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JUDGMENT
1. By writ issued from the
registry of this court on
26/2/2008 the Plaintiff claims
from the Defendants jointly and
severally as follows:
(a). Recovery of the sum of
U$D87,300.00 or its cedi
equivalent being money
Defendants received from
Plaintiff under the pretext of
supplying him with a quantity of
gold.
(b). Interest with
effect from June 2007.
(c). Further or
other reliefs.
2. By an affidavit of
service dated 4/3/2008 deposed
to by one Richard Mohammed a
process server attached to this
court, the writ and statement of
claim was served on the 1st,
3rd and 4th
Defendants only. An affidavit of
non service deposed to by one
Sylvanus Wotortsi verifies the
fact that the Plaintiff was
unable to direct service on the
2nd and 5th
Defendants.
3. There being no order
for substituted service and the
writ having lapsed with respect
to the 2nd and 5th
Defendants. I am of the view
that no action can been lawfully
maintained against them from the
instant action and will
accordingly strike out their
names as parties to this suit
suo motu.
4. Though I find from the
record that appearance was
entered on behalf of all the
Defendants by one Joseph Owusu
Asamani the non service of the
writ on the 2nd and 5th
Defendants cannot be cured by
the fact of entry of appearance.
5. I shall therefore in
the course of this judgment deal
with the notice of appearance
entered K. Adjei Lartey of Law
Associates on behalf of the 1st,
3rd and 4th
Defendants who delivered a
defence and contested the
Plaintiff’s claim per the
Statement of Defence filed on
11/6/2008.
6. PLAINTIFF’S CASE
Plaintiff’s case is that he is a
Ghanaian businessman resident in
Ghana and Togo whose business
partner in the United Kingdom
asked him sometime in May 2007
to contact the 1st
Defendant who claiming to be a
licensed gold dealer had
informed Plaintiff’s partner
that he had some gold for sale.
According to Plaintiff the 1st
Defendant after confirming that
he is a licensed gold dealer, he
Plaintiff came to Ghana to meet
the 1st Defendant
upon the request of the
Plaintiff’s business partner in
the United Kingdom.
7. As it turned out, at a
meeting at Maestro Plaza at Pig
Farm, Accra the Plaintiff met
the 1st Defendant in
the company of Emmanuel Ayitey
alias Roger (2nd
Defendant struck out as a party
in this suit) who had been
introduced by 1st
Defendant to Plaintiff as the
owner of the gold intended to be
sold. After series of
discussions, Plaintiff first
parted with the sum of $3,300.00
to facilitate the retrieval of
the gold said to have been kept
in a safe house. The Plaintiff
alleged he acceded to part with
the said sum upon assurances
from the 1st
Defendant that it was in the
normal course of the gold
business. Plaintiff alleges that
disappointed by this initial
transaction which turned out to
be a scam, he was on his way to
Lome in the Republic of Togo
when he received a telephone
call from one Prince Ahmed (3rd
Defendant herein) who promised
to facilitate the procurement of
some gold for the Plaintiff
having heard of Plaintiff’s
interest from a friend so
called. According to the
Plaintiff, the 3rd
Defendant subsequently traced
the Plaintiff through his cell
phone number in Lome which 3rd
Defendant had claimed he came by
through a friend. It is the
Plaintiff’s case that the 1st
and 3rd Defendants
organised and produced some gold
bars which 1st
Defendant inspite of Plaintiff’s
insistence to have same tested
had assured him that same was
genuine and had already passed
verification test at the
Precious Minerals Marketing Co.
(PMMC).
8. Plaintiff alleges upon
the assurances from the 1st
Defendant he parted with the sum
of $84,000. representing the
price of 6.5 Kilograms of gold
at U$14,000.00 per kilogram.
Plaintiff alleges that
subsequent examination revealed
that the bars said to be gold
sold to him by the 1st
and 3rd Defendants
were fake whereupon he reported
to the police. The Plaintiff
alleges that the 1st
Defendant purporting to be a
business friend of the
Plaintiff’s partner in the
United Kingdom is a member of
the syndicate who had
orchestrated and facilitated
successfully a design to defraud
Plaintiff of the sum of
$84,000.00. The Plaintiff had
pleaded particulars of the fraud
alleged and further avers that
it was the 4th
Defendant who shared the money
defrauded from the Plaintiff
among the Defendants.
9. The Plaintiff now seeks
an order for the recovery of the
total sum of $87,300.00 being
money had and received for a
consideration which had turned
out to be fraudulent, Interest
from June 2007 and any order or
further order by this court.
10. DEFENDANTS’ CASE
As I have earlier observed
Plaintiff’s claim was contested
by the 1st, 3rd
and 4th Defendants
only. They deny Plaintiffs
claims save that 1st
Defendant admits that he has a
business partner in the United
Kingdom through whom the
Plaintiff contacted him without
more. The 1st
Defendant’s case is that through
the initiatives of the said
business partner in the United
Kingdom, he had applied and
obtained a gold dealership
license from the Precious
Minerals Marketing Company Ltd.
(PMMC) which was never used and
had since lapsed.
11. The 1st
Defendant admitted meeting the
Plaintiff at the Maestro Plaza
in Accra but denies any other
allegation associating him with
the loss Plaintiff suffered. The
1st Defendant denies
Plaintiff’s allegations and says
that not having known the
Plaintiff for a reasonable
length of time he could not have
introduced the 2nd
Defendant as well as the 4th
and 5th Defendants to
the Plaintiff. The 1st
Defendant further denies any
knowledge of the payment of the
sum of $3,300 by the Plaintiff
and further denies the
allegation that he 1st
Defendant had supported the said
payment even if it was made as
normal. The 3rd
Defendant has in paragraphs 11
and 12 and 15 of the Statement
of Defence evasively denied
Plaintiff’s claims but states in
paragraph 16 of the Statement of
Defence that the Plaintiff came
to Kasoa in the company of an
uncle of his, he Plaintiff had
described as an expert in gold
business. The 1st
Defendant asserts that he rather
assisted the Plaintiff by
procuring and testing of the
gold and that Plaintiff’s uncle
and one W. O. (presumably PW2)
in this suit had confirmed the
genuiness of the gold they
purchased before they carried
same to Accra.
12. The 1st
Defendant admits he received a
gift of $100 from the Plaintiff
as well as Plaintiff’s assertion
that the 6.5 kilograms of gold
was valued at U$94,000.00 but
Plaintiff paid only U$84,000.00
promising to pay the balance
later but had since failed or
refused to do so. The 1st
and 3rd Defendants
case is that the Plaintiff
having personally tested the
product sold to him and
accepting same as gold cannot
now turn round and allege fraud
after acknowledging that what he
had purchased was genuine gold.
