ERNEST KOUASSI TANOH vs WEST AFRICAN MILLS COMPANY LIMITED
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    CAPE COAST - A.D 2018
ERNEST KOUASSI TANOH -(Plaintiff/Respondent)
WEST AFRICAN MILLS COMPANY LIMITED - (Defendant/ Appellant)

DATE:  25 TH JULY, 2018
CIVIL APPEAL NO:  H1/35/2017
JUDGES:  IRENE CHARITY LARBI MRS. J.A (PRESIDING), L. L. MENSAH (J.A), ANGELINA M. DOMAKYAAREH MRS. ( J.A)
LAWYERS:  KWASI AMOFA-AGYEMANG WITH HIM PATRICK POKU MABOAH (FOR DEFENDANT/APPELLANT)
KING DAVID ADDAI (FOR PLAINTIFF/RESPONDENT)
JUDGMENT

Irene Charity Larbi (Mrs.) J.A.

(1) This appeal emanates from the judgment of the High Court, Cape-Coast delivered on 31st July, 2015.

 

(2) On 1st August, 2014, the Plaintiff issued from the registry of the court a writ of summons with the following endorsements:-

The Plaintiff claims against the Defendant as follows;

“(a) Recovery of the sum of 267, 948, 266.00 CFA or its Cedi equivalent as per the current Forex Bureau exchange rate the Cocoa beans the Defendant purchased from the Plaintiff but has refused to pay despite repeated demands.

(b) Interest at the prevailing bank lending rate from February, 2011 to date of judgment.

(c) Cost.

 

(3) The case of the Plaintiff as gathered from his statement of claim is that he is a resident of Abidjan, Ivory Coast and a businessman dealing in the supply of Cocoa beans. The Defendant, a company registered under the laws of Ghana deals in the purchase of agricultural products such as cocoa beans, shea-nuts and other commodities. The Plaintiff averred that somewhere in February, 2011 he had a contract with the Defendant to supply the Defendant with African Cocoa Beans from Ivory Coast. This contract was in pursuance to authorization granted the Defendant to purchase and import cocoa beans from Ivory Coast by the Ghana Cocoa Board. The Plaintiff contended that the contract was reduced into writing and the modalities for the supply and payment of the African Cocoa Beans were all specified.

 

(4) The Plaintiff averred that anytime delivery was made to the Defendant, an invoice was prepared stating the quantity delivered, unit price per ton and the amount to be paid by the Defendant and same were always acknowledged by the Defendant. The Plaintiff contended that sometime in 2012/2013 Cocoa season, he demanded for his outstanding payment of the supply of beans only to be told that he was rather indebted to the Defendant in the sum of 180,525.00 Euros. The Plaintiff contended further that he wrote back requesting for a reconciliation meeting which was done and it was confirmed after the meeting that the Defendant rather was indebted to the Plaintiff in the sum of 267,948,266.00 CFA which to date the Defendant has failed and or refused to pay unless compelled by the court.

 

(5) In the Defendant’s Statement of Defence, the Defendant admitted the paragraphs 1, 2 and 3 of the statement of claim which in effect was an admission of the contract of February, 2011 with the Defendant for the supply of African Cocoa Beans by Plaintiff from Ivory Coast. The Defendant denied that the contract was reduced into writing. The Defendant further denied that invoices were prepared stating the quantity delivered and the unit price per ton. The Defendant contended that the supply was however invoiced and paid to an entity called Rover Agro Services based on the instructions given by the Plaintiff. The Defendant admitted telling the Plaintiff that it was rather the Plaintiff who was indebted to the Defendants in the sum of 184,525.00 Euros. The Defendant contended that the reconciliation was done between Rover Agro Limited and the Defendant presumably for the Plaintiff. The Defendant therefore stated that the Plaintiff was not entitled to his claims.

 

(6) At the trial, both parties did not call witnesses. The lawful Attorney of the Plaintiff gave evidence for the Plaintiff and the Defendant gave evidence through its Deputy General Manger Mr. Amprofi Agyemang.

