Ackah v Pergah Transport Ltd. and Others [2007] GHACA 14 (13 December 2007)

Material Facts:

The plaintiff-respondent, hereafter the respondent, instituted an action for declaration of title to house no. plot 642 East Legon Accra. He alleged that on the advice of one Mr. Thompson, the former managing director of SG SSB Bank, he agreed with the 2 ^nd defendant-appellant to buy the house offered to him by SG SSB Bank in the name of the 1 ^st defendant-appellant, Pergah Transport Ltd, to increase the company’s assets and consequently enable it to win a bid from the Ghana Commercial Bank, after which the house would be transferred back to him.

These claims were refuted by the 1 ^st and 2 ^nd defendant-appellants. Per the 2nd defendant-appellant, the Managing Director of Pergah Transport Ltd, there was no such agreement with the respondent because the house was offered to her and she only sought financial assistance from the respondent, who offered to help the 2nd Appellant pay for the house.

At trial, the respondent did not call Mr. Thompson to testify on his behalf.

Issue:

Whether or not the respondent successfully discharged the burden of proving his allegations of the agreement between himself and the 1 ^st and 2 ^nd defendant-appellants.

Holding:

The respondent has not successfully discharged the burden of proving his allegations.

Ratio Decidendi:

In the present case, the issues that were fundamental to the determination of the dispute on who holds title to the house were:

1. Whether the offer to purchase the house was made to the respondent.
2. Whether the 2 ^nd defendant-appellant had agreed with the respondent that the house be purchased in the name of the respondent to improve its asset base.
3. Whether it was agreed between the respondent and the 2^nd-defendant-appellant that the house will be transferred back to the respondent after it won the bid.
4. Whether the respondent merely gave a loan to the defendant-appellants to purchase the house.

Issues one to three were issues because of the pleadings and allegations of the respondent. Consequently, and in discussing who has the burden of proof, the court said:

The onus of proof at the trial on issues 1 to 3 was on the Respondent to discharge whilst that of issue 4 was on the Appellants. Issues 1 to 3 above formed the core of the dispute and it was the duty of the respondent to lead credible evidence to prove them, since the law ordinary is that he who alleges has the burden to prove.

The question is whether the respondent has discharged this burden. It is obvious that Mr. Thompson was deeply involved in the present dispute, as he is the one claimed to have suggested that the respondent purchase the house to boost the assets of the 1st defendant-appellant and facilitated the agreement between the respondent and the 2nd appellant. However, the respondent failed to call Mr. Thompson, and this failure amounted to failing to discharge the burden of proof on him. The court delivered itself as follows:

On examination of the evidence, the Respondent needed to call Mr. Thomson to corroborate his evidence. Indeed Mr. Thompson in this suit was a very material witness for the Respondent and taking into account his evidence some of which has been reproduced above in this judgment the failure of the Respondent in calling the said Mr. Thompson was fatal to the discharge of the evidential burden he assumed in the trial. Indeed the law is well settled in Majolagbe V. Larbi & Anor. 1959 1GLR 190, that where evidence is capable of positive proof it must so proved and a mere repetition of the evidence on oath without more does not discharge the burden of proof required in law

From the evidence on record I find that the claim by the Respondent that the offer was made to him first and that he agreed with the 2nd Appellant that the property will be purchased by him in the name of 1st Appellant to boost the corporate value of 1st Appellant and then later transferred back to the Respondent were all capable of positive proof had the Respondent called Mr. P. K. Thompson to testify as he attempted by the filing of the subpoena. The Respondent therefore failed to adduce credible evidence in law to establish his claim over his eventual ownership of the house and I am satisfied that from the record there is no credible evidence to support the judgment declaring the Respondent owner of the house in dispute.

Principles in Case:

He who alleges has the burden of proof.

Comment:

In Section 11(1) of the Evidence Degree, 1975 (NRCD 323) , the burden of producing evidence is defined as “the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue.” Since issues 1 to 3 were issues that would have resulted in the respondent succeeding in the suit if they were resolved in his favour, he had the obligation to introduce sufficient evidence to avoid a ruling against him. He failed to discharge this obligation when he failed to get Mr. Thompson to testify for him, and he consequently had the issues resolved against him.