IN THE SUPERIOR COURT OF JUDICATURE
IN THE SUPREME COURT
ACCRA – A.D.2026
CORAM: PWAMANG JSC (PRESIDING)
GAEWU JSC
ADJEI-FRIMPONG JSC
DZAMEFE JSC
AMALEBOBA JSC
CIVIL APPEAL
NO: J4/45/2025
28TH JANUARY, 2026
NANA ABENA OFORI ….… PLAINTIFF/RESPONDENT/APPELLANT
VRS
SARAH BUAHIN (NEE OKLE) ……. DEFENDANT/APPELLANT/ RESPONDENT
TRADING UNDER THE NAME
AND STYLE JANE BIGGLES
BOUTIQUE
JUDGMENT
GAEWU, JSC:-
My lord, this is an appeal against the judgment of the Court of Appeal dated 5th April 2023 which reversed the judgment of the High Court dated 8th May 2019. In this judgment, the plaintiff/respondent/appellant, shall be known as the “plaintiff” and the defendant/ appellant/respondent shall be referred to as the “defendant”.
BACKGROUND
On 21st March 2017, the plaintiff issued a writ of summons and accompanying statement of claim against the defendant. The reliefs endorsed on the Writ of Summons are as follows:
a) Recovery of the sum of £40,760.00 being defendant’s indebtedness on the pounds sterling component of plaintiff’s investment in defendant’s business as of 1st May 2001
b) Interest on the said £40,760.00 at the prevailing interest rate from 2nd May 2001 till date of final payment.
c) Recovery of the sum of US$9,584.58 being defendant’s indebtedness to plaintiff on the dollar component of plaintiff’s investment in defendant’s business as of 19th July 2015
d) Interest on the said US$9,584.58 at the prevailing bank rate from 20th July 2015 up to date of final payment.
By a further amended statement of claim filed on 17th of April 2018, it is the case of the plaintiff that flowing from the then existing business relationship with the defendant, she advanced to the defendant the sum of
a) £1,100.00 on or about 10th April 1999,
b) £2,080.00 on or about 8th September 1999
c) US$1,400.00 on or about 20th April 1999.
According to the plaintiff, the above sums were advanced to the defendant as investment in the defendant’s business. It is the plaintiff’s case further that, the defendant offered to pay a margin of 50% as returns on the investment every two months. However, according to the plaintiff, the defendant reneged to make the payment as agreed but rather made scattered and minimal payments which caused the plaintiff to lose the value of her investment in the defendant’s business.
According to the plaintiff, in the years following, the defendant made several payments to the plaintiff totalling £5,080.00 on the pound’s sterling component advanced to the defendant whilst on the dollar component, the defendant has paid plaintiff US$8,615.42 over the years with the last payment effected on 19th July 2015. It is the plaintiff’s case that after making numerous demands on the defendant, the defendant offered to pay the plaintiff the sum of US$10,000.00 as settlement. However, the plaintiff rejected the offer. And subsequently the plaintiff instituted this action against the defendant claiming the reliefs above.
In her amended statement of defence filed on the 28th of May 2018, the defendant admitted that she was a businesswoman operating an upscale and profitable boutique in Accra and identified the plaintiff as a family friend whom she had known for many years. The defendant avers that in the year 1998, the plaintiff approached her with merchandise the plaintiff proposed to sell to the defendant. The defendant said she explained to the plaintiff that she preferred to purchase her own goods from very reputable suppliers, but she considered the relationship between them and decided to purchase the goods from the plaintiff. The defendant adds that the goods were purchased outright and the plaintiff was paid immediately for the goods.
It is the defendant’s case also that sometime in 1999, the plaintiff once again approached the defendant with a proposal that the defendant sell for her in the defendant ‘s boutique some items which the plaintiff had again purchased. At this meeting, the defendant said she declined to purchase more goods from the plaintiff and explained that to be assured of the quality of her stock, she (defendant), only sold items she purchased herself. As an alternative, the defendant then made a proposal to the plaintiff, in which, she, the defendant, would procure merchandise on plaintiff’s behalf which will be sold, and the proceeds thereof will be paid to the plaintiff as and when sales were made. According to the defendant, she made a proposal to purchase items on the plaintiff’s behalf solely based on the close relationship with the plaintiff and the fact that the plaintiff and her husband were at the time facing some financial difficulties.
