IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2017
VOLTIC GHANA LIMITED - (Plaintiff)
GIDEON ADODOAJI - (Defendant)
DATE: 14TH JUNE, 2017
SUIT NO: CM/0324/16
JUDGES: AKUA SARPOMAA AMOAH (MRS.) JUSTICE OF THE HIGH COURT
YVONNE ADOLE AUGUSTT HOLDING BRIEF FOR JUSTICE KUSI MINKA PREMO FOR PLAINTIFF
NO LEGAL REPRESENTATION FOR DEFENDANT.
The facts culminating in the present suit are fairly simple.
The Plaintiff, a company registered under the laws of Ghana deals in the bottling and distribution of drinks whilst the Defendant is a former employee of Plaintiff. The Defendant at the time of his employment had the responsibility of distributing various products of Plaintiff to customers and accounting for the proceeds. In or about January, 2016, the Plaintiff discovered that the Defendant had failed to render accounts for certain products which he had supplied to Plaintiff’s customers in line with his duties. Upon further investigations, Plaintiff found that products to the tune of Ninety Four Thousand Seven Hundred and Eighty Nine Ghana Cedis (GHȼ94,789.00) could not be accounted for by the Defendant. When interrogated, Defendant confessed that the said amount was actually not owed by customers as he had previously sought to represent but that he had indeed received payments from them and misappropriated same. Plaintiff avers that the Defendant at the time made a promise to repay the said amount of Ninety Four Thousand, Seven Hundred and Eighty Nine Ghana Cedis (GHȼ94,789.00) but to the Plaintiff’s surprise suddenly made a volte-face when he, by his solicitor’s letter dated the 15th day of January, 2016 pleaded for time to enable him retrieve the amount from the said customers.
It is the Plaintiff’s contention that the Defendant breached his fiduciary duties whilst an employee of Plaintiff and will not make good the said amount unless so ordered by the Court. It is for this reason that Plaintiff has commenced the present action for:
a. An order for the payment of the sum of Ninety Four Thousand Seven Hundred and Eighty Nine Ghana Cedis (GHȼ94,789.00) due and owing as at the 14th day of January, 2016.
b. Interest on the above sum from the 14th day of January, 2016 till date of final payment.
c. Cost including lawyer’s fees.
d. Any other remedy that the Court may deem fit.
On the 14th day of June, 2016, the Defendant duly entered appearance and filed a defence to Plaintiff’s writ. It however appears from the Court’s record that Defendant decided not to take part in subsequent proceedings despite being duly notified of same. All orders including this Court’s order for the Defendant to file his witness statement within the period specified in the order were completely ignored. Consequently, the Court on the 2nd day of May, 2017 struck out Defendant’s statement of defence filed on the 14th of June 2016 in accordance with Order 32 Rule 7A ( 3)(b) of the High Court (Civil Procedure) (Amendment) Rules (CI 87). Hearing notices were again served on the Defendant notifying him that the matter had been set down for trial but he again failed to appear without offering any explanation for his absence. Plaintiff’s case therefore stood uncontested at the trial. This notwithstanding, this Court is still under a duty to subject the evidence of Plaintiff to the required standard of proof prescribed by Sections 10 - 14 of the Evidence Act, (NRCD 323). Section 14 in particular states as follows: “Except as otherwise provided by law, unless it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence that a party is asserting.”
The effect of this provision is to cast the burden of proof and of persuasion on the Plaintiff who in this case is required to adduce sufficient evidence to establish its assertions, failing which its action must fail.
Stephen Detcher, an employee of Plaintiff testified on its behalf. The testimony of Plaintiff’s representative was essentially in line with its pleadings. Exhibits A and B being copies of a signed reconciliation form and debt acknowledgement receipt respectively, were tendered by the witness in proof of the fact that Defendant duly acknowledged being personally indebted to Plaintiff in the sum of Ninety Four Thousand Seven Hundred and Eighty Nine Ghana Cedis (GHȼ94,789.00). Also tendered was Exhibit C, Defendant solicitor’s letter. Albeit claiming that the amount owed was yet to be retrieved from Plaintiff’s customers, the said exhibit is confirmation that the Defendant acknowledged his liability to account to Plaintiff for an amount of Ninety Four Thousand Seven Hundred and Eighty Nine Ghana Cedis (GHȼ94,789.00).
I have carefully considered the issues set down by this Court at the Pre-trial conference and have no difficulty resolving the said issues in favour of Plaintiff on the basis of the evidence led. I am satisfied that Defendant is personally indebted to the Plaintiff in the sum
In the premises Judgment is hereby entered for Plaintiff to recover from the Defendant:
(a) The sum of Ninety Four Thousand Seven Hundred And Eighty Nine Ghana Cedis (ȼ94,789.00) being the amount due and owing to Plaintiff by Defendant as at the 14th day of January, 2016.
(b) Interest on the said sum from the 14th day of January, 2016 till date of final payment.
Plaintiff is awarded costs of ten (GHȼ10,000.00) against the Defendant.