IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2015
NAN ENTERPRISE LIMITED - (Plaintiff)
MUBARAK ABUBAKAR - (Defendant)
DATE: 5TH OCTOBER, 2015
SUIT NO: RPC/224/14
JUDGES: HER LADYSHIP ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
KWAKU YEBOAH APPIAH FOR PLAINTIFF
DAVID P. AMEDIOR FOR DEFENDANT
By a writ of summons filed on 02/06/2014, the Plaintiff Company claimed the recovery of various amounts of money totaling GH¢76, 911.00 being the unpaid balances of goods supplied to the Defendant which he ought to have paid off by agreed dates in September and November, 2013 but has refused to do so. The Plaintiff also claimed interest on the amount owed.
The Plaintiff described itself as carrying on business as General Merchant whereas the Defendant is a businessman. On 09/09/2013, the Plaintiff averred that assorted food items totaling GH¢13,155.00 were supplied to the Defendant at his request. Again, on 29/10/2013 and 01/11/2013, various food items totaling GH¢4,806.00 and GH¢75,155.00 respectively were supplied to the Defendant. The Plaintiff also alleged that another supply of cooking oil worth GH¢3000 was made to the Defendant on 05/11/2013. However, goods worth GH¢ 6,050.00 which the Plaintiff was unable to supply were deducted from his indebtedness. For all these supplies, it is the Plaintiff's case that full payment was to be effected within 10 days from the date of transaction but the Defendant has demonstrated by his conduct that he will not pay the sum claimed.
The assertions on indebtedness were met with an outright denial by the Defendant. Although he admitted receipt of various goods worth GH¢75,155.00; GH¢13,155.00; GH¢ 3,000.00 and credit notes worth GH¢ 6,050.00, his version of the events is that he made full payment on or about November, 2013 and he is therefore not indebted to the Plaintiff. In another breath, he averred that the Plaintiff has turned down his request to be furnished with his actual indebtedness and that there is the need for accounts to be gone into for the determination of his actual indebtedness.
This court has been invited to determine the sole question of whether or not the Defendant owes the amount claimed by the Plaintiff. This being a civil suit, the Plaintiff who has made a debt allegation against the Defendant bears the onus of proof as required by law. In discharging this burden, the Plaintiff is required to introduce evidence that will make its case more probable than not. The legal basis for the degree and standard of proof are sections 11(4) and 12 of the Evidence Act 1975, NRCD 323. There are a host of judicial authorities on the nature of proof required in civil suits and indeed, both counsel made reference to a couple of such cases in their written submissions. These include the 1959 case of Majolagbi v Larbi ; Zambrama v Segbedzi (1991) 2 GLR 221 CA; Adwubeng v Domfeh (1996-97) SCGLR 660; Takoradi Flour Mills v Samir Faris (2005-2006) SCGLR 883; Yaa Kwesi v Arhin Davis ( 2007-2008) SCGLR 580; and Continental Plastics v IMC Industries- Technik GMBH (2009) SCGLR 298 at 307. I need not be labour this point.
In discharging the burden placed on it by law, a credit officer by name Samuel Evans Nyarko testified on its behalf. He indicated that the Defendant has a 10-day credit sales arrangement with the Plaintiff Company whereby mercantile food products sold to him are to be fully paid within a minimum period of ten days. Explaining the nature of their transactions, Nyarko said all purchases are keyed in on account of the Defendant, an invoice is then raised and a copy printed out for the Defendant. He tendered in evidence a statement of account of the Defendant as exhibit A. He gave details of the entries in exhibit A thus: (i) the Defendant had an opening (debit) balance of GH¢66,456. 83 in respect of goods earlier supplied to him; on 09/09/2013, goods worth GH¢13,155.00 were supplied to him but on 29/09/09 credit notes of GH¢770.00 and GH¢535.00 were given to him; goods worth GH¢3000 were supplied to him on 5/11/2013. He paid GHs 3,500.00 and GH¢ 70,000.00 respectively on 03/09/2013 and 29/10/2014 respectively. The Plaintiff's representative denied the Defendant's assertions that he does not owe the Plaintiff Company and stressed that the Defendant is indebted to the Plaintiff in the sum of GH¢76,911.84.
