IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KUMASI - A.D 2018
SENATOR HOTEL GHANA LTD - (Plaintiff/Respondent)
NANA ERNEST AIDOO - (Defendant/Appellant)
DATE: 31 ST OCT. 2018
SUIT NO: H1/44/2018
JUDGES: MARIAMA OWUSU J.A (PRESIDING), HENRY A. KWOFIE J.A, AMMA GAISIE J.A
KOFI QUARSHIE SAM FOR THE DEFENDANT/APPELLANT
MITCHELL OSEI DONKOR FOR THE PLAINTIFF/RESPONDENT
HENRY KWOFIE J.A:
This is an appeal against the judgment of the High Court (Commercial Division) Kumasi dated the 21st of February 2017.
By a writ of summons filed on the 11th of February 2015, the plaintiff claimed against the defendant the following reliefs:
a. An order for the recovery of an amount of Sixty Four Thousand Ghana cedis (GH¢64000) being rent arrears from May to December 2014.
b. Interest on the said amount at the prevailing bank rate from December 2014 till date of final payment.
c. An order for the recovery of an amount of Fifty Eight Thousand Ghana cedis (GH¢58000) being the cost of the c. plaintiff’s properties which were destroyed by the defendant.
d. An order for the recovery of an amount of Twenty Five Thousand, one hundred and Eighteen Ghana cedis, Thirty two pesewas (GH¢25,118.32) being the cost of electricity bills consumed by the defendant from January 2013 to December 2014.
e. General damages for loss of customers due to the destruction of hotel records by the defendant.
The plaintiff is a Limited Liability Company engaged in hotel business whilst the defendant is a businessman resident in Kumasi. The plaintiff’s case is that on 1st January 2013, its management entered into a written agreement with the defendant whereby the hotel premises together with the staff were rented to the defendant at a monthly rent of GH¢8000 for a period of Twenty Four months ending 31st December 2014. All rent were to be paid to the plaintiff’s account at United Bank of Africa (UBA) Per the agreement, it is alleged that the defendant was to pay all taxes and utility bills, but he defaulted in paying eight months rent amounting to GH¢64,000 and also left behind unpaid electricity bills to the tune of GH25,118.2. The plaintiff also contended that after an inventory had been taken, it turned out that the defendant destroyed property belonging to the hotel with an estimated cost of GH¢58000.00.
The defendant admitted the existence of an agreement between the parties but averred that he took over the running of the hotel premises in March 2013 and there was no agreement that payment of the rent was to be made to the UBA as alleged by the plaintiff. Rather, he contended that the plaintiff opened a second account at the UBA and made the defendant the “sole signator”y even though the plaintiff’s Managing Director (MD) had access to that account. He again contended that the plaintiff’s MD received payments from him without issuing receipts and so from January 2014 he decided to deposit the monies directly into the plaintiff’s account. Later, the plaintiff is said to have issued 12 receipts to cover the earlier payments made by the defendant. The defendant asserted that he continued to pay the rent until June 2014. With regard to the unpaid electricity bills, the defendant averred that at the time he took over the premises, pre-paid meters were in use, but the plaintiff unilaterally caused them to be replaced with post-paid metres by making false reports to the Electricity Company and that the bills were concocted. In respect of the inventory and the alleged damaged items, he denied being part of any such process. The defendant further asserted that the plaintiff’s actions interfered with his business, the plaintiff has no reasonable cause of action against him and his action is actuated by malice.
In a judgement delivered on 21st February 2017, the trial judge entered judgment for the plaintiff for the sum of:
a. GH¢47,420 representing rent arrears of GH¢56000 less GH¢8580 withdrawn from the hotel’s UBA account during the pendency of the agreement.
b. Interest at the prevailing bank rate on the said sum of GH¢47,420 from December 2014 till date of final payment.
