IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2016
MARIQUE TRADING ENTERPRISE LTD - (Plaintiff)
FRANCIS KUMI - (Defendant)
DATE: 22ND DECEMBER, 2016
SUIT NO: RPC 13/2015
JUDGES: SAMUEL OBENG DIAWUO JUSTICE OF THE HIGH COURT
AVIO BABA FOR PLAINTIFF
DANIEL SEKYERE FOR DEFENDANT
Per its writ of summons issued out of the registry of this Court on the 3rd day of September, 2014, the
Plaintiff claimed against the Defendant the following reliefs:
a. An amount of GHØ43,802.00 being balance of fish supplied the Defendant.
b. interest on the said sum at the prevailing lending bank rate from February,2014 till date of final payment.
c. Costs, including lawyer’s fees.
The case for the Plaintiff
On the pleadings the Plaintiff made the following relevant averments: -
"1. Plaintiff is a Company incorporated under the laws of Ghana and dealing in the wholesale distribution of fish
2. Defendant is a customer of the Plaintiff
3. Plaintiff avers that between November, 2013 and February, 2014, and at the request of
Defendant it supplied Defendant with fish
4. Plaintiff avers that Defendant has made some payment leaving a balance of GH₡43,802.00
5. Plaintiff says the transactions between it and the Defendant are recorded in ledger form showing supplies, discount and payments.
6. Plaintiff states that the amount is overdue despite repeated demands to the Defendant to settle the amount he has failed to do so
7. Wherefore the Plaintiff claims as per the endorsement on the writ of summons”
Case for the Defendant
The Defendant made the following relevant averments in his statement of defence filed on 27
November, 2014. He pleaded as follows:
“3. Save that the parties were in business within the period of November, 2013 to February, 2014, the rest of paragraph 2 of the statement of claim is denied.
4. Defendant says it was the Plaintiff who introduced himself (sic) to him on phone and proposed to do business with him. Defendant therefore says at no time did he request to do business with the Plaintiff.
5. Defendant says the Plaintiff first supplied him with a consignment of fish worth Twenty Three Thousand Ghana Cedis (GH₡23,000.00) which he sold and made full payment to the Plaintiff.
6. Defendant also says the said first consignment of fish was not quite wholesome so he travelled to Tema to meet the Plaintiff to deliberate on the reduction of the price to enable him sell same to the public.
7. Defendant further says the Plaintiff rather urged him to do his best and dispose of the said consignment with the promise that he would be supplied with a better consignment next time to enable the Defendant cater for his losses.
8. Defendant again says when the second consignment was being sent to him the vehicle conveying the fish broke down at Amansaman and this was brought to the notice of the Plaintiff.
9. Defendant says when the driver of the said truck went in search of mechanics to repair the vehicle, thieves pounced on the drivers mate and took some of the fish away, and the matter finally ended up at the Amasaman police station.
10. Defendant says this unfortunate event occasioned a delay and when the truck load of fish arrived at Kumasi, part of it had gone bad and this was brought to the knowledge of the Plaintiff.
11. Defendant says as a result of the difficulties encountered with the first consignments of fish, he asked the Plaintiff to honour his (sic) earlier promise and supply him enough fish to enable him recoup the losses incurred but the Plaintiff refused.
12. Defendant says the Forty Three Thousand Eight Hundred and Two Ghana Cedis (GH₡43,802.OO) the Plaintiff is claiming is the costs of fish that went bad and which the Plaintiff is aware of.
13. Defendant therefore says he does not owe the Plaintiff as endorsed on the writ of summons.
14. Defendant will contend that the Plaintiff only succeeded in convincing him to sell his (sic) unwholesome fish.
In a reply filed on behalf of the Plaintiff on 14th January, 2015 the Plaintiff joined issues with the Defendant. On his statement of defence and further averred that in all, the Defendant was supplied with 4 separate consignments of fish.
At the pretrial settlement conference, the case could not be resolved. Consequently, the pretrial judge set down the following issues for trial. The issues are : -
1. Whether or not the Plaintiff supplied the Defendant with unwholesome fish.
2. Whether or not the Defendant incurred a debt from the supply of any unwholesome fish from the Plaintiff
3. Whether or not the Plaintiff, acting through its Managing Director, encouraged the Defendant to sell any unwholesome fish.
