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JUDGMENT:
Faustina Appiah (Plaintiff
herein) has sued Cecilia Duodu
for the following reliefs:
“a. A recovery of £12,109.84
being an outstanding debt that
the Defendant owes to Plaintiff
in repayment of Barclays loan in
UK.
b. Interest on £12,109.84 from
2008 to the final date of
payment .
c. Costs.
d. Any further reliefs
or orders.”
The Plaintiff’s case is that she
got to know the Defendant in
1998 through a friend and that
was the time she had been
prematurely retired from
employment due to ill health.
According to the Plaintiff, in
1999 the Defendant requested
from her for financial
assistance but she could not
provide her that because she was
not working and was just living
on benefit. The Defendant then
implored Plaintiff to speak to
her bankers to offer her a loan
to enable the Defendant support
her business. Upon persistent
requests from the Defendant,
Plaintiff applied for a special
type of loan from the Barclays
Bank in the United Kingdom known
as “Barclayloan Protection” in
her own name but for the
Defendant. The Defendant agreed
and accepted the loan and the
conditions attached to it which
were; loan amount of £13,700 at
11.9% interest payable within 84
months from 2000 to 2007.
Plaintiff states that she was
then ill and could not exercise
full control over her mind but
trusted the Defendant and
applied for the loan for her.
Plaintiff was granted the
facility; the principal together
with the cumulative interest
amounted to £25,662.84. The
loan was to be repaid within 84
months at monthly instalments of
£305.51. After giving the
Defendant the money, the
Plaintiff says she never heard
from her again until five months
later, when the Defendant sent
her daughter to make the first
payment. The Defendant reneged
on her promise and made
irregular and inconsistent
payments, and by the time the
writ was issued the Defendant
was indebted to the Plaintiff to
the tune of £12,109.84.
The Defendant, on the other
hand, denies that Plaintiff took
any Barclays Bank loan for her
and also that she accepted any
conditions attached to any
loan. She admits to receiving a
loan of £13,700 from the
Plaintiff and that she was to
pay back to the Plaintiff the
said amount together with
interest of £305 per month
within 84 months bringing the
total payable amount to
£25,620. Defendant contends
that contrary to the claim of
the Plaintiff she made regular
payments to the Plaintiff
through her friend Nora and the
Defendant’s daughter Sylvia
Kesewaa Duodu who is resident in
the UK. She contends further
that she has paid the entire
principal amount together with
the interest to the Plaintiff.
The issues set down for
determination are as follows:
i.
Whether or not Plaintiff took
Barclayloan for Defendant
ii.
Whether or not Defendant is
still indebted to Plaintiff for
the amount claimed on her writ.
iii.
Whether or not Defendant has
finished paying her indebtedness
to Plaintiff
iv.
Whether or not Plaintiff is
entitled to her claim
v.
Any other issues arising from
the pleadings
It is trite law that for every
case there is a burden of proof
to be discharged and the party
who bears the burden will be
determined by the nature and
circumstances of the case; see
sections 10 – 17 of our Evidence
Decree 1976 (NRCD 323). There is
no paucity of case law
interpreting these provisions.
In Ababio v Akwasi 111 [1994-95]
Ghana Bar Report, Part 11, 74
the court stated that a party
whose pleadings raise an issue
essential to the success of the
case assumes the burden of
proving such issue. Reference is
also made to the cases of
Takoradi Flour Mills v Samir
Faris [2005-06] SCGLR 882 and Re
Ashalley Botwe Lands: Adjetey
Agbosu & Ors v Kotey & Ors
[2003-04] SCGLR 420 which
further elucidate the burden of
proof as statutorily provided.
As stated by Justice
Mensa-Boison JA, in the case of
Acquaye v Awotwi [1982-83] 2 GLR
110, the testimony of a
plaintiff is presumptive
evidence which is rebuttable.
The well-known rule of evidence
is that although proof in a
civil case rested on the
plaintiff, that burden was
discharged once the plaintiff
had introduced sufficient
evidence of the probability of
his case. It would then rest on
the defendant to rebut the
plaintiff’s evidence.
I shall now take the issues set
down and make determinations
from the evidence placed before
the Court.
Whether or not Plaintiff took
Barclayloan for Defendant.
The Plaintiff adduced evidence
through her Lawful Attorney,
Akwasi Appiah, and his evidence
was that the Defendant was
introduced to the Plaintiff by a
friend called Auntie Nora. At
the time, the Plaintiff was ill
and had retired from work, and
was at home. A year after the
Plaintiff struck acquaintance
with the Defendant, the
Defendant approached the
Plaintiff for financial
assistance to enable her boost
her business. The Plaintiff
told Defendant that because of
her condition then, she was not
in the position to assist her.
