IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KUMASI - A.D 2017
EMMANUEL ADDO - (Plaintiff/Appellant)
GEORGE ADU DONKOR - (Defendant/Respondent)
DATE: 12TH APRIL, 2017
CIVIL APPEAL NO: H1/10/2016
JUDGES: E. K. AYEBI (PRESIDING) JA, GERTRUDE TORKORNOO (MRS.) JA, ANGELINA M. DOMAKYAAREH (MRS.) JA
This is an appeal against the judgment of the High Court, Commercial Division, Kumasi dated 23rd February 2012. As noted by the trial court, the action is for recovery of money.
For the plaintiff indorsed the writ of summons with a claim for:
(i) Recovery of an amount of GH¢15,000.00 being plaintiff’s share of the total amount of GH¢30,000.00 paid to defendant in the form of cheque, for which the defendant refused to refund inspite of persistent demands for same.
(ii) Interest on the said amount of GH¢15,000.00 from 1st July 2008 to the date of payment.
In support of the claim, the plaintiff pleaded that he had been doing business with the defendant. In or about June 2008, he gave a cheque of GH¢30,000.00 to the defendant as an advance payment for the purchase of Chinese Rods from the defendant. Although the defendant withdrew the money and used it, he failed to supply him the goods. When he confronted the defendant, defendant explained that he had used the money to set-off a debt owed to him (defendant) by plaintiff’s business partner, Charles Frimpong.
Continuing, plaintiff pleaded that he told defendant that Charles Frimpong had only GH¢15,000.00 out of that amount and requested the defendant to supply him GH¢15,000.00 worth of Chinese Rods. Inspite of this explanation, defendant failed to supply the rods and he also failed to refund the amount of GH¢15,000.00, hence the suit.
In a statement of defence filed personally by the defendant, he only admitted that he had been doing business with the plaintiff. He however denied that the plaintiff gave him any cheque for the supply of goods which he failed to supply. He disclosed that it was Charles Frimpong who gave him a cheque of GH¢30,000.00 to defray a personal debt he (Charles) owed him. He stated that the cheque was issued by Charles and he will tender it in evidence at the trial. The defendant by his pleadings put the plaintiff to strict proof of every allegation in his statement of claim.
In a Reply to the defendant’s statement of defence, the plaintiff again alleged that when Charles Frimpong was arrested by the police, he informed police that he plaintiff has paid his cheque to the defendant who has taken the money without supplying the goods ordered by the plaintiff. It is noted that the Reply was silent on at whose instance Charles Frimpong was arrested and for what offence.
From the record, the pre-trial settlement conference failed and the court set down three issues for trial. They are:
(a) Whether or not the plaintiff entered into an agreement with the defendant for the supply of China Rods?
(b) Whether or not the plaintiff issued a cheque of GH¢30,000.00 to the defendant?
(c) Whether or not the plaintiff is entitled to refund of GH¢15,000.00 from the defendant?
At the end of the trial, the learned judge evaluated the evidence as a whole especially the onus of proof on the plaintiff in this case where the defendant had not counter-claimed for any relief. The learned trial judge held that the plaintiff had failed to discharge that onus on him. She therefore dismissed the claim of the plaintiff in its entirety.
Dissatisfied with the dismissal of his claim, the plaintiff has appealed to this court to set aside the judgment on three grounds. The grounds are that:
(a) The court erred when it held that the plaintiff was not able to establish that there was a contract between the parties.
(b) The court erred when it held that because the plaintiff did not personally issue the cheque exhibit “1B”, the plaintiff is not entitled to a refund.
(c) The judgment is against the weight of evidence.
As I stated above, the trial court dismissed the plaintiff/appellant’s case (hereinafter referred to as the plaintiff) because he was unable to prove his claim against the defendant/respondent (hereinafter referred to as defendant). The plaintiff’s claim is based on the existence of contract to supply him with Chinese Rods, payment of a cheque of GH¢30,000.00 in advance and failure of the defendant to make the supply and refusal to refund the amount of GH¢15,000.00.