4. Whether or not the Plaintiff, acting through its Managing Director, promised to supply the Defendant with more consignment of fish to cater for his losses
5. Whether or not the Defendant is indebted to the Plaintiff in the sum of GHØ43,802.OO.
6. ‘Whether or not the Plaintiff is entitled to its claims against the Defendant
I will resolve the issues as stated above but before then, I will state here and now that this case being a civil one, a party wins on a “preponderance of probabilities”. And “Preponderance of Probabilities” has been statutorily defined by Section 12 (2) of the Evidence Act 1975 (NRCD 323) as
“that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non existence”
And in TAKORADI FLOUR MILLS V SAMIR FANS (2005/2006) SCGLR 882, it was held that
“It is sufficient to state that this being a civil suit, the rules of evidence require that the Plaintiff produces sufficient evidence to make out his claim on a preponderance of probabilities as defined in Section 12 (2) of the NRCD 323. In assessing the balance of probabilities, all the evidence, be it that of the Plaintiff or the Defendant, must be considered and the party in whose favour the balance tilts is the person whose case is more probable of the rival versions and is deserving of a favourable verdict”
See also ADWUBENG V DOMFEH (1996/97) SCGLR 660.
Accordingly in the present case, the Court is being called upon to determine whose case is more probable than the other or likely to be true? Shall it be the Plaintiffs or the Defendant’s? I shall answer this in a jiffy.
I will now proceed to state the law on proof and relate same to the pleadings with the view to allocating the evidential burden.
The position of the law is that the person who asserts assumes the burden of proof. See FAIBI V STATE HOTELS CORPORATION (1968) GLR 471.
In ZAMBRAMA V SEGBEZI (199 1/ 2 GLR 221, KPEGAH JA (as he then was) stated the principle as follows: - -
“a person who makes an averment or assertion which is denied by his opponent has a burden to establish that his averment or assertion is true.
And he does not discharge this burden unless he leads credible and admissible evidence from which the fact or facts he assets can properly and safely be inferred”
And IN BANK OF WEST AFRICA V ACKUN (1963) 1GLR 126, it was held that
“The onus of proof in civil cases depend on the pleadings the party who in his pleadings raises an issue essential to the success of his case assumes the burden of proof"
See also ABABIO V AKWASI III (1994/95) GBR 774. With the above statement of the law, I wish to state that in this case the evidential burden was on both the Plaintiff and the Defendant. The Plaintiff has the burden to prove that it had supplied various consignments of fish to the Defendant. It also has the burden to prove that the Defendant was indebted to it to the tune of GH₡43,802.00 which he had neglected to pay since February, 2014.
The Defendant also has the burden to prove that the fish supplied to him by the Plaintiff was unwholesome. Defendant also has the burden to prove that he incurred losses as a result of the unwholesomeness of the fish. Finally he has the burden to prove that the Plaintiff promised to supply him with more consignment of fish to enable them recoup his losses.
The Plaintiff sought to discharge its burden of proof by testifying through its Managing Director Dr. Lawrence Acquaye. His testimony was to the effect that he is the CEO of the Plaintiff Company in that capacity the Defendant in the latter part of 2013 approached him for his company to supply him with quantities of fish.
According to Dr. Acquaye, the Company supplied the Defendant with various consignments of fish the last one being 910 cartons of fish. He tendered in evidence as Exhibit B the ledger page of the Defendants account evidencing the supplies and payments made by the Defendant.
He testified further that after loading and supplying the first 2 consignments to the Defendant the Company sent the 3 consignment.
According to the Plaintiffs representative he had a call from the driver that the vehicle had broken down at Amasaman so he sent a representative to the scene who confirmed that the vehicle had been fixed and driven safely to Kumasi with all the fish intact.
He tendered in evidence as Exhibit A the records of payments made by the Defendant after the various supplies had been made to him. He also tendered in evidence as Exhibit C and Exhibit Cl the invoices evidencing the supplies made to the Defendant.
He testified further that the Defendant made various payments leaving an outstanding balance of GH₡43,802.00 which he has failed and/or refused to pay despite repeated demands.
In the course of making these demands the Defendant issued a cheque with the face value of CH₡20,000 on 14th February, 2014 which was dishonored when he presented same to the bank, a development that compelled the Plaintiff to mount the present action.
