CHARLES OWUSU SEKYERE vs. ANITA TWUM BARIMA [2016]DLHC4208

Date	2016-06-17
Suit No.	SUIT NO. BFS/88/2014
Citation No.	[2016]DLHC4208

SAMUEL K. A. ASIEDU

CAPTAIN (RTD) NKRABEA EFFAH DARTEY FOR THE PLAINTIFF

KWAME BAOFO AKUFFO FOR THE DEFENDANT

[2016]DLHC4208
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													<main id="main" class="content" style="min-height: 60rem" ><a name="OLE_LINK1">CHARLES OWUSU SEKYERE<o:p></o:p></a>vs.<o:p></o:p>ANITA TWUM BARIMA<o:p></o:p>&nbsp;[HIGH COURT (COMMERCIAL DIVISION), ACCRA]<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. BFS/88/2014&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 17RD JUNE, 2016 <o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>CAPTAIN (RTD) NKRABEA EFFAH DARTEY FOR THE
PLAINTIFF <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SAMUEL K. A. ASIEDU,
JUSTICE OF THE HIGH COURT<o:p></o:p>

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

</div>By
a writ of civil summons the plaintiff claims against the defendant <o:p></o:p><ol style="margin-top:0in" start="1" type="a">
 <li class="MsoNormal" style="margin-bottom: 0.0001pt; border: none;">Recovery of the sum of $46,000. <o:p></o:p></li>
 <li class="MsoNormal" style="border: none;">Interest from
 September 2011 to date of final payment.<o:p></o:p></li>
</ol>The defendant entered appearance and later
filed a statement of defence. After an unsuccessful pre-trial settlement
proceeding, the matter was set down for trial. However, the defendant failed to
turn up for the trial despite the service on her of hearing notice. After
taking evidence from the plaintiff, the court entered judgment in his favour
against the defendant. Upon application however, the said judgment was set
aside and the defendant given leave to cross examine the plaintiff after which
the defendant gave evidence and announced the closure of his case.<o:p></o:p>The facts of the case are that the plaintiff
and the defendant were in a love relationship which started from the year 2009.
From the evidence on record it appears he gave numerous gifts to the defendant
who also gave gifts to the plaintiff. Indeed, the defendant lives in the United
States of America and comes down to Ghana occasionally. The plaintiff alleges that
he gave money to the defendant to buy him a BMW X6 in 2011 but the defendant
failed to buy the car. The plaintiff then demanded a refund of the money but
the defendant kept telling him stories and refused to refund the amount. As a
result the plaintiff broke up the relationship with the defendant and later
issued the instant writ against the defendant for the recovery of the amount.
The defendant says that the money was a gift from the plaintiff and that it was
not given to her for the purchase of a car for the plaintiff.<o:p></o:p>From the pleadings therefore two main issues
crops up for determination of the court. The first issue is whether or not the
plaintiff gifted the US$46,000 to the defendant. The second issue which is
closely related to the first issue is whether or not the defendant is indebted
to the plaintiff in the sum of US$46,000 and consequently whether or not the
plaintiff is entitled to his claim against the defendant herein.<o:p></o:p>In his statement of claim the plaintiff
pleaded in paragraph 2 that in September 2011 he gave the sum of $46,000 to the
defendant to buy him a BMW X6 car. In response, the defendant pleaded in
paragraph 3 of her statement of defence the “the defendant denies paragraph 2
of the statement of claim and says that the $46,000 given to her by the
plaintiff was for her to purchase a car for her own use. In further answer
defendant will say that the money was a gift from the plaintiff which was given
to the defendant due to the love and affection the plaintiff had for the
defendant”<o:p></o:p>It is therefore clear, in the opinion of the
court, that from the pleadings the defendant does not deny the reception of the
sum of $46,000 from the plaintiff in September 2011. What is in dispute, as
already pointed out, is whether or not the money was given to the defendant for
purpose of the defendant using the amount to buy a car for the plaintiff or
whether the money was given to the defendant as a gift. In the opinion of the
court, the plaintiff has the initial burden to lead concrete and convincing evidence
to prove that he gave the money to the defendant so that the money will be used
to acquire a car for him. This is so in view of the provisions in section 14
and 17 of the Evidence Act, 1975, NRCD 323 which states that<o:p></o:p>“14. Allocation of
burden of persuasion<o:p></o:p>Except as otherwise
provided by law, unless it is shifted a party has the burden of persuasion as
to each fact the existence or non-existence of which is essential to the claim
or defence that party is asserting.<o:p></o:p>17.&nbsp;</main>