XIN BIN ZHANG EL-SHADAI GLOBAL ENT.vs. NKRUMAH KOBY JONES
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    KUMASI - A.D 2017
XIN BIN ZHANG EL-SHADAI GLOBAL ENT. - (Plaintiff/ Appellant)
NKRUMAH KOBY JONES - (Defendant/ Respondent)

DATE:  12TH APRIL, 2017
CIVIL APPEAL NO:  H1/76/2016
JUDGES:  AYEBI J.A. (PRESIDING), TORKORNOO (MRS) J. A., DOMAKYAAREH (MRS) J.A.
LAWYERS:  COUNSEL FOR PLAINTIFF/APPELLANT - EDWIN NYAMAA POKU
NO LEGAL REPRESENTATION FOR DEFENDANT/RESPONDENT
JUDGMENT

TORKORNOO (MRS), J.A.

The Plaintiff/Appellant is a Chinese national who sold mobile phones to the Ghanaian Defendant/Respondent. The Writ was issued by ‘Poku & Associates’ in the Commercial Division of the High Court, Kumasi. The Appellant claimed per his Statement of Claim for:

1. The sum of GH¢124,817.00

2. Interest thereon at the current bank rate on the said sum from 11th June, 2013 till final payment

 

In his Statement of Defence, after denying as much as was claimed by the Appellant and giving notice that the parties will have to go into accounts, the Respondent contended in paragraph 9 that:

 

the Plaintiff’s Writ of Summons as well as the Statement of Claim are incompetent as same violates the law and clear mandatory statutory provisions’.

 

He also complained in paragraph 10 that the Plaintiff’s conduct was ‘illegal, unlawful and unconscionable and should not be encouraged by this Honourable Court.’ No details of the said illegality were provided.

 

When the pre-trial settlement conference broke down, the Respondent did not add to the issues for determination the alleged incompetence of the Appellant’s writ of summons and statement of claim, or the alleged illegality. The trial was conducted and concluded. In his addresses, the Respondent counsel presented that other issues of law had arisen ‘from the trial’ which the court has to determine.

 

He pointed to Order 4 rule 1 of the High Court Civil Procedure Rules 2004 CI 47 which states that ‘Subject to these Rules, any person may begin and carry on proceedings in person or by a lawyer.’ It was his argument that where a party commences an action by causing a lawyer to issue his writ, the designation of lawyer cannot include a law firm. He pointed to the decision in cases such as Nana Kwasi Afreh 11 & 2 Others v Association of Volta Land Compensation and 12 Others (Suit No AHR 4/2012) where the High Court decided that ‘…a law firm could not properly issue a writ, not being a lawyer’ as prescribed by law, and so the relevant writ was a nullity.

 

He also argued, pointing to the decision in Nii Tetteh Ahinakwa 11 & Anor v Nii Okaija 111 & 2 Ors 2012 31 MLRG 92 (also reported as Ayikai v Okaidja III 2011 1 SCGLR) which he urges HELD that where the rules of court prescribe a particular mode of seeking relief, then a failure to initiate the proceedings for relief in accordance with that mode is not only an irregularity but raises an issue that goes to jurisdiction. It was his contention that for these reasons, the Appellant’s writ of summons was a nullity, because it was issued by a law firm and not a lawyer.

 

He also invited the court to discount the Statement of Claim as a valid pleading because it was a two paragraphed document which failed succinctly to state the case of the Appellant. He argued that if the Writ of Summons was issued without an accompanying Statement of Claim, it could not invoke the jurisdiction of the court. Citing Oppong v Attorney General 2000 SCGLR 275 where the Supreme Court held that the processes filed were fundamentally wrong and so could not invoke the jurisdiction of the court, he invited the court to find the Writ of Summons and Statement of Claim incompetent and strike them out.