He tendered the dishonored cheque in evidence as Exhibit D
He stated emphatically that on no occasion did the Defendant complain of the fact that he had been supplied with unwholesome fish and that out of the over GH₡90,000 worth of fish supplied to the Defendant he paid GH₡50,000 by instalments leaving an outstanding balance of GH₡43,802.00 which remained outstanding.
Under cross examination he stood his ground to maintain that all the fish his company supplied to the Defendant were wholesome and there was not a single occasion that the Defendant complained about the quality of the fish supplied to him. He stated further under cross examination that even though the insulated van which conveyed the 3’ consignment broke down at Amansaman, it nonetheless arrived at Kumasi within 48 hours maintaining that insulated vans can even keep fish for 4 days without the fish going bad. In any case, when it finally arrived in Kumasi, the Defendant did not raise any query about the quality.
With the evidence of Dr. Acquaye, the Plaintiff closed its case.
And it is fair to state here and now that the Plaintiff has adduced sufficient evidence to tilt the case in its favour. There is evidence on record to show that at the request of the Defendant, the Plaintiff Company supplied him with 4 consignments of fish which were delivered to him in Kumasi from Tema. There is evidence on record to show that the value of the said fish amounted to over GH₡9O,000.00. There is evidence to show that out of the said money the Defendant made payments by instalments to the tune of GH₡5O,000. There is evidence on record to show that as at April, 2014 the Defendant’s total indebtedness was GH₡43,802.00. There is evidence to show that the Defendant issued a cheque with the face value of GH₡2O,000 on 141h February, 2014 which was dishonoured when it was presented to the bank. There is evidence on record to show that the fish supplied to the Defendant was wholesome.
Accordingly, if the Defendant failed to lead evidence to tilt the case in his favour he would lose. In the instant case since the Defendant pleaded that the fish supplied to him by the Plaintiff was unwholesome he had the burden to lead evidence in support of that averment. He also had the burden to prove that he incurred losses due to the unwholesomeness of the fish. This is because in its reply the Plaintiff vehemently denied all these averments.
The Defendant sough to discharge this burden by testifying and calling 2 witnesses in support of his case. In view of the nature of his evidence, I have decided to sacrifice brevity and reproduce the relevant portions of the Defendant’s testimony Verbatim.
"...I got to know the Plaintiff through one David. He supplied me with the fish. The consignment I paid the full value to the Plaintiff The quality of the fish supplied to me during the first consignment was not good. I was able to sell off all the fish supplied during the first consignment. I paid all . The Plaintiff supplied a second load. I paid the first supply before the second consignment was supplied. When it arrived the whole consignment had gone bad. I informed the Plaintiff about that. He told me to send the fish to the cold store to freeze same. I asked the Plaintiff why he supplied me with rotten fish. He told me the vehicle broke down on the way hence the fish went bad. I was not able to sell the second consignment as it had gone bad. I threw it away. After the second consignment the Plaintiff supplied me with another consignment of fish. I did not pay for the rotten fish before he supplied me with the 3rd consignment. The value of the rotten fish was GH₡39,000.00. The 3rd consignment of fish supplied to me had no problem. It was 900 cartons at GH₡6 per carton. I was able to pay for it i.e. the 3rd consignment. He did not supply me with fish again. He told me he would not supply me with fish unless 1 settled my old debt. I do not owe the Plaintiff that amount he is claiming from me. I owe the Plaintiff but it is not up to that amount he is claiming from me. I owe the Plaintiff about GH₡,9 500.00... I pleaded with him to send me another consignment to sell and repay him but the Plaintiff refused” I do not owe the amount he is claiming”
Under cross examination, he admitted that, that was the first time he was telling the Court about owing the Plaintiff GH₡9,5OO (though he claimed to have informed his lawyer about same when he gave instructions to the lawyer.
He also stated that he informed the FDA about the unwholesomeness of the fish and after inspection he was told to destroy the fish secretly as it was not good for human consumption.
He stated as follows:
Q. Did you inform the Food and Drugs Authority about the unwholesomeness of the fish?
A. Yes. I informed the FDA who inspected and concluded it was not good for human consumption.
Q. So was any document given to you to destroy the fish?
A. No. I secretly saw one officer of FDA who told me it had gone bad so I should destroy same. This was because if I had contacted the FDA itself, they would have locked up my cold store.
