ADU ACHEAMFOUR vs PHILIP AMPONSAH ANARFI & MADAM BIMPOMAA
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    KUMASI - A.D 2018
ADU ACHEAMFOUR - (Plaintiff/Respondent)
PHILIP AMPONSAH ANARFI AND MADAM BIMPOMAA - (Defendants/Appellants)

DATE:  15 TH OCTOBER, 2018
SUIT NO:  H1/66/2017
JUDGES:  ADUAMA OSEI J.A. (PRESIDING), DZAMEFE J. A., WELBOURNE (MRS) J. A.
LAWYERS:  JOSEPH BOAKYE DANQUAH FOR PLAINTIFF/RESPONDENT
NO REPRESENTATIVE FOR DEFENDANTS/APPELLANTS
JUDGMENT

 

WELBOURNE, JA

This is an appeal against the judgment of the High Court, Commercial division, Kumasi dated 28th April, 2016.

 

The facts are that the Plaintiff/Respondent is a businessman who imports second hand goods and lives in Ash-Town, Kumasi whilst the Defendants/Appellants are a married couple and traders who live at KronumKwapra, Kumasi.

 

It is the case of the Plaintiff/Respondent that the Defendants/Appellants ordered some children’s second hand clothes from him. In furtherance of that request, he imported 424 bales of second hand children’s clothes to Ghana in January, 2013. The Plaintiff/Respondent then supplied the whole of the bales to the 1stDefendant/Appellant in his rented warehouse at Kentinkrono,a suburb of Kumasi.

 

After inspection, the Defendants/Appellants accepted the delivery. When it came to the price for the goods, the Plaintiff/Respondent quoted an initial fee of GH850.00 per bale. These were along the line reduced to GH670.00. Where upon they made part payment of GH90,000.00 and then GH30,000.00 whilst pleading for more time to pay. This meant that they had made a total payment of GH120,000.00.

 

The Plaintiff/Respondent realising that Defendants/Appellants were delaying his return abroad, asked his brother to collect the balance from the Defendants/Appellants. The Defendants/Appellants meanwhile had asked for a further reduction to GH600.00 per bale.

 

The Defendants/Appellants continued to postpone the payment of the outstanding balance leaving the Plaintiff/Respondent no option but to issue the Writ of Summons whereby he claimed the following reliefs:

(i)Cash the sum of GH134,000.00 being the outstanding balance of second hand children’s clothes supplied to the Defendants/Appellants at their own request in January, 2013 but have wilfully refused to pay in spite of several demands.

(ii)Interest on the amount at current bank rate from January, 2013 to date of judgment.

 

The Defendants/Appellants denied the averments in the Plaintiffs/Respondent’s Statement of Claim. It was the case of the Defendants/Appellants that the 424 bales did not contain only second hand children’s clothes. Indeed according to the Defendants/Appellants, the Plaintiff/Respondent intimated to the Defendants/Appellants in his presence during the inspection that only four of the bales contained mixed clothes but all the others were exclusively children’s clothes hence there were price variation for the different types of clothing.

 

Thus the Defendants/Appellants reduced the price per bale to GH600.00.

 

However, it was because of the mixed nature of the bales that selling had become difficult on the open market. The Defendants/Appellants also averred that they had requested for a reduction from GH600.00 to GH400.00 to enable them sell the clothes.

 

Further, they had on countless occasions requested the Plaintiff/Respondent to come for the remaining 104 unsold bales but the Plaintiff/Respondent had refused and or failed to do so.

 

In addition, the Plaintiff/Respondent resorted to reporting and effecting the arrest of Defendants/Appellants by the BNI, Asawase Police Service and the AsahntiRegional Police Headquarters, thereby causing the Defendants/Appellants unwarranted anxiety and harassment.

 

It was the Defendant/Appellant’s case that the frequent arrests by these bodies as stated have impacted negatively on theirbusiness. The Defendants/Appellants then stated that Plaintiff/Respondent was not entitled to his claims and counter claim for damages for unlawful and or illegal arrest and detention. After the trial, the Judge ruled in favour of the Plaintiff/Respondent for the sum of GH134,000.00 and cost of GH10, 000.00.

 

Dissatisfied with the said judgment, the Defendants/Appellants have appealed on the following grounds as found on page 180 of the Record of Appeal:

1.That the trial judge erred in law by accepting the evidence proffered by the Plaintiff Attorney as the power of attorney which clothed the attorney with the needed authority to speak on the Plaintiff’s behalf was defective and hence illegal.

2.That the trial judge erred in law in considering the evidence of the Plaintiff witness which was purely intended to corroborate the already illegally adduced evidence of the Plaintiff attorney.

3.That the judgment is against the weight of the evidence on the record.

4.That the trial judge was inconsistent on the important issue of counter offer made by the Defendants and treated same as acceptance of the Plaintiff’s offer.

5.That the trial judge erred in law by holding that the Defendants had breached the contract entered with the Plaintiff by failing to pay the price of GHC 600.00 per bale.

6.Further or other grounds of appeal to be filed on receipt of the Record of Appeal.