The 4th Defendant
denies Plaintiff’s averments and
further states that not only
does he deny the claim by the
Plaintiff that he is the leader
of a syndicate which defrauded
him but that he had had no
dealings with the Plaintiff
whatsoever and had neither met
nor discussed any business with
the Plaintiff.
13. ISSUES FOR TRIAL
At the close of pre trial
conference the following issues
were agreed between the parties
and set down by the pre trial
judge as the issues for trial in
this suit.
(1). Whether or not the 1st,
2nd, 3rd,
4th and 5th
Defendants acted in concert to
defraud the Plaintiff of the sum
of $87,300.00 in return for gold
that turned out to be fake.
(2). Whether or not the 1st
and 3rd
Defendants sold fake gold to
Plaintiff in the sum of
$94,000.00 for which the
Plaintiff paid $84,000.00.
(3). Whether or not the
Plaintiff is entitled to recover
the sum of $87,300.00 jointly
and severally from the
Defendants.
14. DETERMINATION OF
ISSUES BY THE COURT
THE NATURE OF DEFENDANTS’
PLEADING
Before I proceed to examine the
respective burdens on the
parties in this suit in either
proof or denial of the claim, I
wish to elaborate on my earlier
observation that Defendants’
pleadings with respect to some
of the material allegations of
fact contained in the
Plaintiff’s statement of claim
are evasive.
15. The general rule of
traverse is that it must be
specific. The practice has
evolved among practitioners to
sometimes plead that the
Defendant is not in a position
to admit or deny an allegation
or that as in the instant case
the Plaintiff is put to the
strictest proof thereof. Firstly
a plea that the Defendant is not
in a position to admit or deny
an allegation amounts to an
insufficient denial and cannot
be used in traversing essential
and material allegations.
Therefore where a defence avers
that the Defendant is not in a
position to deny or admit an
allegation it is deemed not to
have denied the averment in the
statement of claim and so no
issues are joined. It is bad
pleading and amounts to no less
than an admission.
16. By the same parity
therefore Defendants’ pleading
that Plaintiff is put to the
strictest proof of the
allegations contained in his
statement of claim is clearly
inelegant pleading. This plea is
not only evasive but equally
insufficient. Firstly the
Plaintiff’s burden is no more
stricter or burdensome than that
prescribed under the provisions
of the Evidence Act 1975 (NRCD
323) and it is not for the
Defendant to determine the
degree of the burden on the
Plaintiff on a particular
allegation. Secondly, that type
of denial raises an ambiguity on
the part of the Defendant
against whom allegations of fact
have been made and for which he
is duty bound to specifically
deny for issues to be joined. A
traverse or denial should be
specific, complete and within
it, there ought to be a positive
statement stating the Defendants
version of the events upon which
evidence will be adduced at the
trial.
17. I shall however for the
purposes of this judgment
construe the Defendants pleading
as having denied the material
allegations contained in the
Plaintiff’s statement of claim
and proceed to evaluate the
evidence adduced within the
context of the law of proof and
the respective burdens of either
side in this suit.
18. DETERMINATION OF
ISSUES BY THE COURT
In my view the issues set down
by the pre trial judge as agreed
by the parties are the key
issues for determination which
will effectively determine the
dispute between the parties. The
law is trite and supported by
statute that to enable a court
decide a case one way or the
other, each party to the suit
must adduce evidence on the
issues to be determined by the
court to the prescribed standard
as provided by statute. This
position is buttressed by
various provisions of the
Evidence Act 1975 (NRCD 323)
Section 14 of which provides as
follows:
“Except as otherwise provided by
law, unless and until 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 he is
asserting”
19. There being no
counterclaim to the Plaintiff’s
action, it is the Plaintiff who
carries the burden and
responsibility to prove the
facts he asserts against the
Defendants. The burden of
producing evidence as well as
the burden of persuasion is on
the Plaintiff and the standard
of proof required to discharge
that burden of persuasion is one
on the “preponderance of the
probabilities” by virtue of
section 12(1) of the Evidence
Act (NRCD 323). “Preponderance
of Probabilities” according
to section 12 (2) of the Act
means.
“………….that degree of certainty
of belief in the mind of the
tribunal of fact or the court by
which it is convinced that the
existence of a fact is more
probable than its non existence”
Under section 11(4) of the Act
the burden of producing evidence
is discharged when a party
produces “……………..sufficient
evidence so that on all the
evidence a reasonable mind could
conclude that the existence of
the fact was more probable than
its non existence”.
20. In the case of ABABIO
VRS. AKWASI III [1994 – 95] GBR
774 the Supreme Court reiterated
the point of a party proving an
issue asserted in his pleadings.
At page 777 Aikins, JSC
delivering the lead opinion of
the court held thus:
“The general principle of law is
that it is the duty of a
Plaintiff to prove his case i.e.
he must prove what he alleges.
In other words, it is the party
who raises in his pleadings an
issue essential to the success
of his case who assumes the
burden of proving it. The burden
only shifts to the defence to
lead sufficient evidence to tip
the scales in his favour when on
a particular issue the Plaintiff
leads some evidence to prove his
claim. If the Defendant succeeds
in doing this, he wins, if not
he loses on that particular
issue”.
The above position of the
Supreme Court affirms the
position of Kpegah J.A. (as he
then was) in the case of ZABRAMA
VRS. SEGBEDZI [1991] 2 GLR 221
at 224 where he said.
“…….a person who makes an
averment or assertion which is
denied by his opponent, has a
burden to establish that his
averment or assertion is true.
And he does not 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 the
burden”.
21. I shall now examine and
evaluate the evidence adduced by
the Plaintiff in support of his
case and the Defendants defence
within the context of their
respective burdens as I have
stated earlier in this judgment.
22. THE EVIDENCE OF
PLAINTIFF
Plaintiff’s evidence is that he
knew the 1st
Defendant through a business
partner in England called Sadat
and that he came to know the
other Defendants during the
transaction for the purchase of
gold. According to the Plaintiff
in furtherance to a discussion
he had had with the said
business partner he received a
call from the 1st
Defendant whom he met near Abedi
Pele’s Maestro Plaza at Pig Farm
Accra in the company of two
others including the 2nd
Defendant who had introduced
himself as an Inspector of
Police. Plaintiff testified that
a meeting was set up by the 1st
Defendant at Atomic Junction
Accra where he met the 2nd
Defendant after which 1st
and 2nd Defendants
took him to a house where he met
other persons. Plaintiff further
testified that he was shown some
material said to be gold and
after picking a sample it was
refined by a gold smith into a
20 – 21 karat gold. Apparently
convinced about the quality of
gold made available to him by
the 1st and 2nd
Defendants and other persons,
the Plaintiff informed his
business partner about the
quality of the gold who directed
Plaintiff to pay for same.
23. Plaintiff says he
subsequently received a call
that the gold was ready
whereupon he proceeded to meet
the 1st Defendant at
Ashalley Botwe in the company of
Alhaji Alidu and Alhaji Abdulai.
