IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2016
ADOM MICRO SERVICES LTD - (Plaintiff/Respondent)
NANA KWAMINA MENDS - (Defendant/Appellant)
DATE: 25TH NOVEMBER, 2016
CIVIL SUIT NO: H1/157/2016
JUDGES: MARFUL- SAU J.A (PRESIDING), IRENE LARBI (MRS) J.A, HENRY KWOFIE J.A
GEORGE ADDO YOBO FOR DEFENDANT/APPELLANT
DANIEL OHENE DARKO FOR PLAINTIFF/RESPONDENT
HENRY KWOFIE J. A.
This appeal is against the judgment of the High Court Tema delivered on 13th March 2015. The trial Judge entered judgment in favour of the Plaintiff/Respondent against the Defendant/Appellant for the sum of Two Hundred and Twenty Three Thousand, Five Hundred and Thirty-Three Ghana Cedis (GH¢223,533.00) with interest thereon at the rate of 8% per month from 1st February 2012 to date of final payment. The trial Judge also awarded cost of Five Thousand, Five Hundred Ghana Cedis (GH¢5500.00) against the Defendant.
Dissatisfied with the judgment of the Court, the Defendant/Appellant mounted this appeal per a Notice of Appeal dated the 08-04-2015. The grounds of appeal set out in the Notice of Appeal was that:
The trial Judge erred by holding that the Plaintiff’s CEO rejected the trucks because they were not up to his specification (viz Double Axle Truck) inspite of the fact that the Plaintiff’s wife (an officer of the Plaintiff company) and another had physically inspected and examined the trucks and were satisfied with same before effecting payment.
The trial Judge erred in holding that the amount of GH¢89,110 paid by the Plaintiff company to Defendant judgment-debtor was a loan to the Defendant
The whole judgment is against the weight of the evidence
Further or other grounds of appeal will be filed upon receipt of proceedings.
It is noted for the record that no additional grounds of appeal were filed. The reliefs sought from the Court of Appeal is that the judgment dated the 13th of March 2015 be set aside. Before dealing with the arguments advanced in support and against the appeal, I will give a background of the case. By its writ of summons, the Plaintiff Company claimed against the Defendant recovery of the sum of GH¢223,533.00 being Defendant’s outstanding indebtedness from a short- term loan granted Defendant by Plaintiff for which Defendant has failed and or has neglected to pay; interest on the said sum from 1st November 2012 to date of final payment.
In a 20 paragraph statement of claim which accompanied the writ of summons, the Plaintiff, a non-banking financial institution claimed that the Defendant, a businessman obtained a contract to supply chippings and boulders for a sea defence project at Ada. He needed two double- axle trucks to execute this job. As a result, he entered into an agreement with the Plaintiff whereby the Plaintiff advanced money for the purchase of the double axle trucks. By the agreement, the Plaintiff was to be given a percentage of the returns of the sea defence contract. However the Defendant did not buy double axle trucks. Plaintiff therefore asked the Defendant to return the trucks although the Defendants tried to convince the Plaintiff to accept them. In the end, Defendant requested the Plaintiff to convert the sum of one hundred and sixty thousand Ghana Cedis (GH¢160,000) advanced to him for the purchase of the trucks into a loan so that Defendant could undertake the job and there would be no sharing of the returns. The Plaintiff obliged and Defendant applied for the loan of One hundred and sixty thousand Ghana Cedis (GH160.000) for a duration of one week and the vehicles were taken over by the Defendant. Although for the period between July and October 2011, Defendant was using the trucks for the Ada sea Defence project, he did not make any payment to Plaintiff by way of amortising the loan. In October 2011 a cheque of one hundred and twenty thousand Ghana Cedis (GH¢120,000) issued by the Defendant was dishonoured upon presentation. To remedy the situation, the Defendant paid cash of Twenty thousand Ghana Cedis (GH¢20,000) leaving a balance of one hundred and eighty-seven thousand, one hundred and eighty three Ghana Cedis (GH¢187,183.00). On 28th October 2013 the Defendant paid a total of One Hundred and ten thousand Ghana cedis (GH¢110,000) leaving a total balance of Eighty-seven thousand Ghana Cedis (GH¢87,000) inclusive of interest. The Defendant issued two cheques of Thirty- seven thousand seven hundred and eighty Ghana Cedis (GH¢37,780) and Fifty thousand Ghana cedis (GH¢50,000) all dated 1st February 2012 to pay off the balance of GH¢87,780 as at 31st January 2012, but these 2 cheques were also dishonoured upon presentation. It was the case of the Plaintiff that all effort to get the Defendant to pay the outstanding indebtedness failed hence the institution of the action to claim the outstanding balance inclusive of interest.