 

His next point of call was whether the Plaintiff’s trade was illegal and therefore unenforceable at law. His argument was that the Plaintiff had violated Sections 18 and 19 of the Ghana Investment Promotion Center Act 1994, Act 478 (now repealed by GIPC Act 2013, Act 865) which had reserved certain enterprises for Ghanaians and provided for minimum equity threshold for foreigners who chose to work in Ghana. He submitted that the Appellant had indulged in trading without registering an enterprise with the requisite capital investment. In view of these alleged violations, he invited the court to find the trade as tainted with illegality and so dismiss same.

 

He lastly considered the merits of the evidence before the court and urged that the Appellant was not able to prove the debt owed him and so the court ought to dismiss his claim.

 

It was at this point that the Appellant counsel filed a motion on notice praying for leave to amend the writ by adding his name Edwin Poku to the words ‘Poku & Associates’ on the Writ. The application was opposed on the ground that since the writ was void, any such order would be incompetent. The court refused the application on the premise that the competence of the Writ was a matter pending before the court for resolution. The court said that on the strength of the decision in Nii Tettey Ahinakwa 11 v Nii Okaidja 111, Percy Okoe Addy, Okoe Aryee 2010 MLRG that an amendment cannot be granted for the purpose of defeating an objection to a process pending before a court, he would refuse the motion for amendment.

 

After the dismissal of the application for amendment, the Plaintiff/Appellant’s counsel also filed his addresses. In his judgment, the court dwelt on the objections raised against the Writ. He agreed with Respondent counsel that in issuing out the Writ of Summons, the counsel for Appellant did not comply with the prescribed mode of seeking relief from the court and as a result, the Writ of Summons and subsequent processes are a nullity. He dismissed the suit and refused to examine the merits of the evidence. This is the judgment that ignited this appeal on the following grounds.

 

Grounds of appeal

 

That the judgment is against the weight of the evidence.

 

That the learned trial judge misdirected himself of the law by dismissing the Plaintiff’s suit.

 

That the learned tried judge did not exercise his discretion judiciously when he refused Plaintiff/Appellant’s application to add his name on the writ which was inadvertently omitted.

 

Further grounds of appeal shall be filed upon receipt of a copy of the record of proceedings.

 

One additional ground of appeal was filed on the same day that Appellant counsel filed his submissions before this court. It was

 

That the High Court Judge erred when he dismissed Plaintiff’s suit.

 

Ground 1 of the appeal is that – That the judgment is against the weight of the evidence.

 

It is established that an Appellant who urges this ground of appeal must point to the evidence that was not properly construed in his favour and which could have turned the decision of the court if appropriately construed. The appellate court is also enjoined to review the entire evidence before it to arrive at the decision whether the judgment should be sustained or overturned. The dicta in cases such as Aryeh & Akakpo v Ayaa Addrisu 2010 SCGLR 891 and Tuakwa v Bosom 2001-2002 SCGLR 61 lead in the establishment of this direction.

 

Appellant counsel argued the first ground of appeal last, and focused on the additional ground of appeal first. The justification he presented for filing the additional ground of appeal without leave of court was the Court of Appeal case of David Asare v Mike Asomani HI/37/2007 from which he quotes Dotse JA as he then was as saying ‘the effect of the provisions of rules 20(1) of the Court of Appeal (Amendment) Rules 1999, CI 25 is that parties and or counsel no longer require prior leave of the court before filing additional grounds of appeal. To that extent therefore, Rule 8(7) of CI 19 would be deemed to have been amended.

 

My humble thinking is that if Rule 20(1) intended to amend Rule 8(7), the framers of the law would have said so, and especially where Rule 8(7) does not deal with arguing grounds of appeal but the striking out of grounds of appeal which are not permitted under Rule 8(6), I disagreed. I think that at best, the amendment to Rule 20(1) was intended to make room for the arguing of additional grounds of appeal filed after amending the grounds of appeal to include such additional grounds of appeal, as provided for under Rule 8(8) of CI 19. I fail to see how the imperative of giving a party notice of the case they have to answer can be belittled through filing additional grounds of appeal at the time of the submissions on the grounds.