The Defendant persisted with her
plea and suggested that if the
Plaintiff could consult her
bankers to grant the Plaintiff a
facility she was prepared to
accept any conditions attached
to the facility.
This is what Mr. Appiah said:
Q: So what did
the Plaintiff do?
A: Eventually my
sister approached her bankers
and spoke
with them.
Q: Do you know
the name of the bank of your
sister?
A: Barclays Bank
UK.
Q: Do you have a documents
in respect of this loan
facility?
A: Yes my Lord I have
documents to that effect.
The said documents were tendered
in evidence by Mr. Appiah as
Exhibits “B”, “B1”, “B2” and
“B3”. Exhibit “B” is a letter
from Barclays Insurance (Dublin)
Limited and Barclays Assurance
(Dublin) Limited in which the
Plaintiff’s application for
“Barclayloan Protection” was
accepted, and to which letter
the Plaintiff’s Policy
Certificate was attached.
Exhibits “B1” – “B3” are
Plaintiff’s Statements of its
Barclays Bank Account.
The Defendant herself testified,
and her evidence was that she
did not approach the Plaintiff
for financial assistance; it was
rather the Plaintiff who offered
to give her a loan which was a
facility that the Plaintiff said
the bank was giving her.
Defendant however conceded that
the Plaintiff obtained the
Barclayloan which she gave to
her (Defendant) as a loan. This
is what she said:
Q: Did you personally asked
financial assistance from the
plaintiff?
A: I never asked her of a
loan it was on her own free will
that she came to inform me that
the bank was giving loan.
Q: I suggest to you that
you personally asked for
financial assistance from the
plaintiff.
A: that is not
true.
Q: You told this court that
she later got Barclays bank loan
from you is that not so?
A: Yes my lord.
Q: And you
accepted the loan.
A: Yes my lord.
Q: Can you tell the Court
some of the conditions relating
to this loan?
A: The conditions were that
I paid the loan to the bank plus
interest.
Q: when did you start
paying the principal or the
instalments?
A: the loan was given to me
February, year 2000 and I
started paying the following
month.
Nowhere on Exhibit “B” is it
stated that the loan was taken
on behalf of the Defendant
Nonetheless, as stated above,
the Defendant herself conceded
that the Plaintiff obtained the
loan for her. Her contention
was that she did not request for
it; it was Plaintiff who offered
the facility to her. I will
therefore find that the
Plaintiff took the Barclayloan
and gave it to Defendant.
I shall now look at issues (2),
(3) and (4) together; namely:
2. Whether or not Defendant
is still indebted to Plaintiff
for the amount claimed on
her writ;
3. Whether or not
Defendant has finished paying
her
indebtedness to Plaintiff; and
4. Whether or not
Plaintiff is entitled to her
claim.
The Plaintiff is claiming that
Defendant is indebted to her in
the sum of £12,109.84. To
support this claim, Mr. Appiah
(Plaintiff’s Lawful Attorney)
tendered in evidence (Exhibit
“C” and “C1”), photocopies of
handwritten statement of the
Defendant’s account. Mr Appiah
also said that some of the
payments were made by the
Defendant herself who signed any
time she made the payments, and
some of the payments were made
by Defendant’s daughter and a
certain Sister Nora, a friend to
the parties. His further
evidence was that Defendant
issued a cheque for £500 in 2009
(Exhibit “D”) which the
Defendant asked the Plaintiff to
hold unto until she gave the go
ahead for the cheque to be
presented to the bank. But the
Plaintiff did not hear from the
Defendant as a result of which
Plaintiff filed the instant
suit.
The above mentioned Auntie Nora
(Nora Dowuona Hammond),P.W.1,
testified at the trial, and her
testimony was that she knew the
Defendant as a friend to the
Plaintiff; she first met the
Defendant in the Plaintiff’s
house in London in the year
2003. Her further evidence was
that in 2005 Plaintiff fell ill
and she came to Ghana for
medical attention. Plaintiff
left a book for her to be
recording payments made by the
Defendant. Auntie Nora was to
pay the monies into the
Plaintiff’s bank account.
According to Auntie Nora,
Defendant made monthly payments
to her, and when the Defendant
could not come herself, her
daughter (Nana) made the
payments. It was her further
evidence that on one occasion,
she gave the record book to the
Defendant to look through and
Plaintiff was very angry with
her that she had done so. She
said that the Plaintiff took
over upon her return to London.
The Defendant, as I have already
stated, testified at the trial.
She denied that she owed
Plaintiff the amount being
claimed. She contended that some
of the money she paid was not
recorded by Plaintiff. A
statement of payments made by
her (Defendant) was tendered in
evidence as Exhibit “CE1”.
According to the said statement
the total payment made by the
Defendant is £25,663.00.