The total sum of GH¢24,227.64 representing arrears of electricity bills on the post-paid meters up to 31/12/2014
c. General damages of GH¢10,000
Aggrieved by the judgment, the defendant filed a Notice of Appeal on 30th March 2017 with the following grounds of appeal:
i. The judgment is against the weight of evidence.
ii. The plaintiff/respondent had not proven the amount he claimed or for which he was given judgment.
iii. The learned trial judge was wrong in entering judgment for the plaintiff/respondent for GH¢47,420.
iv. The learned trial judge was wrong in awarding interest on the GH¢47,420 from December 2014 to the date of final payment.
v. The learned trial judge erred in giving judgment for the plaintiff/respondent in the sum of GH¢24,227.64 as arrears of electricity bills on post-paid metres and up to 31 December 2014.
vi. The learned trial judge erred in awarding GH¢10,000 general damages to the plaintiff/Respondent against the defendant/appellant
vii. The learned trial judge erred in awarding cost of GH¢6000 against the defendant/Respondent in favour of the plaintiff Respondent.
viii. Additional grounds of appeal to be filed upon receipt of the record of proceedings.
It is placed on record that no additional grounds of appeal were filed by the defendant/appellant as had been intimated in the Notice of Appeal.
The judgment appealed from is found at pages 384 to 432 of the Record of Appeal and the Notice of appeal is found at page 433 to 434 of the same record, The reliefs sought from this Court are:
i. An order setting aside the judgment of the High Court Kumasi, Ashanti, presided over by Her Ladyship Angelina Mensah-Homiah (Mrs.) on the 21st day of February 2017 entering judgment in favour of the plaintiff/Respondent and against the defendant/appellant with cost of GH¢6000.00
ii. An order entering judgment for the defendant/appellant.
iii. An order allowing the appeal
iv. Any order or orders as may be deemed fit or just by the Honurable Court.
In this judgment the plaintiff/Respondent shall be referred to as the plaintiff whilst the defendant/ appellant shall be referred to as the defendant.
In his written submissions the appellant’s counsel first argued grounds i, ii, and iii together.
In respect of these grounds the defendant/appellant argues that the trial judge found that the defendant had made total payments of rent up to the end of May 2014 in the sum of GH¢104,000 contrary to the evidence on record which showed that the defendant’s total payments to the plaintiff was rather GH¢232,000.00.
He submitted that the trial judge misconstrued pieces of evidence on record particularly exhibits L and 2 and the cross-examination of the plaintiff on 27th June 2018. Counsel asserted that exhibit L shows that there were 93 transactions on the account but the judge only considered 13 payments made to the plaintiff to determine the defendant’s liability. The defendant made 31 deposits amounting to GH¢132,395.83 in Exhibit L. He further submitted that in addition to the payment of GH¢132,395.83 as shown in Exhibit L, the defendant also made cash payments of GH¢96,000 per the receipts Exhibit 2 series for the period January 2013 to December 2013. Counsel further submitted that it is clear that the cash payments and the bank payments are not the same and the onus was on the plaintiff to have pinpointed the payments in Exhibit L to show the specific payments for the Court to ascertain the exact amount.
Further he asserted that the trial judge completely failed to consider Exhibit 2 series in her judgment. He submits that the total amounts received from the defendant as rent by the plaintiff shows that the rent has been overpaid given that the defendant paid GH¢232,000 to the plaintiff instead of the GH¢192,000 (being rent of GH¢8000 a month over a period of 24 months) the plaintiff was entitled to.
Counsel further argued that the plaintiff also withdrew an amount of GH¢150,150 representing money which was paid into the UBA account by the defendant but which were withdrawn by Frank Asamoah and in respect of which no account was rendered to the defendant.
The response of counsel for the plaintiff to the submissions of counsel for the defendant is that the contention by counsel for the defendant that the trial judge selected some of the deposits in Exhibit L and ignored others in her computation and that the appellant made 31 deposits into Exhibit L and the learned trial judge considered only 13 out of the 31 deposits is not borne out by the record of appeal. He submitted that the plaintiff’s representative in his witness statement said that the defendant made full payments of rent for a period of one year three months and that was for the months of Janueary 2013 to April 2014. He said the witness further stated that the receipts (Exhibit 2 series) were issued to cover payments for the months of January to December 2013. All payments which were made through the hotel’s account reflected in the statement of Account and a copy of the Bank statement (Exhibit L). Counsel asserted that the case of the plaintiff was that the defendant made 13 deposits into the account and the narration on Exhibit L substantiate this fact.
Counsel argued that in cross-examination counsel for the defendant sought to say that some other deposits apart from those with the description as being payments for certain months on Exhibit L were made by or on behalf of the defendant but this was denied by the plaintiff.
