IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
ACCRA - A.D 2015
MARKET DIRECT - (Plaintiff)
FATI AHMED IDDRIS AND MUHAMMED AMIN IDRIS - (Defendants)
DATE: 23RD OCTOBER, 2015
SUIT NO: RPC 500/2009
JUDGES: SAMUEL K. A. ASIEDU, JUSTICE OF THE HIGH COURT
ADAINA AVRIL AKUOKU FOR PLAINTIFF
G. S. K. BABANAWO FOR DEFENDANTS
By an amended writ of summons the plaintiff claims jointly and or severally against the defendants
a. An order for the recovery from the defendants of the sum of GH₵541,041 being (a) amount stolen/embezzled by the 1st defendant and or dishonestly received/handled by the 2nd defendant (b) being further or in the alternative due from the defendants by virtue of their conviction by the Circuit Court, Accra, Ghana in the case “The Republic vs. Fati Ahmed and Muhammed Amin Idris case Number D4/11/09”
b. Further in the alternative Damages
c. A declaration that the defendants hold on constructive trust for plaintiff or are liable to account to plaintiff for all assets now or previously in the defendants’ respective possessions or ownership acquired directly or indirectly with plaintiff’s cash or assets.
d. All necessary accounts and inquiries to enable plaintiff trace and recover the assets in (c) above
e. Orders for the delivery up or transfer to the plaintiff of the assets referred to in (c) above.
f. An injunction restraining the defendants by themselves, their servants, agents, privies or otherwise from disposing of the assets referred to in (c) above.
g. An order freezing the accounts of the defendants held with all banks in Ghana and apportionment of same as well as application of any monies/assets due respectively to defendants to defray their respective indebtedness to plaintiff.
h. Interest on all sums found due at the prevailing commercial rate of interest to dates of final payment.
The defendants filed a defence to the plaintiff’s claim and after the failure of pre-trial settlement the case was set down for hearing. The plaintiff gave evidence at the trial through a representative and then called witnesses to testify in support of its case. The 1st defendant failed to attend the trial and for that matter no evidence was given by her. The 2nd defendant gave evidence and called a witness to support his case.
From the evidence on record the court finds that the 1st defendant is the wife of the 2nd defendant and that, until the incident giving rise to this suit, the 1st defendant was a staff of the accounts department of the plaintiff company.
The court also finds that in the year 2009 the 1st defendant was arraigned before the Circuit Court in Accra on charges of stealing an amount of GH₵541,041 and GH₵2,850 and forgery of document. On the same charge sheet the 2nd defendant was also charged with the offence of dishonestly receiving cash the sum of GH₵541,041. This is supported by exhibit G received in evidence. The court again finds that by a judgment delivered by the Circuit Court on the 6th day of December 2010, the defendants were convicted of the various charges preferred against them and sentenced to various terms of imprisonment as shown by exhibit G1 herein. Indeed the Circuit Court ordered the defendants, as part of its judgment, to refund the money involved to the plaintiff herein who was also given the liberty to take steps to recover the stolen amount from the defendants.
From the evidence on record the court finds that the main schedule of the 1st defendant in the accounts office of the plaintiff company was to disburse petty cash and to make cash payments. The evidence shows that the 1st defendant discharges her schedule by generating an electronic payment voucher by the use of a unique username and a password after which she obtains supporting documents in the nature of a manual payment voucher signed and approved by the accountant as well as a way bill signed and approved by the warehouse manager.
From the evidence adduced by the parties, particularly exhibit J series as well as the audit report exhibit A herein, the court finds that between the period of September 2006 and March 2008 the 1st defendant embezzled, from the plaintiff company, a total amount of GH₵514,401. It is clear from the evidence on record that the 1st defendant embezzled the said amount when she managed to procure the release of the amount to her in bits by the preparation of electronic generated payment vouchers without supporting them with either a manual payment voucher and or the approved way bill as required by the practices of the plaintiff company. Indeed this is clearly shown by exhibit J series.
The clandestine activities of the 1st defendant came to light when on the 18th day of March, 2008 the 1st defendant passed an entry and forged the signature of the Accountant, exhibit H herein, and collected an amount of GH₵2,850 therefor without obtaining the required supporting documents of either a manual payment voucher or the authorized way bill. It was the 18th March fraudulent entry by the 1st defendant that aroused suspicion and triggered the audit investigations that led to the production of the audit report and findings contained in exhibit A herein.
There is evidence to the effect that during investigations into the fraudulent activities of the 1st defendant, she together with her husband, the 2nd defendant, were arrested by the police when it was found that the monies stolen by the 1st defendant had been passed on to the 2nd defendant and used to acquire various assets by the couple.
