, after the defendant had paid the GH3,500 to the plaintiff, to the end of December 2013, will be the summation of the principal outstanding of GH25,788 and the outstanding interest from April to December 2010 which is GH1, 547 and the interest for 2011 which is GH2,063 and interest for 2012 which is GH2,063 and interest for 2013 which is GH2,063 making a total of GH33,524. The interest element is here calculated on a simple interest basis. The reason being that a court will not award interest to be calculated on a compound basis except the parties have specifically agreed that interest shall be calculated and worked on a compound basis.Thus rule 1 of the Court (Award of Interest and Post Judgment Interest) Rules, 2005, CI. 52 provides that

“Rule 1. – Order for payment of interest

If the court in a civil cause or matter decides to make an order for the payment of interest on a sum of money due to a party in the action, that interest shall be calculated

(a) at the bank rate prevailing at the time the order is made, and

(b) at simple interest

but where an enactment, instrument or agreement between the parties specifies a rate of interest which is to be calculated in a particular manner the court shall award that rate of interest calculated in that manner.”

 

Although the plaintiff did not explain to the court how he arrived at the amount of GH99,900 endorsed on his writ as owing to him by the defendant at the end of December 2013, the court is of the view that the figure quoted by the plaintiff is borne out of a mistake in the calculation of the interest element. For instance, in exhibit D and 2, which, as noted, contain the same information up to a point, in calculating the 8% monthly interest on the sum of 72,931,200, the parties had 5,834,596. However, the amount of 5,834,596 cannot be one month’s interest at 8% on the sum of 72,931,200 unless the person working out the interest fails to take cognizance of the fact that he was working interest for only one month. In mathematical expression it should be 8/100×1/12×72,931,200. However, the parties rather expressed it as 8/100×72,931,200. The 1/12 is what signifies that the interest is being calculated for one month. Thus, if one omits to include the 1/12, the expression will represent a calculation of interest for one whole year instead of only one month. Therefore one month interest at 8% on the sum of 72,931,200 expressed as 8/100×1/12× 72,931,200 is equal to 486,208 and not the amount of 5,834,596 which the parties stated on exhibit D and 2. This mistake in the calculation of interest runs through exhibits D and 2.

 

It is therefore not surprising that thinking that the interest element had become unbearable the parties executed exhibit B on the 8th November 2012 in which the defendant undertook to pay a whooping GH55,000 in full settlement of his indebtedness. In the opinion of the court exhibit B was borne out of a common mistake committed by the two parties in the calculation of the interest on the debt.

 

“Common mistake exists where though there is genuine agreement between the parties, the parties have both contracted in the mistaken belief that some fact which is the basis of the contract is true when in fact it is not”

 

See paragraph 8.2.3 page 190 of The Law of Contract in Ghana, authored by Christine Dowuona Hammond and published by Frontiers Printing & Publishing Company Accra, Ghana (2011).

 

The truth is that even as at 31st December 2013 the total debt owed by the defendant does not work up to GH55,000 how come that at an earlier date, that is, 8th November, 2012 the defendant’s debt was much higher such that he was prepared to pay GH55,000 in full settlement as stated in exhibit B. This was because given the manner in which the monthly rate of interest was worked out the parties believed that the defendant’s debt was, as at 8th November, 2012, far in excess of GH55,000 hence the defendant was prepared to pay and the plaintiff was also prepared to accept GH55,000 in full and final settlement of the debt. In actual fact however, the defendant’s debt was far less than the amount on exhibit B. It will be the height of injustice to accept GH55,000 as owed by the defendant on the 8th November, 2012 when in fact his debt was less than that. The court will therefore declare exhibit B void and unreliable.

 

The plaintiff has admitted that in December, 2013 when the defendant was arrested by the police, the defendant again made another re-payment of GH3,500. This therefore reduced the total indebtedness of the defendant from GH33,524 to GH30,024 by the 1st January 2014. The court would therefore enter judgment for the plaintiff against the defendant in the sum of GH30,024. For the avoidance of doubt, this figure represents a principal sum of GH25,788 and accumulated interest to 31st December, 2013 in the sum of GH4,236. The court would also make an order that the plaintiff recovers interest at the agreed rate of 8% per month on the sum of GH25,788 from 1st January, 2014 till the date of final payment.

 

The defendant seeks, by way of counterclaim, to recover “general damages against the plaintiff for malicious prosecution after the defendant suffered loss and damage assessed as GH150,000”

 

It is interesting to note that throughout his evidence there is not a shred of testimony by the defendant to show that he was ever prosecuted by the police in order for the court to even consider the issue of such prosecution being malicious. The evidence on record is to the effect that when the defendant arrived from Cyprus he was arrested by Immigration Officers and handed over to the police and later admitted to bail. There is no evidence that the defendant was ever arraigned before a court of law and prosecuted. In sum the defendant failed to adduce evidence to prove his claim of malicious prosecution as required by section 14 and 17 of the Evidence Act 1975 (NRCD 323) and therefore the defendant’s counterclaim is dismissed.