IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2015
KWAME TIAKA - (Plaintiff)
JOHN ASARE & ANOR - (Defendants)
DATE: 2ND NOVEEMBER, 2015
SUIT NO: RPC/214/14
JUDGES: HER LADYSHIP ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
VIVIAN M. GYAN FOR PLAINTIFF
OSAM KWAME FOR DEFENDANT
This is an action for the recovery of the sum of GH¢54, 560 being the unpaid balance of goods supplied by the Plaintiff to the Defendants. The 2nd Defendant has denied being a party to the sales agreement resulting in this debt. The 1st Defendant also alleged that the last supply of goods made by the Plaintiff were mainly inferior and are still in stock to the knowledge of the Plaintiff.
These are the issues set down for trial:
Whether or not the Plaintiff supplied goods worth GH¢ 100,560.00 to the Defendants on credit?
Whether or not the parties agreed that Defendant would pay up the cost of the goods on or before the 14th of January, 2014?
Whether or not the goods were of inferior quality?
Whether or not the Plaintiff is entitled to the reliefs endorsed on the writ of summons?
The facts giving rise to this case are well captured in the evidence -in-chief of the Plaintiff given on 24/02/2015. According to the Plaintiff, he supplied the Defendants with second hand ladies shoes to the tune of GH¢100,560.00 about three years ago. He demanded a written schedule of re-payment because of delays at the instance of the 1st Defendant in respect of earlier supplies. Thus, the 1st Defendant caused an agreement to be prepared which the Plaintiff subsequently signed. That agreement was admitted in evidence as exhibit A. Continuing, the Plaintiff said the Defendants ought to have made full payment by the end of the year 2014, but only GH¢ 46,000.00 has so far been paid by the 1st Defendant. Consequently, the Plaintiff said he made both oral and written demands for payment as per exhibit B, but the Defendants have refused to pay the amount outstanding. Concluding, the Plaintiff denied the Defendants assertions that the unsold goods are of inferior quality and the demand for them is low. He urged the court to compel the Defendants to pay the balance outstanding.
During cross-examination by counsel for the Defendants, the Plaintiff denied that exhibit A covers all supplied made by the Plaintiff when that was suggested to him. Instead, he maintained that exhibit A covers only the 4th container of goods supplied to the Defendants. In the words of the Plaintiff "exhibit A was made before the 1st Defendant came for the goods" and that he insisted that the 1st Defendant's wife be made a party to the agreement since they sell the goods together and the previous payment had delayed. The Plaintiff however admitted that after the 1st Defendant had made his own selection, he added some of the remaining shoes. When pushed further, the Plaintiff admitted that he sold all the ladies shoes in each consignment to the 1st Defendant and the rejected ones were sold to him at half price. He denied knowledge of any arrangement in respect of the sale of the so called inferior goods.
The 1st Defendant did not deny that the Plaintiff did supply him with ladies shoes over a period. He described the agreed shoe selection procedure i.e. he makes his selection and Plaintiff is at liberty to add some other shoes he selects at the same price. Further, the 1st Defendant admitted signing exhibit
A in these words:
I know of exhibit A. I signed exhibit A because i do business with the Plaintiff. He said anything can happen to any of us and he could even travel. He said we should document our transactions. That is why i went to make exhibit A and signed.
Next, the 1st Defendant gave two reasons for his failure to make full payment. First, he attributed it to the inferior quality of some of the shoes supplied to him. Second, he stressed that the goods are still in stock as in exhibit 2 and he did invite the Plaintiff to inspect them. Concluding, the 1st Defendant admitted that goods totaling GH¢ 170, 600.00 were supplied to him by the Plaintiff and the outstanding balance if GH¢ 54, 560.00. In cross-examination, the 1st Defendant said he made exhibit 1 on the same day that he made exhibit A. He conceded that as at 01/04/2013, his outstanding indebtedness to the Plaintiff stood at GH¢100,560.00 and that he agreed on a re-payment schedule with the Plaintiff as in exhibit A. He then maintained that the unpaid balance is the sum of GH¢54,560.00 endorsed on the writ of summons but reiterated that his inability to pay is as a result of the fact that the goods have not been sold.
The 2nd Defendant who also executed exhibit A indicated in her evidence in chief that she can neither read nor write and that her husband, the 1st Defendant, requested her to witness the document. She denied that she and her husband are jointly indebted to the Plaintiff in the sum of GH¢54, 560.00.
In his closing address, counsel for the Defendants argued that the 2nd Defendant who can neither read nor write executed exhibit A under the belief that she was a witness. And, in the absence of a jurat, she cannot be bound by exhibit A. In respect of the 1st Defendant, counsel urged the court, as a court of equity, to order the parties to take stock of the unsold shoes and dispose of the same at reduced prices.
