IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2015
MOHAMMED SALEH MROUE - (Plaintiff)
EMMANUEL ADJETEY - (Defendant)
DATE: 16TH APRIL, 2015
SUIT NO: RPC/31/15
JUDGES: HER LADYSHIP ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
KWAKU YEBOAH APPIAH FOR THE PLAINTIFF
OHENE AMANKWAH GYAN FOR THE DEFENDANT
The business transaction between the parties herein which was initiated by the Defendant did not end on a good note. It is the Plaintiff's case that he paid a total sum of GH¢108,000.00 to the Defendant in two installments for the supply of 5,000 bags of cement and 40 tons of iron rods but the Defendant failed to honour his part of the bargain, such that at the commencement of this action, 3235 bags of cement and 12 tons of iron rods were outstanding. In addition, the Plaintiff alleged that he paid a further GH¢24,500.00 to the creditors of the Defendant, B5 Plus Ltd, on his instructions to prevent the said company from retrieving its iron rods which the Defendant had supplied to the Plaintiff. A further sum of Gh¢5,131.00 is also being claimed as monies due and owing to the Plaintiff. The Plaintiff stated again that the Defendant issued a post dated cheque of GH¢130,000.00 to him as a sign of his commitment to supply these items. Following the Defendant's persistent default, he was arrested by the police. He gave an undertaking to honour his obligations to the Plaintiff within a stated period and then secured the payment with his property numbered Plot No. 1A Block B, Apaaso, Kumasi.
The Defendant did not deny receiving a total sum of Gh¢108,000.00 from the Plaintiff for the supply of 5000 bags of cement and 40 tons of iron rods. He also admitted that the Plaintiff paid an amount of GH¢24,500.00 to B5 Plus Ltd on his behalf as averred by the Plaintiff and did not also dispute an amount GH¢5,131.00 representing supplies made to him by the Plaintiff. He further admitted that not all the items have been supplied to the Plaintiff . The difference is in the quantities to be supplied. Whereas the Plaintiff put the cement left to be supplied at 3, 235 bags, the Defendant put the figure at 3050, but admitted the 12 tons of iron rods. Other admissions made by the Plaintiff are his undertaking in writing to satisfy his obligations to the Plaintiff and the giving of his property as security for the repayment of the Plaintiff's money. However, he denied ever issuing a cheque of GH¢130,000,00 to the Plaintiff against the items to be supplied to him.
The pre-trial judge set down five for trial, namely:
Whether or not the Defendant issued a cheque of One Hundred and Thirty Thousand Ghana Cedi (GH¢130,000.00) in favour of the Plaintiff as guarantee for part payment of the sums advanced o the Defendant by the Plaintiff?
Whether or not the Defendant has failed to supply the Plaintiff with 3050 bags of cement?
Whether or not the Defendant's cheque was presented by the Plaintiff and same was dishonoured?
Whether or not the Defendant has failed to supply the 40 tons of iron rods to the Plaintiff?
Whether or not the Plaintiff is entitled to his claim?
Issue 2 ought not to have been set down as an issue for trial in view of the Defendant's admission in paragraph 7 of his statement of defence that 3050 bags of cement were outstanding. As to be expected, the Plaintiff applied for judgment on admissions against the Defendant and on 09/03/2015, judgment on admissions was duly entered against the Defendant for 3050 bags of cement and 12 tons of iron rods.
A hearing notice was then served on counsel for the Defendant on 24/03/2015 for the outstanding issues to be tried on 31/03/2015. When the case came up for hearing on 31/03/2015, the Defendant and his lawyer were not in court. The court adjourned the hearing to 02/04/2015 and ordered a hearing notice to be served on counsel for the Defendant. An affidavit of service sworn by Kwabena Gyan (senior Bailiff) indicates that the hearing notice was duly served on Counsel for the Defendant personally at 9am on 01/04/2015. Yet, neither the Defendant nor his lawyer appeared in court on 02/04/2015 when the case was called for hearing. No reasons were given for their absence. Having elected not to come to court and to participate in the trial, the court had no option than to proceed with the Plaintiff's case under Order 36 rule (1) (2) (a) of the High Court (Civil Procedure) Rules, 2004 C.I. 47. It states:
Rule (1) (2) where an action is called for trial and a party fails to attend, the trial judge may:
Where the Plaintiff attends and the defendant fails to attend, dismiss the counterclaim, if any, and allow the plaintiff to prove the claim.
In his evidence, the Plaintiff conceded that after the Defendant's arrest, he supplied him with 600 bags of cement leaving 3050 bags, 12 tons of iron rods, the GH¢24,500.00 paid to B5 Plus Ltd and GH¢5,130.00 for items received by the Defendant from the Plaintiff's computer and electronic store. He tendered the cheque of GH¢130,000.00 issued to him by the Defendant in his business name " Clap for Jesus Enterprise" as exhibit A, adding that it was after exhibit A had been dishonoured upon presentation that he caused the arrest of the Defendant whereupon the gave the undertaking evidenced by exhibit B. Evidence of the security given by the Defendant was tendered as exhibit C. Having already obtained judgment in respect of the 3050 bags of cement and 12 tons of iron rods, the Defendant invited the court to order the Defendant to pay the GH¢24,500.00, the sum of GH¢5, 130.00 which the Defendant has refused to pay and grant his reliefs.