Plaintiff testified that he
eventually paid the sum of
U$3,000.00 and an additional
U$300.00 which was demanded of
him to pay a security company
said to have secured the gold.
Plaintiff’s testimony was that
it was the 1st
Defendant who assured him of the
genuiness of the transaction
which later turned out to be a
hoax because according to
Plaintiff upon a test conducted
it turned out that the material
said to be gold was not gold
after all. Plaintiff testified
that he made a demand for a
refund of the consideration paid
but the 1st Defendant
advised him to let it go because
as the 1st Defendant
put it, it was one of those
things.
Plaintiff says he subsequently
received a call from the 3rd
Defendant on his MTN phone
number who later proceeded to
Lome in the Republic of Togo
where Plaintiff and 3rd
Defendant met.
It is Plaintiff’s testimony that
he declined to co-operate with
the 3rd Defendant in
Lome but insisted on a meeting
in Accra where Plaintiff came
subsequently to inform the 1st
Defendant what has transpired.
24. Plaintiff further
testified that he was later
contacted by the 3rd
Defendant who informed him he
had some gold he had brought
from Tarkwa. When a meeting was
set up for the inspection and
testing of the gold Plaintiff
testified that it was the 1st
Defendant who carried with him
some quantity of acid and upon
reaching a place said to be a
security company at Kasoa where
the said gold had been kept the
1st Defendant after
some formalities of filling of
forms poured the acid he had
carried with him on the said
material said to be gold and
because there was no corrosion
the said Alhaji Abdulai
confirmed that it was good gold.
The Plaintiff testified that at
that stage he expressed his
misapprehensions but he again
received assurances from the 1st
Defendant especially when Alhaji
Alidu said his worry was that
the testing was not carried out
by a machine but manually done.
Plaintiff testified that based
on the assurances of the 1st
Defendant who being the person
his business contact had
introduced to him, he paid
U$14,000.00 per kilogram of the
material said to be gold and
purchased 6 kilograms and
undertook to pay the difference
of half a kilogram which was
then in excess. Plaintiff
tendered a receipt issued to him
signed by the 3rd
Defendant dated 14/6/07 and was
received in evidence as Exhibit
‘A’.
25. According to the
Plaintiff it was the next day
when they brought out the
product about 9.30am that the
said Alhaji Alidu broke down
exclaiming that what they had
purchased was not genuine
whereupon the matter was
reported to the police at
Kaneshie who began the process
of criminal investigations after
effecting the arrest of the 1st
Defendant. Plaintiff testified
that in the course of
investigation he took police to
the 3rd Defendant’s
office where he identified a
Peugeot car used to convey him
to Kasoa and the driver of the
car who was also arrested just
as the 2nd and 3rd
Defendants. The Plaintiff
testified that the total loss
arising from the hoax played on
him by the Defendants under the
guise of selling genuine gold to
him is U$87, 300.00 the quantum
claimed per Plaintiff’s writ.
26. Under cross examination
by the Defendants’ counsel, the
Plaintiff admitted to a question
that the claim in the instant
suit included the sum of U$3,300
he had been advised not to
pursue. Upon the Defendants’
counsel’s suggestion to the
Plaintiff that his averment in
paragraph 6 of the Statement of
Claim was not true, the
Plaintiff admitted it was a
mistake but insisted that it was
the 1st Defendant who
first called him on telephone.
27. In the course of cross
examination of the Plaintiff by
the Defendants’ counsel the
following evidence was elicited.
“Q. Now when you met Prince
Ahmed (3rd Defendant
herein) and in testing the gold
Prince Ahmed brought to you,
because of the experience of the
first transaction you and 1st
Defendant went with acid with
you, not so?
A. That is so My
Lord.
Q. Now this acid was used
in testing the 6.5 kilograms of
gold not so?
A. My Lord we tested it,
but I donot know how they did
with the acid.
Q. The acid was poured on
the gold in your presence, and
you saw it you saw the reaction?
A. That is true
My Lord.
Q. And if it was not pure
gold the acid would have burnt
it not so?
A. My Lord it was the 1st
Defendant who confirmed that it
was pure gold before I asked the
opinion of Alhaji Alidu who is
about 82 years old and cannot
marshall his mind very well. And
he said alright if the 1st
Defendant has confirmed that it
was pure gold so be it.
Q. I am putting it to you
that Alhaji Alidu was your
expert you brought him purposely
to come and guide you with all
his experience in buying gold.
And indeed when he confirmed it
you paid for the gold?
A. My Lord this acid was
not brought by Alhaji Alidu into
the picture. If it was Alhaji
Alidu who brought the acid then
whatever result that came out we
would not have complained. But
it was the 1st
Defendant who brought the acid
for testing, therefore whatever
he did with the acid to confirm
whatever they wanted to do is
what has brought us
here…………………………………”
Answering further questions
under cross examination the
Plaintiff was asked.
“Q. I am putting it to you
that you have no claim against
the 1st Defendant?
A. My Lord I have
a claim against the 1st
Defendant.
Q. How much?
A. My Lord the 1st
Defendant was in link with the
other Defendants. They hatched
the plan and collected the
amount endorsed on the writ i.e.
U$87,300.
Q. Now from
Exhibit ‘A’ who sold the gold to
you?
A. Prince Ahmed
(3rd Defendant)
Q. And it was
Prince Ahmed that you paid the
money to?
A. That is so My Lord”.
28. I find from the evidence
adduced in examination in chief
and under cross examination of
the Plaintiff that the 1st
Defendant played a very crucial
role in the transaction which
resulted in the two losses
suffered by the Plaintiff the
earlier in the sum of U$3,300
and the latter in the sum of
U$84,000.00. This is because
unconnected as the Defendants’
counsel attempted to portray the
relationship between 1st
Defendant and the Plaintiff with
respect to the first
transaction, it was the 1st
Defendant who syndicated the
meetings which eventually led to
the loss of U$3,300 by the
Plaintiff from the evidence
adduced. With respect to that
transaction counsel for the
Defendants failed to cross
examine the Plaintiff on the
introductory events put together
by the 1st Defendant
which resulted in that loss.
29. Much as counsel for the
Defendants in his cross
examination made efforts to have
the Plaintiff admit the non
involvement of the 1st
Defendant, Plaintiff denied all
suggestions to him. Counsel for
the Defendants however failed to
cross examine the Plaintiff on
the events at Atomic junction
where the 1st
Defendant met the Plaintiff with
other persons identified by the
Plaintiff in this suit
eventually resulting in the said
loss.
30. The principle of law has
long been established in FORI
VRS. AYIREBI [1966] GLR 627 and
QUAGRAINE VRS. ADAMS [1981] GLR
599 that where a party has given
evidence of a material fact and
he was not cross examined on the
issue, he need not call further
evidence of that fact. Again in
the case of MANTEY & ANOR. VRS.
