IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2015
WILL CELLS GHANA LIMITED - (Plaintiff)
KAMBONSE GHANA LIMITED - (Defendant)
DATE: 8TH JUNE, 2015
SUIT NO: RPC/108/13
JUDGES: HER LADYSHIP ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
MR. ADU GYAMFI FOR THE PLAINTIFF
SAEED KOFI SAM FOR THE DEFENDANT
On 30/05/2013, The Plaintiff issued a Writ of Summons against the Defendant for the reliefs as set out below:
(a) A refund of USD 91, 500 and GH¢ 57, 750 respectively being outstanding advance deposits payments made to the Defendant by the Plaintiff for the supply per month of 20 Footer containers of ROSEWOOD TIMBER which the Defendant has refused to pay despite repeated demands.
(b) Interest at the prevailing Bank rate on the said outstanding deposits of USD 91, 500 and GH¢57,
750from June 2012 till date of final payment.
(c) Such further orders or order as the court may deem fit.
In its statement of claim, the Plaintiff averred that it is a company registered under the Laws of Ghana and that it is the representative/agent of Messrs C.D.P.D. of Lome, Togo and that this action is brought at the instance of the said C.D.P.D. of Lome Togo. It is the Plaintiff's case that per an agreement between the parties dated January 2012, the Plaintiff agreed to purchase per month 30 footer containers of Rosewood Timber from the Defendant at an agreed price of USD 4, 500 per container. In furtherance of this agreement, the Plaintiff, at the request of the defendant made deposit payments totaling USD 163,500 and GH¢ 57, 750.00 to the Defendant. The Defendant supplied part of the timber and has since June, 2012, stopped the supplies. Therefore, the Plaintiff is claiming a refund of the balances of USD 91, 500 and GH¢ 57, 750.00 from the Defendant.
The Defendant challenged the Plaintiff's capacity to mount this action in the manner in which same has been done. The Defendant in its statement of defence averred that it had never transacted any business whatsoever with the Plaintiff company and has not been notified whether officially or otherwise of any agency /representative capacity of Messrs . C.D.P.D. of Lome. Togo in Ghana. The Defendant admitted that C.D.P.D. of Lome Togo agreed to purchase per month 30 footer containers of Rosewood Timber from the Defendant at an agreed price of USD 4,500.00 per container and deposits were made to that effect. The Defendant further averred that C.D.P.D. of Lome, Togo, refused to pay the T.I.D.D. on shipments made contrary to the agreement and that the Defendant had to pay for the same at GH¢ 550.00 per container. It is the Defendant's case that the Plaintiff's actions and inactions has caused it heavy financial loss and unwarranted inconvenience in the normal course of business. The Defendant company denied owing the monies being claimed by the Plaintiff.
By way of reply, the Defendant's assertion that it does not know and has never dealt with the plaintiff company was denied. The Plaintiff averred that all letters meant for, payments and other matters between the CDPD, Lome and the Defendant are settled with the Plaintiff's Managing Director personally or through its business address at 2nd Floor ASAFOATSE KOTEI BUILDING OPP, MELCOM PLUS, TEMA COMMUNITY 1, with postal address of P.O.Box TS 256, TESHIE NUNGUA ESTATE, ACCRA. Accordingly the Defendant is estopped by its conduct from denying that the Plaintiff is the Agent/Representative of C.D.P.D. , Lome. The Plaintiff further denied the Defendant's alleged payment of T.I.D.D. and stressed that the Plaintiff is not in any way indebted to the Defendant.
All attempts to settle this matter failed and the issues set down for trial are as follows:
1. Whether the Plaintiff is the agent and lawful representative of C.D.P.D. of Lome in Ghana?
2. Whether or not all the payments for the supply contract were made to the Defendant by the Plaintiff on behalf of C.D.P.D. of Lome in Ghana?
3. Whether or not the Defendant is indebted to Messrs C.D.P.D. of Lome, Togo to the amount claimed by the Plaintiff?
4. Whether or not payment of the sum claimed wholly discharges the Defendant's liability to C.D.P.D. of Lome.?
The issue of capacity is so fundamental and must be determined first. In this case, the Plaintiff's capacity is embedded in the first issue set down for trial, i.e. whether the Plaintiff is the agent and lawful representative of C.D.P.D. of Lome in Ghana?
Evidence was adduced on behalf of the Plaintiff by Afoutou Kodjo Amehowuho also known as Kodjo who told the court that Will Cells Limited represented C.D.P.D. of Lome in Ghana as regards the Rosewood agreement between C.D.P.D. of Togo and Kambonse Ltd in Ghana. According to him, Kambonse Ghana Limited signed the agreement and gave him a copy which he took to the director of C.D.P.D. , Togo in the person of Etoh Felix to sign. According to him, the agreement was for the supply of 20 feeter containers of Rosewood at the price of USD 4,500 per container. Two documents which relate to the agreement were tendered as exhibits A and B. The witness explained that exhibits A and B are the same. However, when Defendant signed its portion of exhibit B, he took it to C.D.P.D in Lome for them to sign their portion. Kodjo said he brought exhibit B back to the defendant in Ghana who in turn gave him a photocopy and kept the original. It is on record that the Defendant's Managing Director disputed the signature attributed to him on exhibit B.
