WIAFE vs. KOM [1973]DLHC2215

Date	1973-12-07
Suit No.
Citation No.	[1973]DLHC2215

OSEI-HWERE J.

DR. I. L. OHENE-DJAN FOR THE APPELLANT.

OHENE-ANOBAH FOR THE RESPONDENT.

[1973]DLHC2215
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													<main id="main" class="content" style="min-height: 60rem" >WIAFE <o:p></o:p>vs. <o:p></o:p>KOM <o:p></o:p>[HIGH COURT, SUNYANI]<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1973]
1 GLR 240<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
7 DECEMBER 1972.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DR. I. L. OHENE-DJAN FOR THE APPELLANT.<o:p></o:p>

OHENE-ANOBAH FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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OSEI-HWERE J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OSEI-HWERE J.<o:p></o:p>This is
an appeal against the judgment of his worship M. J. E. O. Otchere wherein the
plaintiff-appellant was non-suited in respect of his claim and judgment entered
in favour of the defendant with costs assessed at ¢42.70. In his writ of
summons the plaintiff-appellant (hereinafter called the plaintiff) claimed from
the defendant-respondent (hereinafter called the defendant) cash, the sum of
¢52.50 being a debt due and owing to the plaintiff. According to the plaintiff,
the defendant and one Yaw Barimah came to him for a loan of ¢90.00 ant that
when he gave the loan a receipt was prepared by one J. C. Baidoo. Before the
plaintiff commenced his action the defendant had paid a total amount of ¢40.00
out of the loan leaving a balance of ¢50.00. The plaintiff tendered the receipt
on the loan transaction, exhibit A, and he thereafter rested his case on it.<o:p></o:p><o:p>&nbsp;</o:p>The
defendant pleaded not liable to the plaintiff’s claim. According to him he took
the loan of ¢90.00 from the plaintiff’s grandfather, Aboagye. Aboagye asked the
plaintiff to prepare the necessary receipt on the loan which he did. As he is
illiterate the receipt was interpreted to him by the plaintiff and, so far as
he was aware, it was Aboagye who was named in the receipt, exhibit A, as the
creditor. Some time after the preparation of exhibit A the plaintiff came to
inform him that his grandfather had sent him to come and collect the debt. He
paid to him an amount of ¢40.00. He later met Aboagye who queried him about his
failure to pay back the debt and he informed Aboagye that he had already paid
¢40.00 to his grandson, the plaintiff. Aboagye said the plaintiff did not hand
the ¢40.00 over to him and warned that he should not, in future, pay any moneys
to the plaintiff. The defendant made a direct payment of ¢10.00 to Aboagye
after this confrontation. Some time in 1970 he received a writ of summons from
the plaintiff and he went to see Aboagye to ask why he had taken action against
him. Aboagye said he had not instructed the plaintiff to do so. The defendant
consequently went and paid the outstanding balance of ¢40.00 to Aboagye. In
addition he paid ¢2.00 to cover the summons fee of ¢1.50 and the witness fee of
50p. As Aboagye could not hand over the original receipt to the defendant
(because it was then with the plaintiff) he caused a temporary receipt to be
issued to the defendant (exhibit A). Aboagye promised to collect the original
receipt and hand it over to the defendant at a later date. The plaintiff
reportedly refused to surrender the promissory note on the loan and Aboagye who
was then sick and unable to walk, caused the head of his family to prepare a
receipt on his behalf to show that the amount owed had been fully satisfied.<o:p></o:p><o:p>&nbsp;</o:p>From the
evidence before the court the trial magistrate made certain findings of fact
and came to the conclusion that the plaintiff should be non-suited. The
plaintiff’s two grounds of appeal contained in his notice of appeal which he
filed himself are that the judgment is against the weight of evidence and also
that the magistrate erred in law without stating, however, particulars of the
error as required under Order 58, r. 1 (2) of the Supreme [High] Court (Civil
Procedure) Rules, 1954 (L.N. 140A). Counsel for the plaintiff argued, inter
alia, that there was no suggestion in the defendant’s cross-examination of the
plaintiff that he owed the amount to the plaintiff’s grandfather. Counsel was
saying, in effect, that the defendant must be deemed to have admitted what the
plaintiff claimed in his evidence-in-chief. Again, the plaintiff’s counsel
placed the evidence of the defendant and his witnesses under a thorough
search-light and argued that a substantial part of the evidence was hearsay and
that the trial magistrate misreceived the hearsay evidence. Counsel also
contended that the defendant did not attempt to challenge the plaintiff’s claim
but that he testified about the debt he owed to Aboagye (the plaintiff’s
grandfather) which was of no concern to the plaintiff. Counsel finally castigated
the findings of fact made by the trial magistrate. He submitted that it was
wrong to have entered judgment for the defendant who did not counterclaim and
that the costs of ¢42.70 awarded were excessive. In answer the defendant’s
counsel contended that exhibit A offended against the Illiterates’ Protection
Ordinance, Cap. 262 (1951 Rev.), as it had no attestation clause and it was,
therefore, invalid. Counsel also argued that the issue before the court was as
to who was the creditor to the defendant, the plaintiff or the plaintiff’s
grandfather, Aboagye. The court made a finding of fact that the plaintiff’s
grandfather was the creditor and that finding of fact ought not to be
disturbed.<o:p></o:p>