NII BONAPARTE vs. MILLICENT AHWOI AND ANOTHER [2011]DLCA3711

Date	2011-11-25
Suit No.	CIVIL APPEAL NO. H1/48/2011
Citation No.	[2011]DLCA3711

MARIAMA OWUSU (MISS) J.A. (PRESIDING)

F.G. KORBIEH J.A.

IRENE C. DANQUAH (MS.) J.A.

[2011]DLCA3711
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													<main id="main" class="content" style="min-height: 60rem" >NII BONAPARTE<o:p></o:p>vs.<o:p></o:p>MILLICENT AHWOI AND
ANOTHER<o:p></o:p>&nbsp;[COURT OF APPEAL, KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CIVIL APPEAL NO. H1/48/2011&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 25TH NOVEMBER, 2011<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 1.0pt 0in">

MARIAMA
OWUSU (MISS), J.A. (PRESIDING), F.G. KORBIEH, J.A. AND IRENE C. DANQUAH (MS.),
J.A.<o:p></o:p>

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

</div>F.G.
KORBIEH, J.A.&nbsp; <o:p></o:p>This
appeal emanates from the High Court, Kumasi (presided over by G.H.K. Debrah, J)
which gave judgment in a suit brought by the plaintiffs/respondents
(hereinafter simply referred to as the respondents) against the
defendant/appellant (who shall hereinafter be simply referred to as the
appellant) for the following three reliefs: <o:p></o:p>“(a)
An order of the Honourable Court to re-open the loan transactions between the
plaintiffs and the defendant which took place on 11th day of
October, 2007 on the grounds that the interest charges on the sum lent was
excessive.<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; (b) Any other further reliefs as the
justice of the case demands in accordance with the power confided on the Court
by virtue of the provisions of the Loans Recovery Act, 1918 Cap 175.<o:p></o:p>(c)
Costs.” (sic)<o:p></o:p>The
case of the respondents before the trial court may be summarized as follows: the
2nd respondent needed some financial assistance as a result of which
he and the 1st respondent approached the appellant for a loan of ¢60,000,000.00;
the appellant agreed to give them the loan only on condition that the
respondents used their house, No. Plot 25, South Kwabrefo, Kumasi as collateral
for the loan; the loan was repayable over a twelve-month period with interest
calculated thereon at ¢12,000,000.00 per month; the total amount payable at the
end of the twelve-month period (which was 11/10/2007) came up to ¢204,000,000.00;
the appellant insisted that the respondents conveyed the afore-mentioned
property to him and upon repayment of the loan, the property would be
re-conveyed to them; in addition the respondents were also required to swear to
a statutory declaration transferring the property to the appellant; the
respondents did all that; the appellant never gave the respondents ¢204,000,000.00
in the form of a cheque as claimed by him; the 1st respondent
however signed the cheque in contention; in addition to 20% interest on the ¢60,000,000.00
given to them, the appellant also demanded their house; they were therefore in
court for the court to decide between the parties. The case of the appellant
was however as follows: in 2006 the 2nd respondent offered to sell
his house to him; he went to see the house and became interested in buying it;
he bought the house from the respondents as it belonged to both of them; he
bought the house for ¢204,000,000.00 and issued a cheque for that amount to the
respondents; the respondents issued him with a receipt acknowledging receipt of
the money; they also prepared a document transferring their interest in the
house to him; because he knew the respondents, he allowed them to continue to
stay in the house whilst looking for alternative accommodation; he had never
given a loan of ¢60,000,000.00 to the respondents; the 1st
respondent duly presented the cheque to the bank for payment; he therefore
prayed that he be given the reliefs asked for in his counter-claim. The
appellant subpoenaed the Ghana Commercial Bank (on whom the cheque had been
drawn) to testify for him. One Kwaku Oppong Agyare, a member of staff of the
bank, came to testify. His evidence was that the appellant’s cheque no.
601120017325 was presented to the bank for payment, which was done, and that
the cheque had been endorsed for the payment by the 1st respondent
on the 12/10/2006.<o:p></o:p><o:p>&nbsp;</o:p>Based
on this evidence the trial court gave its judgment in favour of the respondents
on the 13/10/2009. The trial court declared that the transaction between the
parties was a loan transaction and accordingly ordered the respondents to pay
back the ¢60,000,000.00 to the appellant plus interest thereon of ¢40,000,000.00.
It is this judgment that the appellant has appealed against on the following
grounds of appeal:<o:p></o:p><p class="MsoListParagraphCxSpFirst" style="margin-top:0in;margin-right:0in;
margin-bottom:0in;margin-left:39.0pt;margin-bottom:.0001pt;mso-add-space:auto;
text-align:justify;text-indent:-.25in;mso-list:l1 level1 lfo1">1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
The trial judge erred when he entered final
judgment in favour of&nbsp; the
plaintiffs/respondents despite the preponderant documentary evidence on the
record that the plaintiffs/respondents absolutely transferred their interest in
the property to the defendant/appellant absolutely.<o:p></o:p><p class="MsoListParagraphCxSpMiddle" style="margin-top:0in;margin-right:0in;
margin-bottom:0in;margin-left:39.0pt;margin-bottom:.0001pt;mso-add-space:auto;
text-align:justify;text-indent:-.25in;mso-list:l1 level1 lfo1">2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
The trial judge erred when he held that the
plaintiffs/respondents proved their case on the preponderance of the
probabilities when in fact and indeed, the plaintiffs/respondents did not prove
their case as such.<o:p></o:p>