On the other hand the case of the Defendant was that even before Plaintiff advanced the money for the purchase of the two trucks for the Ada Sea Defence contract, the Plaintiff had agreed to make available for the Defendant’s use two (2) trucks to help execute the contract. Defendant averred that in pursuit of the contract, he bought two (2) trucks, one single axle 2006 model and one double axle and as the Plaintiff’s managing Director was at the time abroad, his accredited agent in the person of his wife inspected the trucks and agreed to purchase the two trucks at a total cost of One hundred and sixty thousand Ghana Cedis (GH¢160,000). After agreeing on these prices, Plaintiff caused a cheque of Ninety thousand Ghana Cedis(GH¢90,000) to be issued to the owners of the trucks and Defendant added seventy thousand Ghana cedis(GH¢70,000) he the Defendant owed the Plaintiff from a previous loan he contracted from the Plaintiff. Defendant avered that it was when the Plaintiff was requested to buy a trailer at thirty five thousand Ghana Cedis (GH¢35,000) that he panicked and asked the Defendant to help to dispose of the two trucks. Defendant continued that it was when it became apparent that selling the trucks was going to be difficult that Plaintiff asked him (the Defendant) whether he would be willing to take over the trucks and make periodic payments to the Plaintiff out of the proceeds of the sea defence contract works to which he the Defendant agreed. The Defendant denied that the purchase price of GH¢160,000.00 was converted into a loan. His case was that he never applied for a loan and was never given a loan with any interest. On the issue of the cheque of one hundred and twenty thousand Ghana Cedis (GH¢120,000) issued by him Defendant, he explained that he issued that cheque upon persistent pressure from the Plaintiff’s managing Director who claimed one of his creditors Mr. Adu Gyamfi was putting a lot of pressure on him (the Plaintiff MD). He the Defendant therefore issued the cheque to the Plaintiff for the latter to use it to create the impression to Mr. Adu Gyamfi that the indebtedness will be paid as a way of stopping the said Mr. Adu Gyamfi from any further harassment of the Plaintiff. But the Plaintiff’s Managing Director presented the cheque contrary to expectation and same was dishonoured. Defendant further contended that he had paid GH¢120,000 and supplied granite chippings and quarry dust to the tune of Eight thousand Ghana Cedis(GH8000) and in October 2011 he also paid an amount of One hundred and Ten thousand Ghana Cedis (GH¢110,000) bringing the total amount paid for the two trucks to One hundred and thirty-eighty thousand, one hundred Ghana Cedis (GH¢138,100 leaving a balance of Twenty - one thousand, nine hundred Ghana Cedis (GH¢21900) to be paid to the Plaintiff. The Defendant further averred that the 2 cheques of Thirty -seven thousand seven hundred and eighty Ghana Cedis (GH¢37,780) and fifty thousand Ghana Cedis (GH¢50,000) all dated 1st February 2012 were not issued to liquidate any outstanding balance on a loan. On the contrary, the 2 cheques were issued towards the intended purchase of an American truck which Plaintiff’s Managing Director claimed to have purchased but could not buy a trailer to accompany it. According to the Defendant, he stopped the 2 cheques when he realized that the truck had been seized by the Plaintiff’s Managing Director from one of Defendant’s acquaintances who was a car dealer.
