Wednesday, November 30, 2016
ALFRED WOYOME v TRIUMPHANT GLOBAL MINISTRIES & REV. ABRAHAM AIYELABOWO [16/12/2005] SUIT NO. AC 109/2004.
IN THE HIGH COURT OF JUSTICE, GHANA (FAST TRACK DIVISION), HELD IN ACCRA ON FRIDAY 16TH DECEMBER 2005 BEFORE HIS LORDSHIP YAW APPAU, J.
SUIT NO. AC 109/2004
TRIUMPHANT GLOBAL MINISTRIES & ANOTHER
The plaintiff who said he was a businessman living at Tesano brought this action against his former church (the 1st defendant) of which he used to be a Deacon and its Head Pastor (the 2nd defendant), requesting for the immediate re-payment of monies he said he advanced to the defendants as loans.
These monies, as endorsed on the writ of summons dated 18/6/2004 are: (a) ¢620,720,000.00 and (b) US$5,000. Plaintiff requested for immediate repayment with interest from 9th August 2003 to date of payment.
His pleaded case was that he was a member of the 1st defendant church and a Deacon of the church until his purported removal from the position of a Deacon by the 2nd defendant who is the head pastor of the 1st defendant church. While a member of the church, he made several personal donations to the church to ensure that the activities of the church were not hampered by lack of funds. He again advanced loans to the defendants without interest anytime defendants were in need of money. He particularized the loans he said he advanced to the defendants under paragraphs 9, 10 and 11 of his statement of claim filed together with the writ on 18/6/2004. According to him, the total of all these monies granted to the defendants as loans came to ¢620,720,000.00 and US$5,000.
He prayed the court to grant him judgment since the defendants have ignored all demands made by him for the repayment of the loans.
The 2nd defendant represented the 1st defendant. In their statement of defence filed on 27/7/2004, the defendants categorically denied plaintiff's claim. They denied that the plaintiff ever granted loans to the defendants to the tune of ¢620,750,000.00 and US$5,000 or to any tune and demanded strict proof of this allegation by the plaintiff.
According to them, when the plaintiff became a member of the church he, like all other members, contributed financially to the programmes and activities of the church by way of gifts, donations, offertory and tithing. They described the plaintiff as someone who was always ready to top up monies collected by way of appeal for funds for specific projects as a way of expressing his appreciation for God's bountiful blessing upon his life.
However, at a point in time, plaintiff and others attempted to remove the 2nd defendant as the head pastor of the church and when that failed, he resorted to this court action as a last resort. They described the plaintiff's action as an afterthought and one brought in bad faith and called for its dismissal.
The main issues that came up for determination by the court were as follows:
1. Whether or not the plaintiff ever granted loans to the defendants to enable the defendants carry out programmes of the church.
2. Whether or not those monies given to the 1st defendant by the plaintiff was in appreciation of Gods bountiful blessings upon his life.
3. Whether or not the plaintiff is entitled to his claim or any of the reliefs endorsed thereon.
The plaintiff testified and called three witnesses. Two of the witnesses (i.e. P.W.1 and P.W.2 by name Pastor Asomaning and Pastor Newman) were former pastors of the 1st defendant church who have left the church just like the plaintiff and established their own or joined other churches while the third (i.e. P.W.3) who is a Liberian refugee in Ghana said he used to be an accounts officer and administrator of the church but now a pastor. P.W.3, however, did not tell the court how he became a pastor and the particular church in which he is a pastor.
The defendants, on the other hand, testified through the 2nd defendant but called no witness.
It is a notorious principle of law that he who asserts must prove. This simply means that a plaintiff who comes to court to make an assertion or to put up a claim against a defendant must lead satisfactory evidence to prove that claim. The onus to establish his claim lies on him and him alone. This is called the 'Burden of Proof' in Law. It always rests on the party who makes an assertion.
According to our Evidence Decree (1975) NRCD 323 and the highest court of the land, i.e. the Supreme Court, the standard of proof required by law of a plaintiff or a party who makes an assertion in a civil action is to lead such evidence as would tilt in his favour the balance of probabilities on the particular issue. See sections 11 and 12 of NRCD 323 and the Supreme Court cases of BISI & OTHERS v. TABIRI @ ASARE (1987-88) 1 GLR, 360 and ADWUBENG v. DOMFEH (1996-97) SCGLR, 660.
The Supreme Court in the Adwubeng V. Domfeh case stated at holding (3) as follows:—
"Sections 11(4) and 12 of the Evidence Decree, 1975 (NRCD 323) (which came into force on 1st October 1979) have clearly provided that the standard of proof in all civil actions was proof by preponderance of probabilities—no exceptions were made. In the light of the provisions of the Evidence Decree, 1975, cases, which had held that proof in titles to land, required proof beyond reasonable doubt no longer represented the present state of the law..."
In the instant suit, since it was the plaintiff who said he granted various loans to the two defendants totaling ¢620,750,000.00 and then US$5,000, an allegation the defendants denied, it behoved on the plaintiff to lead such evidence that would tilt in his favour the existence of the facts asserted in his claim. Simply put, he has to lead cogent evidence to establish his assertion. Unfortunately however, the plaintiff could not lead any such evidence to establish his claim.