According to the defendant, the plaintiff accepted the defendant’s proposal and following which the plaintiff gave the defendant a total sum of £3,180.00 and US$1,400.00 for the purchase of shoes to be sold on behalf of the plaintiff in the defendant’s boutique. According to the defendant, in the latter part of the year 1999, she travelled to the United Kingdom during which trip she procured the shoes on plaintiff’s behalf as agreed. It is the defendant’s case further that when she returned to Ghana in December 1999, she at the plaintiff’s request, started selling the merchandise purchased with the plaintiff’s money. However, according to the defendant, the sale of the plaintiff’s shoes moved at a slow pace and as such were affected by fashion change which was beyond her control. She said despite the slow movement in the sale of the plaintiff’s shoes, the defendant made as many as 20 payments to the plaintiff over the course of ten (10) years. And that these payments were the proceeds of the sale of some of the shoes purchased for the plaintiff. The last payment to the plaintiff was made in January 2009.
The defendant states further that she paid a total sum of US$9,280.00 comprising the sums of £580 pounds and US$8,410 to the plaintiff. The defendant maintains that these payments were with respect to the sale of the plaintiff’s shoes and not the payment of returns as alleged by the plaintiff. The defendant also added that per the terms of the arrangement between the parties, all proceeds from the sale of the shoes were paid to the plaintiff and as such the defendant has not made any margins for herself on the plaintiff’s goods. According to the defendant, over the years, not all the plaintiff’s merchandise were purchased and thus, after making a last payment to the plaintiff in January 2009, she invited the plaintiff to collect the remaining shoes with the hope that the plaintiff could sell them herself. The plaintiff collected the few remaining shoes after which their arrangement came to an end.
It is the defendant’s case therefore that after the arrangement between the parties ended, the plaintiff made several demands for payment both in person and through her lawyers, however, the defendant having given all monies owed to the plaintiff did not capitulate to these demands and never gave any assurances that she would. In subsequent meetings between the parties, the defendant maintains that all monies owed to the plaintiff had been paid to her and avers that the plaintiff, thus, not entitled to the reliefs claimed by her in her writ of summons and further amended statement of claim.
At the end of the pleadings, the following issues were set down as the issues for trial:
1. Whether or not the plaintiff advanced the defendant the following sums as investment:
a) £1,100 .00 on or about 10th April 1999.
b) £2,080.00 on or about September 1999.
c) US$1,400.00 on or about 20th April 1999.
2. Whether or not the defendant offered to pay the plaintiff a margin of 50% (fifty percent) as returns on the investment every two months
3. Whether or not the defendant purchased items to be sold on the plaintiff’s behalf.
4. Whether or not the plaintiff received proceeds for the sale of items purchased and sold on her behalf.
5. Whether or not the plaintiff is entitled to her reliefs.
At the trial, the parties testified by themselves, and the plaintiff called one Addo Atua, his brother, and a lawyer, as PW 1. However, the defendant did not call any witness. The following documents were tendered as exhibits by the parties to prove their respective cases and to resolve the issues set down for the trial. The exhibits are:
1. Exhibit A – Demand Notice by the plaintiff’s lawyers dated 5th
December 2016.
2. Exhibit 1 – a letter from the Head of Projects (SSNIT) titled “Release of keys to tenants” dated 18th July 1996 tendered by the defendant.
At the end of the trial, the learned trial judge entered judgment in favour of the plaintiff and stated as follows:
“…I find that on the dollar component, the defendant has paid the plaintiff the amount of $8,615.42, while on the pounds sterling component, defendant has paid £580.00. Considering the parties arrangement of 50% every two months, these payments over a ten-year period, 1999 – 2009, certainly do not mark up to the expected return by simple arithmetic.
From the foregoing, based on evidence adduced and on the balance of probability, I enter judgment in favour of the plaintiff for the recovery of the amount of £40,760.00 and US$9,584.58 [or their cedi equivalent].
For both amounts, I order interest at the prevailing bank rate from 20th July 2015 till date of final payment”.
JUDGMENT OF THE COURT OF APPEAL
The defendant dissatisfied with the judgment of the High Court, appealed to the Court of Appeal. By an amended Notice of Appeal, the following grounds were set out in the Notice of Appeal:
i) The learned trial judge erred when he found that the defendant/ appellant offered to pay the plaintiff/respondent fifty percent (50%) as returns on investment, every two (2) months.
Particulars of error
a) There were no record showing the purported offer.
b) Neither was there any record showing the payment of 50%
every two months on any given sum as returns on investment.
ii) The learned trial judge erred in law when he granted the plaintiff/ respondent’s relief for the recovery of £4,760.00 (four thousand, seven hundred and sixty pounds) and interest.