BOTWE [1989 – 90] 1GLR 479, the
court held that.
“…………where a party’s testimony
of a material fact was not
challenged under cross
examination, the rule of implied
admission for failure to deny by
cross examination would be
applicable and the party need
not call further evidence on
that fact”.
31. Applying the above
principle of law it is
instructive from the evidence
that the 1st
Defendant’s involvement in the
second transaction which
resulted in the colossal loss of
U$84,000 by the Plaintiff was
also established. The
Plaintiff’s allegation in his
testimony that it was the 1st
Defendant who upon reaching
Kasoa brought out acid he was
carrying to conduct a test of
the material said to be gold was
not challenged and same is
construed as admitted by
implication. It now stands to
examine the motive behind the 1st
Defendant’s decision to carry
along with him acid for testing
gold in Kasoa while denying any
complicity with the other
Defendants against whom the
Plaintiff alleges joint and
several liability for the loss
he has incurred.
32. Indeed no cross
examination whatsoever was
conducted by the Defendants’
counsel on the police caution
statements obtained from the
Defendants particularly the
statement of Emmanuel Ayitey (2nd
Defendant) tendered in evidence
by ‘PW2’ Exhibit ‘H’ hereof
where Emmanuel Ayitey stated
upon caution as follows:
“………. I wish to state that I
have never defrauded anybody.
What I know was that Mr. Fiadzo
who is my friend had visitors
from Lome last year November
2006 to buy gold in Ghana. Mr.
Fiadzo introduced to them some
gold dealers which he Mr. Fiadzo
has been dealing with them but
during the process of the
business, the people together
with Mr. Fiadzo got detected
that the gold was fake and the
people turned down the offer.
Later on this year, the same
people with Mr. Fiadzo contacted
Fiadzo for gold but I have never
set my eyes on the man neither
have I partake in any of their
businesses or collected any
money from any of them. Rather
Mr. Fiadzo told me that he has
got them a good gold. Also to
state that I am a policeman but
has been on interdiction for
sometime now awaiting my trial
result. I wish to state further
that my information gathered Mr.
Fiadzo diluted his acid before
testing the gold as he was
promised a percentage”.
33. Inspite of this damaging
documentary evidence against the
1st Defendant which
clearly establish 1st
Defendant’s motive in the second
transaction which resulted in
the loss of U$84,000.00 neither
the 1st Defendant who
had the opportunity of giving
evidence denied the contents of
Exhibit ‘H’ nor did counsel for
the Defendants attack the
probative value of Exhibit ‘H’.
I construe the silence of both 1st
Defendant and counsel on the
contents of Exhibit ‘H’ as
admitting same by implication
MANTEY & ORS. VRS. BOTWE supra
applied.
34. THE EVIDENCE OF
‘PW1’. WO1 (RETIRED) ALHAJI
ABDULAI
In his testimony ‘PW1’ described
the Plaintiff as his maternal
cousin and an in-law. He
testified that sometime in May
2007 he accompanied the
Plaintiff to the 1st
Defendant’s house at Botwe near
Madina. He corroborated the
evidence of the Plaintiff in
greater detail. He testified
that at the meeting with the 1st
Defendant he (1st
Defendant) introduced one Daniel
4th Defendant, the 5th
Defendant and one Nana. It
turned out that the 1st
Defendant was offering gold dust
the witness said Plaintiff
rejected it insisting that his
partner had requested for gold
bars. PW1 testified that upon
assurance that the dust could be
turned into bars by melting, the
Plaintiff handed over to 1st
Defendant the sum of U$3,000.00
who in turn gave same to the 5th
Defendant. Upon demand by the 1st
Defendant’s team, witness said,
an additional sum of U$300.00
was paid by the Plaintiff
through the 1st
Defendant to facilitate the
release of gold dust. PW1
testified that the next day when
the material said to be gold was
presented Alhaji Alidu who was
in their company indicated that
he was not satisfied with the
process used for the melting but
some three persons by name Nana,
Happy and Paul came with a
shining bar whereupon the 1st
Defendant purported to have same
tested by pouring an acidic
substance on same resulting into
a corrosive reaction of the
alleged gold. At this stage PW1
testified that the Plaintiff
demanded refund of the sum of
U$3,300.00 he had paid but the 1st
Defendant intervened to say that
it was one of those things.
35. ‘PW1’ testified that
Plaintiff subsequently received
a telephone call from the 3rd
Defendant who requested for a
meeting at the 1st
Defendant’s office because he 3rd
Defendant had a quantity of gold
at Kasoa. PW1 further testified
that upon reaching Kasoa about
5pm to 6pm the 3rd
Defendant introduced someone as
the keeper of the warehouse
where the alleged gold was kept
by 3rd Defendant and
after a documentation process a
box was brought said to contain
gold. According to PW1
subsequent events proved that
what they had paid the sum of
U$84,000.00 was fake and as
testified by Plaintiff and
corroborated by the PW1, same
resulted in the Plaintiff
lodging a complaint to the
police at Kaneshie upon
discovering the next day that
what was sold to them
representing gold had turned out
not to be gold after all.
36. Upon the criminal
complaint, witness testified
that 1st Defendant
was arrested while further
police investigations led to the
apprehension of the 3rd
Defendant and the driver who
drove them to Kasoa.
37. During cross -
examination of PW1 by counsel
for the Defendants the following
exchanges was recorded in
evidence with respect to the
first encounter.
“Q. The 1st
Defendant did not tell you he
had gold to give to the
Plaintiff?
A. It is never
true My Lord.
Q. What is never true? I
said he never told you that he
has gold to sell to Plaintiff?
A. Yes My Lord.
Judge: He told
you that or not.
A. Yes My Lord he
told me.
Q. He told you
that he has gold to sell?
A. Yes My Lord.
Q. Did you see gold in his
house when you got there? Did
you see gold?
A. My Lord he told us that
the people will be coming with
the gold and they brought the
gold to his house.
Q. Alhaji this is simple
English. Did the 1st
Defendant tell you that he has
gold?
A. Yes My Lord.
Q. I am putting it to you
that you are not being truthful
to this court?
A. My Lord I am
being truthful to this court”.
38. To the extent that the
line of cross examination by the
Defendants’ counsel was intended
to impeach the evidence of the
PW1 with respect to the
involvement of the 1st
Defendant, I am of the view that
counsel did not succeed. I think
the witness’s testimony was not
contradicted in anyway through
cross examination. Whether or
not the evidence adduced was
weighty enough to have resulted
in the Plaintiff’s successful
discharge of the burden of proof
on him, I shall determine the
question when I evaluate the
evidence of ‘PW2’ and answers to
questions under cross –
examination.
39. I deduce however from
the cross examination of the
‘PW1’ that counsel for the
Defendants’ position is that
since the Plaintiff on his own
volition came along with one
Alhaji Alidu presumably an
experienced person in
identifying genuine gold, the
material presented to the
Plaintiff during the two
transactions was genuine gold.