The trial judge in our view rightly placed the burden of producing evidence, that is the burden or onus of proof on the plaintiff, this being a civil claim. The Latin maxim is “semper necessitas probandi incumbit ei qui agit” means “the necessity of proof always lies with the person who lays the charges”. Stated differently, “ei incumbit probatio, qui dicit, non qui negat, cum per rerum naturam factum, negantis probatio nulla sit” which translated literally means “the proof lies upon him who affirms, not upon him who denies, since by the nature of things, he who denies a fact cannot produce proof”. The first maxim in particular, finds statutory codification in section 11(1) and section 17 of the Evidence Act, 1975 (NRCD 323).
Thus in the case of Faibi vrs State Hotels Corporation  GLR 471 where the plaintiff sued the defendant for damages for wrongful dismissal and it was denied, the court held that:
“The onus in law lay upon the party who would lose if no evidence was led in the case; and where some evidence had been led it lay on the party who would lose if no further evidence was led”.
On ground (a) of the appeal, the plaintiff is challenging the finding of the trial judge that he had failed to establish the existence of a valid contract between him and the defendant. In his submission in support of the ground, counsel for the plaintiff referred to the definition of contract by Christiana Dowuna-Hammond in her book Law of Contract in Ghana, by Sir Frederick Pollock in Principles of Contract: A Treatise on the General
Principles Concerning the Validity of Agreements in the Law of England, 7th Edition and Cheshire, Fifoot and Furmston’s Law of Contract, 13th Edition. Counsel thereon submitted that the existence of an agreement between the parties should be objectively inferred from what the parties have said, written or done. Stated differently, in determining whether or not there exist an agreement between the parties, the court should lay emphasis on external appearance rather than the actual intent or state of mind of the parties.
Situating that proposition in the context of the evidence on record, counsel submitted that the defendant admitted the evidence of the plaintiff that they were in business together. Indeed defendant said plaintiff collected items on credit and paid back later on three occasions. Counsel also referred to the evidence of defendant which admitted receiving the cheque. In the light of these admissions, counsel submitted that it is shocking for the trial judge to hold that there was no contract between the parties, even though per the evidence on record the parties obviously had dealings with each other.
The trial judge did not fail to find that there had been business dealings between the parties previously. And from the record that is all the evidence of the plaintiff established. The plaintiff’s evidence failed to establish that in pursuance of an agreement to supply him with Chinese Rods, he issued/gave a cheque of GH¢30,000.00 to the defendant. That is the specific contract upon which the plaintiff sued defendant. The plaintiff did not sue defendant for a declaration that there is/was business dealings between them.
In coming to the conclusion she reached, the trial judge reviewed the elements of a valid contract, namely an offer and acceptance, consideration, capacity and intention to create legal relations by the parties. The trial judge did not find these elements established by the evidence led by the plaintiff. Rather, the plaintiff only repeated his pleadings. This evidence the trial judge recapitulated on page 4 of the judgment. She held that pleadings does not amount to proof of existence of a contract between the parties. I agree with her entirely.
In Majolagbe vrs Larbi  GLR 190, Ollennu J (as he then was) deprecated the practice of reciting or repeating the pleadings in the witness-box without adducing corroborative evidence as proof of a fact in any case in which the averment of a party is denied. According to him the averment is proved by producing evidence of other facts and circumstances from which the court can be satisfied that the averment is true. In Zabrama vrs Segbedzi  2 GLR 223 at 246, Kpegah JA (as he then was) refined the definition of proof in law when he said:
“A person who makes an averment or assertion which is denied by his opponent, has the burden to establish that his averment or assertion is true. And, he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of that burden”.
In this case, at the trial, the plaintiff failed to lead any evidence on facts or other circumstances to show that there exists a contract between them. For example, there was no evidence of the quantity of rods involved and date or time of delivery of the rods by the defendant in view of the fact that although the plaintiff pleaded the contract was entered into in June 2008, the writ was issued in March 2011. As noted by the trial judge, although the alleged contract was an oral one, it is valid according to section 11 of the Contract Act, 1960 (Act 25), provided the evidence in support proved or established all the constituents of a valid contract.