Particulars of Error
a) There was no need as alleged by the plaintiff/respondent evidencing the debt of £4,760.00 (four thousand, seven hundred and sixty pounds
b) That the relief of £4,760.00 (four thousand, seven hundred and sixty pounds) on the face of the endorsement, had been caught by the statute of limitation
iii) The learned trial judge erred in law when he ignored the corroborative evidence of the plaintiff/respondent’s witness which affirmed the case of the defendant/appellant.
Particulars of Error
a) The trial judge failed to accept the corroborative testimony of
the plaintiff/respondent’s witness that the arrangement between the plaintiff/respondent and defendant/appellant was not an investment.
b) The learned trial judge accepted the uncorroborated evidence
of the plaintiff/respondent on the issue of her alleged investment in the defendant/appellant’s business, without providing any reason or explanation for his preference of the uncorroborated testimony.
iii) The judgment is against the weight of evidence.
The Court of Appeal in well considered decision, which was unanimous, upheld the defendant’s appeal in the following terms:
“It is our view that the appellant’s case that the money was proffered to purchase merchandise for sale in the boutique is more probable than the respondent’s assertion of investment in the business. As a result, we find that the trial judge in the face of the lack of evidence in respect of the investment that the respondent has claimed to have made in the appellant’s business, ought to have dismissed her case.
In view of this, we reverse the findings made by the trial judge and enter judgment for the appellant”.
APPEAL TO THE SUPREME COURT
On 2nd May 2023, the plaintiff filed a Notice of Appeal to the Supreme Court against the decision of the Court of Appeal on the following grounds:
i) The judgment is against the weight of evidence
ii) The court erred when it held that the plaintiff/appellant has failed to discharge the burden of persuasion and evidential burden.
iii) Further grounds to be filed upon receipt of the records.
The plaintiff prayed the Court to set aside the judgment of the Court of Appeal and enter judgment in favour of the plaintiff for the reliefs endorsed on the writ of summons.
EVALUATION OF THE GROUNDS OF APPEAL
In the Statement of Case filed for and on behalf of the plaintiff by her counsel, the counsel proposed to argue the two grounds together as no further grounds of appeal had been filed. The two grounds as stated earlier are:
i) The judgment is against the weight of evidence
ii) The court erred when it held that the plaintiff/appellant has failed to discharge the burden of persuasion and evidential burden.
However, before proceeding to evaluate and analyse the two grounds, we shall first and foremost determine the attack by counsel for the defendant in the statement of case filed that the plaintiff’s second ground of appeal sins against the rules of the court and ought to be struck out. To the defendant, the said ground offends the rules in its failure to set out the particulars regarding the error and in its use of the word “when” in the formulation of the grounds which renders it argumentative.
Counsel refers to the case of Sandema Nab v. Asangalisa [1996-1997] SCGLR 307 where this Court held that:
“Now it must be appreciated that an appeal is a creature of statute… Where a right of appeal is conferred as of right, or with special leave, the right is to be exercised within the four corners of the statute and the relevant procedural regulations, as the court will not have jurisdiction to grant deviations outside the parameters of the statute”.
Counsel submits that the appellant’s Ground 2 as set out (the court erred when it held that the plaintiff/respondent/appellant had failed to discharge the burden of persuasion and the evidential burden), offends Rules 6(2)(f), and 6(4) of the Supreme Court Rules, 1996 (CI 16) which govern appeals before this court and exposes it to the sanctions enacted in Rule 6(5). These Rules provide that:
6(2): A notice of civil appeal shall set forth the grounds of appeal and shall state: (a) the address for service of the appellant; (b) whether the whole or part of the decision of the Court below is complained of, and in the latter case, the part complained of; (c), the nature of the reliefs sought; (d) the name and address of counsel for the appellant, which address shall be an address for service; (e) the names and addresses of the parties affected by the appeal; and (f) the particulars of a misdirection or an error in law, if that is alleged.
6(4) The grounds of appeal shall set out concisely and under distinct heads the grounds on which the appellant intends to rely at the hearing of the appeal, without an argument or a narrative and shall be numbered seriatim and where a ground of appeal is one of law, the appellant shall indicate the stage of the proceedings at which it was first raised.
6(5) A ground of appeal which is vague or general in terms or does not disclose a reasonable ground of appeal is not permitted, except the general ground that the judgment is against the weight of evidence and a ground of appeal or a part of it which is not permitted under this rule, may be struck out by the court on its own motion or on an application by the respondent.