This deduction is borne out by
the following questions and
answers in cross examination.
“Q. Listen
Alhaji, the sample of gold, was
it not tested.
A. My Lord it was tested
because the Plaintiff agreed to
buy the gold.
Q. I am suggesting to you
that the people who tested the
gold and the Plaintiff and you
saw that it was real gold. I am
putting it to you.
A. My Lord, it is
never true.
Q. Now you said
the first transaction the gold
was melted.
A. Yes My Lord.
Q. Alhaji you and who were
present at the time the gold was
melted?
A. My Lord
myself, Plaintiff and Alhaji
Alidu.
Q. Now you know
Alhaji Alidu very well not so?
A. I do My Lord.
Q. What are his
specialties?
A. He came down with
Plaintiff because he knows gold
very well
………………………………………………………………….
Q. Alhaji you
believe Alahji Alidu not so?
A. Yes My Lord.
Q. And you
trusted his judgment?
A. Yes My Lord.
Q. Now when you went to
Kasoa Alhaji Alidu was present
not so?
A. Yes My Lord.
Q. And when the chemical
was poured on the gold you all
saw it not so?
A. Yes My Lord.
Q. Alhaji Alidu
was there and he also saw it not
so?
A. Yes My Lord.
Q. The 1st
Defendant was present
A. Yes My Lord.
Q. You saw it
also
A. Yes My Lord.
Q. And what happened,
because you said that the
corrosive effect did not happen
like the first one.
A. I did not say
that
Q. And based on
that, you paid for the gold.
A. Yes My Lord.
Q. And you took
the gold to your house?
A. Yes My Lord.
Q. I am putting it to you
that what you saw on that day
was pure gold?
A. It is never
gold”.
40. In my view the effect of
the cross examination by the
Defendants’ counsel is clearly
intended to establish that
whereas there is no denial of
the fact that Defendants were
engaged in the two transactions
which the Plaintiff alleges has
resulted in the loss of the sum
claimed, what was delivered to
the Plaintiff in both
transactions was genuine gold so
far as the Plaintiff’s Alhaji
Alidu and PW1 were present when
same was tested and delivered.
What the Defendants counsel
failed to impeach or contradict
during cross examination was the
allegation that at the end of
the first transaction which
resulted in the loss of U$3,300,
it was the 1st
Defendant who in consolsing the
Plaintiff told him the loss was
“one of those things”. If that
statement alleged to have been
made by the 1st
Defendant and which has not been
challenged by the 1st
Defendant during cross
examination is not an admission
that loss has been occasioned,
what else will be. To that
extent, I am of the view that
the evidence of Plaintiff and
PW1 have at least established
the loss of U$3,300 through the
acts of the 1st and
other Defendants and in doing
so, have discharged the burden
of proof with respect to that
quantum of claim. I shall now
proceed to evaluate the evidence
of the ‘PW2’.
41.
THE EVIDENCE OF ‘PW2’ CHIEF
INSPECTOR STEVEN BILLY ADOM
The testimony of ‘PW2’ is that
he came to know the Plaintiff
when he and one other reported a
case at his station. He
identified 1st, 3rd
and 4th Defendants.
Emmanuel Ayitey and Prince Ahmed
respectively. He testified that
he was authorised to assist one
Chief Inspector Prosper Gbabo
and upon the said complaint the
1st Defendant was
arrested through police
intelligence. He further
testified that the subject
matter of the complaint was that
Defendant collected the sum of
about U$84,000.00 from the
Plaintiff and purported to sell
gold to Plaintiff which gold has
turned out to be fake.
42. He corroborated
substantially the testimony of
the Plaintiff with respect to
the circumstances under which
the Plaintiff came to know the 1st
Defendant and the other
Defendants which eventually
resulted in a transaction at
Kasoa referred to earlier in
this judgment as the second
transaction. Witness testified
that the corroborated accounts
of Plaintiff’s testimony was
gathered through police
informants and not from the
Plaintiff himself.
43. ‘PW2’ further testified
that when 1st
Defendant was arrested, he
admitted receiving the sum of
U$8,300.00 which represented
almost 10% of the total sum
Plaintiff lost in the two
transactions U$7,300 of which
sum was recovered by the police.
He further testified that at the
initial stages of the events
leading to this suit, 1st
Defendant had told police that
he never knew Prince Ahmed 3rd
Defendant but that it was the
Plaintiff who had requested him
1st Defendant to
assist him Plaintiff in
purchasing gold from Prince
Ahmed 3rd Defendant.
That 1st Defendant
mentioned Emmanuel Ayitey an ex
police officer (2nd
Defendant herein struck out from
the suit) who when arrested, had
stated that he was not part of
the transaction but was given
some money by one Adjei (5th
Defendant also struck out) to be
given to the 1st
Defendant. According to PW2 upon
the arrest of the persons named,
police caution statements were
taken from them.
44. In further testimony,
the witness said their
investigation revealed that 4th
Defendant (Adjei) was the
mastermind behind the two
transactions and that he set up
the 2nd Defendant
Prince Ahmed on the Plaintiff
with the motive of defrauding
Plaintiff. ‘PW2’ further
testified that investigations
revealed that when Prince Ahmed
(3rd Defendant)
collected the U$84,000.00 booty
on the second transaction he
handed same over to the 4th
Defendant presumably his boss
who effected the distribution.
To a further question under
examination in chief as follows:
“Q. Now you said you
arrested Godwin Fiadzo, what did
he say himself in respect of
this fraud issue.
A. My Lord according to him
it was the Plaintiff rather who
made him know Prince Ahmed. That
it was the Plaintiff who
directed Prince Ahmed to his
office.
Q. That is what
he told you?
A. Yes My
Lord. That is what he told us.
Q. But what did
your investigation reveal?
A. My Lord our
investigation disclosed that he
was part of them. And he even
directly engineered the
collection of money from the
complainant/Plaintiff”.
45. The ‘PW2’ further
testified that he saw the
objects supposed to be gold and
took them to Precious Minerals
Marketing Company Ltd. (PMMC).
Where it was tested and found
not to be gold. Witness tendered
in evidence four bars alleged to
be the material sold by the
Defendants to Plaintiff falsely
representing to Plaintiff as
gold and they were marked
Exhibits ‘C, C1 – C3’ as well as
the statement of one Alhaji
Nurudeen aka Yokegari Exhibit
‘D’ police caution statements
made by 1st Defendant
on 20/6/2007 and 12/10/2007
respectively admitted as
Exhibits ‘E and E1’ while police
statements by Prince Ahmed 3rd
Defendant was admitted as
Exhibit ‘F’ and that taken from
4th Defendant Adjei
admitted as Exhibit ‘G’. The
report of examination of
Exhibits ‘C, C1 – C3’ by the
PMMC was also tendered in
evidence as Exhibit ‘B’ the
contents of which clearly reveal
that Exhibits ‘C, C1 – C3’ donot
contain gold.