 

Fortunately, because the appeal was heard on 25th January, 2016 and the parties had the opportunity to speak to this additional ground and the submissions presented thereon, this court will consider the submissions. And especially in the light of the decision of the Supreme Court in Volta Aluminium Company Ltd v Akuffo 2003 -2005 1 GLR 502, where the court found itself in a situation where if it struck out additional grounds of appeal filed and argued without leave, the major part of the case would be struck off. The Court reconciled this predicament by pointing out that under Rule 6(7) of the Supreme Court Rules 1996 CI 16, the Supreme Court could rest its decision on grounds different from what the parties had presented, and so in the interest of justice, the court would consider the additional grounds filed without leave of court.

 

In the same vein, in view of the opportunity given the parties to speak to the additional grounds of appeal filed before the hearing of the appeal, and in view of the court’s adoption of the briefs submitted by the parties at the hearing of the appeal, we will consider the additional ground of appeal.

 

It is my clear holding that the judgment that the writ was issued by a law firm called Poku & Associates, when Order 4 Rule 1 of CI 47 had directed that actions should be commenced by either a party or a lawyer, thereby making the Writ of Summons incompetent and unable to ground jurisdiction in the court, is totally against the weight of evidence.

 

The proper time to attack a writ or commencing processes which are alleged to be defective is at the time of their issue. An application alleging defect in a writ that is brought in good faith ought to raised under Order 9 rule 8 which reads:

 

Application to set aside writ

8. A Defendant may at any time before filing appearance, or, if the Defendant has filed a conditional appearance, within fourteen days after filing appearance, apply to the court for an order to

a. set aside the writ or service of the writ.

 

It is at this stage that a Defendant who genuinely sees that a writ is defective ought to speak up. When such an application is presented to the court at that time, the court’s decision would be premised on the narrow evidence of the process that lies before it.

 

However, where as in this case, the Defendant throws in one paragraph about defects in the writ in his Statement of Defence, yet chooses not to present this issue as a preliminary point for decision by the courts and fully participates in the trial to the end only to spring the technical argument that the Writ is defective, a court is duty bound to carry a deep consideration of doing substantial justice in the heart when considering such an issue. The court must therefore examine all the facts and evidence presented in the case, and arrive at an appropriate decision not based on just the process before him – in this case – the Writ, but the entire evidence that supports a proper understanding of the process.

 

What does it mean to do substantial justice? We have not been left without guidance in determining what this means. Hanna Assi (No 2) v Gihoc Refrigeration and Household Products Ltd (No 2) [2007-2008] SCGLR 16, can properly pass as the seminal case. In this case, the Supreme Court sitting in its review jurisdiction was faced with whether or not to uphold the decisions of the court of Appeal and the Supreme Court which set aside reliefs granted by the High Court to a Defendant, on the ground that that relief was not claimed for in a counterclaim. The Court reviewed and set aside its own earlier decision and held that the trial court was entitled to grant a relief to the Defendant even though he had not filed a counterclaim for that relief because first, Order 28 Rule 12 of the then High Court (Civil Procedure) Rules, 1954 (LN 140A), allowed a court to amend any defect in the proceeding for the purpose of determining the real question or issue raised. Further Order 63 Rule 6 also allowed a court to make any orders it considers necessary for doing justice, whether such order has been expressly asked for or not. Thirdly, the evidence on the record justified the reliefs granted by the High Court. In arriving at this decision, we must glean the guideline as that, it is imperative not to allow any specific rule of court to take a Court into a decision that will wreak injustice especially where, when all the rules are interpreted purposively, they will give a court the mandate to do justice in accordance with the evidence on record.