On the contrary, the plaintiff and his witnesses who described themselves as pastors or men of God, proved to be disgruntled former members of the 1st defendant church who after failing in their bid to get rid of the 2nd defendant as the leader of the 1st defendant, took this action against the 1st and 2nd defendants, among several others, as the evidence clearly revealed, to show the 2nd defendant where power lies. The evidence on record coupled with the serious contradictions in their testimonies manifested their intentions.
In the first place, the court is at a loss as to why the plaintiff roped the 2nd defendant into the action since according to him and his two pastor witnesses, (i.e. P.W.1 and 2), the alleged loans were granted to the 1st defendant church, (which is a limited liability company with a personality of its own), through P.W. 1 and 2.
From the evidence before the court, none of the alleged loans was received by the 2nd defendant personally.
From the testimony of P.W.1 Pastor Asomaning, it was he, in his position as Administrator and Finance Officer of the 1st defendant church and P.W.2 who contracted all these loans for and on behalf of the 1st defendant church. If that was the case, then why sue the 2nd defendant for monies he did not contract personally? Why didn't the plaintiff sue P.W.1 and 2 who said they contracted all the loans for and on behalf of the 1st defendant church together with the 1st defendant church in the action but instead sued the 2nd defendant who never contracted any loan personally from the plaintiff? This is where the agenda of the plaintiff and P.W.1 and 2 could be discerned as was contended by the defendants in their defence.
While the plaintiff could not lead any evidence, either oral or documentary to support his claim that he granted loans to the tune of ¢620,750,000.00 and US$5,000, to either the 1st defendant or the 2nd defendant or both, the particulars of the alleged loans given under paragraphs 9, 10 and 11 of his statement of claim do not tally with the total figure of ¢620,750,000.00, which he gave as the cedi component of the loan.
The total of the alleged loans, which plaintiff said he gave to the defendants in cedis, from his own pleading, is ¢524,720,000.00 and not ¢620,750,000.00, which he gave as the total.
Again in his testimony in court the monies plaintiff said he gave to the 1st defendant church as loans were:—
i. ¢208 million for the church to rent an auditorium for church services and,
ii. ¢35 million for the purchase of a car for the use of the 2nd defendant.
When he was requested by his lawyer to mention other monies he gave to the church as loans, this was what he said:
"A. I would say to the Honourable Court that from the period of 2002 to 2004, several cheques of several amounts were given to the 1st defendant as I said in my evidence. It is the S.S.B. Bank. As to mention the amount exactly, I don't think that would be fair to me".
From this answer, what plaintiff was saying is that he could not tell the court the exact amounts he gave as loans to the 1st defendant and that it would not be fair to him for the court to demand for the exact figure. However, when he was pressed by his counsel to mention the total figure, he said it was ¢630 million plus $5,000.
So seriously speaking, the plaintiff who brought the defendants to court to demand for the repayment of a loan facility of ¢620,750,000.00 and another $5,000 could not lead any evidence to establish how the said loans were contracted, where contracted, when contracted and the terms of payment.
While he said there were no written documents witnessing the alleged loans since it was not the practice of the 1st defendant church to prepare documents covering loans, his witnesses, who are all rebels of the 1st defendant church contended that there were records covering all the monies received from plaintiff as loans since they (i.e. P.W.1 and 2) were the ones who contracted the loans for and on behalf of the 1st defendant church. They could not, however, provide a single record to support their contentions. Interestingly however, while P.W.1 said the loans were in the form of cheques only and none was ever in cash, P.W.2 said some were by cheque and others in cash.
Again, the plaintiff and his witnesses (i.e. P.W.1 and 2) all gave different figures. P.W.1 gave certain figures, which are not included in the particulars given in plaintiff's statement of claim. P.W.2 also could not tell the court the total amount allegedly given to the 1st defendant church as a loan. As for P.W.3, he said he was not personally involved in the contraction of any of those monies and that it was P.W.1 who told him about the monies.
Again, while plaintiff said he gave out a loan of ¢35,000,000.00 to the 1st defendant for the purchase of a car for the use of the 2nd defendant, P.W.1 said he bought the car for ¢17,000,000.00 together with plaintiff's brother and took the car to the 2nd defendant's house. This means that the 1st defendant was not given any ¢35 million as a car loan as claimed.
Again, while plaintiff said he made several demands for a refund of these monies from P.W.1 and 2, he could not produce even a single demand notice, which he served on the 1st defendant through either P.W.1 and/or P.W.2 as he claimed.
In effect, plaintiff could not lead any evidence to prove his assertion that he ever gave out any monies to either the 1st defendant or the 2nd defendant or both as interest-free loans, which they were expected to pay at any time or on any date.
In the court's view, there was no need to have placed the defendants in the witness box to defend anything since no case was made out against them at the close of plaintiff's case.
The court believes the contention by the defendants that all monies that the plaintiff volunteered to the 1st defendant were monies freely given to the 1st defendant as his contribution towards the growth of the church. They were not monies meant as loans to be repaid at anytime as plaintiff and his witnesses who are no more members of the 1st defendant church wanted this court to believe.
The plaintiff cannot therefore succeed on his claim, which this court finds frivolous, unmeritorious, unwarranted and at best, an afterthought as the defendants contended in their statement of defence. It is accordingly dismissed with costs of ¢10 million against him in defendants' favour.
(Justice of the High Court)
1. Robertson Kpatsa, Esquire for Plaintiff.
2. Ace Anan Ankomah, Esquire for the Defendants