GIFTY ADDAE vs. SAMUEL OTENG MENSAH [2012]DLHC3865

Date	2012-11-09
Suit No.	SUIT NO.OCC/33/12
Citation No.	[2012]DLHC3865

ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT

SOLOMON OPPONG TWUMASI FOR MARIAM AGYEMANG GYASI

JUAWHARY FOR PLAINTIFF.

K. ADUTWUM-MMROSA COUNSEL FOR THE DEFENDANT.

[2012]DLHC3865
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													<main id="main" class="content" style="min-height: 60rem" >GIFTY ADDAE<o:p></o:p>vs.<o:p></o:p>SAMUEL
OTENG MENSAH <o:p></o:p>[HIGH COURT
(COMMERCIAL DIVISION), KUMASI]<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">

SUIT NO.OCC/33/12&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; &nbsp; &nbsp; &nbsp;&nbsp;DATE: 9TH
NOVEMBER, 2012<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>SOLOMON OPPONG TWUMASI FOR
MARIAM AGYEMANG GYASI JUAWHARY FOR PLAINTIFF. <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">

ANGELINA
MENSAH-HOMIAH (MRS.) JUSTICE
OF THE HIGH COURT<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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</div>The Court is being called upon to
determine whether or not the Plaintiff is entitled to interest on an amount of
GH¢ 21,000.00 which the Defendant owed as endorsed on the writ of summons filed
on 30/03/2012.<o:p></o:p>&nbsp;It is on record that the Defendant made full
payment to the Plaintiff at the commencement of this action but refused to pay
the interest thereon.<o:p></o:p>At the trial, evidence was adduced
on oath by the Plaintiff and her husband, PW1. The Plaintiff testified that
whilst living in the USA, she authorized PW1 to purchase a plot of land for
her. Consequently, the Defendant offered to sell his land and she accepted to buy
it for the sum of GH¢21, 000.00. It was her evidence that after paying this
money to the Defendant, he could not give her vacant possession. According to
her, a third party claimed ownership of the land. She therefore made a demand for
a refund of the purchase price. Her evidence was corroborated by PW1, who
actually paid the money to the Defendant in April, 2011.<o:p></o:p>The Defendant testified that the
amount paid to him was rather GH¢20,000.00 but the additional GH¢1000.00 was
for documentation. He told the court that PW1 accompanied him to the old chief
of Agogo and the money was handed over to the said chief. He also conceded that
he did not give any title document covering the land to the Plaintiff and PW1. Further,
the Defendant testified that the Agogo Chief who allocated the land to him
maintained that the said property belongs to him and the Government.
Concluding, the Defendant told the court that since he refunded half of the
purchase price, he is only liable to pay interest on that amount.<o:p></o:p>In cross-examination, the Defendant
admitted that PW1 paid the money to him in April, 2011 but could not remember
when he made the refund, and the fact that it was repaid by installments, the
last payment being July, 2012. <o:p></o:p>&nbsp;Relative to the payment and refund made, the
court finds that the Defendant has proved to be a person who is not credible.
Is it not far easier to remember recent acts? How could he remember exactly
what happened in April 2011 but could not remember&nbsp; recent acts in the year 2012 which involved a
reimbursement of money to PW1?&nbsp; Section
80 (2) of the Evidence Act, 1975, NRCD 323 deals with matters which are
relevant to the determination of the credibility of a witness. Among these are
the capacity and opportunity of the witness to perceive, recollect or relate
any matter about which he testifies and the character of the witness as to
traits of honesty or truthfulness or their opposites. Is it not strange that a
person who has paid money as a result of a court action in recent times has not
the slightest idea of when the money was paid? Obviously, this goes against his
credibility! <o:p></o:p>Following the denial by the
Plaintiff and PW1 that an amount of GH¢1,000.00 was paid to a chief for
documentation, the onus of proof was on the Defendant to introduce credible
evidence in support of that assertion. The surest way would have been to call
the said chief as a witness. His failure to call such a vital witness on the
facts of this case goes against him. In the case of Owusu v Tabiri ( 1987-88) 1
GLR 287, the Defendant contended that the issue before the court was res
judicata as it had been resolved by a chief at a valid arbitration. The
Plaintiff on the other hand argued that what took place was a negotiated
settlement. The chief alone who could have established that there was a valid
arbitration was not called to testify. The court took the view that since the
onus of proof was on the defendant who asserted that there was a valid arbitration;
his failure to call the chief was fatal to his allegation that there was a
valid arbitration. See also Gligah &amp; Atiso v The Republic (2010) SCGLR 870
at 873 (holding 5)<o:p></o:p>Even though the facts of the above
cited case are different from that of the instant action, I think the reasoning
is applicable. In the instant action, the Defendant has failed to prove by
credible evidence that an amount of GH¢1,000.00 was paid to any chief. If,
indeed the chief received such an amount in the presence of PW1 who has denied,
then, the evidence of this chief alone would have settled this question.<o:p></o:p><o:p>&nbsp;</o:p>&nbsp;The Defendant did not challenge the evidence
of the Plaintiff and PW1 that the entire sum of GH¢21,000.00 was refunded to
them by the Defendant through cross-examination. The general rule is that a
party who fails to cross-examine on a particular fact in evidence is deemed to
have admitted it. A case in point is Quagraine v Adams (1981) GLR 599, CA where
the court held that when a party makes an averment and his opponent fails to
cross-examine on it, the opponent will be deemed to have acknowledged sub
silento, that averment by the failure to cross-examine. This strict rule was
modified by the Supreme Court in the case of GPHA v NOVA Complex Ltd.
(2007-2008) SCGLR 806 at 810 where the Supreme Court made this statement:<o:p></o:p>