Further counsel submitted that the argument by the defendant that he made cash payments of GH¢96,000 for the period 2013 and that the receipts issued were only in respect of those cash payments is an afterthought. He added that the defendant in his own evidence admitted that the receipts issued in March 2014 by the respondent covered all payments made by him to the respondent with the exception of January to April 2014. Counsel further argued that there are other pieces of evidence on record which supports the plaintiff’s case that the defendant did not pay rent for the period of July 2014 to December 2014 in the sum of GH¢64,000 and referred to the correspondence between the plaintiff and the defendant Exhibits D and 7 respectively.
The authorities are replete on the principle that where an appellant appeals on the omnibus ground that the judgment is against the weight of evidence, the Court is to consider comprehensively the entire evidence on record before coming to a conclusion on the matter.
In Tuakwa Vrs. Bosom (2001-2002) SCGLR 61 it was held thus:
“an appeal is by way of re-hearing, 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 although it is not the function of the appellate court to evaluate the veracity or otherwise of any witness, 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 preponderance of the probabilities, the conclusions of the trial judge are reasonably or amply supported by the evidence…….”
See also Ayeh and Akakpo Vrs. Ayaa Iddrisu (2010) SCGLR 891 holding 1.
An appeal is therefore in the nature of a rehearing within the limits set out by the authorities or case law. These limits were stated in the Supreme Court case of Bonney Vrs. Bonney (1992-1993) GBR 779 as follows:
“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 the judge did not take all the circumstances and evidence into account or had drawn wrong inferences without evidence in support or had not taken proper advantage of having seen and heard witnesses”
See also the cases of Effia Stool Vrs. Fijai Stool (2001-2002) SCGLR 893; Djin Vrs. Musa Baako (2007-2008) SCGLR 686. The appellant therefore carries the burden of showing from the evidence on record that the judgment of the trial court is indeed against the weight of evidence since there is a presumption that the judgment on the facts are correct.
See Amponsah Vrs VRA (1989-90) 2 GLR at 35 where the Court cited the case of Adjeibi Kojo II Vrs.
Bonsie (1953) 14 WACA 242 at 243 which stated per Foster-Sutton that:
“The presumption is that the decision of the trial Court on the facts was right and in order to succeed, the appellant must rebut that presumption”.
The evidence on record shows that the plaintiff’s representative Frank Asamoah stated in his witness statement that the defendant made full payments of rent for a period of one year three months January 2013 to April and receipts were issued to cover payment for the months of January 2013 to December 2013. At page 201 of the Record the plaintiff stated in his witness statement paragraph 12 thereof as follows:
“12 The defendant made full payments for a period of one year three months and that was from May 2013 to April 2014. Payments were made monthly and receipts were issued to that effect with the exception of January to April 2014 payment”
Under cross-examination the plaintiff stated as follows at pages 306 to 308
Q. Tell the Court the period in which he made payments of rent?
A. He made the payment from 01/01/2013 to April 2014
Q. Did you issue receipt to that effect?
A. I issued receipts for one year and did not issue for the remaining 4 months. I intended to issue receipts for 3 months but the defendant refused on the grounds that he has evidence at the bank that he had paid for 4 months.
Q. Were the payments made physical cash or through the bank?
A. He paid 3 months rent in cash and the remaining 13 months were paid through the bank.
Q. Do you have anything to show the Court evidencing the payment to the bank?
Q. Can you show them to the Court?
A. They are bank statement Exhibit L.
Q. Can you identify from Exhibit L those payment you made?
A. I have vision problem and if the Court will allow me time to have access to my reading glasses. I will be able to read from the document.