There is no denying the fact that the plaintiff’s Ground 2 as set out in the Notice of Appeal shows that there is alleged error and which error is rooted in law but was not particularised as demanded by Rule 6(2)(f) of CI 16.
In the case of Nunoofio v. Farmers Services Co. Ltd [2007-2008] SCGLR 926, this court speaking through Wood, JSC, (as she then was), stated at page 931 of the Report as follows:
“Not only does the ground of appeal as formulated offend Rule 6(5) of CI 16, but no particulars of the errors of law in particular are provided again in flagrant disregard of the rules of court. This flagrant violation of the Court Rules, which are intended for good reason to be obeyed to the latter must not be encouraged”.
Counsel for the defendant further argued that in the formulation of the Ground 2, the plaintiff used the word “when”, which word renders the formulation of the ground argumentative, and in breach of Rule 6(4) of CI 16.
Counsel refers to the case of National Labour Commission v. First Atlantic Bank Ltd [2019-2020] 2 SC LRG 385 (Adaare) where this Court speaking through Kulendi, JSC, at page 407 stated as follows:
“We have carefully studied the appellant’s grounds of appeal and come to the conclusion that whilst the first, third and fourth grounds are argumentative in their formulation, by the manner of the use of the word “when”, which, in the circumstances, by necessary implication, is an introduction of argumentation in the grounds of appeal, the second ground of appeal is not. This is more so when the appellant fails under the first ground of appeal, to set out the particulars, details, specifics and/or elements of the impropriety in invoking and/or exercising the Court of Appeal’s jurisdiction under Section 65(5) of the Labour Act, 2003 (Act 651). Similarly, the appellant fails to particularise or set out the details, elements, specifics, or nature of the errors allegedly committed by the Court of Appeal with respect to its award of redundancy pay under the third ground of appeal and/or with respect to the award of interest under the fourth ground of the appeal. Consequently, the first, third and fourth grounds of appeal all sin against Rule 6(4) and (5) of CI 16, for want of particulars, coupled with the introduction of argumentation. We, accordingly, strike out the first, third and fourth grounds of appeal. In this regard, see the earlier judgment of this court in Margaret Achiampong v. Obaapayin Aba Yaa (Subst. Foraraba Adamwoma) & Ors. [2019-2020] 2 SC LRG 542, where this court, per Agnes Dodzie, JSC, observed while striking out the offending ground of appeal in that case under Rules 6(4) and (5) of CI 16 that: ‘the ground in my view is argumentative and narrative. Above all, it failed to particularise errors of law alleged… Accordingly, the said grounds which are in violation of the rules of this court will be struck out for non-compliance’”.
Counsel for the plaintiff did not respond to the preliminary objection of the formulation of Ground 2 by way of a reply. However, since it is a legal objection, we shall deal with it.
As a matter of fact, the plaintiff did not provide the details, elements, specifics, or nature of the errors allegedly committed by the Court of Appeal and particulars for the plaintiff’s contention that the Court of Appeal erred when it held that the appellant failed to discharge the burden of persuasion and the evidential burden. We also find as a fact that the plaintiff’s use of the word “when” rendered the same ground 2 argumentative.
Accordingly, we find ground 2 as having sinned and in violation of Rules 6 (4) and (5) of CI 16 and we accordingly strike it out for non-compliance with the rules of court.
In the circumstances, having struck out the second ground of appeal as sinning against the rule of court, the only ground of appeal left, which we must consider is the first ground of appeal, that is, Ground (a), which we now proceed to address.
The Plaintiff’s complaint under this ground of appeal is that: “the judgment is against the weight of the evidence”. This ground is what is recognized and permitted in the rules of court in civil appeals as the general ground that the appeal is against the weight of evidence or the omnibus ground of appeal that the judgment is against the weight of evidence.
It is trite that an appeal is by way of rehearing and more especially where an appellant in his notice of appeal complains that the judgment is against the weight of evidence. In that case, he is indicating that there were certain pieces of evidence on record which, if applied in his favour, could have changed the decision arrived at by the court in his favour, or that, certain other pieces of evidence have been wrongly applied against him. However, the duty is cast on such an appellant to demonstrate to the appellate court the lapses clearly and properly he has identified in the judgment being appealed against…. See Djin v. Musah Baako [2007-2008] SCGLR 686; Tuakwa v. Bosom [2001-2002] SCGLR 61.