 

In this appeal, the Plaintiffs/Respondents are hereinafter referred to as the Respondents and the Defendant/Appellant is hereinafter referred to as the Appellant. The record of appeal is hereinafter referred to as ROA.

 

CONSIDERATION:

The authorities are legion that an appeal is a way of rehearing of a case already decided by a Court.It is in this regard that it is worthy of note that Rule 8 of C.I. 19 states unequivocally that:

An appeal to the Court shall be by way of rehearing and shall be brought by a notice of appeal.”

 

The law is therefore settled that an appeal to an appellate court is a way of rehearing and the appellate court, in addressing same, ought to consider the entire record before it. This position of the law was amply demonstrated in the case of Tuakwa V. Bosom [2001-2002] SCGLR 61, where the court held that;

“It was incumbent upon the appellate court in a civil case to analyse the entire record of appeal, take into account the testimonies and all documentary evidence adduced at the trial before arriving at its decision so as to satisfy itself that in a balance of probabilities the conclusion of the trial judge are reasonably or amply supported by the evidence.”

 

Her Ladyship, Georgina Wood, CJ in the case of Agyeiwaa V. P & T Corporation (2007-08) SCGLR 968 @ 989 stated that:

“The well-established rule of law is that an appeal is by way of rehearing and an appellate court is therefore entitled to look at the entire evidence and come to proper conclusions on both the facts and the law”.

 

The grounds of appeal filed in the instant case as per the Notice of Appeal are six (6). However, there is no evidence on record that the appellants have filed any other additional ground as stated in the sixth ground, so we shall deal only with the five grounds as evidenced on the ROA.

 

In furtherance, we would consider the five (5) grounds of appeal one after the other as they appeared in the Notice of Appeal at page 180 of the ROA. We shall first consider ground one.

 

GROUND ONE (1):

“That the trial judge erred in law by accepting the evidence proffered by the Plaintiff Attorney as the power of attorney which clothed the attorney with the needed authority to speak on the Plaintiff’s behalf was defective and hence illegal.”

 

This ground of appeal need not be unnecessarily belaboured. This is because a thorough glean of the ROA at page152 indicates that the learned trial judge has amply dealt with this particular issue. Here, the trial judge said inter alia that: “Plaintiff then revoked the power to Stephen Owusu and appointed Zelionel Multi Services Company Limited as his lawful attorney. He also appointed Sarpong& Associates as his solicitors. It appears the solicitors presumed the Plaintiff sued by his attorney Zelionel Multi Services Company Limited; because since then all processes filed by his solicitors is headed plaintiff suing per his lawful attorney. That is erroneous because as is clear on the records, the title of the suit was not amended.”

 

Also, at page 153 of the ROA, it’s indicative to note that the learned trial judge went on to deal with the same issue when she said again that; “Though Plaintiff was present in Court, evidence was given on his behalf by a representative of Zelionel Multi Service, the attorney. He did not seem to have all the information and fumbled in cross examination.

 

It is trite law that civil litigation must come to an end. This is one of the main objectives of the Civil Procedure Rules, 2004 (C.I. 47) as per Order 1 Rule 1(2). This Court cannot agree more with the learned High Court judge on her brilliant analysis of the law on this footing. This court would not want to say anything different on this ground. It is for this reason that this Court would not want to over-stretch this point by going into the nitty-gritty of this ground.

 

Furthermore, in the case of AdomakoAnane V. OwusuAgyemang [Subs. By NanaBanahene] & 8 Others, Civil Appeal No. J4/42/2013, Dated 26th February, 2014, it is very clear that the Supreme Court in recent years leans more towards judgments that go to the merits or the root of a case instead of dwelling on technicalities. Thus,in Halleand Sons A. S. Vrs. Bankof Ghana&Anor.(2011) 34 G. M. J., the Supreme Court, commented on the need to reject technicism as a judicial approach to case resolution. On the principle of non-compliance with procedural technicality, the Supreme Court in holding (2) held thus:

 

“The words of Lord Denning MR. in HarknessVrs. Bells Asbestos& Engineering Limited (1967) 2 QB 729 at 736 CA, that;

It can be asserted that it is not possible for an honest litigant in her majesty’s High Court to be defeated by any mere technicality, any slip, and any mistaken step in his litigation.”The same can also be said of our Courts in Ghana in view of our rule 79 of C.I. 16 rule 63 of C.I. 19 and Order 81 of C.I. 47.”

 

For the above stated reasons, this ground of appeal is therefore declined.

 

GROUND TWO (2):

“That the trial judge erred in law in considering the evidence of the Plaintiff witness which was purely intended to corroborate the already illegally adduced evidence of the Plaintiff attorney.”

 

This second ground of appeal is premised or anchored on the first ground. However, from the ROA, there was no evidence that shows that Stephen Owusu a.k.a.Amutu (PW1) gave his evidence which was purely intended to corroborate the already “illegally adduced evidence” of the Plaintiff’s attorney. At page 161 of the ROA, the learned trial judge said among other things that; “Stephen Owusu a.k.a.Amutu was not a mere witness but a very active participant in all the meetings and negotiations and therefore, had first-hand knowledge and more facts than the Plaintiff’s attorney who testified to what he was instructed on and therefore, had no knowledge about or answers to matters which the donor did not brief him on. The court therefore considers as weighty, the evidence of Amutu on the reasons for the reductions and will look at the balance of probability in relation to which of the two versions is likely to be the truth.”