The record shows that the reading glasses of the witness was brought and he answers the question:
A.From Exhibit L on 09/05/2013 the defendant paid GH¢5000 to the bank. 9/08/13 the defendant paid GH¢8000 to the bank;
12/08/13 he also made payment of GH¢3000 to the bank; 28/08/13 he made GH¢8000;
16/10/13 …… 0
13/11/2013 ……. GH¢8000
05/12/2013 ……. GH¢8000
06/01/2014 …….. GH¢8000
05/02/2014 ……. GH¢8000
24/03/2014 ……… GH¢8000
25/04/2014 ……… GH¢8000
25/05/2014 ……… GH¢5000
05/08/2014 ……… GH¢5000
That was the last payment”
Q. When you look at 09/10/2014, the narration on Exhibit L, it reads May 2014 full commitment is that correct?
A. That is so, when you look at the date May 2014 he made all those payments, so he gave the narration but from Exhibit L, the payments made add up to 13 months’ rent”
Strangely, the plaintiff’s evidence that the defendant made a total of 13 months rent payment through the bank per Exhibit L was not challenged. His further evidence that the payment of GH¢3000 made by the defendant on 14/10/2014 was the last payment made by the defendant was not challenged. In my view the trial judge’s findings on these crucial pieces of evidence cannot be faulted.
In his written submissions, counsel for the defendant has sought to challenge the accuracy or authenticity of the narration in Exhibit L and yet at the trial counsel failed to challenge the plaintiff’s evidence that the defendant made all the payments in Exhibit L and also gave the narration. The defendant at this stage on appeal cannot be allowed to challenge the authenticity or the narration in Exhibit L. The evidence on record also shows that the defendant’s contention that the trial judge failed to take the receipts Exhibit 2 series into account is baseless. That contention is clearly based on the wrong assertion by the defendant that Exhibit 2 series i.e. the receipts were only issued in respect of payments made in cash to the plaintiff. The record and the unchallenged evidence of the plaintiff clearly show that the receipts Exhibit 2 series covered both cash payments and payments made into the UBA account from January 2013 to December 2013. The defendant had also stated in his evidence that he made a payment of GH¢19,000 to the plaintiff’s M.D. after 30th June 2018 (See paragraph 18 of the defendant’s witness statement at page 123 of the record of Appeal). Under cross-examination the defendant was asked:
Q. You have also indicated in your witness statement that after the month of June 2014 you made payment of GH¢19,000 to the plaintiff.
A. Yes, into the account
Q. I believe the said GH¢19,000 was made at a go into the said account.
A. Yes I paid it.
And yet nowhere in the Bank statement Exhibit L does the alleged payment of GH¢19000 appear. As the trial judge rightly stated in her judgment, the plaintiff having denied receiving this sum of GH¢19000, the defendant was under a duty to provide the Court with cogent and credible evidence of the payment of this GH¢19000 into the UBA. This he woefully failed to do.
The evidence on record also shows that per a letter dated 30th June 2014 written by W. Kusi Legal Consult on behalf of the plaintiff, he demanded the payment of rent which was in arrears from March 2014 (See Exhibit D). The defendant also tendered in evidence Exhibit 7 written by Kendicks Law firm dated 10th July 2014 (at page 151 of the ROA) in response to Exhibit D. Part of Exhibit 7 stated as follows:
“be informed that in the midst of this chaotic situation which was masterminded by your client serious financial consequences ensued which disabled our client to perform his side of the deal appropriately.
I hope that you would bring this situation to your client and advise him appropriately whilst our client is mobilising resources to discharge his liabilities”
By the contents of Exhibit 7 the defendant not only failed to deny owing rent but he also promised to pay by “mobilising resources to discharge his liabilities”
The record further shows per Exhibit L (the Bank statement) that the only payment made by the defendant after Exhibit 7 was written in July 2014 amounted to GH¢14,000 as follows:
05-08-2014 …… GH¢3000;
09/10/2014 …… GH¢8000
14/10/2014 …… GH¢3000
This amount of GH¢14000 clearly was not enough to pay for the 10 months rent from March 2014 to December 2014 totalling GH¢80,000 which was demanded by the plaintiff per Exhibit D. Having perused the record of appeal thoroughly together with the written submissions we are of the view that the defendant has failed to discharge the burden he assumed by failing to point out the relevant pieces of evidence on record which were wrongly considered by the trial judge or the exact error of law committed by the trial judge. Grounds (i) (ii) and (iii), of the appeal fail and are accordingly dismissed.