 

In THE REPUBLIC VRS HIGH COURT, (HUMAN RIGHTS DIVISION), ACCRA ) EX-PARTE: JOSEPHINE AKITA (MANCELL-EGALA & ATTORNEY GENERAL, INTERESTED PARTIES) 2010 SCGLR 374 the Supreme Court in a three/two majority, considered all the prevailing circumstances of the facts, law, harms and benefits that would be occasioned by the grant or refusal of an order of certiorari to quash a High Court decision which had been given at a time when Form 6 had been served for an appeal against two components of an earlier decision of the High Court, thereby removing the case from the jurisdiction of the High Court. In deciding to refuse the application for certiorari, the court evaluated the need to do substantial justice vis a vis upholding a technically correct position. The High Court decision paved the way for the sale of a school to Government, which was the best practical decision, and the sale had earlier been assented to by all beneficiaries of the school, including the applicant who wanted to restrain the sale only for particular reasons, post the sale, and this formed the basis for refusal of the certiorari.

 

In refusing the order of certiorari, the majority recognized that as much as the service of the Form 6 removed the jurisdiction over the case from the High Court, the particular order authorizing the sale of the school had not been added to the orders appealed against in the Notice of Appeal. Thus, there was the delicate question of whether to presume the inclusion of that order in the appeal because it formed part of the Ruling appealed against, or to construe that order as out of the appeal, because the Notice of Appeal did not mention it.

 

Brobbey JSC said on page 386 ‘One has to consider the facts on the record before this court in order to do substantial justice to the parties.’ After analysing all the interests that would be affected by the decision of the court, he said on page 387:

In my opinion, this court would not be considered as acting rightly if we allow the money to be tied down and the school allowed fallow when the alternative of allowing the Government to take over will benefit the school - going community and their parents in this country. In the interest of justice and with the objective of doing substantial justice to all the parties and society at large, the Government should be allowed to take over the school”.

 

In these cases, the Supreme Court interpreted the rules of court broadly (as in Hannah Assi) or narrowly (as in Ex-parte Akita) in order not to violate the requirement of the rules of procedure, while ensuring that justice is done to the parties. The biggest lesson to be gleaned is for a court not to endanger the doing of justice, no matter how attractive the siren call of the facetious meaning of a rule that immediately attaches to the matter complained about.

 

In Gregory v TANDOH IV & HANSON, 2010 SCGLR 971, the Supreme Court was once again confronted with the issue of doing substantial justice versus a stoic adherence to unquestioned legality. The court took the path of admitting evidence that had been rejected on legal tenets, because it found that there were strong pieces of evidence on that rejected evidence within the record of appeal which, when properly evaluated, made it clear that the findings of the trial court on the contributions of the Plaintiff were perverse. Justice Gbadegbe JSC pointed to the need to do ‘justice to the parties in the light of all the circumstances of the case’.

 

In Okofoh Estate Ltd v Modern Signs Ltd & Anor [1995-96] 1 GLR 310 where the Supreme Court was confronted with an application under its supervisory jurisdiction which was not headed in the known manner, the court asserted jurisdiction and held that the court would not decline jurisdiction simply because an application had not been headed in what was considered the normal manner. The court was clear that ‘the courts should aim at doing substantial justice between the parties, and not waste their precious time to attend to unnecessary technicalities.’ (page 335).

 

I could go on citing cases but suffice it to say that I believe that the need to do substantial justice should have compelled the honourable trial court to examine all the evidence before him in determining who issued the Writ that he was invited to find incompetent and especially because the trial had ended. He should look at the evidence as well as the rules of court and not just the rules.

 

It is true that the Writ is recorded as having been issued by ‘Poku & Associates’, but it is to be noticed that there is a signature over the words ‘Lawyers for the Plaintiff.’

 

Now if the application to strike out the Writ had been presented timeously as expected under Order 9 Rule 8, the only evidence the court would have had would be the Writ, and the court would be in no error to have confined himself only to the Writ in determining who actually issued this Writ. Again, if an application had been made immediately after the filing of the defence alleging incompetence of the Writ, the court would be confined to the Writ and the pleadings in determining who issued the Writ for the Plaintiff. However, having waited till Addresses to raise the matter of the person who issued the Writ, the honourable court had more than adequate evidence to appreciate who the ‘Poku’ in ‘Poku & Associates’ was. And this is why I am satisfied that the learned judge failed to consider principles of substantial justice when he confined himself to a consideration of the Writ only and concluded that the Writ was not issued by a lawyer.