The legal principle is that when an appeal is based on the omnibus ground that the judgment is against the weight of evidence, both factual and legal arguments could be made where the legal arguments would help advance or facilitate a determination of the factual matters in contention. In Offei v. Asamoah & Anor. [2017-2018] SCGLR 417 @ pp 422-423, this court speaking through Appau, JSC (as he then was) explained this principle of law as follows:
“…the defendants’` ground that the judgment of the Court of Appeal was against the weight of evidence adduced at the trial indicts the whole judgment of the Court of Appeal but only that part that dismissed defendants` counterclaim. Accordingly, this Court is mandated by law, to consider the totality of the evidence on record to enable it come to its own conclusion as to whether or not the findings (both legal and factual), which the two lower courts made on the crucial issues before them, including the question of capacity, were properly made.
In the recent case of Owusu- Domena v. Amoah [2015-2016] 1 SCGLR 790, this Court explained further its earlier decision in Tuakwa v. Bosom (supra) when it held: “the sole ground of appeal that the judgment is against the weight of evidence, throws up the case for fresh consideration of all the facts and law by the appellate court”. Benin, JSC speaking for the Court at page799 of the report stated as follows: “We are aware of this court`s decision in Tuakwa v. Bosom [2001-2002] SCGLR 61 on what the court is expected to do when the ground of appeal is that the judgment is against the weight of evidence. The decision in Tuakwa v. Bosom, has erroneously been cited as laying down the law that, when an appeal is based on the ground that the judgment is against the weight of evidence, then, only matters of fact may be addressed upon. Sometimes, a decision or a fact depends on what the law is on the point or issue. And even the process of finding out whether a party has discharged the burden of persuasion or producing evidence is a matter of law. Thus, when the appeal is based on the omnibus ground that the judgment is against the weight of evidence, both factual and legal arguments could be made where the legal arguments would help advance or facilitate a determination of the factual matters”. His Lordship referred to the decision of this Court in Attorney-General v. Faroe Atlantic Co. Ltd. [2005-2006] SCGLR 271@ p.306 per Wood, JSC (as she then was) for support.
These recent decisions of this court referred to supra appear to have punched holes in the Court`s earlier decision in Brown v. Quarshigah [2003-2004] 2 SCGLR 930 @ p. 932, which was premised on the dictum of Osei-Hwere, J in Nkrumah v. Ataa [1972] 2 GLR 13 @ p. 18 that a party who gave notice that he intended to rely solely on the omnibus ground should not be permitted to argue points of law. Whilst the omnibus ground empowers the Court to consider in general the correctness or otherwise (both legal and factual) of the judgment or decision appealed against, Rule 23(3) of the rules of this Court [C. I. 16] on the general powers of the Court in the determination of civil appeals, equips the Court with authority to make any order that the Court considers necessary for determining the real issue or question in controversy between the parties. Again, Rule 6, sub-rule 7(b) of [C. I. 16] obliges the Court not to confine itself to the grounds set forth by the appellant in the notice of appeal when deciding an appeal. It again permits the Court to rest its decision, where necessary, on a ground not set forth by the appellant in his/her notice of appeal subject to the consideration that where the Court intends to rest its decision on a ground not set forth by the appellant, or on a matter not argued before it, the parties should be afforded reasonable opportunity to address the Court on that ground or matter – Rule 6 sub-rule (8) and Ankumah v. City Investments Co. Ltd. [2007-2008] 2 SCGLR 1064 @ 1065. The only exception to this rule is that where the party against whom the point is taken can have no legal or satisfactory answer if given the opportunity to reply, the Court needs not comply with the provision of rule 6(7) (b) – Akuffo-Addo v. Catheline (supra) and Tindana (No.) v. Chief of Defence Staff & Attorney-General [2011] SCGLR 732 @736”.
Based on the above authorities, we now proceed to determine from the record of proceedings, the main issue(s) in contention between the parties. In the plaintiff’s further amended statement of claim, filed pursuant to leave, the plaintiff deposed at paragraphs 3, 4 and 5 as follows:
3. Plaintiff flowing from the then existing business relationship with the defendant, advanced to the defendant the following sums as investment:
a) £1,100.00 advanced on or about 10-4-1999.
b). £2,080.00 advanced on or about 8-9-1999.
c). US$1,400.00 advanced on or about 20-4-1999.
4. Defendant offered and plaintiff accepted that defendant will pay plaintiff a margin of 50% as returns on the investments every two months.
5. The amounts were duly applied by defendant in her business operations.
The defendant in her amended statement of defence pursuant to leave, averred in paragraphs 4, 5 and 6 as follows:
4. Paragraphs 3, 4 and 5 of the plaintiff’s statement of claim are denied.
5. The defendant in further answer to paragraphs 3, 4 and 5 of the statement of claim says that, though she accepted the sums referred to by the plaintiff, the said money was neither a loan nor price of shares in the defendant’s business, but price of goods procured for sale on the plaintiff’s behalf.