After evaluating both the oral and documentary evidence led by the parties, the Trial High Court Judge came to the conclusion that the Defendant company owed the Plaintiff the sum claimed by the Plaintiff. The High Court accordingly entered judgment for the Plaintiff to recover the amount of 267,948,266.00 CFA with interest prevailing at the bank lending rate from February 2011 to date of judgment.

 

(7) The Defendant, dissatisfied with the judgment filed an appeal on the following grounds:-

a. The judgment is against the weight of evidence.

b. The Learned Trial Judge failed to adequately consider the case of the Defendant/Appellant.

c. That the award of interest from February 2011 has no basis in law having regard that the reconciliation into Defendant’s indebtedness was on 13th March, 2013.

 

(8) Although the Defendant indicated in Ground D that the Defendant would file additional grounds upon receipt of the record of proceedings, we observed that no additional grounds were so filed.

 

(9) In arguing the Grounds A and B of the grounds of appeal together the counsel for the Defendant argued that the Learned Trial Judge failed to consider the case of the Defendant and gave a one sided judgment based purely on the evidence favourable to the Plaintiff. His reasons are that the Trial Judge stated in the judgment that “the Defendant did not put in any concrete defence to deny the Plaintiff’s claim in the pleadings and on the trial”. The Trial Judge also stated that he had looked at the Exhibits ‘C’, ‘D’, ‘E’ and ‘F’ which are proof of the parties contractual relationship.

 

Counsel contended that based on these statements, the Trial Judge concluded that the Defendant owed the Plaintiff the judgment debt of 267,948,266.00 CFA.

 

(10) Counsel for the Defendant contended further that there was also an Exhibit ‘H’ which was tendered by the lawyer for the Plaintiff through the Defendant’s witness. He submitted that the Exhibit ‘H’ puts the matter beyond any doubt that the parties agreed that the debit was 170,000 Euros and not 267,948,266.00 CFA as alleged by the Plaintiff.

 

He submitted further that by failing to consider and analyse Exhibit ‘H’ means that the Learned Trial Judge based his judgment solely on the evidence favourable to the Plaintiff to the total exclusion of the favourable evidence of the Defendant/ Appellant.

 

(11) The Evidence Act, 1975, NRCD 323 Section 51 states that all relevant evidence is admissible, except as otherwise provided by any enactment. Section 52 of the Act 323 makes provision for exclusion of evidence only on certain grounds.

 

(12) In KHOURY VRS. CHOITEL [964] GLR100, the Supreme Court stated that the case of the Defendant is entitled to no less consideration that that of the Plaintiff. At page 103 of the Report supra, the Supreme Court again reiterated that when a credible evidence or written evidence has been given there is a requirement of good reason before it can be rejected.

 

Similarly in In Re Aryeetey (Deceased) ARYEETEY VRS. OKWABI [1987-1988]2 GLR 444, Holding 2 the Court of Appeal held as follows:-

“The Trial Judge was enjoined by law to make a critical appraisal of the evidence before him to say why he prefers the case of one party to that of the other. Since he failed to support with reasons his important findings, he could not be said to have adequately discharged that duty”.

 

(13) We observed that although the Learned Trial Judge stated in the judgment that Exhibit ‘C’, ‘D’, ‘E’ and ‘F’ put the matter beyond doubt and any denial of a contractual relationship between the parties, apart from Exhibit ‘F’ which he took pains to analyse the contents, he was silent on the Exhibit ‘C’, ‘D’ and ‘E’. We further noticed that the Exhibit ‘H’ was not mentioned at all.

 

(14) An appeal is by way of re-hearing as per Rule 8(1) of the Court of Appeal Rules C.I.19. It is therefore an obligation of this court to carefully study the record of appeal and take account not only the pleadings but the oral and documentary evidence of the parties to ascertain whether the judgment on appeal is sustainable or otherwise. See also; ACKAH VRS. PERGAH TRANSPORT LIMITED & OTHERS [2010] SC GLR 728 at 737, ABBEY & OTHERS VRS. ANTWI [2010] SC GLR 17; DANIELLI CONSTRUCTION LIMITED VRS. MABEY & JOHNSON LIMITED [2007-2008]1 SC GLR 60.

 

(15) In determining the omnibus ground that “the judgment is against the weight of evidence”, this court is thus placed in the same position as the Trial Court to satisfy itself on the balance of probabilities that the conclusions reached by the Trial Judge should be sustained without interfering with same.