It is surprising that although plaintiff said he paid GH¢30,000.00 to the defendant for the supply of the rods, he did not find anything wrong with the defendant using that money to off-set Charles Frimpong’s debt owed to him. Is defendant’s conduct thereby not a breach of contract? Why should the plaintiff be prepared to accept GH¢15,000.00 worth of Chinese rods instead of GH¢30,000.00 worth of Chinese rods he paid for? Is the contract thereby varied by the parties? Where at all does Charles Frimpong, a business partner of the plaintiff come into this alleged contract between the parties herein? Does this evidence of the plaintiff accord with the principle of privity of contract?
Lack of evidence on these matters in the case of the plaintiff coupled with the denial of defendant of existence of any contract has created a lacuna in the plaintiff’s case of the existence of a valid and enforceable contract between him and the defendant. On the preponderance of probabilities, the plaintiff’s evidence has failed to displace the denial of the defendant of existence of any such contract between them. We affirm the trial judge’s finding of a non-existence of a valid contract and accordingly dismiss ground (a) of the appeal.
In ground (b) of the appeal, it is stated thus: “the court erred when it held that because the plaintiff did not personally issue the cheque Exhibit “1B”, the plaintiff is not entitled to a refund”. I perused the judgment of the trial judge to find out whether she ruled that the plaintiff did not issue the cheque to the defendant or plaintiff did not give the cheque to the defendant.
This is because to issue a cheque can be different from to give a cheque to another person. The issuer of a cheque can be the same person who gave it to the payee for encashment. In other circumstances, the receiver of the cheque from the issuer can transfer it to a third person for encashment. In this case the plea of the plaintiff was that he gave a cheque to defendant as an advance payment for Chinese rods he ordered. In his evidence-in-chief, plaintiff wanted to say that the cheque he gave to the defendant was received from …. (page 20).
But counsel for defendant sharply objected that line of evidence because there was no such plea in the statement of claim. Although, the objection was sustained, the plaintiff’s resumed evidence on page 22 was to the same effect that the cheque he paid to the defendant was Charles Frimpong cheque.
I noted that in defendant’s statement of defence, he used the word “issue”. He said plaintiff had never issued any cheque to him but it was Charles Frimpong who issued the cheque to him. In his evidence to the court however, defendant said it was Charles Frimpong who paid a cheque of GH¢30,000.00 to him.
So what did the court decide? On page 45 of the record of appeal, the trial judge posed the question “Did the plaintiff issue a cheque of GH¢30,000.00 to the defendant”? Despite the use of the word “issue”, the trial judge ended up deciding that “In the instant action, there is no credible and positive evidence that point to the fact that Charles Frimpong gave exhibit “1B” (the cheque) to the plaintiff (page 49 of the record of appeal)”. From this conclusion, I find that the trial judge did not dismiss the plaintiff’s claim because he did not issue the cheque. Rather, she dismissed the plaintiff’s claim because he did not give or pay any cheque to the defendant in settlement of the cost of Chinese Rods. That conclusion supports the substance of the evidence of both parties as regards how the cheques came into the hands of the defendant.
Thus in support of the ground of appeal, counsel quoted the definition of a cheque in section 72 of the Bills of Exchange Act, 1961 (Act 55). He hammered on the attribute of a cheque especially an open cheque as a negotiable instrument. In relation to what happened in this case. Counsel submitted that the cheque was issued by Charles Frimpong and given to the plaintiff and he in turn gave it to the defendant since it was a cash cheque. The cheque is tendered as Exhibit “1B”.
The fact that a cheque and in particular Exhibit “1B” is negotiable or transferrable is not lost on the trial judge. At page 7 of the judgment which is page 47 of the record of appeal, she discussed with clarity the three ways a payee of an uncrossed or a cash cheque can utilize it. The third way which the counsel for the plaintiff has urged on the court is that the payee may transfer or “negotiate” the cheque to another person. That is what counsel has urged on the court to accept as happened between plaintiff and defendant after Charles Frimpong has issued the cheque to him.