Q. You did not inform FDA so you have no document?
A. I did not because the fish had started to give bad odor hence I did not inform the FDA.
From the above question and answers as well as his evidence in chief, the Defendant was stressing that he was indebted to the Plaintiff to the tune of GH₡9500. He was also stressing that the whole of the 2nd consignment of fish had rotten at the time the fish arrived. He was also saying in one breath that he informed an officer of FDA secretly about it. In another breath he also said he did not because the fish had already started to give a bad odor. I will revisit this in due
DW1 Akelentisira Peter testified that he used to be in the employment of the Defendant at his cold store.
His testimony was to the effect that the Plaintiff used to supply the Defendant with fish at the time he was in the employment of the Defendant. He testified further that when the second consignment was on its way the vehicle broke down so the ice in the fish melted so the fish in the cold store but there was load shedding which made some of the cartons which contained the fish to destroy (not the fish itself) . He stated further that some of the customers later complained that when the fish was smoked some of them would tear apart.
He testified that this development prevented their customers from coining to buy the fish. He stated that as the neighbors were complaining about the stench from the Defendant’s cold store, the Defendant brought a kia truck and then took the rotten fish away.
Under cross examination DW1 stated emphatically that though the Defendant took some of the fish away in a kia truck to destroy same, no FDA official accompanied him.
DW2 Georgina Ayinpogbilla described herself as one of the customers of the Defendant. Her testimony was to the effect that she bought some fish from the Defendant about 2 years prior to the date she testified.
She stated that the fish the Defendant sold to her was rotten so she could not sell same and threw away the few she could smoke and return the rest to the Defendant because it was not good for consumption.
Under cross examination she stated that the Defendant sold 20 cartons of fish to her at a discounted rate of 150 instead of GH₡200 based on the nature of the fish.
With her evidence, the Defendant closed his defence so whose story is more probable of the 2 rival versions?
And this brings me to issues 1,2 and 3 of the issues set out in the application for directives which I propose to resolve together because my view is that a resolution of one of them will automatically have an effect on the others.
The said issues are: -
1. Whether or not the Plaintiff supplied the Defendant with unwholesome fish
2. Whether or not the Defendant incurred a debt from the supply of any unwholesome fish from the Plaintiff
3. Whether or not the Plaintiff, acting through its Managing Director, encouraged the Defendant to sell any unwholesome fish?
In evidence the Plaintiff per its Managing Director testified that as far as he was concerned, the company supplied 4 consignments of fish to the Defendant which were all captured in Exhibits A, B, C and Cl. He was emphatic that there was no occasion that the Defendant complained of the quality and or unwholesomeness of the fish supplied to him. He was emphatic that even though the vehicle conveying the 3rd consignment broke down at Amansaman and therefore arrived Kumasi within 48 hours it not affect the quality of the fish as the fish was conveyed in an insulated van which could hold the fish for 4 days without any hitch.
The Defendant’s version of the events was that there were only 3 consignments and that the 2 consignment which vehicle broke down on the way arrived on a rotten stage. He gave the value of the said fish as GH₡39,000.
DW1 ‘s testimony was that the fish had no ice when it arrived and when they put it in the cold store there was a power outage.
Defendant testified that upon an advice from an official of FDA he destroyed the rotten fish, This was also contradicted by the (evidence of DW1.
But what did the Defendant say in his pleadings? He did not plead anywhere that some of the fish were destroyed or thrown away. He also stated in page 9 that when the vehicle broke down, thieves stole some of the fish which matter ended at the police station. In paragraph 10 he pleaded that when the consignment finally arrived in Kumasi some had gone bad. He never pleaded that he had thrown away any fish on the advice of FDA. That evidence is false because in one breath he said he secretly informed an official of the FDA only to recant same in another breath. In any case, the evidence of the Defendant was putting up a completely different case from his pleadings.
And the Court cannot allow him to do that.