 

The Exhibit ‘C’, ‘D’, ‘E’ and ‘F’ which the Trial Judge relied on are included in the Volume 3 of the Record of Appeal. The Plaintiff in his Evidence-In-Chief stated that the Defendant was not paying fully what he supplied the Defendant and when the amount became accumulated, he wrote a letter to the Defendant that the Defendant needed to pay as the indebtedness was becoming too much. The Defendant then wrote a letter of acknowledgment of debt which he tendered as Exhibit ‘C’.

 

(16) The Exhibit ‘C’ was written on the Letter Head of West African Mills Company Limited.

Since the contents is very short we deem it pertinent to reproduce same verbatim.

“DEBT ACKNOWLEDGMENT

The undersigned hereby confirms and acknowledges to ERNEST TANOH (‘The Creditor’) that the undersigned is indebted to the Creditor for Cocoa Beans supplied as of the date hereof, which amount is due and owing and includes all quantities of Beans supplied as at 19th June, 2012.

The undersigned further acknowledges that there are no credits or rights of set off against the balance owing.

Signed this 11th day of July, 2012.

Debtor………………… SGD.

 

West African Mills Company Limited (FZE)

In the presence of

SGD.

---------------

Witness.

If you need further clarification do not hesitate to contact Bernd Diesterweg or Michael Safo-Kantaka for additional information”.

 

(17) The Plaintiff continued his evidence further that after receipt of the Exhibit ‘C’ he trusted the Defendant and continued with the supply. Sometime in 2013, the Defendant wrote a letter to him that he (Plaintiff) rather owed the Defendant 121 tons of Cocoa Beans and tendered in evidence the Exhibit ‘D’. The Exhibit ‘D’ at page 6 of Volume ‘3’ of the Record of Appeal is written again on the Letter Head of the Defendant. It is dated 25th January, 2013 and signed by the Managing Director. The summary of the contents is that the Defendant after reconciliation of accounts for the supply of Cocoa Beans for the season 2011/2012 showed a difference or short supply of 121 tons of Cocoa Beans. The Defendant asked the Plaintiff to arrange an immediate free supply of 121 tons of Cocoa beans to be delivered at Wamco factory to replace the over-payment made by the Defendant totaling 184,525.00 Euro failing which legal steps would be taken to recover same.

 

The Exhibit ‘E’ dated 18th February, 2013 is the response from the Plaintiff to the Defendant upon receipt of the Exhibit ‘D’. The Plaintiff expressed surprise at the Exhibit ‘D’ that he was owing the Defendant and requested for a meeting to reconcile the records to establish the authenticity or otherwise of the Defendant’s alleged indebtedness.

 

(18) The Exhibit ‘F’ the details of which the Trial Judge gave in the judgment is the outcome of the reconciliation meeting held by the parties. Present at the meeting was the Plaintiff Ernest K. Tanoh by himself. Representatives of the Defendant were:-

1. SYRIACUS M. MORRISON-DMD-WAMCO

2. KWAME APROFI-AGYEMANG- GM (F&A) – WAMCO AND;

3. BERND DIESTERWEG – FORMER M.D

 

In the Exhibit ‘F’ the parties indicated that the debt the Defendant owed the Plaintiff was in the document attached which indicated the debt as 267,948,266.00. The document attached is at page 13 of Volume ‘3’ of the Record of Appeal.

 

(19) Mr. Kwame Amprofi-Agyemang- General Manager who gave evidence on behalf of the Defendant conceded that he was part of the reconciliation team.

 

In his argument, counsel for the Defendant has criticized the Trial Judge for failing to consider the Exhibit ‘H’ which in his view might probably have tilted the case in favour of the Defendant.The Exhibit ‘H’ was tendered through the Defendant when he was being cross-examined by counsel for the Plaintiff. The Exhibit ‘H’ is dated 07/05/2013 and it was in respect of scheduled payments to be made for the figure of 170,000 Euros agreed by the parties as outstanding amount on Cocoa supplied.