 

The trial judge proceeded to quote section 10 subsections (1) and (2) and section 12 subsections (1) and of the Evidence Act, 1975 (NRCD 323) as follows:

Section 10

10. (1) For the purposes of this Decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court.

(2) The burden of persuasion may require a party to raise reasonable doubt concerning the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond reasonable doubt.

Section 12

Except as otherwise provided by law, the burden of persuasion requires proof by preponderance of probabilities.

“Preponderance of probabilities” means 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.

 

Indeed, Counsel for the Appellant averred at pages 11-12 of their written submission that:

“We respectfully urge this honourable court to treat PW1’s evidence with all the contempt it deserves particularly considering that he has a motive and an interest that is the fee he charged the defendants for bringing them the deal. Counsel continued and further averred that “

 

My Lords, this ensued at page 55 of the ROA when PW1 was under cross-examination;

Q. Do you remember charging the Defendants an amount of Three Thousand Ghana Cedis (GH3000.00) to facilitate the acquisition of these second hand clothes from the Plaintiff?

A: I charged them for my assistance to help them acquire the goods.

Q. So in this Three Thousand Ghana Cedis (GH3000.00) that you charged the Defendants how much was paid to you?

A: Two Hundred Ghana Cedis (GH200.00)

 

Counsel further said at page 12 of the Appellant’s written submission that;

“From the above and in respect of the motive of PW1 and the fact that he is unworthy witness, we wish to draw the attention of this Court to its own case in Tanko V. Karami[1989-90] 2GLR 189, when it said, “a court would therefore be entitled to place no weight on the evidence of a witness who gave evidence with a motive to help his friend.”

 

With the above assertion, Counsel seems to suggest to this Court that the evidence adduced by Amutu (PW1) is not worthy of consideration and should therefore be ignored by the court.

 

However, this Court disagrees with Counsel’s position and rather believes that, since Stephen Owusu a.k.a. Amutu was the prime architect or the sole middleman between both the Appellant and the Respondents, he has first-hand knowledge and information about the entire transaction and his witness statement cannot be easily ignored, unless the Appellants are able to adduced concrete evidence to the contrary.

 

An extract from the cross examination of Stephen Owusu a.k.a. Amutu (PW1) at page 50 of ROA is pertinent at this juncture:

Q. Mr.Owusu you approached the defendants that you have a brother in Europe who has second hand goods that he intends selling to the Defendants is that correct?

A: That is not true.

Q. The Defendants approached you that they wanted second goods to buy from your brother abroad. Is that what you are telling the Court?

A. They informed me that the goods they trade in were scarce and if I could get somebody to supply. So I told them I have a friend who was in Europe and who imports goods so I informed him to supply them.

Q. So that means the Defendants did not know the Plaintiff before you informed them that you have a friend who can supply them with goods?

A: No. They did not know him.

 

With the above overwhelming pieces of evidence, this Court therefore agrees with the trial court that Amutu’s evidence is really useful and important in the proper determination of this case andwas not purely intended to corroborate the already illegally adduced evidence of the Plaintiff attorney as alleged by the Appellants.

 

This ground therefore fails.

 

GROUND THREE (3):

“That the judgment is against the weight of the evidence on the record.”

 

The judicial authorities are therefore settled that where the appellant has appealed against a judgment on the omnibus ground that the judgment is against the weight of evidence as in the instant case, the appellate court had jurisdiction to examine the totality of the evidence before it and come to its own decision on the admitted and undisputed facts – see Akufo-Addo V.Catheline [1992] 1 GLR 377. But then the appellant who so alleged that the judgment is against the weight of the evidence has the primary duty of showing from the evidence on record that it is so – see Boateng V.Boateng [1987-88] 2 GLR 81.

 

The appellant does not discharge this duty unless he has shown from the record, admissible and credible evidence in his favour which the trial court had failed to consider, overlooked or made wrong inferences from.

 

The law is trite that an appeal is a way of rehearing. Since a careful perusal of the ROA indicates that the grounds of appeal in the instant case are mixed law and fact, we yield to the oft cited principle laid down in the case of TuakwaV. Bosom (Supra) that:

Appeal is by way of rehearing particularly where the appellant alleges in his notice of appeal that the decision of the trial court is against the weight of evidence. In such a case, it is incumbent upon an appellate court, in a civil case, to analyse the entire record of appeal, take into account the testimonies and all documentary evidence adduced at the trial before arriving at its decision, so as to satisfy itself that on a balance of probabilities the conclusions of the trial judge are reasonably or amply supported by the evidence.”

 

Again, in the case ofDjin V. MusahBaako (2007-2008) SCGLR 686,which stated at holding 1 that:

“Where (as in the instant case), an appellant complains that a judgment is against the weight of evidence, he is implying that there were certain pieces of evidence on the 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 on such an appellant to clearly and properly demonstrate to the appellate court the lapses in the judgment being appealed against”.