46. In further testimony
‘PW2’ stated that he had
received several calls from the
2nd Defendant about
the plans the Defendants’ have
about him but notwithstanding
that, investigations in the
criminal complaint had been
concluded and the suspects had
been put before the court.
47. Under cross examination
by Defendants’ counsel,
Plaintiff’s statement referred
to as complainant’s, statement
was tendered through ‘PW2’ as
Exhibit 1.
Under further cross examination
the following evidence was
elicited from ‘PW2’.
“Q. Chief Inspector Adom,
you can claim from these two
statements
(Plaintiff/Complainant’s
statements) that the Plaintiff
did not know Fiadzo 1st
Defendant anywhere until he came
to Accra on the direction of
SABAT (Plaintiff’s foreign
partner).
A. That is true
My Lord.
Q. You also gathered from
your investigations that it was
Prince Ahmed the 3rd
Defendant who saw the Plaintiff
in Togo and had discussion about
gold he wanted to buy from
Prince Ahmed?
A. My Lord,
investigations did not disclose
that.
Q. Your
investigations did not disclose
that?
A. Yes My Lord.
Q. I am putting it to you
that that is the state of
affairs in this court by way of
the evidence.
A. My Lord
investigations did not disclose
that.
Q. I am also putting it to
you that Fiadzo (1st
Defendant) did not know Prince
Ahmed until Plaintiff introduced
him as the one from whom he was
going to buy gold at Kasoa. That
is the statement.
A. My Lord that
is not correct.
Q. I am putting it to you
that the Plaintiff came in the
company of Alhaji Alidu a
knowledgeable person in gold and
at the time of the purchase of
the gold at Kasoa, he confirmed
that what they were buying was
clear gold.
A. My Lord, I have no
evidence as to that. I know that
the gold was tested by Fiadzo (1st
Defendant)”
48. Under further cross
examination, counsel for
Defendants requested ‘PW2’ to
read Exhibit ‘A’ in open court.
Upon the reading of Exhibit ‘A’
Defendants’ counsel questioned
‘PW2’ as follows:
“Q. I am putting it to
you that your attempt to
associate Godwin Fiadzo (1st
Defendant) with the sale of gold
by Ahmed (3rd
Defendant) is a figment of your
imagination.
A. That is not
correct my Lord.
………………………………………………………………………
Q. Now I am putting it to
you that Fiadzo (1st
Defendant) acted in good faith
and ……………….”
A. My Lord he did
not act in good faith.
Q. Now Prince Ahmed told
you that he sold gold to the
Plaintiff not so? He told you in
his statement.
A. That is so My
Lord.
Q. And he was
paid for it.
A. That is so My
Lord.
Q. Now I am putting it to
you that Plaintiff know what he
was buying that day. Because he
saw it, he tested it, he was
satisfied with it and paid for
it.
A. My Lord, that is not
true. The Plaintiff did not test
the gold. The gold was tested by
Mr. Fiadzo 1st
Defendant. But because the
Plaintiff was directed to see
him, he thought he was dealing
with a genuine man until it was
later proven that he was not.
Q. Mr. Adom I am also
minded to repeat that you are in
a fantasy of your own in
relation to this matter……………….”
A. My Lord that is not
true. I have conscience and I
will not appear before this
court and lie.
…………………………………………………………………..
Q. I am putting it to you
that it was Prince Ahmed who
sold his gold, got paid for it
and nothing else. And that is
the end of the matter.
A. My Lord to the best of
my knowledge and my conscience
nothing happened. He did not
sell any genuine gold to any
body”.
That sums up the content of the
cross – examination of ‘PW2’ by
Defendants’ counsel with respect
to matters relevant to the facts
in issue in this suit.
49. Now what is the object
of cross examination. In his
practice book “Practice and
Procedure in the Trial Courts
and Tribunals in Ghana” S. A.
Brobbey J.S.C. stated at
paragraph 1210 page 513 as
follows:
“The objects of cross
examination are twofold. First
it is to weaken or nullify the
opponents case and secondly, it
is to establish facts which are
favourable to the cross
examiner. In effect, cross
examination aims at testing the
accuracy of the witness’s
evidence and at giving the
witness the chance to deal with
the case of the cross examiner”.
50. In my view Defendants’
counsel in his cross examination
did not succeed in weakening the
Plaintiff’s case as supported by
the evidence of ‘PW2’ Chief
Inspector Adom. Nor did the
cross examination conducted put
across what in Defence counsel’s
opinion could have been the
reason for 1st
Defendant’s ability to make acid
readily available for testing
gold each time he volunteers a
test. It is in this context that
the evidence provided per
Exhibit ‘H’ becomes relevant and
weighty. In Exhibit ‘H’ it was
stated that 1st
Defendant had deliberately
diluted the acid he was carrying
in order to achieve an expected
result so as to earn his
commission. As observed earlier
neither the 1st
Defendant nor counsel denied the
contents of Exhibit ‘H’ when
they had the opportunity of
doing so during the trial
through their testimony in the
case of the 1st
Defendant or through cross
examination in the case of
Defendants’ counsel.
51. Throughout the cross
examination conducted by
Defendant’s counsel on ‘PW2’, I
donot find anywhere ‘PW2’ had
contradicted himself nor was his
evidence impeached in anyway. In
fact from the line of cross -
examination applied by counsel
for the Defendants, it is safe
to conclude that something
passed from the 3rd
Defendant Prince Ahmed to the
Plaintiff for a purchase price
of U$84,000.00 in the second
transaction at Kasoa. The
Defendants’ position is that,
that something is pure gold
because same was tested and
acknowledged by the Plaintiff
and his team of experts. The
Plaintiff and his witnesses
maintain that that which passed
was not pure gold and that not
only Prince Ahmed 3rd
Defendant but Godwin Fiadzo 1st
Defendant was part of a
syndicate which made false
representations to Plaintiff and
passed on fake gold products to
him for consideration.
52. What counsel for the
Defendants has not succeeded in
contradicting through the
Plaintiff and his witnesses is
the motive behind 1st
Defendant’s readiness to produce
his acid anytime testing was
required. It is difficult to
logically arrive at a finding
that 1st Defendant’s
carriage of his acid was merely
coincidental. If indeed it was,
then it would have been too
convenient to be believed.
53. My finding at the close
of the Plaintiff’s case is that
the Plaintiff and his witnesses
have succeeded in establishing a
case against the 1st,
3rd and 4th
Defendants in accordance with
the standard prescribed which I
have already set out earlier in
this judgment. The position of
the law has been more
appropriately captured in the
words of BROBBEY JSC in the case
of ADJETEY AGOSU & ORS. VRS.