 

Under cross-examination in respect of the Exhibit ‘H’, counsel for the Plaintiff suggested to the Defendant that there was a condition attached to the Exhibit ‘H’. However the condition which was alleged to be oral obviously was not captured by the Exhibit ‘H’.

 

(20) This is what transpired during cross-examination of the Defendant by Plaintiff’s counsel at pages 28, 29 and 30 of Volume ‘2’ of the Record of Appeal:

Q: I am putting it to you that the Managing Director of your company agreed to pay 170,000 Euros by giving the contract of supplying 5,000 tons to the Plaintiff?

A: This contract and sort of payment was made known to me after the matter was brought to court.

Q. The Plaintiff agreed to accept the 170,000 Euros based upon the supply of 5,000 tons by him to your company?

 A:  We have been made aware of that.

Q. The 5,000 tons Cocoa promised to supply by the Plaintiff never came of?

A. The Plaintiff supplied Eight (8) trucks out of that contract.

 

(21) At page 29 Volume ‘2’, of the record this is what transpired when the Defendant was still under cross-examination:-

Q. And the Managing Director also gave the schedule of payment of the 170,000 Euros in addition to the 5000 tons to be supplied?

A: I have sighted that schedule, I am not aware.

Q. The schedule was not complied with by your Managing Director?

A. That is so.

 

(22) At page 30 of Volume ‘2’ cross-examination of the Defendant continued:

Q. Consequently upon your company’s failure to pay the schedule  agreed  amount  the  status  quo  was  reverted  to  as  contained  in  the reconciliation?

A. I was not privy to the Agreement that was made, the schedule for payment of outstanding amount and the condition attaching to its payment so I cannot answer.

Q. I put it to you that it is against this background that the Plaintiff is asking for the payment of the amount endorsed on the writ-CFA 267,948,266.00?

A. My Lord that amount endorsed is what is in contest now but as I said was subject to Managing Director’s approval”.

 

(23) Based upon these pieces of evidence, supra counsel for the Plaintiff has submitted that the Defendant having failed to comply with the Exhibit ‘H’ cannot be heard now to rely on the same Exhibit ‘H’ when the agreement had been breached by this same Defendant. Counsel has therefore urged this court to deem the Plaintiff discharged from being bound to the Exhibit ‘H’ in view of the breaches on the part of the Defendant. Counsel cited the case of

IN RE TIMBER AND TRANSPORT KUMASI-KRUSEVAC CO. LIMITED ZASTAUA VRS BONSU & ANOR. [1981]1 GLR 256.

 

(24) Section 25 of the Evidence Act 1975 Act 323 state as follows:-

Section 25(1) - Except as otherwise provided by law including a rule of equity, the facts recited in a written document are conclusively presumed to be true as between the parties to the instrument or their successors in interest.

 

The Supreme Court in the case of IN RE FIANKO VRS. AKOTUA (DECD) [2007-2008] SC GLR 165 at page 169 per Atuguba JSC. gave expression to this statute when he referred to the commentary on the Evidence Decree as follows:-

“Section 25 - Facts recited in a written instrument conclusive presumption”.

This conclusive presumption states the common law rule. Sometimes this rule is referred to as estoppel by deed. However treated its effect is the same. In the absence of a relief granted by law or equity, the facts recited in the written instrument are made binding on the parties”.

In the instant case, the Defendants did not in their statement of Defence plead that they were owing the Plaintiff the amount of 170,000 Euros and not the sum of 267,948,266.00 CFA as endorsed on the writ.

 

(25) It was in the last sentence in his evidence that the Defendant threw in this new assertion that the Defendant owed the Plaintiff 170,000 Euros without tendering any document to support his claim.

 

However the Plaintiff who was not under any obligation to assist the Defendant make its case decided to tender the Exhibit ‘H’ through him under cross-examination and tried to solicit extraneous answers from the Defendant in an attempt to prove that there were conditions precedent attached to the Exhibit ‘H’.

The photocopy of Exhibit ‘H’ on the record of appeal is faint and therefore we had to call for the copy that was tendered in evidence and which was on the original Exhibit file.

 

(26) Exhibit ‘H’ is simple; it reads:-

Agreement for Payment of Outstanding Amount on Cocoa Supply Due to Foreign Exchange Rate Losses.