 

See also the cases of:

Margaret MaryAdjei V. The Attorney-General& Others [2012] 50 GMJ 198, CA;

Aryehand Akakpo V. AyaaIddrisu (2010) SCGLR891 andAkufo–Addo V. Catheline(1992) 1GLR 377.

 

This Court intends therefore to examine the evidence as adduced at the trial, both oral and documentary, and come to a conclusion as to whether the correct inferences were drawn and whether the conclusions arrived at by the trial judge were supportable by the evidence on record. In this regard, we will make references to both the oral as well as the documentary evidence adduced by both Appellants and the Defendant during trial and from their respective written submissions.

 

A thorough scrutiny of the ROA at page 161 revealed that the trial Court observed rightly with which this Court shares the same opinion with that the Defendant’s version contains only one reason for their persistent demands to the Plaintiff to reduce the price; and it is because the goods were not exclusively children’s clothes but with adults’ clothes. He mentioned a few in his evidence and tendered Exhibit “1”. Exhibit “1” is a list of items including “corset, ladies polo, men’s T-shirt, blouses and pants among others. The following extract from the 1stDefendant’sStatement on Oath at page 58, lines 13-17 of the ROA is instructive in this analysis:

We opened four bales for inspection. In all there were 424 bales. When we opened the four bales we found that they were mixed up with adult clothing’s like knickers, ‘T’-shirts, braziers and blouses. I pointed it out to the Plaintiff AduAcheamfour that he made us aware they were children’s clothes but the samples we had opened were mixed with adult clothes.” This list can be found at page 24 of the ROA.

 

Again the extract from the Appellant’s cross-examination is relevant in this analysis:

Q. Your reason for asking for a reduction was that you had underestimated the cost of re-packaging and therefore he reduced it for you otherwise you won’t be able to break even?

A. That is not true. The reason for going there was to inform him that contrary to his promise that the goods were solely children’s second hand goods they were mixed goods.

 

Again,on the claim of the Appellants that they were arrested and locked-up on the instructions of the Defendant which caused them embarrassment was not also supported with enough evidence. Paragraph16 of the Defendant’s Statement of Defence at page 14 of the ROA is evidential in this regard:

16. The Defendants also state that instead the Plaintiff have rather resorted to reporting and causing the arrest of the Defendants by the BNI, Asawasi Police Service and the Ashanti Regional Police Headquarters, thereby causing the Defendants unwanted anxiety, and embarrassment.”

 

Again, the first counter-claim of the Defendant is equally instructive in this analysis:

(a) Damages for unlawful and or illegal arrest and detention.”

 

This extract from the Appellant’s Evidence-in-Chief, lines 16-40, atpages 62-63 of the ROAis also relevant in this analysis at this juncture:

It took sometime -one day I had a call when I picked it the person on the phone told me he is working at the BNI that he was investigating a case and I was mentioned so I should report to his office with my lawyer so I went there with my lawyer. The officer told me that the Plaintiff had reported me to them that he sold second hand clothes to me and I had refused to pay. I told him it was not the case so I told him my side of the story. I explained the goods are there and that I was expecting him to come for it to discuss the price. My lawyer explained to the BNI that it was a civil matter and not criminal. My lawyer added that the rest of the goods are there and Plaintiff can come for them. The officer in charge told us he will call Plaintiff and inform him of what transpired. My lawyer and I left. After the encounter at the BNI one day I was away when I had a call that the Plaintiff had taken police men from Asawase Police Station to my shop to arrest me. I went to the police Stationafter I had a call from a police man to report at the police. I gave my statement. I was asked to waits for the Plaintiff to come. He did not so I was asked to go home and return the next day. I returned the next day. I was taken to the Commander in charge. He tried to call the Plaintiff but he could not reach him so once again I was asked to go and come back the next day. The next day I went back to the Police Station once again the Plaintiff did not turn up so I was asked to go home that anytime they need me they will call me. After the encounter at Asawase Police one day I reported to my store a bit late. When I got there I was informed that the Plaintiff had gone to my store with Police men from Central CID to arrest me that they left a message that when I come I should report so I went to the Central Police Station. I gave my statement. After that I was escorted to the Commander in charge. I narrated the story to the Commander. Upon hearing my story he said he could see that from the beginning of the transaction everything went on smoothly that the misunderstanding ensued at the latter part so we should go and look for people to mediate an amicable settlement.”

 

Also, this extract from the cross examination of the Appellant is very relevant in this context:

Q. Have you ever been kept in a Police cell?

A. No.

Q. What about the court detention cell. Have you ever been kept in that cell?

A. No.

 

The above evidence speaks for itself as to whether or not the appellant is entitled to damages under this head.