Issues (1) and (2) will be resolved together as they are related. These issues are:
(i) Whether or not the Plaintiff supplied goods worth GH¢ 100,560.00 to the Defendants on credit?
(ii) Whether or not the parties agreed that Defendant would pay up the cost of the goods on or before the 14th of January, 2012?
The burden of proof of these issues rests on the Plaintiff who made positive assertions of these facts in his pleadings. As required by section 11(4) and 12 of the Evidence Act, 1975 NRCD 323, the Plaintiff will be required to lead sufficient evidence such that on all the evidence before this court, it can be reasonably concluded that his version of the rival stories is more probable than not.
In the instant case, the oral evidence adduced by the Plaintiff shows that goods worth GH¢100,560.00 were supplied to the Defendants and that exhibit A was made before the last supplies were made. Exhibit a therefore becomes very crucial in the resolution of these issues. It reads:
THIS AGREEMENT is made the 1st day of April, 2013 in the year of our Lord between KWAME TIAKA (0244 775851) of Sunyani but residing in Kumasi (hereinafter called the SUPPLIER) of the first part and JOHN ASARE & REBECCA ASARE of house No. Plot 115 Block 'A', Suame- Kumasi (hereinafter called the seller) of the second part and both parties have agreed as follows:
1. That, the supplier is an Agent of the sellers and has supplied the sellers Quantity of second Hand Shoes of all kinds for sale.
2. That, the agreed cost involved as at now 1st April, 2013 is ONE HUNDRED THOUSAND FIVE HUNDRED AND SIXTY GHANA CEDIS (GH¢ 100, 560.00).
3. We, hereby promise and vouch to pay EIGHT THOUSAND GHANA CEDIS ( GH¢ 8,000.00) for the first Two weeks and thereafter GH¢ 5,100.00 every Two (2) weeks.
4. That, this installment will take us Nine (9) months Two (2) weeks to finish the whole amount which will fall on 14th Day of JANUARY, 2014.
5. That, this Agreement/Arrangement will continue until the whole amount is fully settled/paid.
6. That, in consideration of the favour done us by KWAME TIAKA, we also promise to be faithfully to him to enable the work go on smoothly.
7. That we hereby wish you to pray for us for successful Business market.
In witness whereof the parties hereto have hereunder set their hands on the day and year first above written.
KWAME TIAKA (sgd.) JOHN ASARE (sgd.)
REBECCA ASARE (sgd.)
(sgd.) KWASI AMOAKO (sgd.) YAA AKYIAA
This document was signed by both parties in the presence of witness (Owusu Aduomi, Commissioner for Oaths).
First, I will consider exhibit A in relation to the 1st Defendant. He signed exhibit A in his own hand using blue ink. He did not raise the question of illiteracy either in his pleadings or evidence in chief. From all indications, he perfectly understood the contents of exhibit A and is therefore bound by it.
From exhibit A, the second shoes supplied to the Defendants stood at GH¢100, 560.00 which the 1st defendant agreed. Whether or not the amount covered previous supplies which had not been paid for is immaterial. What is of the essence here is that second hand shoes worth GH¢ 100,560.00 were supplied to the Defendants , which on the face of exhibit A , is not in doubt. From the same exhibit A, the 1st Defendant agreed to make installmental payments and liquidate his indebtedness by 14th January, 2014. The 1st Defendant is a man of full age and understanding and in the absence of any evidence of fraud, mistake or undue influence, he is bound by his own deed.
Second, I will look at the involvement of the 2nd Defendant who seeks to back out from exhibit A on grounds of illiteracy. Generally, it is required that a party who is not literate in a particular language is made to understand a document prepared in that language before he or she sets his mark to it. This is in consonance with the illiterates Protection Act 1963 Act 217 and the import of this is to protect the interest of illiterate persons. In the case of Owusu v Kumah (1984-86) 2 GLR 29, CA holding 1 (then the Highest Court) stressed that:
The main object of the illiterates Protection Ordinance, Cap b262 ( 1951 Rev) was to protect illiterates for whom documents were made. section 4 of CAP 262 obliged every person writing a letter or document for an illiterate to read or cause it to be read over and explained to the illiterate and also ensure that the illiterate thumb printed or made his mark on the letter or document...
However, there are decided cases which point out clearly that though mandatory, the presence of absence of a jurat per se is not conclusive of the fact that an illiterate person understood the contents of a particular document. In effect, the court is bound to look at all the surrounding circumstances or other evidence available to it to come to a determination as to whether or not an illiterate person understood the contents of a particular document being used against him or her.
