BOAKYE vs. ASAMOAH AND ANOTHER [1973]DLHC2263

Date	1973-11-07
Suit No.
Citation No.	[1973]DLHC2263

OSEI-HWERE J.

TAKYI FOR THE APPELLANT.

OHENE-ANOBAH FOR THE RESPONDENTS.

[1973]DLHC2263
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">BOAKYE <o:p></o:p><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">vs. <o:p></o:p><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">ASAMOAH AND ANOTHER <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;[1974] 1 GLR 38<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
7 NOVEMBER 1973.<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">

TAKYI FOR
THE APPELLANT.<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;
padding:0in 0in 0in 0in">

OSEI-HWERE J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OSEI-HWERE J.<o:p></o:p>The facts
giving rise to this appeal afford interesting reading. The plaintiffs and the
defendant jointly raised a loan of ¢3,000.00 for which each party mortgaged his
cocoa farm to the creditor. It is alleged from the affidavit supporting the
plaintiffs’ application to put the case on the undefended list that the parties
shared the loan equally and that they were jointly liable for its repayment.
The plaintiffs contend further in the said affidavit that both of them made a
total contribution of ¢2,800.00 in repayment of the loan whilst the defendant
paid only ¢120.00. They say, therefore, that they had paid “to the use of the
defendant ¢800.00 upon total payment of the sum of ¢2,920.00 that was accepted
by the mortgagee in full satisfaction of the loan and for redemption of the
properties mortgaged to the creditor to secure repayment of the loan.” The
plaintiffs, therefore, sued the defendant claiming that they be indemnified in
the sum of ¢800.00. In his affidavit for leave to defend, the defendant, whilst
admitting the loan, averred that at the time they took the loan he handed over
his cocoa farms to the plaintiffs to pluck and to use the proceeds to defray
his portion of the loan and, even though they had not gone into accounts, he
believed that his debt had been fully paid out of the proceeds of the said
sale. He also stated in his affidavit that he would seek the leave of the court
to demand accounts at the hearing.<o:p></o:p><o:p>&nbsp;</o:p>At the
trial of the suit before Mr. J. B. K. Yemidi at the District Court Grade I,
Sunyani, neither plaintiff testified but they chose to close their case on the
evidence of the plaintiffs’ first witness, their common creditor, and the
plaintiffs’ second witness, the cocoa caretaker to the plaintiffs’ first
witness. It turned out from the evidence of the plaintiffs’ first witness that
both plaintiffs jointly paid physical cash of ¢1,770.00 and that after the
plaintiffs had rendered some service to her, the first plaintiffs’ witness, she
asked them to pay further physical cash of ¢400.00 in full satisfaction of the
alleged balance of ¢1,110.00. It was clear, therefore that if the plaintiffs’
first witness’s evidence was accepted then it meant that the plaintiffs had
paid altogether physical cash of ¢2,170.00 and the alleged outstanding balance
of ¢710.00 commuted by their labour service rendered on behalf of the
plaintiffs’ first witness. The claim, accordingly, represents ¢90.00 being the
actual physical cash paid on the defendant’s behalf and ¢710.00 being the
amount commuted by their labour.<o:p></o:p><o:p>&nbsp;</o:p>After the
plaintiffs had closed their case on these two witnesses, counsel for the
defendant made a submission of no case. The trial magistrate proceeded and gave
his judgment wherein he overruled the submission of no case and entered
judgment for the plaintiffs in the sum of ¢800.00 and ¢100.00 costs. It is
against this judgment that the defendant has appealed and has urged as his
grounds the following:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“(1) The
trial magistrate was wrong in holding that the plaintiffs had proved their
case. (2) The judgment was unsatisfactory and one-sided because the trial
magistrate failed to take evidence from the defendant in order to evaluate and
assess the evidence on both sides as a whole. <o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(3) The
trial magistrate should have dismissed the plaintiffs’ claim in view of the
conflicts in the evidence on record with particular reference to the evidence
of the plaintiffs’ first witness and the plaintiffs’ second witness. <o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(4) The
trial magistrate erred in failing to give the defendant opportunity to put up
his defence.”<o:p></o:p><o:p>&nbsp;</o:p>