KOTEY & ORS. [2003 – 2004] SCGLR
420 where the learned judge
stated thus:
“The effect of sections 11(4)
and 14 and similar sections in
the Evidence Decree 1975 may be
described as follows: A litigant
who is a Defendant in a civil
case does not need to prove
anything. The Plaintiff who took
the Defendant to court has to
prove what he claims he is
entitled to from the Defendant.
At the same time, if the court
has to make a determination of a
fact or of an issue, and that
determination depends on the
evaluation of facts and
evidence, the Defendant must
realize that the determination
cannot be made on nothing. If
the Defendant desires the
determination to be made in his
favour, then he has the duty to
help his own cause or case by
adducing before the court such
facts or evidence which will
induce the determination in his
favour………………………………..”
54. How did the Defendants
contest Plaintiff’s claim.
Having already evaluated the
evidence adduced in support of
the Plaintiff’s case and found
that based on the standard
prescribed by law, the Plaintiff
has established a case against
the Defendants, I shall now deal
with the evidence of the
Defendants.
55.
THE EVIDENCE OF 1ST
DEFENDANT GODWIN KWAME FIADZO.
The 1st Defendant
testified that he lives at
Madina Estate in Accra but runs
an office within the Kaneshie
Market Complex and is engaged in
the manufacture of a bleaching
solution. He confirmed the
Plaintiff’s testimony to the
extent that he knew Plaintiff
through a certain Ibrahim Sabat
a businessman who resides in the
United Kingdom who was
interested in purchasing gold in
Ghana. 1st Defendant
testified that he was the one
who informed Plaintiff that he
has some people known to him
through Ayitey (2nd
Defendant) who could supply the
gold required by the Plaintiff.
1st Defendant further
testified that he arranged with
a certain Teacher 5th
Defendant herein and that he
drove the Plaintiff to see 5th
Defendant on the specific events
which gave rise to the instant
action. 1st Defendant
further testified that on or
about 12th June 2007
he had another encounter with
the Plaintiff in the company of
‘PW1’ and one Abdul the latter
who had accompanied Plaintiff to
test and examine any gold the
Plaintiff would purchase. 1st
Defendant further testified that
he introduced the Plaintiff to
the sellers after which
Plaintiff met the sellers alone
to negotiate the price. 1st
Defendant stated that he was not
present during the first
transaction but was in his
office when he had a call that
the transaction had been
completed and that 8 kilograms
of gold was eventually melted
but the Plaintiff had funds to
pay for only 6 kilograms and so
he was asked to come
immediately. He admitted that
when he asked about the quality,
Plaintiff said he was not sure
of the quality but they wanted
to make immediate payment. He
testified that he brought acid
and poured same on the material
said to be gold. Claiming that
the acid was given to him by an
American friend since 1997.
56. From 1st
Defendant’s evidence, that
transaction fell through and was
abandoned but Plaintiff
subsequently came to his office
with Ahmed (3rd
Defendant herein) and introduced
him as his friend.
57. With respect to the
Kasoa transaction, 1st
Defendant’s testimony was that
he was in his office when
Plaintiff in the company of
‘PW1’ and another person came to
inform him that he was
interested in purchasing gold
from 3rd Defendant
and urged 1st
Defendant to accompany them to
Kasoa. He testified that at
Kasoa the said gold was brought
and was examined by he 1st
Defendant, Plaintiff’s gold
expert and the Plaintiff
himself. 1st
Defendant’s testimony was that
he was holding some acid which
was used in testing the material
and after satisfying themselves
the Plaintiff and his company
went out briefly and brought a
cash sum of U$84,000.00.
58. According to the 1st
Defendant the money was received
by 3rd Defendant
Prince Ahmed. The 1st
Defendant identified Exhibit ‘A’
which he described as an
undertaking that 20% of the
purchase price would be reduced
if it turned out that the
material said to be gold was not
up to the karat level ascribed
it. The 1st Defendant
identified his own writing on
the receipt adding that he wrote
the total cost because he wanted
everything to be clear that is
to say U$16,800.00 would be
reduced if it turned out that
the karat level of the material
was below 22.95. 1st
Defendant further testified that
the Plaintiff went with him to
his office and gave him U$100.00
and that on the third day 3rd
Defendant Prince Ahmed came to
give him commission of 10% on
the purchase price. It was
subsequent to this according to
the 1st Defendant
that the police came in and
retrieved the sum of U$7,200.00
from him. The 1st
Defendant denied substantially
all the statements of facts
attributed to him in the
Plaintiff’s statement of claim
as well as Plaintiff’s testimony
that it was the 1st
Defendant who demanded that
payment be effected at Kasoa.
59. Under cross examination
by Plaintiff’s counsel, 1st
Defendant admitted that before
he had a discussion with Sabat
in the United Kingdom he had not
known the Plaintiff from
anywhere. The 1st
Defendant denied that during the
discussion with Sabat he had
assured Sabat that he had some
gold for him. Under further
cross examination, 1st
Defendant testified that when
the said Sabat requested for
gold prices he went to the
Precious Mineral Marketing
Company Ltd. (PMMC) to ask for
the prices and was advised that
he could purchase the gold at
premium price so that Sabat
could purchase the gold in the
United Kingdom at which stage
the said Sabat mentioned
Plaintiff as his representative
and requested the 1st
Defendant to assist Plaintiff to
purchase the gold locally.
60. The encounter between
the Plaintiff’s counsel and 1st
Defendant during the course of
cross examination was a litany
of denials. From the evidence
adduced, during cross
examination, the 1st
Defendant’s position is that it
is the Plaintiff who introduced
3rd Defendant Ahmed
to him and not the other way
round. He also admitted that
whereas during the transaction
he was working in the interest
of the Plaintiff he nevertheless
received the sum of U$8,200.00
from 3rd Defendant on
the Kasoa transaction without
informing the Plaintiff in whose
interest he claimed he had been
acting.
This exchange between
Plaintiff’s counsel and 1st
Defendant was what was recorded
in evidence.
“Q. Now you told this court
that you were given U$8,200 that
is the money you were given?
A. Yes My Lord.
Q. And you said
it was given to you as a
commission?
A. Yes My Lord.
Q. What work did
you do?
A. My Lord, in gold
business, or any other business,
if you represent somebody or if
you work for somebody, either
the seller or the buyer gives
you commission at the end of it.
Q. Now you agree that in
this transaction if there is
anybody you were working for it
was the Plaintiff that you were
working for that is correct?
A. My Lord it is
partly correct, it is not fully
correct.
Q. Now you were part of the
team of the Plaintiff that went
to Kasoa to buy gold is that
also correct?
A. My Lord that
is correct.
Q. So everything you were
doing there it was in the
interest of the Plaintiff?
A. That is
correct.