Counsel for the Defendant in cross-examination sought to attack the opening balance on exhibit A on the basis that the figure does not refer to goods supplied. To these line of questioning, the Plaintiff's representative emphasized that the opening balance was in respect of a onetime supply made to the Defendant within his credit limit of GH¢80,000.00. Counsel also challenged the quantum of goods supplied. Again, the Plaintiff's representative was emphatic that all goods delivered to the Defendant were cross-checked by him using the invoice issued to him as a guide. Therefore, there could not have been any mistake as regards the types and quantities of goods supplied.
A truck driver of the Plaintiff Company charged with the deliveries to the Defendant also mounted the witness box as PW1. He explained in simple terms the processes from the issuance of goods from the stores, the documentation , the loading & off-loading and subsequently delivery to the Defendant's shops at Obuasi. He indicated that he personally saw the invoices issued in respect of the goods supplied to the Defendant and also supervised the loading & off-loading of the goods at the Defendant's two shops in Obuasi. Concluding, the witness said the goods in exhibit A were actually supplied to the Defendant and that they attached a document to the invoice in respect of goods not supplied for which the Defendant was credited at the time of payment.
At this juncture, the evidential burden shifted onto the Defendant and he was required to introduce evidence to the contrary. He admitted the assorted goods supplied to him as well as the credit notes issued in his favour on exhibit A. However, he denied the opening balance of GH¢ 66, 456.83. According to the Defendant, he normally cross-checked the invoice with the goods supplied to him to verify those which were not supplied. His version of the rival stories is that he needed to increase the stock in his two shops so he took an Over Draft of GH¢70,000.00 in order to have sufficient goods to feed his shops. He paid the GH¢70,000.00 to the Plaintiff who supplied him with goods worth GH¢79, 641.83 on 01/11/2013, but he was unable to pay the balance. Thus, his indebtedness to the plaintiff stands at about GH¢10,000.00. It will be useful to reproduce the following part of the cross-examination by counsel for the Plaintiff in respect of his indebtedness :
Q. You have refused to tender the receipt because you know it will show to this court that the GH¢70,000.00 was paid to settle all your indebtedness before 1/11/2013?
A. With their work, you need to pay off goods supplied before new goods are supplied. That
GH¢70,000.00 was meant to pay the goods they supplied to me in September as well as for the goods they will supply me in the future.
Q. That GH¢ 70,000.00 paid on 29/10/2013 was money you owed Plaintiff even before 09/09/2013?
A. The money I was owing them was GH¢13,000.00
Q. If indeed before 09/09/2013 you had paid all amount owed the Plaintiff, you would have submitted the necessary receipt? to that effect?
A. That time I lost my dad. Due to that I lost a lot of things in the house.
Q. I am also suggesting to you that it is as a result of your failure to pay for the supplies to you from 01/11/2013 that is why Plaintiff has brought you to court?
A. I only know the balance I owe them which is GH¢10,000.00.
Counsel for the Plaintiff in his written submissions filed on 17/07/2015, drew the court's attention to the inconsistencies between the Defence filed by the Defendant as his evidence in court. Reference was made to paragraph 4 of the statement of defence where the Defendant asserted that he paid all amount he owed the Plaintiff on or about November 2013.Counsel also referred to the Defendant's evidence that he paid in full for every goods he purchased from the plaintiff and argued that if that were true, then the Defendant will not be indebted to the plaintiff. Yet, he goes ahead in his evidence that he is indebted to the Plaintiff but not as claimed. In another twist, he said he owes GH¢10,000.00. Further, counsel pointed out that by paragraph 9 of the statement of defence, the Defendant pleaded that he had made several payments to the plaintiff but in his evidence in court, he said he had paid GH¢ 70,000.00 as contained at page 1 of exhibit A. With these inconsistencies, Counsel invited the court to find that the Defendant is not a witness to be believed and that he owes the amount endorsed on the Plaintiff's writ of summons.
For the Defendant, Counsel submitted that the Plaintiff has not led credible evidence to support its claims as endorsed on the writ of summons. His reasons are these: (i) The Plaintiff could not show how the opening balance occurred since he insisted payments were to be done before new goods could be supplied; (ii) the last two consignments were delivered by PW1; (iii) the Plaintiff failed to tender any receipt with details of the payment of GH¢70,000.00 for the court's perusal and (iv) it is the Defendant's contention that the said payment was to defray the cost of goods purchased on 1/11/2013. He therefore submitted that the Plaintiff's claim for GH¢76,911.84 is unmeritorious and that Judgment be entered for the Plaintiff in the sum of GH¢10, 455.01.