 

Unlike the action commenced by ‘Legal Ink’ in the Nana Kwasi Afreh case cited supra, words which could only refer to an artificial entity, every court in this country is justified in taking judicial notice of the fact that the word Poku is a family name that many people of Ashanti descent carry.

 

The writ was signed, and the signature that appeared on the writ appeared in every process that was filed on behalf of the Plaintiff including the Statement of Claim, the list of documents to be relied on found on page 12 of the Record of Appeal, the letter from Poku & Associates found on page 18, the motion paper by E. N. Poku found on page 93, affidavit of Edwin N. Poku found on page 94, written addresses filed on behalf of the Plaintiff and signed on page 107. These signatures showed that the lawyer who issued the writ is the same person who filed all processes on behalf of the Plaintiff.

 

Then when it comes to recording who actually appeared as lawyer for the Plaintiff and conducted the case for the Plaintiff, the evidence shows no prevarication. The lawyer who represented the Plaintiff at the first appearance for the settling of issues is recorded on page 9 of the Record of Appeal as Opoku Nyamaa. He is also recorded as E. N. Poku for all the trial proceedings conducted on several dates. Thus the evidence is that the lawyer for the Plaintiff was Edwin Poku also known as Poku Nyamaa or E. N. Poku.

 

And the signature of the said Poku is available on record. This is the signature on the Writ as the person who issued the writ. This is the signature of the lawyer who applied to amend the writ to add his name Edwin Poku to the words ‘Poku & Associates’. In the circumstances where the one who issued the Writ is recorded as ‘Poku & Associates’, and the signature of this issuer of the writ is clearly the signature of Edwin Nyamaa Poku who acted as lawyer for the Plaintiff throughout the case, it is my humble belief that the trial court should have had no difficulty with dismissing the arguments that the Writ was incompetent because it was issued by a law firm and not a lawyer. In such a situation, the need to do substantial justice should have driven the court to look at all the evidence before him to hold that the writ was issued by the lawyer who signed the Writ, identified as Poku from all the records before the court, and whose name comes first in ‘Poku & Associates’. The judgment that the writ was issued by a law firm is against the weight of evidence.

 

And this brings me to the next difficulty which I must express, and this is the ease with which the learned judge agreed that ‘Poku & Associates’ was a law firm. There was no evidence before the court that the said ‘Poku & Associates’ is an incorporated entity that would make it a different person from the lawyer Poku who represented the Plaintiff. There was no evidence that the name ‘Poku & Associates’ is the name of a firm registered in whatever legal vehicle. If it is a registered business name, then behind that name would be a human being trading in that business name, What is a law firm? Is any grouping of lawyers a law firm? This query I have raised is aimed at showing that it is not enough to listen to objections raised in Addresses that the words ‘Poku & Associates’ reflect the name of a law firm and agree with same, without being sensitive to the fact that such a conclusion may be simplistic, erroneous, unjustified and injurious to the legal fraternity.

 

The determination of the legal vehicle in which any lawyer is practising is a matter of fact. Some lawyers group themselves under the name of a senior lawyer with the tag ‘& Associates’ which name may not be registered as any legal entity at all. They are only sharing facilities, and perhaps the equity in the senior lawyer’s name. When such a Senior issues a writ with his name and adds the tag ‘& Associates,’ a proper appreciation, when the facts are known, is that the said lawyer has issued the writ.

 

Again, some lawyers register their businesses under the Registration of Business Names Act 1962 Act

Which means that their business name is only a pseudonym for the lawyer himself. Some operate as unlimited liability companies and still some as incorporated partnerships. With such operations, the company names and partnership names are incorporated entities–different from the lawyers.