 

Further evidence in the ROA also shows that the Appellants herein have not fully settled their indebtedness to the Respondent herein after taking possession of the 242 bales of the second hand clothes. The following extracts attest to this fact from the Appellant’s Evidence-in-Chief at page 60 of the ROA;

Then I called and informed Plaintiff and we all met. The Plaintiff, my wife, myself and Stephen Owusu joined us latter. When we met the Plaintiff proposed a new price of Six Hundred Ghana Cedis (GH600.00) per bale but I vehemently disagreed. After a long argument the Plaintiff said I should go and try it at a price of Six Hundred Ghana Cedis (GH600.00) per bale. I sent the goods to the market. Sold some of them topped it with my own money and gave it to the Plaintiff. I gave the Plaintiff Ninety Thousand Ghana Cedis (GH90,000.00).”

 

Again at pages 77, 78 and 79 respectively of the ROA, the following extracts from the Cross Examination of the Appellant herein are very pertinent and indispensable in this analysis:

Q. And when you gave the Thirty Thousand Ghana Cedis (GH30,000.00) cheque the Plaintiff rejected it and told you to return all his goods?

A: That is not true. He quietly accepted it.

Q. The Plaintiff was prevailed upon so he accepted the thirty thousand Ghana Cedis (GH30,000.00)?

A. He accepted it.

Q. At no point did the Plaintiff agree with you to and try the price at Six Hundred Ghana Cedis (GH600.00)?

A. It did happen.

Q. When he accepted the Thirty Thousand Ghana Cedis (GH30,000.00) you had made a total payment of One Hundred And Twenty Thousand Ghana Cedis (GH120,000.00)?

A: That is correct.

Q. And that represented payment of one hundred and seventy nine bales based on the price of Six Hundred And Seventy Ghana Cedis (GH670.00) per bale?

A. That is not true because of its mixed nature the price was not the same and I could not sell them at the same price.

Q. At this very meeting you prayed the Plaintiff to reduce the price again from Six Hundred And Seventy Ghana Cedis (GH670.00) so you can pay him in one week?

A: That is not true.

Q. At this time your game plan had worked so he reduced the price to Six Hundred Ghana Cedis (GH600.00) to be paid in one week?

A. That is not true. If indeed Plaintiff agreed to sell it at Six Hundred Ghana Cedis (GH600.00) which would have covered the mixed nature of the goods I would not have asked for further reduction.

Q. After the one week your phone was off when he had agreed that you should pay Six Hundred Ghana Cedis (GH600.00)?

A: That is never true. I did not put my phone off and I cannot do so.

Q: This was at a time that you had caused the Plaintiff to reschedule his departure two times at a coast to him?

A. That is not true, even the Plaintiff sells footwear in addition and also since he left in anger I did not see him again.

Q. So when after three weeks he could not reach you he was frustrated and left for Europe?

A. That is not true.

Q. And he asked StephenOwusu to contact you for the balance of this money?

A. He did not tell me anything.

Q. After his departure Stephen Owusu came to you many times but you did not pay the money?

A. In the first place the final price of the goods was not agreed on for me to know how much to pay. Second, he did not introduce anybody to me that I should pay the money to him. I did not see him before he left.

Q: When he returned after three months in Europe he contacted you yet you did not pay him his money?

A. That is not true. Ever since the Plaintiff left in anger I did not see him again until he took this action. The first notice I had that he was back in the country was when he reported me to the BNI.

Q. As we speak you still have not paid for three hundred and forty five bales belonging to the Plaintiff?

A. That is not true.

Q: It was for this reason that he reported the matter to the Police when he could not get you to pay?

A: That is not true.

Q: And it is for the same reason why you are sitting here?

A: Yes, it is for that reason that we are here but it is not for three hundred and forty five bales.

Q. And he agreed with you to pay six hundred Ghana cedis (GH600.00) per bale in two weeks, you failed to honour that agreement?

A. That is not true, because I made Plaintiff aware that the goods are mixed goods so he should come for us to agree on the price. That has not been done.

Q. So I am suggesting to you that the price of six hundred and seventy Ghana cedis (GH670.00) still stands per bale?

A: That is not true.

Q. And by that price you have three hundred and forty five bales outstanding?

A. That is not true.

 

Therefore by simple arithmetic this Court is also satisfied that the Respondent’s claim for One Hundred and Thirty Four Thousand Ghana Cedis (GH134,000.00) is within the total cost of four hundred and twenty four (424) bales at Six Hundred Ghana Cedis (GH 600.000 per bale, except that its Four Hundred Ghana Cedis (GH400.00) more.

 

Thus Six Hundred Ghana Cedis (GH600.00) multiplied by four hundred and twenty four (424) bales of second hand clothes will give us a total of Two Hundred And Fifty Four Thousand Four Hundred (GH 254,400.00). This total, minus One Hundred AndTwenty Thousand Ghana Cedis (GH 120,000.00) already paid, will give us a balance of One Hundred And Thirty Four Thousand Four Hundred Ghana Cedis (GH134400.00). This is justified.

 

ILLUSTRATION:

GH600.00 × 424 bales.

GH254,400.00

GH254,400.00 – GH120,000.00

GH134400.00

 

The question to be asked is; whether or not the Plaintiff is entitled to his claim?

This Court just as the trial court will answer this question in the affirmative.