But defendant has denied receiving any cheque from the plaintiff. The case of defendant is that Charles Frimpong issued the cheque and gave it to him in part-payment of a debt of GH¢31,700.00 owed to him. So the issue which the trial judge had to decide was who gave Exhibit “1B” to the defendant, plaintiff or Charles Frimpong who actually issued it. This, the trial resolved in favour of the defendant.
On the record, the defendant tendered an authority note Charles Frimpong gave him to retrieve the cheque from his bankers to prove his case. Defendant indeed retrieved the cheque and tendered it in evidence. So far as the onus of proof goes in this case, it is the plaintiff who must prove the affirmative in order to succeed on his claim. In the absence of a counter-claim, no onus lay on the defendant to prove the negative. But he had gone out of his way to show that he had the authority of Charles Frimpong to tender a copy of the cheque issued to him.
On the issue of delivery of the cheque to the defendant, the trial judge has observed that the plaintiff has positively asserted that Charles Frimpong gave the cheque to him and he transferred it to the defendant. In that case, Charles Frimpong is a material witness for the plaintiff. Charles Frimpong is a material witness not because he had information relevant to the case or issue of the cheque but because his evidence when put in the scale of judgment, will turn it one way or the other and then settle positively who gave the cheque to the defendant and for what purpose – see the case of Owusu vrs Tabiri [1987/88] 1GLR 287 cited by the trial judge. In that case the failure of the defendant to call the chief who alone could testify as to what took place before him was an arbitration or a negotiated settlement was held to be fatal to his allegation that it was an arbitration.
Rather than call Charles Frimpong to vindicate his claim against the defendant, the plaintiff called PW1, an ex-staff of Stanbic Bank and PW2, his brother. The evidence of two witnesses is not relevant to the case of the plaintiff against the defendant and so proved none of the issues in controversy. Belatedly, the plaintiff realised that he had to call Charles Frimpong and defendant’s brother as witnesses. He therefore brought an application after the defendant had closed his case, for leave to reopen the case and lead further evidence. The application was refused. We are handicapped to comment on the refusal because the motion paper, the supporting affidavit and the ruling were not made part of the record of appeal.
Be that as it may, we find the trial judge’s evaluation of the evidence adduced before her and reasons she assigned for dismissing the case of the plaintiff that he gave Exhibit “1B” to the defendant as satisfactory. In view of this finding we made, the last ground of appeal that the judgment is against the weight of evidence is of no moment at all. I say so because in coming to the conclusion we reached, we have reviewed the whole evidence, both documentary and oral which the plaintiff has invited us to do. Additional to that, counsel in his submission on the ground raised no new issues and or arguments on the transfer or giving of the cheque to the defendant and the fact that the parties were already in business relationship which is acknowledged, does not amount to proof of plaintiff’s claim on a specific contract entered into in or about June 2008.
Before I conclude, I have this comment to make. In view of the evidence of the plaintiff that Charles Frimpong issued the cheque to him and he transferred it to the defendant, I considered the plaintiff’s claim under “an action for money had and received” or “an action for money paid”. Both types of action are recognized at common law.
In the local case of Owusu vrs Agyei  GLR 1, it was held that an action for money had and received lay to enforce a right of property (and not any implied promise) whenever money was taken from the true owner without his authority. In such an action,
it is not the promise which is referred to as consideration but the performance of the promise – see Fafra vrs Boakye  2 GLR 332.
In “an action for money paid” on the other hand, a plaintiff could recover money paid to a third party, not to the defendant, in circumstances in which the defendant had benefitted. But the plea of the plaintiff that the defendant used part of the money he paid to him for the supply of Chinese rods to off-set the debt his (plaintiff) business partner owed to the defendant which plea was not proved at the trial, did not support any of the above types of a