The judgment appealed against is at pages 134 to 143 of the Record of Appeal. In this judgment, the Defendant/Appellant shall be referred to as the Defendant while the Plaintiff/Respondent shall be referred to as the Plaintiff or Plaintiff Company. Underground (a) of the appeal, the Defendant contended that before the Court makes a determination as to whether or not Mr. Richard Awuku Aboagye the Plaintiffs CEO rejected the trucks, it is important that the Court makes a determination of the issue whether the parties intended to create legal relationship. He submitted that to consolidate Mr. Awuku Aboagye’s intention to buy the trucks in issue, he accompanied the Defendant to inspect trucks in a garage along the motorway and also caused a friend of his to release a truck for hire by the Defendant. He submitted further that Mr. Awuku Aboagye also instructed his wife and his father-in-law who is not an officer of the Plaintiff Company to inspect and ascertain the suitability or otherwise of the trucks. The Defendant continued that soon after Mrs. Awuku Aboagye and her father had inspected the trucks, Mrs. Aboagye called the Defendant on phone to come for the cheque covering the purchase of the truck by Mr. Awuku Aboagye in person and not the Plaintiff Company. He submitted that Mr. Awuku Aboagye paid for the trucks through the Plaintiff Company and proprietary rights in the said trucks were immediately transferred to him. Thus, the contract was valid and consummated when Mrs. Beatrice Awuku Aboagye and her father inspected the trucks and eventually effected payment thereof
In response to the above submissions, the Plaintiff argued that the evidence points to one thing, that the truck specification agreed between Richard Awuku Aboagye in his personal capacity when he dealt with the Defendant was not what the Defendant provided. The Plaintiff further submitted that although the agreement was for the Defendant to buy 2 double -axle trucks, he rather bought one double- axle helper and one (1) single axle so the Plaintiff rejected them.
The pleadings and the evidence shows clearly that the Defendant agreed to get 2 double axle trucks to be paid for by the Plaintiff in his personal capacity to be used for the project which the trial Judge stated “beckoned the use of heavy duty trucks”
The evidence leaves no doubt that instead of 2 double- axle trucks, the Defendant brought in one single axle truck and one helper from Kumasi. Although the Plaintiff paid for these trucks, there is no doubt also that subsequently he changed his mind and asked the Defendant to return the trucks . The trial Judge after evaluating the evidence concluded with regard to the two trucks as follows at page 139 and 140 of the Record of Appeal:
“ As remarked earlier, the Ada Sea Defence project beckoned the use of heavy duty trucks. Plaintiff’s CEO therefore participated in the project by agreeing and buying two trucks for the haulage of boulders business. However, Defendant was the one who assumed the responsibility of getting two double axle trucks since he was more experienced in the business. Accordingly, Defendant brought two trucks to Accra from Kumasi for Plaintiff’s CEO to purchase same. It turned out that at the time the trucks were brought, Plaintiff’s CEO was not in the country. However he instructed the inspection of the trucks. After the inspection by the wife of the Plaintiff’s CEO, she issued a cheque for the payment of it. It turned out however that the trucks were not double axle trucks as agreed. In the mouth of the Defendant, the trucks were “ a single axle and a helper”. When the Plaintiff’s CEO learnt that the trucks were not double –axle, he rejected them and despite Defendant’s efforts to persuade him to accept them, the Plaintiff’s CEO insisted on the rejection of them. It was at this juncture that the Plaintiff was invited into the drama. Defendant requested that the payment that had been made be converted into a loan for him to take full charge of the trucks and to pay for same out of the proceeds of the Sea Defence project”.
There is abundant evidence on record to support the trial judge’s finding that the Plaintiff CEO rejected the trucks because they were not double axle trucks as originally agreed with the Defendant. Ground a) of the appeal is unmeritorious and same is dismissed.