The court finds that the 1st and the 2nd defendants executed exhibit B by which they agreed to pay the amount embezzled by the 1st defendant from the plaintiff company and by way of securing the repayment of the amount stolen, the defendants agreed to assign to the plaintiff two parcels of land with buildings thereon and situate at Frafraha and Amrahia all in Accra. The defendants also surrendered to the plaintiff four vehicles: a Toyota RAV 4 with registration number GR 197 V, KIA Pick Up with registration number GR 5949 Z, Nissan Primera with registration number ER 288 X and another Toyota RAV 4 with registration number GS 4062 Y.
By the instant action, the plaintiff seeks to enforce the agreement contained in exhibit B as a way of defraying the amount stolen by the 1st defendant. By their pleadings the defendants have not denied the execution of exhibit B. The 2nd defendant’s contention is that the properties mentioned in exhibit B are his personally acquired properties which he used to guarantee bail for his wife and himself and that he did not acquire those properties either directly or indirectly from monies embezzled by the 1st defendant. The defendants have also pleaded that the agreement contained in exhibit B is null and void as it was obtained by inducement.
In view of the provisions in sections 14 and 17 of the Evidence Act 1975, NRCD 323, the court holds that the defendants carry the burden to adduce positive and cogent evidence to prove the assertion that they were induced to execute exhibit B and to show that exhibit B is thus null and void. Again the 2nd defendant in particular is legally bound to prove his assertion that exhibit B was only meant to secure bail for his wife and himself. Thus in Ababio vs. Akwasi III [1994-1995] GBR 774 it was held that:
“A party whose pleading raised an issue essential to the success of the case assumed the burden of proving such issue. The burden only shifted to the [other party] when [such a party] had adduced evidence to establish the claim”
The court has also explained in the recent case of Okudzeto Ablakwa (No. 2) vs. Attorney General & Another  2 SCGLR 845 at 867 that
“If a person goes to court to make an allegation, the onus is on him to lead evidence to prove that allegation, unless the allegation is admitted. If he fails to do that, the ruling on that allegation will go against him. Stated more explicitly, a party cannot win a case in court if the case is based on an allegation which he fails to prove or establish. This rule is further buttressed by section 17 (b) which, emphasizes on the party on whom lies the duty to start leading evidence…”
From the evidence on record the court finds that short of saying on oath that they were induced into executing exhibit B, the defendants furnished no proof whatsoever of the allegations contained in their statement of defence about the said inducement. It is very instructive to note that exhibit B contains very detail descriptions of the properties of the defendant such that those details could not have been known to the plaintiff except upon the voluntary disclosure by the defendants. It is also very important to stress that exhibit B was signed by the two defendants and witnessed by their witness Mohammed Sadiq who signed under the signatures of the defendants.
Indeed exhibit B was voluntarily executed by the defendants and it is no excuse for the 2nd defendant to say that he did not read or was not allowed to read exhibit B before signing. Parties to a written contract are bound by the terms of their agreement and in the absence of fraud or misrepresentation they cannot be permitted to resile from that which they have mutually agreed upon. See L’Estrange vs. Graucob  2 KB 394 @ 403 and Inusah vs. DHL Worldwide Express  1 GLR 267.
In exhibit B the defendants undertook to repay the amount found embezzled by the 1st defendant and for that purpose gave their properties as security and agreed that the plaintiff sells the properties to defray the debt. It is therefore unacceptable for the 2nd defendant to purport to resile from the terms of exhibit B.
Again the 2nd defendant says that the properties in exhibit B were personally acquired by him before he married the 1st defendant in 2004. The 2nd defendant tendered in support of his allegation exhibits 1, 1A and 1B which are receipts showing that the land at Amrahia and Frafraha were acquired before 2004. That may well be so; however, the indentures exhibits D and E covering both properties show that the parcels of land were acquired in 2007 and 2008. Besides the 2nd defendant provided no positive proof as to when the buildings on the land were put up. The indentures on the land are clear evidence that the land and the buildings thereon were acquired jointly by the defendants.
Again the 2nd defendant has failed to provide evidence of his alleged trading activities and or his income to show that he could have acquired the properties independent of the amount stolen by his wife, the 1st defendant. At any rate the uncontroverted evidence on record is that the defendants together agreed that the properties be sold to defray the amount embezzled by the 1st defendant.
Again the 2nd defendant admitted at the trial that the four vehicles, which were also to be sold to defray the debt, were all acquired in 2008. It is noteworthy that the embezzlement took place between 2006 and 2008.
From the sum total of the evidence on record the court holds that the plaintiff is entitled to its claims against the defendants. The court therefore enters judgment for the plaintiff against the defendants. It is ordered that the plaintiff may recover cash the sum of GH₵541, 041 from the defendants herein together with interest at the prevailing rate of interest from April 2008 to the date of final payment. The plaintiff may sell so much of the properties recorded in exhibit B as will enable them recover the judgment debt. The plaintiff is awarded cost of GH₵7000 against the defendants.