MIKE ADU NANA vs. NANA OSEI YAW [2013]DLHC3878

Date	2013-01-11
Suit No.	SUIT NO.RPC/81/12
Citation No.	[2013]DLHC3878

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

MR.JAMES OSEI KOFI FOR THE PLAINTIFF.

MR. WILLIAM KUSI FOR THE DEFENDANT.

[2013]DLHC3878
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													<main id="main" class="content" style="min-height: 60rem" >MIKE ADU NANA<o:p></o:p>vs.<o:p></o:p>NANA OSEI YAW<o:p></o:p>&nbsp;[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.RPC/81/12&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;DATE: 11TH FEBRUARY, 2013<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>MR.JAMES OSEI KOFI FOR THE
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>On 30/01/2012, the Plaintiff herein
instituted this action against the Defendant herein, claiming a refund of an
amount of forty thousand Ghana cedis (GH¢40,000.00) paid to the Defendant
towards the purchase of a house numbered Plot 1 Block ‘A’ Kronum, Kumasi but
which could not materialize.<o:p></o:p><o:p>&nbsp;</o:p>The Plaintiff’s case as captured in
his statement of claim filed on 30/1/12 is that sometime in March, 2009, he entered
into an agreement to purchase the Defendant’s property as described on the writ
of summons at the price of GH¢105,000.00. It is also his case that, as agreed
between them, upon making a down payment of GH¢40,000.00 to the Defendant, he
was to take possession of the property, construct stores on the same and pay
the balance later.&nbsp; The Plaintiff further
averred that after paying GH¢41,000.00, the Defendant refused or failed to give
him vacant possession and has also refused to refund the money paid to him.<o:p></o:p><o:p>&nbsp;</o:p>On his part, the Defendant pleaded
that the agreement was rather prepared in December 2008 in the presence of his
mother, wife and nieces, and that; the agreed purchase price was GH¢140,000.00.
He acknowledged receipt of an amount of GH¢40,900.00 which he alleged was paid
to him over a two year period. He also alleged that it was not part of the
agreement to give vacant possession to the Plaintiff before the final payment.
He put up the defence that the Plaintiff rather failed to pay the balance of
the purchase price and this terminated the agreement between them. Again, it is
his case that he has used the money paid to him by the Plaintiff as a down
payment for the purchase of another house. And, he can only refund the
Plaintiff’s money when he gets a refund from the alleged seller.<o:p></o:p><o:p>&nbsp;</o:p>Five issues were set down for trial
as follows:<o:p></o:p><ol style="margin-top:0in" start="1" type="1">
 <li class="MsoNormal" style="text-align:justify;line-height:115%;mso-list:l0 level1 lfo1;
 tab-stops:list .5in">Whether
 or not the agreed sale price of the property was GH¢105,000.00 or GH¢
 140,000.00?<o:p></o:p></li>
 <li class="MsoNormal" style="text-align:justify;line-height:115%;mso-list:l0 level1 lfo1;
 tab-stops:list .5in">Whether
 or not the parties agreed that after the payment of GH¢40,000.00 the Plaintiff
 would take possession of the property?<o:p></o:p></li>
 <li class="MsoNormal" style="text-align:justify;line-height:115%;mso-list:l0 level1 lfo1;
 tab-stops:list .5in">Whether
 or not the Plaintiff paid GH¢41,000.00 or GH¢40,900.00 to the Defendant<o:p></o:p></li>
 <li class="MsoNormal" style="text-align:justify;line-height:115%;mso-list:l0 level1 lfo1;
 tab-stops:list .5in">Whether
 or not it is the Plaintiff or the Defendant who is in breach of the sale
 agreement?<o:p></o:p></li>
 <li class="MsoNormal" style="text-align:justify;line-height:115%;mso-list:l0 level1 lfo1;
 tab-stops:list .5in">Whether
 or not the Plaintiff is entitled to interest on the sum paid and which has
 to be refunded by the Defendant.<o:p></o:p></li>
</ol><o:p>&nbsp;</o:p>In all civil actions, a
party who makes a positive assertion which is denied by his opponent bears the
burden of proof on that assertion. This was applied in cases such as Zambrama v
Segbedzi (1991) 2 GLR 221, and also relied on in Continental Plastics v IMC
Industries- Technik GMBH ( 2009) SCGLR 298 at 307 . The standard of proof as
required by sections 11(4) and 12 of the Evidence Act, 1975, NRCD 323 is “ by
the preponderance of the probabilities&nbsp;
and this standard was applied in cases such as&nbsp; Adwubeng v Domfeh (1996-97) SCGLR 660;
Takoradi Flour Mills v Samir Faris (2005-2006) SCGLR 883 and Yaa Kwesi v Arhin
Davis ( 2007-2008) SCGLR 580. Thus, the Plaintiff before me who has made an
assertion that the agreed purchase price was GH¢105,000.00 as opposed to the
GH¢140,000.00 stated by the Defendant must lead admissible evidence in proof of
the same. <o:p></o:p><o:p>&nbsp;</o:p>Both counsel failed to file their
respective written addresses on time. I did not have the benefit of their
addresses in writing this Judgment.<o:p></o:p><o:p>&nbsp;</o:p>