6. In continuation of the immediately preceding paragraph, the defendant says that the falsity of the plaintiff’s allegation lies in the fact defendant’s business is not one which has a gestation period of two (2) months for margins to be realised every two months.
From the above pleadings, the parties have agreed to the quantum of monies paid to the defendant by the plaintiff in 1999. They have also agreed that the total amount of money that passed from the plaintiff to the defendant are as stated in paragraph 3 of the further amended statement of claim. However, what had been the bone of contention between the parties were whether the monies advanced by the plaintiff to the defendant were advanced as investment in perpetuity in defendant’s business and for a 50% margin as returns on the said investments every two months or were monies delivered to the defendant for her assistance to procure goods on behalf of the plaintiff and to sell same on her behalf and turn over the proceeds to the plaintiff.
Clearly, the defendant by the pleadings and evidence admitted that she has received the amounts of money stated by the plaintiff but disagreed with the plaintiff as to the nature of the advancement. Thus, whereas the plaintiff maintains that the advancement was “investment” in perpetuity in the defendant’s business, it is the defendant’s case that the advancement was simply for assistance for the procurement of goods on plaintiff’s behalf by the defendant to be sold on the plaintiff’s behalf, the proceeds of which sale would be given to the plaintiff. The defendant has therefore denied the plaintiff’s assertion.
The trite position of the law is that a party who raises an issue essential to the success of his case, assumes the burden of proof. In Bank of West Africa Ltd v. Ackun [1963] 1 GLR 176, it was held as follows:
“the party who in his pleadings raises an issue essential to the success of his case assumes the burden of proof”.
And in the case of Benyak Co. Ltd. v. Paytell Ltd & Ors. [2013-2014] 2 SCGLR 917, this court held that:
“… in all civil cases where the plaintiff’s averments are denied, the onus of proof fall squarely on him”
The trite position of the law on the burden of proof which has also been stated in several authorities is that “a person who makes an averment or assertion which is denied by his opponent has a burden to establish that his 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 discharge his 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”. See Zabrama v. Segbedzi [1991] 2 GLR 221 per Kpegah, JSC (as he then was).
In the instant case, it is the plaintiff who has raised the issue that the monies advanced were investment in the defendant’s business and which was to attract a 50% returns every two months which was denied by the defendant. The plaintiff, therefore, had the onus of proving this issue.
In the plaintiff’s amended witness statement filed on 5th June 2018, she repeated at paragraphs 4, 5, 6 and 7, her assertions made in the further amended statement of claim paragraphs 3, 4 and 5 are as follows:
“ 4. On the account of the business relationship I had with the defendant, I advanced to defendant on or about 10-2-1999, the sum of one thousand, one hundred pounds sterling (£1,100.00) investment in defendant’s business.
5. On or about 8-9-1999 and 12-9-1999, I further advanced to defendant by way of further investment in her business the sum of two thousand and eighty pounds (£2,080.00)
6. I once again advanced the sum of one thousand, four hundred United States dollars (US$1,400.00) by way of additional investment in her business on 20-9-1999.
7. The agreement we reached was for the defendant to pay to me a margin of fifty percent (50%) as returns on the investment every two (2) months.
The above pieces of evidence contained in the amended witness statement of the plaintiff was adopted as the total evidence in chief for the trial and the plaintiff testified under cross-examination as follows:
Q. On what date was this arrangement to end?
A. We did not put any date.
Q. Is it thus your case that the defendant was to pay you in perpetuity?
A. Yes, as long as she runs her business.
Q. Could you kindly show us if you have it (sic) documentation
covering this alleged investment?
A. She wrote on a piece of paper the amount of monies that I
invested, so I have it in her own handwriting.
Q. Can you kindly show in your witness statement where you have attached this so-called evidence?
A. I have it in my car, it is not attached to the statement.
Q. I put it to you that there is no such evidence, and that if there were, you would have attached it to either your amended witness statement or your supplementary statement?
A. I do have it. If the court would give me a few minutes I can go and get it from the car.
Q. So you claim that you invested in the defendant’s business in the year 1999, is that not so?
A. Yes, I did.
Q. And can (sic) take a look at paragraph 7 of your amended witness statement, you will agree with me that under the said paragraph, you claim that the defendant was to pay you a margin of 50% as returns on your investment?