 

In Harlley V. Ejura Farms (Ghana) Ltd. [1977] 2 GLR 179 at 214, Taylor J (as he then was) said that:

In these courts we dispense justice in accordance with three and only three yardsticks: statute law, case law and the well-known practice of the courts”

 

Under section 11 of the Sale of Goods Act, 1962 (Act 137), it is provided that:

11. In a contract for the sale of goods by description whether or not the sale is by sample as well as by description, there is an implied condition that the goods shall correspond exactly with the description.

 

It is vivid on the face of the ROA, that the Respondent breached the condition of the parties’ agreement to deliver exclusively second hand children’s clothes. That breach would normally entitle and in this particular case did entitle the Defendants to reject the goods under section 49 subsection (b) of the Act.

The section reads:

Subject to this Act, the buyer is entitled to reject the goods and to refuse to pay or to recover the price where;

(b) The seller is guilty of a breach not being of trivial nature, of a condition of the contract, whether the breach is in respect of all of the goods or, subject to subsection (2), of part only of the goods.

 

However, this court just as the trial court has observed from a critical perusal of the ROA that the conduct or acts of the Appellants by not rejecting the goods when the four (4) bales initially examined were found to contain mixed clothes, but went ahead to re-negotiate the price to accommodate the mixed nature of the clothes was consistent with his acceptance of the mixed goods and accordingly was obliged to pay for them. Also there is no evidence on record showing that he has rejected goods as they did not meet his specification.

 

It is also an established fact per the ROA as averred by Counsel for the Respondent that the goods when offered by the Respondent were accepted by the Appellants and they went ahead to pay part of the purchase fee. They had reasonable examination of the goods and detected they were not exclusively children’s clothes yet they accepted it; made part payment of the purchase fee and the evidence of their acceptance lies in the number of times they negotiated for the reduction of the price.

 

These extracts from the cross-examination of the 1st Appellant at pages 76 - 79 of the ROAwill attest to this fact:

Q. So the Plaintiff as usual accepted your slow market excuse and accepted your price of Six Hundred And Seventy Ghana cedis (GH670.00) to be paid in two weeks?

A. That is not true, I did not suggest two weeks but the price he is mentioning took place at the time we were bargaining the sale of the goods.

Q. At the time you went to him for the third time you had finished bailing the goods and cleared them from the warehouse?

A. That is not true. When the Plaintiff came to me the last time to inspect the goods and I explained to him the difficulties I was having and he having witnessed it himself asked me to go ahead with the repackaging and if I finished I should call him to come back so we all agree on the price.

Q. You paid the Plaintiff Ninety Thousand Ghana Cedis (GH90,000.00) forty eight days after delivering the goods to you?

A: That is true.

Q. At this time your game plan had worked so he reduced the price to Six Hundred Ghana Cedis (GH600.00) to be paid in one week?

A. That is not true. If indeed Plaintiff agreed to sell it at Six Hundred Ghana Cedis (GH600.00) which would have covered the mixed nature of the goods I would not have asked for further reduction.

Q. And he agreed with you to pay six hundred Ghana cedis (GH600.00) per bale in two weeks, you failed to honour that agreement?

A. That is not true because I made Plaintiff aware that the goods are mixed goods so he should come for us to agree on the price. That has not been done.

 

Counsel therefore anchored his argument on the authority of Ghana Rubber Products Limited V. Criterion Company Ltd (1984 – 86) 2 GLR 565 @ 76 on the basis that the goods were not rejected by the Appellants as should have been the case if they claim that the goods supplied did not meet their specification.

 

In the Ghana Rubber Products Ltdcase (supra), the Court per Apaloo CJ (as he then was) held inter alia that: “(The emphasis is ours.) With respect, the learned judge’s proposition of law as to what he considered the consequence of “rejection” is hardly tenable. The property in the goods passed to the Appellant-Company on delivery. There is no authority for the proposition that in the event he relates, property revested in the Respondent-Company automatically. No law so provides. The learned judge did not appear to have used “rejection” in the terms envisaged by section 49 of the Sale of Goods Act, 1962 (Act 138). There can be no right of rejection after the goods have been delivered and the purchase price paid. He used the word “rejection” its ordinary meaning as refusing to accept, or unacceptable.” But even in that sense, it would be less than accurate to say that a Company that took delivery of merchandise it intended to buy into its warehouse and thereafter proceeded to pay the contractual price for it, “rejected” the goods in the ordinary meaning of that word.”

 

On the trial court’s observation at the locus in quo, this Court again agrees with the learned trial judge on her findings. It is equally the candid opinion of this Court as a thorough scrutiny of the ROA that on the preponderance of probabilities, not forgetting that Appellants have agents far and near who they supply goods to, the Appellants’ story that they were unable to sell the goods delivered by Plaintiff is not credible. Why would Appellants go through that exercise of binding bales of clothes with wire they bought and create a mystery around the shade of colour of that wire if not to conceal the truth? This Court per the evidence on the ROA (see pages172-173) believes on the balance of probabilities, thatthe bales of second hand clothes found in the Appellant’s shop are not part of the Respondent’s goods. Appellants therefore lied, looking at the ferocious manner in which the they pushed their assertion that the goods in their shop were part of Plaintiff’s, combined with court Exhibit “1”, in the opinion of this Court caused such an irreparable damage in the Appellants’ case.

