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JUDGMENT:
Roland Randy Glean, Plaintiff
herein, has sued William Owusu
for the following:
“a. Payment of the amount of
USD 15,000.00
b. Interest on USD15,000 at
the prevailing rate in the U.S.
from 15th April 2008
till date of final Judgment.
c.
Legal
fees, collection charged, Court
Cost and travel, if necessary
for any proceeding in Ghana
pursuant to the collection of
this debt.
By his pleadings and the
evidence led, the Plaintiff’s
case is that he met Defendant
about twelve (12) years ago as a
student in the United States of
America (hereinafter referred to
as the “US”), and adopted him as
a little brother and helped him
through school. The Plaintiff
is an American and a College
Professor in Constitutional Law
in the US. Mr. Owusu (the
Defendant herein) requested for
a loan of $10,000.00 from the
Plaintiff to use to help advance
some course that he was
embarking upon in Ghana. It is
Plaintiff’s case that because of
the statutory limit for
international transfers,
Plaintiff sent Defendant $9,900
by wire transfer from his bank
account. A few months later,
Defendant requested for an
additional $5,500 which
Plaintiff again sent to him
through a similar bank transfer.
According to the Plaintiff, the
Defendant stated on his own
accord in the agreement between
the parties (exhibit “A”) that
he was going to pay interest of
10% over 90 a day period for the
loan. Subsequently, after the
Defendant failed to pay off the
debt, the parties herein signed
another agreement (exhibit
“B”). Pursuant to this
agreement, the Defendant issued
seven (7) cheques to the
Plaintiff, but only the first
two cheques went through.
The history of this case is that
the Defendant entered
Conditional Appearance and went
to sleep. Defendant only filed a
Statement of Defence after
Plaintiff had applied to the
Court for Judgement in Default
of Defence. Counsel for
Defendant was first served with
hearing notice on 12th
November, 2010 for the trial to
commence on 24th
November 2010, but failed to
appear. Hearing was however
adjourned to the 16th
of December 2010 on the request
of Counsel for Plaintiff, to
allow Plaintiff make the
necessary arrangements to travel
down to Ghana to lead evidence.
Counsel for Defendant was again
served with hearing notice but
neither the Defendant nor his
Counsel appeared in Court for
the trial.
A letter from Counsel for
Defendant dated 13th
December, 2010 was brought to
the attention of the Court on
the 16th of December
2010, but after the trial. In
the said letter, Counsel was
requesting for an adjournment to
a date in February, 2011 to
enable Counsel establish contact
with Defendant to take
instructions from him. In the
opinion of the court, this is
not a case in which the Court
ought to grant the request by
Counsel for an adjournment.
Equity does not aid the
indolent, but the vigilant.
My hand is further strengthened
by the spirit behind the new
High Court (Civil Procedures)
Rules, 2004, C.I.47. Order 1
(2) provides as follows:
“ These Rules shall be
interpreted and applied as to
achieve speedy and effective
justice, avoid delays and
unnecessary expense, and ensure
that as far as possible, all
matters in dispute between
parties may be completely,
effectively and finally
determined and multiplicity of
proceedings concerning any of
such matters avoided”.
Particularly, it is common
knowledge that the objective of
the Commercial Court is to
offer speedy, effective and
efficient delivery of justice in
Commercial disputes, in order to
promote investments, trade,
commerce and other economic
activities in the country. The
Court, as much as possible is to
work strictly according to time
schedule and no delays are to be
tolerated. In my opinion, the
reason given by Counsel for
seeking an adjournment is not
one that is good enough to be
taken as an exception to the
rule.
In view of all the above,
together with the fact that
Plaintiff is not ordinarily
resident in Ghana; he lives in
the US, and he travelled to
Ghana purposely for the trial
and was scheduled to return to
the U.S. on the 17th
of December, 2010, the Court
denied the request of Counsel
for Defendant, and hence this
Judgment.
From his pleadings, Defendant
did not deny that he received a
total amount of USD14, 900.00
from the Plaintiff; he however
denied that the interest was
agreed at a rate of 10% or at
all. His main defence was that
both parties were ordinarily
resident in the US and that the
transaction took place in the
U.S. and therefore the Court was
not a convenient forum for an
adjudication of the instant
suit. Plaintiff however denied
this and stated in his Reply
that Defendant was ordinarily
resident in Ghana and to further
prove this point, Defendant had
stated his address in the
agreement (exhibit “A”) as C-2
Manet Palms Estate, East Legon
Ext., Accra, Ghana.