A. Yes.
Q. Can you show the court evidence that you have that (sic) the defendant was to pay you this alleged margin?
A. I do not have it.
From the record of proceedings, the plaintiff failed, refused and/or neglected to tender the piece of paper she claimed was in her possession. Thus, the piece of paper indicating that the monies were advanced as investment in defendant’s business was never exhibited in plaintiff’s witness statement nor was it collected from the car where she testified that it was. Neither did she amend her witness statement to attach it nor tendered it through her witness who testified after her.
In the case of Feroe Atlantic v. Attorney General [2006] 1 GMLR 1, this court held that:
“Proof in law is the establishment of fact by proper means. Where a party makes an averment capable of proof in some positive way, e.g., by producing documents, … he does not prove it by merely going into the witness box and repeating that averment on oath, or having it repeated on oath by his witnesses. He proves it by producing other evidence of facts and circumstances, from which the court can be satisfied that what he avers is true”. See also the case of Klah v. Phoenix Insurance Co. Ltd [2012] 2 SCGLR 1139
The plaintiff’s further case that she entered into an agreement with the defendant which agreement entitled her to a 50% margin of return on the investment every two months for as long as the defendant runs her business, no witness was also called apart from the plaintiff’s own brother who she called to corroborate her assertion. The evidence of the only witness called by the plaintiff rather evidentially corroborated the evidence of the defendant’s case. The said witness by name Addo Atuah, (PW 1), at page 72 of the record of proceedings volume 1, testified for the plaintiff under cross-examination, as follows:
Q. The plaintiff is your sister?
A. That is so.
Q. How long have you known the defendant in this matter?
A. I am not in the position to say exactly how long I have known the
defendant but I believe that roughly it should span over a 20-year period.
Q. How long has your sister, that is the plaintiff and the defendant being friends?
A. I cannot give a definite time period but there again, I can say that it could be well over 12 years.
Q. Kindly take a look at paragraph 3 of your witness statement?
A. Yes.
Q. In this paragraph, you state that it came to your attention that there was a disagreement between your sister and the defendant over repayment of some monies that your sister had given to the defendant, is that not so?
A. That is so.
Q. Do you know the terms under which the plaintiff gave this money to the defendant?
A. It came to my attention that monies were to be advanced by the plaintiff to the defendant for the purchase of various clothing and after sale of the items, the principal sums were to have been repaid inclusive of profit on the transaction.
The above pieces of evidence of PW 1 under cross-examination did not establish the existence of any agreement between the parties for a 50% margin of return on investment by the plaintiff if the defendant runs her business. Rather, the answer of the witness shows assistance as contended by the defendant but not an investment as claimed by the plaintiff. Clearly, PW 1’s evidence rather supported and corroborated the assertion of the defendant.
The clear position of the law is that where an adversary has admitted the fact advantageous to the cause of a party, the party does not need any better evidence of estoppel by conduct. It is a rule whereby a party is precluded from denying the existence of some state of facts formally asserted. That type of proof is salutary of evidence based on common sense and expediency – See In Re: Asere Stool: Nikoi Olai Amontia IV (substituted by Nii Tafo Amon II) v. Akortia Oworsika III (substituted by Laryea Ayiku III) [2005-2006] SCGLR 637 per Dr. Twum, JSC (as he then was).
The plaintiff from the record of appeal clearly failed to prove her averment of investment in defendant’s business which investment was to attract a 50% margin of returns every two months.
As noted earlier in this judgment, the plaintiff also tendered and relied on Exhibit A, which is a Demand Notice by the plaintiff’s lawyers dated 5th December 2016. And in the plaintiff’s statement of case filed on her behalf by counsel, the counsel argued at page 23 as follows:
“My Lord, in this case the plaintiff has been very consistent with her rendition of what the terms of payment were. Long before coming to court, she had served three (3) Demand Letters from her solicitors on the defendant. Then the last such Demand letter was from Davies & Davis, Exhibit A. This letter clearly spelt out the terms of payment of Dividends. The Defendant received that Demand Letters but never contested the agreed terms of the contract as stated in the Demand Letters. In fact, My Lord, no evidence was led by the Defendant to suggest that over the years, she ever challenged plaintiff’s position that plaintiff was to be paid 50% on her investment every two (2) months. The Court of Appeal says this does not matter. How can it not matter when it portrays prior consistent conduct of the parties”.