Having dismissed grounds (i) (ii) and (iii) of the appeal, ground iv of the appeal in my view by necessary implication also fails. Ground iv was to the effect that the trial judge was wrong in awarding interest on the amount GH¢47,420 from December 2014 to the date of final payment. In the reliefs sought at the trial Court, the plaintiff in relief b) claimed for interest on the amount claimed at the prevailing bank rate from December 2014 till date of final payment. The trial judge having found that the defendant owed arrears of rent of GH¢47,420 as at December 2014 was clearly within her powers. in awarding interest on the said amount to the plaintiff. See the case of Smith and Others Vrs. Blankson (Substituted) by Baffor and Another (2007-2008) SCGLR 374.
I shall now deal with ground (vi) of the appeal which is that the learned trial judge erred in awarding GH¢10,000 General damages to the Plaintiff/Respondent against the defendant/appellant.
In his arguments in support of this contention, counsel for the defendant submitted that the amount granted by the learned judge was in the nature of special damages and not general damages. Special damages were therefore wrongly granted to the plaintiff under the guise of general damages because of very specific alleged losses or damages suffered by the plaintiff. Counsel further submitted that the plaintiff did not claim general damages for destroyed or damaged property at the hotel but rather claimed general damages for loss of customers due to the destruction of the hotel record by the defendant and failed to lead any evidence on this claim.
Counsel further asserted that the plaintiff’s witness (PW1) having confirmed that the hotel was in a normal state after the handing over and this having been accepted by the trial judge, there was no need for the judge to go fishing for inconsistencies where none existed.
Responding to these submissions, counsel for the Plaintiff/ Respondent stated that before the defendant took over the hotel an inventory was taken and same was signed by both parties and their witnesses. Counsel referred to paragraph 8 of the Leasehold/tenancy agreement. He submitted that the best way to determine whether all items, fixtures and fittings were intact at the expiration of the contract was to take another inventory as against the earlier one (Exhibit B). Counsel added that although the plaintiff through his lawyer wrote a letter to the defendant to inform him that an inventory will be taken on 31st December 2014, the defendant failed to attend on that day and the plaintiff had no option than to have the inventory taken in the defendant’s absence since he was taking over the hotel on that day.
Counsel asserted that even though the trial judge rejected Exhibit G that is the 2nd inventory, she did not reject the other evidence on record which proves that there were missing and damaged items at the hotel.
The trial judge also rejected the second inventory Exhibit G on the basis that the plaintiff exaggerated the extent of damages and the values stated therein as same were not given by an accredited valuer. Counsel also submitted that the plaintiff also tendered Exhibit C, a letter written on his behalf by his lawyers Holy Trinity Chambers indicating that as at March 2014 some items at the hotel were damaged and others missing. He further argued that the plaintiff was able to prove on the preponderance of probabilities that some items, fixtures and fittings were damaged at the end of the agreement but was unable to prove the value of those items and that explains why the trial judge awarded nominal damages of GH¢10,000 instead of GH¢58,000 claimed.
The claim for the recovery of the cost of property destroyed by the defendant was relief (C) of the endorsement of the plaintiff’s writ of summons which was couched as follows:
“c) An order for the recovery of an amount of Fifty Eight Thousand Ghana Cedis (GH¢58000) being the cost of the plaintiff’s properties which were destroyed by the defendant”
Both counsels agree per their written submissions that this relief sounds in special damages and not general damages. Thus the burden of persuasion was on the plaintiff to established by creditable evidence its case.
In the case of Delmas Agency Ghana Ltd Vrs. Food Distributors International Ltd (2007-2008) 2
SCGLR 748, it was held in holding 3 as follows:
“3 Special damages is distinct from general damages. General damages is such as the law presumes to be the natural or probable consequence. of the defendant’s act. It arises by inference of the law and therefore need not be proved by evidence. The law implies general damages in every infringement of an absolute right. The catch is that only nominal damages are awarded. Where the plaintiff has suffered a properly quantifiable loss, he must plead specifically his loss and prove it strictly. If he does not, he is not entitled to anything unless general damages are also appropriate…………..”
See also the cases of Yundong Industries Ltd Vs RoRo Services (2005-2006) SCGLR 816; Royal Dutch Airlines (KLM) Vs Farmex Ltd (1989-90) 2 GLR 623.