 

In the Supreme Court decision of Agyeiwaa V. P & T Corporation (2007-08) SCGLR 968 @ 989, Her Ladyship, Georgina Wood, CJ (as she then was) stated inter alia that:

“The well-established rule of law is that an appeal is by way of rehearing and an appellate court is therefore entitled to look at the entire evidence and come to proper conclusions on both the facts and the law”.

 

Therefore in the candid opinion of this Court, there is no evidence in the ROA that indicates that the judgment of the trial court is indeed against the evidence on the record.

 

This Court therefore affirms the judgment of the learned trail judge on this ground.

 

GROUND FOUR (4):

“That the trial judge was inconsistent on the important issue of counter offer made by the Defendants and treated same as acceptance of the Plaintiff’s offer.”

 

There is ample evidence on record showing that both the Appellant herein and the Respondent herein agreed on the price of Six Hundred Ghana Cedis (GH600.00) per bale of the second hand clothes regardless of it being for mixed nature or strictly the children’s second hand clothes. The following extracts from the Cross Examination of the Appellant herein at pages 78 -79 of the ROA are very relevant in this regard:

Q: At no point did the Plaintiff agree with you to and try the price at Six Hundred Ghana Cedis (GH600.00)?

A: It did happen.

Q. At this very meeting you prayed the Plaintiff to reduce the price again from Six Hundred And Seventy Ghana Cedis (GH670.00) so you can pay him in one week?

A: That is not true.

Q. At this time your game plan had worked so he reduced the price to Six Hundred Ghana Cedis (GH600.00) to be paid in one week?

A. That is not true. If indeed Plaintiff agreed to sell it at Six Hundred Ghana Cedis (GH600.00) which would have covered the mixed nature of the goods I would not have asked for further reduction.

 

Again, this extract from the cross-examination of the Appellants herein at pages 78 -79 of the ROA is very evidential in this circumstance:

Q: You told him you could not return the goods because your agents had taken the goods to Cote D’ Voire ?

A. That is not true. The truth is I have several customers in far places but the agreement was that I should try the Six Hundred Ghana Cedis (GH600.00) to see how the market would go that was what the Plaintiff told me but latter he was putting pressure on me that his time was due so I looked for a loan of Thirty Thousand Ghana Cedis (GH30,000.00) to give me to him to enable him return so before he comes back he would be calm for us to sit down and discuss the price.

 

In the case of ReAsere Stool; NikoiOlaiAmontia IV (Substituted ByTafoAmon II V. AkotiaOworsika III Substituted ByLaryeaAyikuIII (2005-2006) SCGLR 637 the Supreme Court held as follows;

Where an adversary has admitted a fact advantageous to the cause of a party, the party does not need any better evidence to establish that fact than by relying on such admission, which is an example of estoppel by conduct”.

 

The Appellants by accepting that there was agreement between them and the Respondent as to the purchase price of Six Hundred Ghana cedis(GH600.00) for a bale; they are therefore stopped by their conduct in denying same.

 

The counter offer as averred by the Appellant herein is the Four Hundred Ghana Cedis (GH400.00) per bale he suggested but for which the Respondent Herein got angry and left for Europe. This extract from the 1st Defendant’s Evidence-in-Chief at page 62 of the ROA is instructive in this respect:

So I asked the Plaintiff for further reduction in order to sell. I told the [Plaintiff that since the goods are mixed items I can only afford Four Hundred Ghana Cedis (GH400.00) a bale. When I informed the Plaintiff to reduce the price to Four Hundred Ghana Cedis (GH400.00) the Plaintiff became offended and left the scene. The Plaintiff called me on phone. I told him to come back and let us all sit down and agree on the price because he himself is aware that the goods are of mixed items and so I cannot sell so he should come for us to finalise the price per bale so that I can go ahead and sell them. I did not hear from him again.”

 

Also, the following extract from the cross-examination of the Appellants herein at pages 78 -79 of the

ROA is very pertinent at this instance:

Q: You told him you could not return the goods because your agents had taken the goods to Cote D’ Voire?

A. That is not true. The truth is I have several customers in far places but the agreement was that I should try the Six Hundred Ghana Cedis (GH600.00) to see how the market would go that was what the Plaintiff told me but later he was putting pressure on me that his time was due so I looked for a loan of Thirty Thousand Ghana Cedis (GH30,000.00) to give me to him to enable him return so before he comes back he would be calm for us to sit down and discuss the price.

 

From the foregoing argument, we can deduce that there has never been any agreement between the Appellants and the Respondent on the purchase price per bale being Four Hundred Ghana Cedis (GH400.00) as alleged by the Appellants herein as their counter-offer. Therefore, this Court believes that there has never been any accepted counter-offer in the instant case. If there has been any Counter-Offer at all as submitted by the Appellant, same has never been accepted by the Respondent herein as per the ROA.

 

We have therefore declined this leg of the appeal as well.

 

GROUND FIVE (5):

“That the trial judge erred in law by holding that the Defendants had breached the contract entered with the Plaintiff by failing to pay the price of GH600.00 per bale.”