I now turn to ground b) of the appeal. The argument urged on this ground is that the contract between Defendant and Mr. Awuku Aboagye was personal to the parties only and not to third parties such as Adom Micro Services Limited the Plaintiff’s Company herein. The Defendant submitted that Mr. Awuku Aboagye bought the truck not with his personal money but with money from the Plaintiff Company and proprietary rights therein were immediately transferred to Mr. Awuku Aboagye. He continued that having paid for the trucks from the resources of the Plaintiff Company, Mr. and Mrs. Awuku Aboagye had no option than to find a way to reimburse the Plaintiff Company in the sum of GH¢160,000. It was at this point that they fraudulently decided to give the whole transaction the colour of a loan by hurriedly preparing documents to give credence to their position. It was further submitted that Exhibit C cannot by any stretch of imagination be construed to be a loan application Form. The Defendant further submitted that he never ever filled a loan application form before the Barclays Bank cheque numbered 252951 was issued to him on 8th July 2011.
In response to the above submissions, the Plaintiff argued that it was after the rejection of the trucks by the Plaintiffs CEO that Defendant decided to own the trucks by applying to have the GH¢160,000 paid to him to bring the trucks converted into a loan for a duration of one week. This was in anticipation that a loan he had applied for, from the Agricultural Development Bank would be available. Counsel further submitted that in furtherance of this, the Defendant filled a loan application form Exhibit C. He submitted that there was clear evidence at the trial to support the fact that the sum of GH¢160,000 given to appellant to purchase the 2 trucks was converted to a loan after the Plaintiff rejected the trucks as not meeting the agreed specification. Finally he submitted that there is evidence to show that the defendant financed the payment from the sum of GH¢160,000 given to him by the Plaintiff.
The evidence on record shows that after the rejection of the 2 trucks by Mr. Awuku Aboagye, the Defendant instead of returning the trucks to the owners and return the Plaintiff CEO’s GH¢160,000 to him, decided to buy the trucks but had no money to pay for them. In his evidence in chief the Defendant admitted that he indeed decided to keep the trucks and pay for same. He said at page 82 of the ROA:
Asare: So when he did not have money to acquire the two(2) trailers, what happened to the trucks that you had brought, did you deliver possession to the Plaintiff? Kwamina: No, he did not ask me to deliver possession. What he did was that after a little while, 2 weeks or so he called me that the money he used to buy the trucks actually belong to one Mr. Adu Gyamfi. He was traveling to the U.S. and he gave him that money to turn around with it for at least one month and Mr. Adu Gyamfi was back and he wanted the money so if I could sell the trucks and pay back the money. So I said fine, so the trucks remained in my house. Meanwhile before Mr. Adu Gyamfi’s issue came in, he had brought in one other International American truck for me to convert for him into a tipper truck so that he could also use that on the project. In the process, I think when Mr. Adu Gyamfi came, the finances was not good so he asked me to sell that truck too off. So I opted in the first place to buy the two (2) Man Diesel trucks because it was not easy getting the money from the people in Kumasi or selling the trucks. So I opted that he should leave it I will pay him for the trucks”.
The evidence on record shows that although the Defendant opted to purchase the trucks he could not pay for same and therefore asked that the sum of GH¢160,000 used to pay for the 2 trucks should be converted into a loan; and he therefore signed the loan application form Exhibit C at page 176 to 178 of the ROA. After evaluating the evidence the trial Judge delivered himself thus at page 140 and 141 of the ROA:
“ It can therefore be stated that it was under the circumstance or background that Plaintiff’s CEO and the Defendant entered into the agreement whereby Defendant agreed to pay for the two trucks and continue to use them in pursuit of the Ada Sea Defence Project. ………. But it must be observed that Defendant did not have ready money available to give to Plaintiff’s CEO for him to assume full ownership of the trucks that had been paid for by the Plaintiff’s CEO. I therefore tend to believe the case of Plaintiff that it was at that stage that Defendant requested for a loan as an answer to address the financing of the acquisition of the trucks”
Further the trial Judge stated in the judgment at page 142 of the ROA as follows:
“ Indeed Exhibit C is eloquent in the loan of one hundred and sixty thousand Ghana Cedis (GH¢160,000) on 8th July 2011, that is Exhibit D. The question then, is why is the loan GH¢160,000 but a cheque of GH¢89,110 was issued for it? Both parties agreed on the explanation that Defendant already by way of a previous loan, owed Plaintiff seventy thousand eight hundred and Ninety Ghana Cedis (GH¢70,890) and so that amount was deducted from the one hundred and sixty thousand Ghana Cedis (GH¢160,000) and the difference was what was given to the Defendant as stated in Exhibit D”
These findings of the trial Judge was amply supported by the evidence on record that the sum of GH¢89,110 paid by the Plaintiff Company to the Defendant was a loan to the Defendant. Ground b) of the appeal has no merit and same is dismissed.
