THEOPHILUS TOTIMEH vs. SAMUEL AGYENIM & ANOR [2013]DLHC3901

Date	2013-05-14
Suit No.	SUIT NO.RPC/65/12
Citation No.	[2013]DLHC3901

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

YAW OMANHENE GYIMAH FOR DEFENDANT.

[2013]DLHC3901
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													<main id="main" class="content" style="min-height: 60rem" >THEOPHILUS TOTIMEH<o:p></o:p>vs.<o:p></o:p>SAMUEL AGYENIM &amp; ANOR<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;
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SUIT NO.RPC/65/12&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;DATE: 14TH MAY, 2013<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;
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</div>CORAM:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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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>This is an action for the recovery
of an amount of GH¢7,000.00 allegedly paid to the Defendants by the Plaintiff
for the supply of second hand news papers.<o:p></o:p>The facts leading to this case are
that sometime in the year 2011, the Plaintiff contracted a loan of GH¢7,000.00
from Stanbic Bank, Kumasi and paid it to the 1st Defendant on
30/06/2011 for the supply of second hand news papers from abroad. It was
alleged that the Defendants failed to deliver the said goods pursuant to the
oral agreement and have also refused to refund the money to the Plaintiff.
Having failed to do so, it was further alleged that the Defendants agreed to
pay interest on this amount but made only three payments in June, July and
August, 2011.<o:p></o:p><o:p>&nbsp;</o:p>The 2nd Defendant averred
that at all times material, he was resident in Italy and the transaction was
done on his behalf by the 1st Defendant. His case was that the
Plaintiff, having made a purchase of second hand news papers from his lawful
attorney in the open market expressed interest to purchase more. After a series
of telephone discussions, the Plaintiff made a part payment of GH¢7,000.00 to
the 2nd Defendant’s lawful attorney on or about 30/06/2011. The
Defendants stated that the 2nd Defendant could not supply the goods
in bulk and the Plaintiff complained of delays. It was their case that the 2nd
Defendant’s lawful attorney sold some goods on his behalf and tendered payment
to the Plaintiff but he rather insisted that the 2nd Defendant
should endeavor to supply the goods. At the time the Plaintiff issued his writ
of summons, the Defendants alleged that they did not owe the sum claimed as
payments had been made to him. They pleaded fraud and gave the particulars as
follows:<o:p></o:p>(i)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
Failing
to disclose to the court all the payments the defendants had made to the
Plaintiff to date.<o:p></o:p>(ii)&nbsp;&nbsp;&nbsp;&nbsp; &nbsp; Intentionally
suing for an amount in excess of what was due to&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; be claimed.<o:p></o:p>Three issues were set down for
trial:<o:p></o:p>(1)&nbsp;&nbsp; Whether or not the 2nd
Defendant is truly indebted to the Plaintiff in the sum of GH¢7000.00 or any
part thereof?<o:p></o:p>(2)&nbsp;&nbsp; Whether or not the Plaintiff took a
loan from a bank at which it was agreed that the 2nd Defendant would
pay the interest on the same?<o:p></o:p>(3)&nbsp;&nbsp; Whether or not the 2nd
Defendant at any time paid interest on the said loan?<o:p></o:p>The onus of proof of the first issue
rests on the Plaintiff who has alleged that the Defendants are truly indebted
to him in the sum of GH¢7000. This is the duty placed on him by sections 11(4),
12 and 14 of the Evidence Act, 1975, NRCD 323 which state:<o:p></o:p>Section
11 (4)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; In other circumstances
the burden of producing evidence requires a party to produce sufficient
evidence so that on all the evidence a reasonab</main>