 

Thus a court, in listening to arguments regarding the operation of ‘law firms’ ought to be extremely circumspect. Legal decisions are arrived at by applying the law to known facts and not suppositions or unknown facts.

 

In the present case, since this objection to the content of the writ was raised after a full trial, I believe the learned judge should have gathered into consideration all the facts known to him and used it to arrive at a proper decision. And these are the pieces of evidence I have pointed at which should have assisted him in arriving at a decision different from what he arrived at.

 

I also see that courts must be careful about any arguments presented in a manner that affects the tenets of justice we operate by and I speak specifically about the finding by the court that Poku & Associates is a law firm as argued by counsel for the Respondent in his addresses. Nowhere did this argument appear in the pleadings. Nowhere was the legal identity of Poku & Associates raised in this case. Then, when the Respondent was presenting his addresses, he sprang this argument. Fortunately, the Appellant had the opportunity to respond in addresses as well, and his counsel informed the court in his addresses that the writ was issued by Edwin Poku who signed the Writ and whose licence number is on the Writ.

 

The court should have recognised that this issue of Poku & Associates’ being a firm is a matter of fact, and not of law, and as required by the rules of natural justice, he needed evidence on the nature of identity of the business called Poku & Associates before he could conclude as he did in his judgment, that it is a law firm. It seems to have become fashionable for Defence lawyers to raise contentions about whether writs and other processes are defective because they were issued or prepared by firms or lawyers, and whether cases are sustainable because the lawyers who presented them are holding current licenses or not.

 

But the matter of sending people away from the seat of justice because of perceived defects occasioned by the grounding of their lawyers is not a light matter that the legal profession as a collective, given the constitutional mandate to administer justice for the good people of Ghana should trifle with and wield as an arrow of last resort. Lawyers are by the rules of court required to raise such objections early, and the Respondent counsel herein had the opportunity to do so. So where they do not raise their objections on such fundamental issues at the time they should, and spring them up at the last minute, courts should be extremely circumspect at articulating a finding that any name on a writ or process is a law firm, without identifying the salient issue of what legal personality that alleged ‘law firm’ is embedded in. The judgment is against the weight of evidence and the order dismissing the Plaintiff’s case on the ground that the writ was issued by a law firm is set aside as being against the weight of evidence.

 

The next ground of appeal that the learned trial Judge misdirected himself of the law by dismissing the Plaintiff’s suit is upheld.

 

The Appellant is also seeking this court to speak to the decision of the learned trial judge when he refused Plaintiff/Appellant’s application to add his name on the writ which was inadvertently omitted.

 

I am afraid that we cannot deal with this ground of appeal because that decision is not part of the judgment on appeal. An appeal must address a particular ruling or judgment. That decision was a decision given on a different date. Thus if Appellant wanted to appeal against the decision, he should have appealed against that decision and articulated his grounds of appeal. That appeal could have been consolidated with this one. But it was not. The Notice of Appeal that gives us jurisdiction to sit on this appeal says that it is filed against the judgment of 29th May 2015. That ruling is dated 8th May 2015.The third ground of appeal is therefore refused.

 

Every appeal is by way of rehearing. This is the direction of Rule 8 (1) of CI 19.

 

Rule 32 of the Court of Appeal Rules 1997 CI 19 provides

32. Power to give judgment and make an order

1. The court may, in respect of an appeal before it, give a judgment and make an order that ought to have been made, and to make a further or any other order as the case may require including an order as to costs.

2. the powers of the court.

a. may be exercised although the Appellant may have asked that a part only of a decision be reversed or varied; and

b. may be exercised in favour of all or any of the Respondents or parties, although the Respondents or parties may not have appealed from or complained of the decision.

 

The honourable trial Judge disabled himself from rendering a judgment on the substance of the case he had tried. However, having given judgment on what he believed to be the salient issues, he is now functus officio. It therefore behoves this court to discharge this appellate function of rehearing the case and determining the merits of the case.

