FRANCIS MAINOO SARPONG vs. MR. DANSO [2016]DLHC3779

Date	2016-05-03
Suit No.	SUIT NO.OCC/65/14
Citation No.	[2016]DLHC3779

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

ALFRED QUARSHIE FOR PLAINTIFF.

KWABENA KWARTENG FOR ASANTE KROBEA FOR DEFENDANT.

[2016]DLHC3779
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													<main id="main" class="content" style="min-height: 60rem" ><a name="OLE_LINK1">FRANCIS
MAINOO SARPONG<o:p></o:p></a>vs.<o:p></o:p>MR. DANSO<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/65/14&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 3RD
MAY, 2016<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>ALFRED
QUARSHIE 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">

KWABENA KWARTENG FOR ASANTE KROBEA FOR
DEFENDANT.<o:p></o:p>

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;
padding:0in 0in 1.0pt 0in">

JUDGMENT<o:p></o:p>

</div>By
his endorsement on the writ of summons and statement of claim filed on
14/11/14, the plaintiff sought to recover the sum of GH¢ 13,000.00 and interest
thereon from the Defendant. <o:p></o:p>The
Plaintiff's case is that he paid a total sum of GH¢13,000.00 to the Defendant for
a space to operate a pharmacy shop but immediately the Pharmacy Council refused
to grant him the license to do so, he informed the Defendant who promised to
refund the money. It is the persistent failure of the Defendant to refund the
said amount to the Plaintiff that has brought about the instant suit. <o:p></o:p>Even
though the Defendant did not deny receipt of the amount claimed, he pleaded
that the Plaintiff took possession of the premises in January 2014 by mounting
a banner " pharmacy to open soon". He alleged that the tenancy
agreement was for ten years at a monthly rent of GH¢200.00 and it was when he
demanded the outstanding amount in October, 2014 that the Plaintiff informed
him of the Pharmacy Council's refusal to give him a license to operate. The
Defendant therefore counterclaimed against the plaintiff for the sum of GH¢2000.00
being rent for the&nbsp; ten (10) months&nbsp; that the Plaintiff was in possession.<o:p></o:p>The
only issues to be determined are: (i) Whether or not the Defendant owes
Plaintiff GH¢13,000.00? and (ii) whether the Defendant is entitled to his
counterclaim.<o:p></o:p>Whereas
the onus of proof of the first issues rests on the Plaintiff, the Defendant
bears the burden of proof of his counterclaim. This is so because each party
who has made positive allegations which have been denied must necessarily prove
the same. The nature of this burden was expounded by Kpegah JA (as he then was)
in Zambrama V Segbedzie (1991) 2 GLR 221
as follows: <o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; "The correct proposition is that, a
person who makes an averment or assertion, which is denied by his opponent, has
the burden to establish that his averment or assertion is true. And he does
not&nbsp; discharge this burden unless he
leads admissible and credible evidence from which the fact or facts he asserts
can properly and safely be inferred. The nature of each averment or assertion
determines the degree and nature of that burden"<o:p></o:p>A
party on whom the evidential burden rests is expected to lead concrete and
convincing evidence so that by the preponderance of the evidence on record, the
court will find his&nbsp; case to be more
probable than not. If his case is not convincing on the balance of probabilities,
he losses.&nbsp; <o:p></o:p>Certain
matters have to be resolved before the issue of the quantum of Defendant's
indebtedness could be determined. These are: (i) at whose instance and for
whose benefit was the banner with the inscription "Pharmacy Shop Opening
soon" mounted on the premises in issue and for what duration? (ii) was the
plaintiff&nbsp; in possession of the premises
after payment of the GH¢13,000 to the Defendant and for what duration) ? <o:p></o:p>In
the Plaintiff's evidence-in-chief, he told the court that the money was paid to
the Defendant in two installments as a result of increasing pressure mounted on
him by the Defendant who said he needed the money urgently. The Plaintiff said
the Defendant advised him to place the banner with the inscription "Pharmacy
Shop Opening Soon" to prevent people worrying him. Consequently, the
Defendant caused the banner to be made and the Plaintiff said he paid for it.
Following the refusal of the Pharmacy Counsel to give the Plaintiff a license
on the basis that another Pharmacy shop existed less than 400 metres away, the
Plaintiff said he immediately communicated with the Defendant and asked for a
refund of his money and he agreed to refund same within three months. All this
while, the Plaintiff said he never occupied the premises because the keys were
with the Defendant.<o:p></o:p>The
Defendant's version of the rival stories is that the plaintiff mounted the
banner for ten months and thus prevented prospective tenants from taking up the
place. This, according to the Defendant</main>