One authority which readily comes to mind is Duodu V Adomako & Adomako (2012) SCGLR 198. The Supreme Court in that case made reference to the well known case of Zambrama v Segbedzi (1991) 2 GLR 221, CA where the court held in head note (2) as follows:
The presence of an interpretation clause in a document was not conclusive of the fact, neither was it a sine qua non. It was still possible for an illiterate to lead evidence outside the document to show that despite the said interpretation clause, he was not made fully aware of the contents of the document to which he made his mark.
To put the matter to rest and to prevent illiterate persons from using the principle as a cloak to defraud others, the Supreme Court in the Duodu case (supra) quoted with approval the pronouncement of the Court of appeal in the Zambrama case (supra, holding 2) thus:
If a court, after assessing all the available evidence was satisfied, upon the preponderance of the evidence, that the document was read and interpreted to the illiterate person, then the burden of proof would have been discharged by the person relying on the document. That was because just as it was bad to hold an illiterate to a bargain he would otherwise not have entered into if he fully appreciated it, so also was it equally bad to permit a person to avoid a bargain properly and voluntarily entered into by him under the guise of illiteracy...
In their Lordships rightful opinion in the Duodu case 9supra) at page 216:
The clear principle emanating from these cases is that, courts must not make a fetish of the presence or otherwise of a jurat on executed documents. to hold otherwise, without a single exception, is to open the floodgates to stark injustice, admittedly, the presence of a jurat may be presumptive of the facts alleged in the document, including the jurat. But that presumption is rebuttable, it is not conclusive...
Concluding, the Supreme Court took the view that the Ordinance cannot, and must not be permitted to be used as a subterfuge or cloak by illiterates against innocent persons. Thus, an illiterate person who fully appreciates the contents of a document which he freely executed, but feigns ignorance, so as to escape legal liability, will not obtain relief.
After this powerful exposition of the Illiterates Protections Act by the Supreme Court, one cannot gloss over all the circumstances of a given case, in determining whether or not an illiterate is bound by a particular document. In the case before me, I accept the Plaintiff's evidence that he demanded the
2nd Defendant to be party to exhibit A because both defendants, husband and wife, sell the shoes given to them from their respective shops. How was exhibit A prepared? In the Plaintiff's evidence-in-chief, he stated thus:
I told the 1st defendant that since he sells the shoes with his wife, she should be made a party to the agreement and that his mother should also be brought into the picture. The 1st Defendant prepared a document to that effect and brought it to me. I also signed.
The 1st Defendant also admitted in cross-examination that he made exhibit A as can be seen from the discourse below:
Q. You agree with me that exhibit 1 was made by you after the matter had come to court?
Q. When did you make exhibit 1?
A. I was recording all the transactions. I made exhibit 1 on the day I made exhibit A.
Despite the 1st Defendant's insistence that his wife, the 2nd Defendant, signed exhibit A as a witness, he agreed with counsel for the Plaintiff in cross-examination that his mother, Yaa Akyiaa, witnessed exhibit A for him and his wife. Let me reflect on these sequence of events for a moment. The 1st Defendant who is literate is deemed to have understood the contents of exhibit A which he caused to be prepared. Each of the first three clauses contained in exhibit A begin with "We..." .The unanswered question here is why will a husband commit his own wife to a document she does not appreciate? I am mindful of the fact that both Defendants are in the business of selling second hand shoes. This makes the Plaintiff's demand for both parties to commit themselves to the transaction in issue plausible. There is no doubt from the evidence before me that both Defendants dealt with the Plaintiff at arm's length; second hand shoes were supplied to them for sale and exhibit A was made. Pursuant to exhibit A, the 1st Defendant has made part payment but there is still a balance outstanding. Now that the Plaintiff is seeking to enforce exhibit A against the defendants, the 2nd Defendant wants to rely on the absence of a jurat to escape liability. On the balance of probabilities, the 2nd Defendant's explanation will not hold given the peculiar facts of this case and the evidence adduced by the Plaintiff. I will treat the 2nd Defendant's situation as an exception to the requirement for an interpretative clause and hold that she knew she was thumb printing exhibit A as a "SELLER" in their own words , and not as a witness. I further find that Yaa Akyiaa, the 1st Defendant's mother, rather witnessed the agreement on the part of the two Defendants. Under the circumstance, the 2nd Defendant cannot escape liability from paying the debt arising out from exhibit A because of the absence of a jurat. Like the 1st Defendant, she also agreed that the debt of GH¢100,560.00 will be liquidated by 14th January, 2014 and she is bound by her own deed.