We now turn to ground c) of the appeal which was the omnibus ground that the whole judgment is against the weight of evidence. Counsel for the Appellant submitted that the Defendant was dealing with Mr. Richard Awuku Aboagye as an individual rather than Richard Awuku Aboagye as CEO of Plaintiff Company. Further he submitted that the Defendant had no business to do with the Plaintiff Company and the company could not or ought not to have sued the Defendant. Finally, he submitted that assuming without admitting that the Defendant was indebted to the Plaintiff Company in the sum of GH¢223,533.00 it is reckoned that the parties never agreed that the interest rate be compounded. He continued that the trial Judge did not advert his mind to the principle of law that save as parties expressly agreed that interest rate be compounded, a simple interest rate was to be applied in determining the liability of a party.
In response the Defendant submitted that the trial Judge carefully evaluated the evidence and was right when after the trial he came up with his judgment which touched on all the issues raised in the matter.
The law is settled that where an appellant complains that a judgment is against the weight of evidence, he is Complaining that there were certain pieces of evidence on record which if applied in his favour could have changed the decision in his favour or certain pieces of evidence have been wrongly applied against him. The onus is therefore on such an appellant to clearly and properly demonstrate to the appellate Court the lapses in the judgment being appealed against. See the case of DJIN VS MUSA BAAKO (2007-2008) SCGLR 686. Also see the case of TUAKWA VRS BOSOM (2001-2002) SCGLR 61
Thus in the case of BONNEY VRS BONNEY (1992-93) GBR 779 the Supreme
Court held in holding 4 at page 781 that:
“ whereas appellant contended that a judgment was against the weight of evidence, he assumed the burden of showing from the evidence that that was infact so. The argument that an appeal is by way of rehearing and therefore the appellate Court was entitled to make its own mind on the fact and draw inferences from them might well be so, but an Appeal Court ought not, under any circumstances interfere with findings of fact by the trial Judge except where they were clearly shown to be wrong or that the Judge did not take all the circumstances and evidence into account, or had misapprehended some evidence or had drawn wrong inference without any evidence in support or had not taken proper adventage of his having seen or heard in support the witnesses”.
The evidence on record shows that initially the two trucks were intended by Mr. Awuku Aboagye for use on the Ada Sea Defence project but when he rejected the trucks, the Defendant insisted on buying the trucks for use on the project but had no money so the GH¢160,000 being the cost of the 2 trucks which he should have refunded to the Plaintiff’s Company was converted into a loan by the Plaintiff Company. The following dialogue at page 93 of the Record of Appeal between the Defendant and Counsel for the Plaintiff Ohene Darko in cross examination is relevant:
Q. Before the cheque was advanced to him he had two outstanding loans with the Plaintiff
A. No, it was one outstanding loan
Judge: He said he was owing seventy thousand Ghana Cedis (GH¢70,000)
Q. So did you use any part of the money to repay the loan
Judge: Which money are you talking about
Ohene: The money that was advanced to him
Judge: The money that the wife of Mr. Awuku advanced to him that is the Eighty Nine thousand and something Ghana Cedis
Ohene: Yes my Lord
Q. Did you use any part of that money to pay for this loan
A. I used the seventy thousand Ghana Cedis (GH¢70,000) to top up the Eighty-Nine and something thousand Ghana Cedis she gave to come up to one hundred and sixty thousand Ghana Cedis (GH¢160,000) to pay for the 2 trucks.