So, did the Plaintiff adduce
sufficient evidence to discharge
the burden of proof on her? Let
me state here that I did not
find the Plaintiff’s Attorney,
Mr Appiah, to be a credible
witness. Firstly he testified
that the Plaintiff met the
Defendant through Auntie Nora
(P.W.1). The unchallenged
evidence of the Defendant was
that she met Plaintiff through a
certain Bernice. It was also
obvious from Auntie Nora’s
evidence that Plaintiff did not
meet Defendant through her.
Under cross-examination, Mr
Appiah said he did not know that
a certain Ofori had also made
payments to Plaintiff on behalf
of the Defendant, even though
this was reflected in Exhibits
“C” and “C1”. From the statement
tendered in evidence, Exhibits
“C” and “C1”, the total amount
paid by the Defendant is stated
to be £1,500, and yet Mr
Appiah’s evidence was that
Defendant paid £1,200 through
Auntie Nora. And this is the
person who testified as
Plaintiff’s Attorney.
But more importantly, the
undisputed evidence before the
Court is that all payments made
by Defendant were recorded in a
certain book kept by the
Plaintiff. For some strange
reason the Plaintiff did not
want the Defendant to see this
book to enable her do a
reconciliation of the payments
she had made. Indeed, the
unchallenged evidence of Auntie
Nora was that the Plaintiff got
angry with her when she showed
the book to the Defendant. The
Defendant’s evidence, which was
not challenged, was that when
the Defendant tried to get the
Plaintiff’s Pastor to intervene
and the Pastor asked Plaintiff
to bring the book so they could
do a reconciliation of accounts,
she refused to go for the
meeting and even stopped
attending that church. Stranger
still is the fact that Plaintiff
did not place this book before
the Court in support of her
case.
In my opinion, since the
Defendant did not deny the
existence of this book and the
fact that payments made by her
and on her behalf were entered
into this book, this book would
have been sufficient evidence of
payments made by the Defendant.
The said book is a material
document that could have enabled
the Court to determine on the
balance of probabilities whether
or not the Defendant owed the
Plaintiff the amount being
claimed. In my opinion, neither
Exhibits “C” and “C1”, nor
Exhibit “CE1” is credible or
cogent evidence of the payments
made by the Defendant, or the
indebtedness of the Defendant.
As I stated earlier, the
position of the law is that the
duty or obligation of providing
evidence was on the party
against whom a ruling on that
issue would be given if he
failed to lead sufficient
evidence; section 11 (1) and (4)
of the Evidence Decree, 1975
(NRCD 323). See also Duah v
Yorkwa [1993-94]1 GLR 217 at
219. Since in the instant case
the Plaintiff who initiated the
action relied on Exhibit “C” and
“C1” while the Defendant relied
on Exhibit “CE1” as the basis of
their respective claims, the
Plaintiff had the duty or
obligation to have produced such
evidence as would have led the
Court to conclude that the
existence of the debt was more
probable that its non-existence,
but she failed to do so.
The Plaintiff however was able
to prove that even after the
period for repayment of the
facility, which Defendant
testified was 2007 – 2008,
Defendant issued a cheque for an
amount of £500 in 2009 (Exhibit
“D”), which Plaintiff never
presented to the bank, and thus
has never been paid to the
Plaintiff. It seems to me
unlikely that a person who has
finished paying her debt in 2008
would issue this cheque in 2009.
As I stated, this cheque has
still not been paid. In my
opinion, it is more likely than
not that the Defendant is still
indebted to the Plaintiff.
It is also the position of the
law that the burden of producing
evidence in any given case is
not fixed, but shifts from party
to party at various stages of
the trial, depending on the
issue(s) asserted and /or
denied; see In Re Ashalley Botwe
Lands; Adjetey Agbosu and Others
v Kotey and Others (supra). The
Defendant herein did not lead
any evidence to rebut this piece
of evidence with regard to the
cheque for £500. The Defendant
denied owing Plaintiff at all,
and tendered in evidence a
statement of account prepared by
herself; Exhibit “CE1”. This is
a self serving document and has
no probative value.
In conclusion, I will find that
the Plaintiff has proved that it
is more probable than not that
the Defendant has not finished
paying the debt owed to the
Plaintiff, but Plaintiff has not
proved that the Defendant is
indebted to her in the amount
being claimed, and I will so
hold. Plaintiff is therefore not
entitled to her claim and I will
dismiss same.
Costs assessed at GH¢2,000
against the Plaintiff.
(SGD)
BARBARA ACKAH-YENSU (J)
JUSTICE OF THE HIGH COURT
COUNSEL
ASAMOAH AMOAKO
- PLAINTIFF
HUBERT SEVOR
- DEFENDANT
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