In proving the loss and damaged items the plaintiff’s representative testified per his witness statement that before the hotel was handed over to the defendant an inventory of all items, fixtures and fittings in the hotel were taken in the presence of witnesses. Subsequently he went to the hotel in January 2014 and found that some of the items had deteriorated. He caused his lawyers to write to the defendant to fix those items. After various letters written to the defendant reminding him of the expiration of the agreement were ignored by the defendant, he (Frank Asamoah) lodged a complaint at the rent control office but the defendant refused to appear when he was summoned. So on 31/12/14, the rent officer and some of his officers went to the hotel and took an inventory in the presence of the defendants’ representative Dodzie, Frank Asamoah, Albert Yentumi and Alex Essien. Thereafter the rent officer prepared a report and attached the inventory Exhibit G and gave a copy to him. Under cross-examination Frank Asamaoh admitted that the defendant was not present when the second inventory was taken.
In clauses 8 and 9 of the tenancy agreement Exhibit A, the defendant was responsible for the maintenance of the hotel and was to hand it over to the plaintiff in the same state he took it upon the expiration of the agreement.
In determining whether these provisions of the agreement had been complied with, the trial judge stated in her judgment as follows at page 419 of the Record of Appeal as follows:
“the best way to ascertain whether all items fittings and fixtures were intact upon expiration was to re-check the items listed in Exhibit B (except consumables) against the items existing at the expiration of the agreement, not merely counting the items or sighting them, but through proper valuation by an expert in that field”
After evaluating the evidence of the plaintiff, the defendant and their various witnesses the trial judge stated as follows at page 424 and 425 of the ROA.
“At best the plaintiff ought to have sought Judicial intervention upon the expiration of the agreement when the defendant started his pranks and for an independent and accredited valuer to be appointed to take the inventory in the presence of the parties to the agreement or an officer of the Court and properly assess the extent of damage. That way the outcome would have been more incredible. Based on these findings I will reject the inventory attached to Exhibit G as same is not credible and cannot by any stretch of imagination represent the true state of the hotel ………………………The plaintiff has therefore failed to prove on the balance of probabilities that he is entitled to the sum of GH¢58000 being the actual value of the damaged and/or missing items”
The trial judge having found that the plaintiff has failed to prove that he was entitled to the sum GH¢58,000 which is what relief C) is about, that ought to have been the end of the matter and that claim ought to have been refused. The trial judge however took the view that the plaintiff was entitled to general damages based on what she called “inconsistencies” in the evidence of DW2.
She then awarded the plaintiff GH¢10,000 as general damages. I am of the view that the trial judge having taken the view that the plaintiff had failed to prove his claim under relief C) but was nevertheless entitled to general damages ought to have awarded only nominal damages. The general damages of Ten Thousand Ghana cedis (GH¢10,000) awarded in favour of the plaintiff was excessive and on the high side. I accordingly set aside that figure and substitute therefor an amount of Five Thousand Ghana cedis (GH¢5000) as general damages in favour of the plaintiff. Ground vi therefore succeeds in part.
I now turn my attention to ground “V” of the appeal which is that the trial judge erred in giving judgment for plaintiff/Respondent in the sum of GH¢24,277.64 as arrears of electricity bills on post-paid meters and up to 31st December 2014. Arguing in support of this ground of appeal, counsel for the defendant contends that the trial judge completely ignored the defendant’s exhibit 8 series, 9 series and 10 series which were tendered to prove that the defendant paid all electricity bills incurred at the hotel. He further submitted that there is a major discrepancy in the metre numbers presented by the parties in respect of receipts appearing on pages 254 and 163 for the plaintiff and defendant respectively. He further submitted that the two receipts cannot be in respect of the same metre.
He asserted that some of the bills were in the name of Frank Asamoah and others bore or had the name of Senator Hotel and it was therefore wrong for the trial judge to find that the bills in issue relate to Senator Hotel.
Responding to these submissions, counsel for the plaintiff contended that Exhibit 8 series were not electricity bills nor receipts evidencing payments. He submitted that Exhibit 9 series were also not bills in respect of prepaid meters which were installed in March 2014 but bills that were outstanding at the time the prepaid metres were removed. He submitted further that because Exhibit 9 series are bills on the old prepaid metres, it cannot be said that Exhibit 10 series were receipts on the post-paid metres.