We have copiously read the demand notice, Exhibit A, appearing at page 25 of the record of proceedings, volume 1, and find as misconceived the argument of counsel for the plaintiff. The simple reason is that by the plaintiff’s own showing after the service of the demand notices, attempts were made to settle the matter, but the settlement failed as the defendant at paragraphs 12, 13, 14 and 15 of the amended statement of defence has denied the claims of the plaintiff. Why then would the plaintiff contend that the demand notices constitute proof of the supposed agreement that was reached with the defendant.
The Court of Appeal in its erudite judgment, on the demand notices, in our view was right when it held as follows:
“With all the amendments to the witness statement of the respondent, if such a crucial document existed it would definitely have been produced in evidence but not just a demand letter that the appellant treated with disdain as not befitting of a simple response. The reasonable inference that ought to have been drawn by the trial court, should have been that the allegation of the investment and 50% profit every two months to be paid ad infinitum was not proved by the respondent…. respondent only went into the witness box to repeat those claims she had made in her pleadings not backed by any evidence. The trial judge unfortunately took it for granted that the respondent had established her case or was under the impression the burden was on the appellant to disprove the claims of the respondent. For this is further evinced by some startling claims made by the trial judge at page 154 of the record in his judgment that the appellant having received monies for the purchase of the goods it did ‘not lie in the defendant’s mouth to state that sales for plaintiff’s goods were slow and they were also affected by fashion change…’. Please see pages 83 – 84 of the record of appeal volume 1.
We have clearly noted in this case that there has been no evidence at all to support the very specific and fundamental assertion that form the basis of the plaintiff’s claim that the agreement was that the defendant was bound to pay the plaintiff a 50% margin of return on investment every two months for as long as the defendant runs her business.
It is therefore no wonder in the plaintiff’s written submission filed on her behalf, reference was made to “payment of dividend” as if the business that the defendant ran was a shareholding company. And due to the clear lack of documentary evidence of such an agreement and in the absence of any corroborating testimony, whatever pronouncement the trial court made in concluding that the margin of 50% was an investment could only be an inference not justified by the pieces of evidence that were put before the court.
We agree with the legal submissions by learned counsel for the defendant that the record of appeal does not show any evidence of the existence of the payment of the margin of 50% on investment every two months or the chronology of payment as “interest” as testified to by the plaintiff or as “dividend payment” as described by counsel in his written address.
We also agree with counsel for the defendant in his submission that the plaintiff’s own witness never corroborated her story of investment that entitled her to 50% return on investment every two months. The witness’s testimony rather affirmed and confirmed the case of assistance to the plaintiff by the defendant whereby the defendant procured goods to be sold for plaintiff by the defendant and for the cost and profit thereof to be paid over to her by the defendant.
Again in this appeal, counsel for plaintiff contends and argues that this is a matter of oath against oath. We reject this contention and argument and as rightly in our opinion submitted by counsel for the defendant, this is not supported by the circumstances in this case.
That where there exists evidence that is probative of a particular claim and the party in whose custody that piece of evidence is, but fails to submit that piece of evidence before the court, the party cannot fall back on the principle of oath against oath to justify her failure to produce evidence to substantiate her claim. In any case, where the appellant called a witness, it is inappropriate for it to be described as oath against oath. It is even worse when the testimony of a witness of a party corroborates the story of her opponent, and this is exactly what happened when the plaintiff’s witness who is her brother testified for her.
From the foregoing, we agree with the evaluation of the Court of Appeal that resulted in the setting aside of the High Court judgment and we are of the opinion that same must not be disturbed as same is consistent with the finding of the Court of Appeal that the plaintiff failed to discharge the burden of proof placed on her.
In effect, we find merit in the decision of the Court of Appeal dated 5th April 2023 as sound in both oral and documentary evidence adduced before it and affirm it in its entirety. We accordingly dismiss the appeal.
(SGD.) E. Y. GAEWU
(JUSTICE OF THE SUPREME COURT)
(SGD.) G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
(SGD.) R. ADJEI-FRIMPONG
(JUSTICE OF THE SUPREME COURT)
(SGD.) S. DZAMEFE
(JUSTICE OF THE SUPREME COURT)
(SGD.) H. AMALEBOBA
(JUSTICE OF THE SUPREME COURT)
COUNSEL
BRIGHT OKYERE AGYEKUM ESQ. WITH HIM FRANCIS OSEI BONSU ESQ. FOR THE PLAINTIFF/RESPONDENT/APPELLANT.
JUSTICE KUSI-MINKA PREMO ESQ. FOR THE DEFENDANT/APPELLANT/
RESPONDENT WITH HIM FRANK ASAMOAH AND KERVIN TETTEY ASHONG ESQ.