 

Upon consideration of the totality of the evidence, we are satisfied that the Appellant proved his claim. His case was a claim for GH¢124,817.00 being the balance unpaid on sale of mobile phones. The Respondent did not deny having done business with him to the tune of the sum claimed. He did not deny having failed to pay for all the phones he purchased from the Appellant. His case was that they had to go into accounts. Now for any debtor who is anxious to go into accounts with his creditor and was experiencing trouble on that score, a litigation in the Commercial Division of the High Court is the best opportunity they have for doing so. The pre-trial conference offers the opportunity to get a Court supervised mediation and settlement of issues that would put disputes to bed. However, the pre-trial in this suit failed.

 

When the parties came to court, the Respondent failed to engage any of the rules of court to obtain the accounting he claimed he desired in his defence. Thus, this court can only conclude that the Defendant was not in any way interested in this accounting process. And before I look at the evidence of the Plaintiff, I must first examine what the Respondent actually seemed interested in. His counsel has submitted to this court to find the Appellant’s transactions with him illegal because the Appellant violated Ghana’s investment laws.

 

The answer to such a simplistic interpretation of Ghana’s investment law is that if everyone who sold goods and services to Ghanaians was required to first register an enterprise in Ghana, small indeed would be the foreign participation in Ghana’s economy. And perverse indeed would be the Ghanaian courts to refuse to protect any legitimate business conducted by foreigners with Ghanaians just because those foreign nationals did not have enterprises registered in Ghana. Ghanaians roam the whole globe and bring goods to Ghana to sell. Foreign nationals come into Ghana all the time with products to sell – just like Ghanaians export their products to various countries that would give them a market. Thus the submission that whenever a foreign national has sold to a Ghanaian through a Ghanaian partner or whatever channel, he has acted illegally unless he has registered an enterprise here, and the courts should not protect his rights is a submission that must be roundly condemned as a matter of public policy.

 

The GIPC Act 478 was set up for people who desire to establish businesses in Ghana. Sections 18 and 19 cited to this court are not in any way applicable to the Appellant’s business. He was not a hawker, retailer or running business from a kiosk. He had not set up an enterprise in Ghana. His testimony was that he had a Ghanaian business partner through whom he sold to Ghanaians. He had also earlier met the Respondent in Dubai and sold phones to him. He sold the phones to the Respondent on a wholesale basis and Respondent sold on retail to others. Thus this Court cannot countenance the submissions of Respondent counsel to shut the door to the Appellant’s claims. Those arguments are condemned and dismissed.

 

Having dealt with the preliminary objection, I will now look at the evidence of the Plaintiff? He tendered exhibits A, and B which were cheques issued by the Respondent. Respondent admitted being the author of the cheques. He admitted having issued them as security for the actual debt which was reflected on the face of the cheques.

 

The cheques had an accounting at the back of them. This was on exhibit C. the accounting carried the Respondent’s signature. According to the Appellant, the parties updated the records whenever there was a payment.

 

The Respondent did not deny that he and the Appellant kept the records behind the cheque. Indeed, he gave no different version of how to arrive at the real debt he owed. His contentions were that he had someone in his shop who kept track of the dealings with Appellant. He did not tender the accounting that person kept, neither did he call him to provide any different records to the court. Thus on a preponderance of probability, this court can only conclude that the Appellant has proved the debt claimed. Judgment is entered in favour of the Appellant in the sum of GH¢124,817.00 with interest at the prevailing market rate from December 2013, the date when that balance was arrived at, to date of final payment.

 

Cost of Ten Thousand Ghana cedis (GH¢10,000.00) in favour of the Plaintiff/Appellant.

 

(Sgd)

Gertrude Torkornoo (Mrs.)

(Justice of Appeal)

 

(Sgd)

Ayebi                                             I Agree                  E. K. Ayebi

(Justice of Appeal)

 

(Sgd)

Domakyaareh                                          I Also Agree    A. M. Domakyaareh (Mrs.)

(Justice of Appeal)

 

 

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