As stated above, exhibit “A” is
the agreement between the
parties herein. Plaintiff’s
evidence was that exhibit “A”
was prepared by Defendant in his
own handwriting. Also, from
Plaintiff’s evidence Defendant
was resident in Ghana at the
time the transaction took
place. Plaintiff’s further
evidence was that Defendant
however maintained a bank
account in the US and therefore
the monies in question were
transferred into that account.
Plaintiff also testified that
Defendant defaulted in repayment
of the facilities given to him
and pretended to be involved in
some problem which had resulted
in his arrest while attempting
to enter the U.S. Plaintiff
however found him in Ghana when
Plaintiff decided to come down
himself. The parties then
signed exhibit “B” in which the
parties agreed to a total sum
due to Plaintiff of
US$22,379.00.
By the provisions of section 21
(b) ( i) of the Evidence Decree,
1975 (NRCD 323) a judge may find
that the evidence of the party
with the right to begin has so
effectively established the
basic facts that a reasonable
mind must necessarily conclude
that their existence is more
probable than their
non-existence. Where this
situation arises, the judge has
to find that the resulting
presumed facts have been
established, that is, a prima
facie case has been established
in favour of the plaintiff or
the person on whom lies the
burden of persuasion.
The Supreme Court, per Brobbey
JSC, in the Case of In Re:
Ashalley Botwe Lands: Adjetey
Agbosu & Ors v. Kotey & Ors
(2003- 2004) SCGLR 420,
reiterated the position of the
law that it is the duty of the
Plaintiff who took the Defendant
to Court to prove what he claims
he is entitled to from the
Defendant. However, if the
court has to make a
determination of a fact or of an
issue and that determination
depends on evaluation of facts
and evidence, the Defendant must
realise that the determination
cannot be made on nothing. If
the Defendant deserves 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 that will
induce the determination to be
made in his favour. The Supreme
Court pointed out that the
logical sequel to this is that
if he leads no such facts or
evidence, the Court will be left
with no choice but to evaluate
the entire case on the basis of
the evidence before the Court,
which may turn out to be only
the evidence of the Plaintiff.
If the Court chooses to believe
the only evidence on record, the
Plaintiff may win and the
Defendant may lose.
In my opinion, the Plaintiff led
credible and cogent evidence to
prove his case, and I believe
him. I will therefore give
Judgment in favour of the
Plaintiff on the four corners of
his evidence. I will
accordingly hold that Plaintiff
is entitled to payment of the
amount of US$15,000.00 or its
cedi equivalent at the
prevailing Forex Bureau Selling
Rate as declared by the Bank of
Ghana on the date of payment.
The Plaintiff is also seeking
interest at the prevailing rate
in the US from 15th
April 2008 till date of final
judgment.
The basis for an award in
foreign currency was stated by
Adade, Ag C.J in Royal Dutch
Airlines (KLM) v Farmex Ltd
[1989-90] 2 GLR 623 as
follows:
“As will be observed, the
damages were given in sterling.
The Defendants say that it was
wrong for the court to have
ordered payment in sterling. I
find this argument over the unit
of account the least attractive.
As explained above, the £23,800
has two components: the value of
the goods, and the freight
charges. Mr McCluskey, for the
second defendants, says that the
freight was prepaid in sterling.
If this is to be refunded, why
should the defendants seek to do
it in any currency other than
sterling? Isn’t the commonsense
view of the matter simply this:
that the defendants should
return the freight in the
currency in which it was paid?
Is equality no longer equity?”
The learned Judge stated further
as follows:
“ All these, totalling £23,800,
would have been money in the
hands of the plaintiffs for the
purposes of their business, and
would have been used to generate
more income. The prospect of
making more money with the
£23,800, or otherwise benefiting
from it, is the justification of
the award of interest.”
The Plaintiff is claiming
interest at the prevailing rate
in the US where he lives, and I
will award interest on the
amount of US$15,000.00 at the
prevailing US rate from 1st
April 2008 until date of final
judgment. Plaintiff is however
advised to be mindful of and
comply with exchange control
regulations of Ghana.
Plaintiff is also seeking an
order for legal fees, collection
charged, court cost, and travel
fee, but did not give any
evidence to assist the Court
make such order. I will
therefore find that Plaintiff is
not entitled to the said reliefs.
I shall award Costs of GH¢5,000
in favour of Plaintiff
(SGD)
BARBARA
ACKAH-YENSU (J)
JUSTICE OF THE HIGH COURT
COUNSEL
KENNETH
KOKJORDZIE
- PLAINTIFF
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