GABRIEL ODURO vs. JOHN OPPONG KYEKYEKU [2012]DLHC8495

Date	2012-04-04
Suit No.	SUIT NO. C11/14/11
Citation No.	[2012]DLHC8495

HIS LORDSHIP JUSTICE JACOB B. BOON

ADOMAKO KWAKYE FOR DEFENDANT/APPELLANT

NYARKO FOR THE PLAINTIFF/RESPONDENT

[2012]DLHC8495
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													<main id="main" class="content" style="min-height: 60rem" >GABRIEL ODURO<o:p></o:p>vs.<o:p></o:p>JOHN OPPONG KYEKYEKU<o:p></o:p>[HIGH COURT,
KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

SUIT
NO. C11/14/11&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE:
4TH APRIL, 2012<o:p></o:p>

</div>COUNSEL:<o:p></o:p>ADOMAKO
KWAKYE FOR DEFENDANT/APPELLANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

NYARKO
FOR THE PLAINTIFF/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;
padding:0cm 0cm 1.0pt 0cm">

HIS LORDSHIP JUSTICE JACOB B. BOON<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;
padding:0cm 0cm 1.0pt 0cm">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">JUDGMENT<o:p></o:p>

</div>This is an appeal from the judgment of His Honour Frank
Owusu Afriyie, sitting as an additional magistrate at a Kumasi District Court.
The judgment dated 21st May 2010, was entered for the
plaintiff/respondent, to be referred to as the plaintiff.&nbsp; The defendant/appellant, to be called the
defendant is aggrieved by the judgment and has filed the instant appeal on the
grounds that (a) the judgment is against the weight of evidence, and (b) the
learned judge did not consider the defence put up by the defendant.<o:p></o:p><o:p>&nbsp;</o:p>At the court below, the plaintiff’s claim was for the
recovery of an amount of GH¢4,900.00 which was allegedly given to the defendant
to finance a joint trading business since December, 2005. It was asserted that
the defendant neither accounted for the use of the said amount, nor refunded
it. In an accompanying affidavit, the plaintiff deposed that it was agreed
profits from the joint business be shared between them, but since the release
of the money to the defendant, he did not see, nor hear from him until three
days before the writ was issued when he heard of the return of defendant back
home from outside the country. From the record, that assertion cannot be true
as the evidence showed that whilst defendant was in the United States of
America he shipped six accident vehicles to the plaintiff. They were repaired
and sold as part of the business transaction between them. The plaintiff might
not have physically seen the defendant, but they were in touch because the
vehicles could not have been shipped from America to plaintiff if they lost
touch. That they were in touch is clear from the depositions contained in an
affidavit filed by the plaintiff on 14/5/07. In that affidavit, plaintiff gave
an indication of the type of business transaction that existed between the
parties. In paragraphs 3 to 5 of the said affidavit, he deposed as follows:<o:p></o:p><o:p>&nbsp;</o:p>“3.
That I went into the business partnership with the defendant, who is based in
the United States of America where defendant buys and sends dented cars for
repairs and for sale.<o:p></o:p><o:p>&nbsp;</o:p>4.
That while the defendant purchases the cars and pays the freight I clear them
from the port, have them straightened and sprayed after which I sell them.<o:p></o:p><o:p>&nbsp;</o:p>5.
That I thereafter sends (sic) the whole income derived back to the defendant
for the cycle to commence again”<o:p></o:p><o:p>&nbsp;</o:p>Plaintiff’s case is that the amount owed him by the
defendant arose partly from that transaction when defendant shipped six cars to
him on the one hand, and on the other hand as a result of various sums of
money, some in the dollars, collected from him by the defendant.<o:p></o:p><o:p>&nbsp;</o:p>The defendant denied the claim. In his affidavit in
opposition, he alluded to a counter-claim, though the processes filed by him
did not disclose the details of any such claim. When plaintiff was
cross-examined by the then counsel for the defendant, amounts of GH¢ 3,700.00
and U$1500.00 were indicated as what is owed the defendant by the plaintiff
though no explanation was offered as to how these debts were accrued.<o:p></o:p><o:p>&nbsp;</o:p>From the judgment of the District Court, the issue that
was set down for trial was a simple one. It was whether or not the defendant is
indebted to the plaintiff. The learned ju</main>