Q. It has nothing to do
with the Defendants, it has
nothing to do with Prince Ahmed
or whoever accompanied you to
Kasoa
A. That is true”.
61. To my mind therein lies
the inconsistency in 1st
Defendant’s conduct throughout
the transactions giving rise to
this action. If the 1st
Defendant found wisdom to check
the price of gold from Precious
Mineral Marketing Co. Ltd. (PMMC)
and in the interest of the
Plaintiff he was working for,
some objects were placed before
him to test as to whether or not
it was gold, commonsense and
good motive would have expected
the 1st Defendant to
have insisted on an objective
test and not the testing he
embarked upon to the ultimate
disadvantage of the person he
was purporting to work for, but
to the unjustified advantage of
3rd Defendant and
other persons. It will obviously
not be logical to arrive at the
conclusion that 1st
Defendant was working in the
interest of the Plaintiff
contrary to the position he has
taken in his evidence that he
was.
62. In my view the test for
the quality of a product such as
gold not like tomatoes or onions
at Malata or Agbogbloshie
markets cannot and should not be
a subjective test by persons of
the status and level of the
Plaintiff and his company and
the Defendants, if good faith
and genuiness of transaction had
prevailed. The test ought to be
an objective test to be carried
out by a licensed assayer or an
institution equipped with the
expertise to do so such as the
Precious Mineral Marketing Co.
Ltd. (PMMC) 1st
Defendant himself had testified
he approached for advise on the
price of gold.
63. The defence put up by
Defendants that Plaintiff and
his Alhaji Alidu acknowledged
the positive test he 1st
Defendant carried out is most
untenable. There is evidence
from ‘PW2’ per Exhibit ‘B’ that
when the PMMC carried out a test
on the materials sold to the
Plaintiff as gold the result was
negative. Counsel for the
Defendants did not cross examine
the ‘PW2’ on that evidence which
is a crucial and the Plaintiff
therefore need not adduce
further evidence on that fact.
It follows logically therefore
that counsel for the Defendants
by implication accepted the
result of the test carried out
by the PMMC Exhibit ‘B’ on the
material sold to the Plaintiff
said to be gold.
In the case of IN RE ASHALLEY
BOTWE LANDS [2003 – 2004] SCGLR
420 Wood JSC (now Chief Justice)
in her lead opinion cited with
approval the case of MANTEY &
ANOR VRS. BOTWE [1989 – 90] 1GLR
479 and restated the principle
of law when a witness’s
testimony is not challenged
under cross examination. That
rule already quoted in paragraph
25 of this judgment as follows:
“………..where a party’s testimony
of a material fact was not
challenged under cross
examination, the rule of implied
admission for failure to deny by
cross examination would be
applicable and the party need
not call further evidence on
that fact”.
apply to the nature of the
evidence adduced by the
Defendants and the cross
examination adopted by their
counsel at the trial.
64. I have critically
examined the Defendants
pleadings and the evidence
adduced at the trial. There are
no facts pleaded nor evidence
adduced alluding to the fact
that Exhibits ‘C’, C1 – C3
tendered in evidence by ‘PW2’
representing the gold purported
to have been sold to the
Plaintiff was not what was
actually sold to the Plaintiff.
If that position ought to be
inferred from the evidence at
all, from the cross examination
conducted by the Defendants’
counsel and the evidence of 3rd
and 4th Defendants,
it is of such crucial importance
that it ought to have been
specifically pleaded and
evidence adduced on same to the
effect that what has been
tendered is not what was sold.
Defendants therefore carried the
burden of establishing same and
therefore in the absence of any
such pleaded facts and evidence,
I find that the evidence of
‘PW2’ with respect to exhibits
‘C, C1 – C3’ stood unchallenged
and I shall on that basis
determine issues (i) and (ii) in
favour of the Plaintiff.
65. In arriving at my
finding and determination of
issues i and ii set out in the
issues for determination post
pre-trial, I have examined and
evaluated the evidence of 3rd
Defendant. He has in his
evidence confirmed the sale and
insists that Plaintiff rather
owes him the sum of U$7,000.00
presumably the outstanding
balance for 6½ kilograms
Plaintiff is supposed to pay.
66. With respect to the 4th
Defendant he described himself
as a cement dealer but denies
knowing any of the Defendants
before the transactions giving
rise to the suit. He denied
Plaintiff’s claim against him
adding that he does not know
anything about the transactions.
Save these general denials the 4th
Defendant did not specifically
attack the evidence of the
Plaintiff and ‘PW3’ linking him
as an associate of the 1st
Defendant and other Defendants
in this suit nor did he in his
testimony state his own version
of the circumstances which
linked him to the other
Defendants. He struck me as an
unconvincing witness who adopted
a position as if to suggest the
less you say the lower the risk
of committing yourself. One may
ask if the 4th
Defendant was not involved in
the transactions how did he come
to know that 1st
Defendant diluted his acid as he
stated in Exhibit ‘H’. In the
end, 4th Defendant’s
evidence failed to contradict
evidence sufficiently adduced by
the Plaintiff and his witnesses
associating him with the
circumstances under which
Plaintiff suffered loss in the
quantum claimed. It was Ollenu
JA (as he then was) who said in
KYIAFI VRS. WONO [1967] GLR 463
of the conduct of witnesses with
respect to credibility as
follows:
“The question of impressiveness
and convincingness are products
of credibility and veracity. A
court becomes convinced,
impressed or unimpressed with
oral evidence according to the
opinion it forms of the veracity
of witnesses ……………………………”
67. From my observation of
all three 1st, 3rd
and 4th Defendants
who testified for themselves at
this trial, I am not convinced
that they are credible witnesses
worthy of belief. I am of the
view that the 1st
Defendant had acted
treacherously pretending all
along to be acting in the
interest of the Plaintiff
knowing very well that his
conduct throughout the
transactions was ill motivated
and to that extent he was
remunerated by 3rd
Defendant for his services. He
found the Plaintiff a cheap
victim of their scam as naïve in
all the circumstances and almost
certainly stupid in believing
that genuine gold is available
for him to purchase at Kasoa.
68. It is on the strength of
this conclusion which I have
arrived at based on the evidence
before me and the application of
the law, that I find for the
Plaintiff in terms of issue 3
set out for determination and
hold that Plaintiff is entitled
to recovery of the sum of
U$87,300.00 from the 1st,
3rd and 4th
Defendants jointly and severally
with interest thereon as per the
endorsement in the statement of
claim.
69. I shall award costs of
GH¢15,000.00 in favour of the
Plaintiff against the 1st,
3rd and 4th
Defendants jointly and
severally.
(SGD.)
JUSTICE I. O.
TANKO AMADU
JUSTICE OF THE HIGH COURT
FAUSTELL COFIE ESQ. WITH STEVE
GRAY ESQ.
(FOR THE PLAINTIFF)
K. ADJEI – LARTEY ESQ.
(FOR THE 1ST, 3RD
& 4TH DEFENDANTS)
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