He submitted further that the receipts of the appellant Exhibit 10 series and that of the plaintiff/respondent are not and cannot refer to the same metres because Exhibit 10 series refers to prepaid metres whilst Exhibit K (that of the Respondent) refers to post-paid metres. Finally, he submitted that Frank Asamoah told the Court in his evidence that he is the Managing Director of the hotel and it is therefore not strange that some of the bills were directed to him. He submitted that in any case all the receipts tendered in evidence by the defendant himself Exhibit 10 series were written in the name of Frank Asamoah.
I have perused the record of appeal and read the judgment of the trial judge and have come to the conclusion that the submissions of counsel for the defendant on this ground are baseless.
The record of appeal shows at pages 298 to 302 that at the Case Management stage of the case, counsel for the defendant raised some objections to the plaintiff’s Exhibit K series which are copies of the receipts for electricity bills paid by the plaintiff and which he was claiming from the defendant per relief (d) of his claim. These objections were raised by counsel for the defendant on the 21st of January 2016 as a result of which the Case Management Conference was adjourned. When the parties appeared before the trial judge on the 21st March 2016, the record shows that counsel for the defendant Douglas Obeng told the judge as follows at page 300 of the ROA:
Counsel for the defendant:
“We went to E.C.G. together with the plaintiff’s representative. We have confirmed everything that went on there. We have attempted settling the matter.
Counsel for the plaintiff:
“We will oblige them.
The case was then adjourned to 12th April 2016 for parties to file terms of settlement. On that day 12/04/2016 it was announced that settlement had broken down but counsel for the defendant then told the court at page 302 of the ROA
Counsel for the defendant:
“We went to E.C.G. for verification and we are satisfied with the Exhibit K series.
The matter was then adjourned for hearing. Clearly therefore the authenticity and accuracy of the Exhibit K series had been verified by the defendant and his counsel at E.C.G. and therefore it was not in doubt that the plaintiff had paid the sum of GH¢25,000 as outstanding electricity bills on the post-paid meters installed in the hotel at the time the defendant was running the hotel. The defendant’s attempt to prove that he paid all electricity bills by endering Exhibits 8, 9 and 10 was unsuccessful. Exhibit 8 series are not electricity bills nor are they receipts for payment of electricity bills. They are final reading slips for removed PNS metres as indicated on same. (Page 154 of the ROA) Exhibit 9 series are Demand Notices for closed prepayment Account See page 157 of the Record of Appeal.
The record of appeal and the evidence of the parties show that the pre-paid metres at the hotel were removed by ECG because they were faulty and were replaced with post-paid metres. The Demand Notices Exhibit 9 series as clearly indicated thereon were in relation to “outstanding balance on your closed prepaid account with debit unit of ……… when your prepaid metre was replaced with a credit metre” Exhibit 10 series are receipts issued to the defendant when he paid the bills in Exhibit 9 series relating to the prepaid metres. The receipts Exhibit 10 series therefore had nothing to do with the bills that were raised in respect of the post-paid metres which is what is in issue in this case. Indeed the trial judge correctly determined the issue in her judgment at the page 414 of the Record as follows:
“The amounts which appeared on the demand notices were GH¢175.26 representing debit units of 574; GH¢1,852.73 representing debit unit of 8661 and GH¢208.03 representing debit units of 935. The debit units imply that even though the metres were prepaid, they were not recording the correct consumption units as against the power purchased. If the defendant paid off the charges for the debit units per his own Exhibit 10 series, those payment do not in any way relate to the various consumptions from the post-paid metres installed after the faulty pre-paid metres had been removed on 24/04/2014 and 11/03/2014 respectively……”
apportionment of the electricity bills. Ground V of the appeal fails and is dismissed.
With regard to ground Vii) to the effect that the trial judge erred in awarding cost of GH¢6,000 against the defendant/appellant in favour of the plaintiff/Respondent, I can only say that cost follows the event and is within the discretion of the trial judge. In my view the cost of GH¢6,000 awarded by the trial judge was reasonable.
On the whole apart from the ground vi which succeeds in part the appeal fails and is accordingly dismissed.
HENRY A. KWOFIE
(JUSTICE OF THE COURT OF APPEAL)
I Agree SGD
(JUSTICE OF THE COURT OF APPEAL)
I Also Agree SGD
(JUSTICE OF THE COURT OF APPEAL)