Please see DAM V ADDO (1962 )2 GLR 200
See also GIHOC REFRIGERATION V HANNA ASSI NO1 (2007/2008) SCGLR 1
So whose story is more probable? In my view the Plaintiff ‘s claim is more probable than that of the Defendant regarding the quality of the fish supplied. The question the Defendant failed to answer is what prevented him from rejecting the fish if it was gotten and he had seen same upon arrival? This is because by the terms of the contract the fish was supplied before payment was made and the fact that the consignment had rotten could not have been concealed from the Defend. So why did he accept same as if defect was latent? The Rule is Caveat Emptor, let the buyer beware. In this case if it was indeed true that the fish had rotten, nothing prevented the Defendant from rejecting same especially since he had not paid a pesewa for its supply to the Plaintiff.
And the fish valued a whopping GH₡39,000 so why would he accept same if it had rotten? In my view, the fish had not rotten as the Defendant wanted the Court to believe. In any case if it is true that an FDA official advised him to destroy same, what prevented him from calling that person as his witness.
And why did he issue a cheque for GH₡2O,000 if he knew he owed GH₡9500? On the evidence, I am of the view that the story of the Plaintiff’s representative that it supplied wholesome fish to the Defendant is more probable than the Defendant’s claim that the fish was unwholesome. I therefore resolve issues 1, 2, and 3 in favour of the Plaintiff and hold that it supplied the Defendant with 4 consignments of wholesome fish.
This brings me to the 4th issue which is whether or not the Plaintiff through its Managing Director promised to supply the Defendant with more fish to cater for his losses?
On the evidence, I have already found that the Defendant was not supplied with any unwholesome fish. And granted that the Plaintiff did (Which is denied ) it was incumbent on the Defendant to have led evidence in support of that claim but on the totality of the evidence adduced by the Defendant, not a Satilla was led to show that the Plaintiff’s Managing Director promised to supply the Defendant any fish to cater for his alleged losses.
I therefore resolve issue 4 also in favour of the Plaintiff and hold that no such promise was made to the Defendant by the Managing Director of Plaintiff's Company.
I now resolve the last two issues namely (5) whether or not the Defendant is indebted to the Plaintiff in the sum of GH₡43,802.0O and (6) whether or not the Plaintiff is entitled to its claim against the Defendant.
The contents of Exhibit A and Exhibit B clearly sums the details of the accounts of the Defendant as procured from the ledger of the Plaintiff In Exhibit A and B, it is clear that as at 12th April, 20 14 the Defendant was indebted to the Plaintiff in the sum of GH₡43,802.00. The total payment made by the Defendant was GH₡50,000 and the last GH₡1O,000 was paid on l7’ April 2014 by one Peter. It is also clear that on 14th February, 2011 the Defendant issued Exhibit D which had a face value of GH₡2O,000 which was dishonoured.
The Defendant in his defence stated he owed GH₡9500 without leading any evidence in support of this bare assertion. If he owed GH₡9500 why did he issue a cheque for GH₡2O,000? He did not provide any answer.
On the evidence before me, I hold that the Plaintiff's evidence is more cogent than that of the Defendant. Accordingly, it is more probable than the Defendant’s which I accept especially in view of the documentary evidence which was not impeached in any way by Counsel for Defendant.
In his submission counsel for Defendant argued that the contract had been frustrated. This argument is farfetched and cannot support the defence put up by the Defendant.
In BARCLAYS BANK V SAKARI (1996/97) SCGLR 639, on the ingredients of the doctrine of frustration as appearing in holding (1) of the head notes, the supreme Court held that “At common law, the defence of frustration would occur where an external event of some kind, not the responsibility of either party, has rendered further performance of the contract impossible or radically different from what has been contracted for. Whether in any particular situation frustration had occurred or not was a question for the Court to determine; and it was not any event affecting any terms of the contract that would amount to frustration. The basic duty of the Court was to construe the contract to discover the obligation created therein"
I will put it on record that the defence of frustration has not been part of the Defendant’s case. However, granted it was part of his defence, my view is that his obligation under the contract was to pay for the fish once property in same had passed unto him. He was at liberty to reject same if they were rotten . So the doctrine of frustration is not applicable in this case at all.
On the totality of the evidence, I hold that the Plaintiff has been able to prove its case on a balance of probabilities.
I therefore enter judgment for the Plaintiff as follows: -
1. Recovery of cash the sum of GH₡43,802.O0 from the Defendant being balance of fish supplied Defendant
2. Interest on the said sum at the prevailing lending bank rate from February, 2014 till date of final payment.
3. Costs of GH₡4000