At this point, i am required to analyze the Plaintiff's evidence, weigh it on the balance of probabilities and decide whether sufficient evidence has been made in support of his claims to merit a judgment in his favour. See sections 11(4) and 12 of the Evidence Act, 1975, NRCD 323.
Exhibit B states in part as follows:
I, Emmanuel Adjettey of H/N0. Plot 1A Block B Apaaso, Kumasi in the Ashanti region of the
Republic of Ghana on this 29th day of July, 2014 hereby states as follows:
... That the said Mohammed Mroue paid an amount of GH¢24,500.00 on my behalf to B5 Plus COMPANY LIMITED for iron rods I took from the said company.
That the said Mohammed Mroue also credited me with goods worth GH¢ 5,130.00...."
In clauses 3 and 4 of exhibit B, the Defendant undertook to pay the sum of GH¢24,000.00 and supply Mohammed Mroue with goods worth GH¢ 5, 130.00.
Further in exhibit B, the Defendant committed himself as follows:
5. that I hereby use my property described as H/N0. Plot 1A Block B Apaaso, Kumasi to secure the payment of the money and the supply of all he goods within the time stipulated.
6. That in the event that I fail to do so as promised I declare that my property as used as security be sold by the said Mohammed Mroue to offset my indebtedness.
There is no doubt from exhibit B as well as the admissions made by the Defendant in paragraph 6 of his statement of defence that he owes the Plaintiff the sum of GH¢24,500.00 and GSH 5, 130.00, 3050 bags of cement and 12 tons of iron rods.
As regards the cheque of GH¢130,000.00. I have compared the drawer's signature to that of the Defendant in exhibits B and C which he freely executed. The two signatures of the Defendant on exhibits B and C have very similar identifying characteristics with the signature attributed to him on exhibit A. It is therefore more probable than not, that the Defendant issued the said cheque of GH¢130,000.00 to the Plaintiff. His denial of this fact goes against his credibility. Also, at the back of exhibit A, there are official stamps of Unibank Ghana Ltd and CAL Bank Ghana Limited which demonstrate that the cheque was represented for payment at these bank at various times. On the totality of the evidence on record, I find that the Defendant issued a cheque of GH¢130,000.00 to the Plaintiff but the same was dishonoured upon presentation. I further find that the said cheque was issued in the course of the business transaction between the parties to ensure that the Defendant fulfilled his obligations under the transactions.
The Plaintiff has already obtained judgment on admissions against the Defendant for 3050 bags of cement and 12 tons of iron rods. He is entitled to recover the outstanding monies totaling GH¢29,630.00 from the Defendant ( i.e. GH¢24,500.00 paid on his behalf to B5 Plus Ltd and the supplies made to him to the tune of GH¢5,130.00).
The Defendant has had the use of this money to the detriment of the Plaintiff. He undertook to pay GH¢24,500.00 by August, 2014 and supply goods worth GH¢5,130.00 but has reneged on his promise. Certainly, the Plaintiff is entitled to interest on the amount outstanding. I cannot conclude without making a quick reference to the statement of Lord Herschell LC in Chatham & Dover Railway Co. v South Eastern Railway Co. (1893) AC 429 thus:
“ … When money is owing from one party to another and that other is driven to have recourse to legal proceedings in order to recover the amount due to him, the party who is wrongfully withholding the money from the other ought not in justice to benefit by having that money in his possession and enjoying the use of it, when the money ought to be in the possession of the other party who is entitled to is use. Therefore, if I could see my way through to do so, I should certainly be disposed to give the appellant, or anybody in similar position, interest upon the amount withheld…” See also Akoto v Gyamfi- Addo (2005-2006) SCGLR 1018.
The applicable rate of interest is the prevailing bank rate and at simple interest. See sections 1 and 2 of the Court (Award of Interest and Post Judgment Interest) Rules, 2005 C.I. 52.
Accordingly, judgment is entered against the Defendant in favour of the Plaintiff for the sum of GH¢29,630.00 together with interest at the prevailing bank rate and at simple interest, from August, 2014, till date of final payment.
In consonance with exhibits B and C, if the Defendant fails to pay the total judgment debt in this suit, the Plaintiff shall be at liberty to apply to the court for a reserved price of House number Plot 1A Block B Apaaso, Kumasi which belongs to the Defendant. In that event, the said property shall be sold in satisfaction of the judgment debt.
The conduct of the Defendant has not been desirable. He refused to come to court after pre-trial even though hearing notices were served on his counsel at various times. I have taken into consideration the award of GH¢500.00 cost against the Defendant on 31/03/2015 when he failed to come to court. However, no cost was awarded in Plaintiff's favour when he applied for judgment on admissions. Having looked at the provisions of Order 74 of C.I. 47, I award cost of GH¢3000.00 against the Defendant in favour of the Plaintiff.