Next to be considered is whether or not the goods supplied to the Defendants were of inferior quality?
This issue arises from paragraph 8 of the statement of defence filed on 20/06/2015 and in respect of which the parties joined issues. It states:
Further, the 1st defendant states that the last supply made by the plaintiff were of inferior quality and same was brought to the attention of the plaintiff which the plaintiff himself inspected the goods; which are all locked up in stock.
This averment creates the impression that all the consignment of shoes supplied to the Defendants were inferior. Yet, in the 1st Defendant's evidence-in-chief, he said the inferior goods consisted of left over shoes from previous supplies and the last or 4th container full of shoes supplied to him by the Plaintiff. This piece of evidence is in sharp contrast to the averment contained in paragraph (8), referred to supra. From this inconsistency, there is a real doubt as to the quality of the last consignment of goods supplied to the Defendants. If the goods were sub-standard, why did the Defendants accept them? This the Defendants have failed to explain. The evidence of both parties shows that the 1st Defendant was given an opportunity to make his own selection after which the Plaintiff also added his selected shoes in accordance with the custom of their trade. If the Defendants were not comfortable with this kind of arrangement, they had every right not to enter into the contract. From the 1st Defendant's own evidence, he did sell second shoes supplied by the Plaintiff in the past using the same procedure without problems. The Defendants have failed to demonstrate that the goods were not "fit for their purpose" or there were some hidden defects which could not have been discovered by reasonable inspection. In any case, what was the quality expected by the Defendants? And, did the shoes which were supplied fall short of that expected quality? Answers to these questions cannot be inferred from the evidence given by the Defendants. They did tender a photograph showing a heap of shoes as per exhibit 2. However, it is difficult to say that those shoes are inferior or substandard by merely looking at a photograph. The Defendants failed to provide the court with any standard against which the so called inferior shoes were, or are to be measured.
On the balance of probabilities, the Defendants' evidence as regards the quality of the second shoes supplied to them by the Plaintiff is unsatisfactory and I reject the same. Thus, the evidential burden on this issue does not shift onto the Plaintiff. I find that the Defendants have simply failed to honour their obligations because they have been unable to dispose of some of the shoes supplied by the Plaintiff.
The evidence on the actual quantity yet to be sold and their estimated value was suppressed by the Defendants.
From the evidence before me, the parties entered into a contract for the sale of goods within the meaning of section 1 of the Sale of Goods Act, 1962 , Act 137 thus:
Contract of sale
(1) A contract of sale of goods is a contract by which the seller agrees to transfer the property in the goods to the buyer for a consideration called the price, consisting wholly or partly of money.
The obligations of the buyer and seller in such a contract are governed by the Sale of Goods Act, supra. It is the fundamental obligation of a seller under section 8(1) of Act 137 to deliver the goods to the buyer in the case of specific goods. The buyer can exercise his or her right of rejection if any of the situations under section 49 of the Act occurs; for example breach of a fundamental obligation by the seller or where the buyer has entered into the contract as a result of fraudulent or innocent misrepresentation on the part of the seller. Under section 52 (b), where the buyer fails to inform the seller within a reasonable time after delivery that he rejects the goods, he will be deemed to have accepted them.
On the totality of the evidence before me, I conclude that the Defendants accepted delivery without raising any objections as regards the quality of the goods. Under sections 26(2) and 27(2) of Act 137, the property and risks in the goods have already passed to the Defendants. Thus, they are under an obligation to pay the purchase price in full to the Plaintiff whether or not the goods have been sold off. In trading activities, one can either make gains or incur losses. A buyer cannot refuse to pay for goods sold to him because he has incurred losses arising from poor sales. He must bear his losses just as he would have enjoyed his profits!
I notice from exhibit A that the parties used the words "supplier" and "seller" to describe the relationship between the Plaintiff and the Defendants respectively. However, on a true and proper interpretation of exhibit A, the words so used are to be construed as "SELLER" and " BUYERS". This is so because the Plaintiff sold the second hand shoes and the Defendants bought the same.
The Plaintiff is entitled to recover from the Defendants jointly and severally the sum of GH¢54,560.00 endorsed on the writ of summons. In view of the Defendants' predicament, I will not award interest prior to the delivery of judgment. I however award post-judgment interest on the sum of GH¢ 54,560.00 from the date of delivery of judgment till date of final payment.
Having taken into consideration the provisions of Order 74 of C.I. 47 on the award of costs and bearing in mind the unfortunate situation of the Defendants, I award cost of GH¢2000.00 against them in favour of the Plaintiff.
Judgment entered for the Plaintiff.