Date: 7th May, 2013

Agreed Amount :  €170,000.00 (One Hundred and Seventy Thousand Euros)

 

Payments Schedule:                                               

May 2013        -           €100,000.00 after supply of 3 tucks of Cocoa beans

June 2013       -           €23,334.00

July 2013        -           €23,333.00

August 2013    -           €23,333.00

Total    =                      €170,000.00

Signed                                                

………………                                                  ………………

Ernest Tanoh                                      Herman E. Opferkuch

                                                            Managing Director

                                                            West African Mills Co. Ltd.

 

The agreement was written on the Letter Head of the Defendant Company.

 

(27) The Defendant’s representative under cross-examination stated that since he was not privy to the Agreement, he could not answer if there was condition attached to the payments.

 

We observed that the Exhibit ‘H’ was executed between the Plaintiff and the Managing Director of the Defendant Company almost a year after the Debt Acknowledgment- Exhibit ‘C’ was written by the Defendant acknowledging the debt as at 19th June, 2012. It was also written after the reconciliation meeting which was held on 18th March 2013 (Exhibit ‘F’).

From the Exhibit ‘H’, dated 7th May 2013 the amount of 170,000 Euros was arrived at as the payment outstanding due to the foreign exchange rate losses. In effect the parties converted the indebtedness from CFA to EUROS. One does not need to go outside the Exhibit ‘H’ to find the reason for that agreement. It was clearly stated on the face of the Exhibit ‘F’ as “Due to Foreign Exchange Rate Losses”. The fact that the first payment is to be paid upon supply of 3 trucks of Cocoa beans in our view does not change the reason for the agreement.

 

(28) As per Section 25 of the Evidence Act, 1975 (NRCD 323) the facts recited in the Exhibit ‘H’ will conclusively be presumed to be true between the Plaintiff and the Defendant since it is the last of all the agreements between the parties on the record in respect of the outstanding amount due to the Plaintiff, see KUSI & KUSI VRS. BONSU [2010] SC GLR 60. In our further view, the uncertain answers given by the Defendant’s representative under cross-examination on the alleged condition precedent for the acceptance of the amount stated in the Exhibit ‘H’ did not amount to any admissions. In law an admission must be clear and unambiguous as was espoused by the Supreme Court in POMAA VRS. FOSUHENE [1987-88]1 GLR 244. Under the circumstances Grounds A and B of the appeal are hereby granted.

 

 

(29) Finally on the award of interest from February 2011 which is the complaint of the Defendant under Ground C, we are satisfied that there is ample evidence on the record that the agreement to supply the Defendant with Cocoa beans started sometime in 2011.

 

According to the Plaintiff the Defendant was not paying fully for what the Plaintiff supplied to the Defendant. The Plaintiff therefore wrote to the Defendant. In the Exhibit ‘C’, dated 11th July 2013 the Defendant acknowledged it owed the Plaintiff for Cocoa beans supplied as of that date “and includes all quantities of Beans supplied as at 19th June, 2012” but no amount was stated. The Exhibit ‘D’ written by the Defendant to the Plaintiff shows that the Plaintiff supplied Cocoa beans in the 2011/2012 season, which according to the Defendant’s account suggested that they had over-paid the Plaintiff but later proved to be false. Then on 7th May, 2013, the Exhibit ‘H’ was executed but before then, a reconciliation of the account had been carried out on 18th March, 2013 in Exhibit ‘F’.

 

(30) In our view, since the parties agree that payments were made by the Defendant not fully (intermittently) until 18th March 2013 when the reconciliation showed the debt to be 267,948,266.00 CFA but due to the Forex exchange rate fluctuations was converted on 7th May 2013 into 170,000 Euros, the award of interest on the 170,000 Euros should therefore commence from 18th March, 2013 when the reconciliation of the account was carried out.

 

For these reasons we will set aside the judgment of the High Court dated 31st July 2015 and in its place enter judgment in favour of the Plaintiff for the sum of 170,000 Euros or its Cedi equivalent at the current Forex Bureau exchange rate.

We will also award interest at the prevailing bank lending rate from 18th March, 2013 to the date of final payment.

Accordingly the appeal succeeds.

 

 

 

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