Further on at page 94 and 95 of the ROA the Defendant was asked in cross-
Q. And when did you make any payment? Because the money was advanced to you in July. When was your first payment made
A. I didn’t need to make any payment because the money was for the trucks which belongs to them
Q. Where are the trucks now
A. The trucks, I sold them. They belong to me
Q. They belong to you
Q. And you were saying the trucks belong to them
A. I paid for the trucks and the trucks were never in his name because he wanted the trucks sold and not registered in his name, so I paid for the trucks, it was one hundred and thirty eight thousand, one hundred Ghana Cedis (GH¢138,100) out of the one hundred and sixty thousand Ghana Cedis (GH¢160,000). I owed him Twenty one thousand, nine hundred Ghana Cedis (GH¢21,900) which I agree.
The evidence thus shows that the 2 trucks worth GH¢160,00 had been paid for with a cheque of GH¢89,110 (Exhibit D) reeived from Mrs. Awuku Aboagye on 08/07/2011 and the GH¢70,000 the Defendant owed the Plaintiff from a previous loan transaction which he should have paid to the Plaintiff thus making an aggregate of GH¢160,000. When the Defendant decided to keep the vehicles instead of returning them after being rejected by the Plaintiff’s CEO, the Defendant had to pay this GH¢160,000 to the Plaintiff. Not having money, this amount was converted into a loan for which the Defendant signed the loan agreement Exhibit C. It clearly lies ill in the mouth of the Defendant to deny taking a loan from the Plaintiff Company. The trial Judge finding that the Defendant took a loan of GH¢160,000from the Plaintiff could not have been otherwise. This loan of GH¢160,000 at an interest rate of 8% per month was partly repaid and I can do no better than reproduce the trial Judges clear finding on how the part-payment was made in his judgment at page 151 of the ROA:
“Although for the period July and October 2011, Defendant was using the trucks for the Ada Sea Defence project, he did not make any payment to Plaintiff by way of amortising the loan. However on 13th October 2011, Defendant issued a cheque of one hundred and twenty thousand Ghana Cedis(GH¢120,000.00) to Plaintiff that upon presentation , the cheque was returned dishonored. In an attempt to remedy the situation, Defendant paid cash of Twenty thousand Ghana Cedis (GH¢20,000) leaving the balance on the loan as at 17th October 2011 at One hundred and eighty- seven thousand, one hundred and eighty – three Ghana cedis (GH¢187,183.00). On 28th October 2011, Defendant paid a total of One hundred and Ten thousand Ghana Cedis (GH¢110,000) leaving a balance of Seventy- seven thousand Ghana Cedis (GH¢77000) inclusive of interest . Defendant issued 2 cheques of Thirty- seven thousand, seven hundred and eighty Ghana Cedis (GH¢37,780.00) and Fifty thousand Ghana Cedis (GH¢50,000.00) all dated 2nd February 2012 to pay the balance of Fifty –seven thousand seven hundred and eighty Ghana Cedis (sic) GH¢57780 outstanding as at January 2012, but these cheques were also returned dishonoured”
The sum of GH¢57780 stated in the judgment was clearly a typographical error. It is actually GH¢87780 that is the aggregate of GH¢37,780 and GH¢50,000.
Clearly therefore as at the time the writ of summons was issued this outstanding balance of GH¢87780 with an agreed interest rate of 8% per month had risen to GH¢223, 533.00 which was what the Plaintiff claimed in the action.
The allegation that the judgment was against the weight of evidence has no basis whatsoever. In our view ground c) of the appeal has no merit and same is dismissed. We have looked at the interest rate used in the computation of the judgment debt which was the agreed rate of 8% per month. The trial Judge was right in entering judgment for the Plaintiff for the sum of GH¢223,533.
We would therefore affirm the judgment of the trial Court. However we are of the Considered opinion that the sum of GH¢223,533.00 awarded to the Plaintiff should attract interest at the agreed interest rate of 8% from 1st December 2012 up to date of final payment. We further order that the 8% interest rate shall be calculated on simple interest. The appeal accordingly fails and the judgment of the trial Court is affirmed subject to the orders of this Court regarding the rate of interest and the method of calculating same. Costs of GH¢3,000.00 in favour of the Respondent.