I will start my analysis from where counsel for the Defendant ended his submissions. This submission is premised on the Defendant's evidence that he owes the Plaintiff " around GH¢10,000.00". I agree with Counsel for the Plaintiff that the Defendant has been very economical with the truth, his testimony is pregnant with inconsistencies and he is simply not a credible witness in terms of section 80 of the Evidence Act 1975 NRCD 323. If per his evidence he had made full payment to the tune indicated on exhibit A as the opening balance as of 09/09/2013, then on what basis did he make a payment of GH¢70,000.00 on 29/10/2013 against goods which were eventually supplied on 1/11/2013? The evidence shows that the Defendant had a credit limit of GH¢80,000 and a credit period of ten days. Interest on overdraft facilities are calculated on daily basis. It does not make economic and business sense for a customer to obtain an overdraft facility from one entity and deposit same for future transactions with a another entity. Did he set out to make losses instead of profits? Again, the Plaintiff's system entries indicates the Defendant's indebtedness as well as all payments made by him and I accept the Plaintiff's evidence that exhibit A is a true reflection of the transactions between the parties to this suit. The Defendant's assertion that he had already made full payment in respect of earlier goods supplied to him is doubtful and I will not rely on the same. His claim that he owes " about GH¢ 10,000.00" has no legs to stand on. The Defendant has thus failed to introduce credible evidence that will tilt the balance in his favour.
I find that all the goods contained in exhibits A and B were supplied to the Defendant and credit notes were issued where appropriate; that the Defendant had a 10-day credit agreement with the Plaintiff in respect of goods supplied to him but he could not comply; that there was an outstanding balance of GH¢ 4, 806.00 arising from the supplies made on 09/09/2013; that the Defendant failed to
pay for the goods supplied on 1st and 5th November, 2015 which amount to GH¢ 69, 105.01 and GH¢3000.00 as per exhibit A after the ten days grace period ( (i.e. credit sales of GH¢75,155.01 less Credit notes worth GH¢ 6,050.00 plus GH¢3000) ; and that the Defendant paid GH¢70.000.00 on 29/10/2013 against his previous debit balance but not in respect of future supplies.
With these facts as found, I conclude that the Defendant owes the Plaintiff a total amount of GH¢ 76, 911.01. Accordingly, judgment is entered in favour of the Plaintiff in the sum of GH¢ 76, 911.01.
From the endorsement on the Plaintiff's writ of summons and the evidence in court, the Defendant ought to have paid GH¢4, 806,00 on or before 19/09/2013; GH¢ 69,105.00 on or before 11/11/2013 and GH¢ 3000 on or before 15/11/2013. This suit came about because of the Defendant's failure to pay on the respective due dates and the debt still remains unpaid. The Defendant has had the use of Plaintiff's money without any justification and the Plaintiff is certainly entitled to interest. I say he has no justification because under Section 15 of the Sale of Goods Act, 1962 Act 137, delivery is concurrent with payment. To the extent that the Plaintiff, as a seller, had discharged its obligations under section 8 of Act 137 by delivering the goods to the Defendant, he was under an obligation to pay for the same without excuses. The Ghanaian Court in Akoto v Gyamfi-Addo (2005-2006) SCGLR 1018 and the English Courts in Harbutt’s Plasticine Ltd v Wayne Tank & Pump Co. Ltd (1970) 1 All ER 225 ; and London, Chatham & Dover Railway Co. v South Eastern railway Co. (1893) AC 429 did award interest when the defaulting parties had no justification for withholding the Plaintiffs money as a result of which the Plaintiffs were compelled to institute Legal proceedings for recovery of the debt.
Accordingly, I will award interest on GH¢ 4, 806.00 from 19/09/2013; GH¢ 69, 105.00 from 11/11/2013 and GH¢ 3000 from 15/11/2013 to the date of judgment at the prevailing bank rate and at simple interest. I also award post judgment interest on the total amount of GH¢76,911.01 at the prevailing bank rate and at simple interest from the date of delivery of judgment to the date of final payment for the avoidance of doubt, the 91 day Treasury Bill rate of the Bank of Ghana is to be used as the prevailing Bank rate.
Cost of GH¢5,000.00 is awarded against the Defendant in favour of the Plaintiff.