 

There is ample evidence on record showing that both the Appellant herein and the Respondent herein agreed on theprice of Six Hundred Ghana Cedis (GH600.00) per bale of the second hand clothes regardless of it being for mixed nature or strictly the children’s second hand clothes. The following extracts from the Cross-Examination of the Appellant herein at pages 78 -79 of the ROA are very relevant in this regard:

Q: You told him you could not return the goods because your agents had taken the goods to Cote D’ Voire?

A. That is not true. The truth is I have several customers in far places but the agreement was that I should try the Six Hundred Ghana Cedis (GH600.00) to see how the market would go that was what the Plaintiff told me but latter he was putting pressure on me that his time was due so I looked for a loan of Thirty Thousand Ghana Cedis (GH30,000.00) to give me to him to enable him return so before he comes back he would be calm for us to sit down and discuss the price.

Q. At no point did the Plaintiff agree with you to and try the price at Six Hundred Ghana Cedis (GH600.00)?

A. It did happen.

Q. When he accepted the Thirty Thousand Ghana Cedis (GH30,000.00) you had made a total payment of One Hundred And Twenty Thousand Ghana Cedis (GH120,000.00)?

A: That is correct.

Q. And that represented payment of one hundred and seventy nine bales based on the price of Six Hundred And Seventy Ghana Cedis (GH670.00) per bale?

A. That is not true because of its mixed nature the price was not the same and I could not sell them at the same price.

Q. At this very meeting you prayed the Plaintiff to reduce the price again from Six Hundred And Seventy Ghana Cedis (GH670.00) so you can pay him in one week?

A. That is not true. If indeed Plaintiff agreed to sell it at Six Hundred Ghana Cedis (GH600.00) which would have covered the mixed nature of the goods I would not have asked for further reduction.

 

The counter offer as averred by the Appellant herein is the Four Hundred Ghana Cedis (GH400.00) per bale he suggested but for which the Respondent herein got angry and left for Europe. This extract from the ROA at page 62 of the ROA is of great evidence in this respect:

 

This Court has therefore refused this ground of the appeal as well.

 

CONCLUSION:

The broad principles to be observed by an appellate court were stated by the Supreme Court in the case of Agyenim-Boateng V. Ofori [2010] SCGLR 861. In the unanimous decision delivered by Aryeetey, JSC at page 867 the court stated as follows;

“It is the trial court that has the exclusive right to make primary findings of fact which would constitute building blocks for the construction of the judgment of the court where such findings of fact are supported by evidence on the record and are based on the credibility of witness. It is also the trial tribunal which must have had the opportunity and advantage of seeing and observing the demeanour of the witnesses and become satisfied with the truthfulness of their testimonies touching on any particular matter in issue. In the case of Cross V. Hillman Ltd.[1969] 3 WLR 787 at page 798, CA, Lord Widgery cautioned that an appellate court

“…which sees only the transcript and does not see the witnesses, must hesitate for a very long time before reaching a conclusion different from the trial judge as to the credibility and honest of a witness”.

 

The appellate court can only interfere with the findings of the trial court where the trial court; (a) has taken into account matters which were irrelevant in law; (b) has excluded matters which was necessary for consideration; (c) has come to conclusion which no court properly instructing itself would have reached; and (d) the court’s findings were not proper inferences drawn from the facts. See the case of Fofie V. Zanyo [1992] 2 GLR 475”.

 

Further, in In Re Okine (Deceased); Dodoo & Another V. Okine & Others [2003-2005] 1 GLR 630 this is what the court unanimously held in the Head note (1)

“(1) an appellate court must not disturb the findings of fact made by a trial court, even if the appellate court could have come to a different conclusion, unless the findings of fact made by the trial judge were wholly unsupportable by the evidence. Therefore, where the evidence was conflicting, the decision of the trial court as to which version of the facts to accept was to be preferred, and the appellate court might substitute its own view only in the most glaring of cases. That was primarily because the trial judge had the advantage of listening to the entire evidence and watching the reactions and demeanour of the parties and their witnesses…”

 

Indeed, in Addae Aikins V. Daniel Dankwa, Civil Appeal No. J4/24/2014, Unreported Judgment and same delivered on 28th May, 2014, Atuguba JSC said in passing that:

A Court has power to uphold but not to pervert justice.”

 

Indeed, this Court is of the candid opinion that, Counsel for Appellant herein is telling this Court, sympathy evoking stories which are not based on any principle or law, in order to win the sympathy of the court in the instant case. However, the law is settled to the effect that The Courts are courts of law and are duty bound to apply the law to facts brought before it. In other words, the Court is a fountain of justice and fairness where the oppressed and all those who have their rights trampled upon and are therefore aggrieved may go to quench their thirst for justice and restoration. This Court is therefore under the obligation to uphold justice and fairness in the application of the law to the facts as brought before it in the instant case, and we shall so do.

 

From the foregoing overwhelming evidence in the ROA, this Court cannot agree more with the trial Judge on the ingenious application of the law in her judgment. This Court therefore refuses the appeal in its entirety, and we so hold.

 

Cost of GH¢5,000.00 awarded to Respondent.

...