In cross-examination, Kodjo reiterated that WillCells (Gh) Ltd is the agent of C.D.P.D. of Lome, Togo and that he represents C.D.P.D. at WillCells. Thus, he acted on behalf of C.D.P.D. as regards the Rosewood agreement with the Defendant. Counsel for the Defendant extensively cross-examined the Plaintiff's representative on his previous employment which I find to be irrelevant to this case. In the ensuing paragraphs, I will consider the arguments advanced by both counsel on the issue under examination.
ARGUMENTS BY COUNSEL FOR PLAINTIFF
For the Plaintiff, Counsel submitted that the evidence on record shows that the Plaintiff is the representative and agent of C.D.P.D., Lome, Togo and that all the transactions between the Defendant and C.D.P.D., Lome Togo were done by the Managing Director of the Plaintiff, acting for and on behalf of C.D.P.D. Lome Togo, with the Defendant. This explains why the agreement (exhibit A) was brought to the attention of Kodjo ( the managing Director of the Plaintiff).
Continuing, counsel drew the court's attention to exhibit C dated 1/2/12 which reads:
"On behalf of Kambonse Ghana Limited in the presence of Nana Danquah, I Bakang Komanyare have received from AFOUTOU KODJO OF C.D.P.D. as 10% ( 3 containers) advance payment for the purchase of 30 containers of rosewood valued at USD 4, 500.00 per container. Amount received is USD 13, 500.00 (Thirteen Thousand, Five hundred USD only).
Further, Counsel submitted that the Managing Director of the Defendant Company who gave evidence on behalf of the Defendant corroborated the fact that the Plaintiff was the representative and agent of C.D.P.D. Lome and that he dealt with the Plaintiff as the representative and agent of C.D.P.D. Lome Togo. Again, it was submitted that the Defendant's own witness, Kwaku Oppong emphatically confirmed that the Plaintiff was the representative of C.D.P.D. Lome Togo and exhibit "F" was prepared with the Plaintiff's Managing Director, Kodjo.
In support of the foregoing submissions, counsel relied on Osei Yaw & Anor v Domfeh ( 1965) GLR 418 where the Supreme Court speaking through Apaloo J held:
" Where the evidence of one party on an issue in a suit is corroborated by the witnesses of his opponent, whilst that of his opponent on the same issues stands uncorroborated even by his own witness, a court ought not to accept the uncorroborated one, unless some good reason (which must appear on the face of the judgment) the court finds the corroborated version incredible and impossible."
To the extent that the Defendant and his witness corroborated in the material particular the evidence of the Plaintiff as being the representative and agent of C.D.P.D. Lome in Ghana, the issue of the Plaintiff being the lawful representative of C.D.P.D. Lome is therefore proved.
ARGUMENTS BY COUNSEL FOR DEFENDANT
For the Defendant, counsel argued that the Plaintiff in its evidence in chief and cross-examination before this court failed to produce cogent evidence (either documentary or otherwise) to show that it had been mandated by the said C.D.P.D. to initiate the present action. Further, Counsel submitted that since Defendant has at all material times maintained its lack of knowledge of the existence of the Plaintiff Company in its dealings with C.D.P.D., it was incumbent on the Plaintiff to prove that it had dealt with the Defendant on behalf of the Company in Lome, but not only to repeat in the witness box that (plaintiff) is an agent /representative of the Company in Lome, Togo without more. Counsel cited and relied on the following cases in which their Lordships held, among other things, that matters which are capable of positive proof must be proved by producing cogent evidence which the court will assess on the balance of probabilities: Abbey v Antwi (2010) SCGLR 17 at 19 (holding 2); Adwubeng v Domfeh ( 1996/97) SCGLR 660; Yaa Kwesi v Arhin Davis (2007/08) SCGLR 580; Sarkodie v FKA Co. Ltd. (2009) SCGLR 65 holding 1; Yorkwa v Duah ( 1992/93) GBR 278 CA and Takoradi Floor Mills v Samir Faris ( 2005/06) SCGLR 882.
Still on the issue of capacity, counsel cited and relied on Sebastian Dzaisu & 29 Ors v Ghana Breweries Ltd 16 MLRG 123 and Republic v High Court, Accra; Ex-parte Aryeetey (Ankrah Interested Party) 2003/04 SCGLR 398 at 399. In these cases, the court held that a party must endorse on the writ the capacity in which he sues; and where an issue as to capacity is raised, it is incumbent on the Plaintiff to prove same.
Counsel moved to comment on the Power of Attorney (exhibit 1) by which C.D.P.D. mandated the plaintiff to commence the instant action. His argument here is that exhibit 1 falls short of the requirements precedent for the use of Foreign documents in Ghana as spelt out under section 161 of the Evidence Act, 1975 N.R.C.D. 323. In support of this, he relied on the case of Juxon- smith v KLM Dutch Airlines ( 2005/06) SCGLR 438 at 441 where it was held thus:
"The ways by which foreign documents might pass the mandatory preliminary test had been spelt out under section 161 of NRCD 323. As a general rule, there was no presumption of authenticity and authorization of a foreign signature unless the following conditions were satisfied:
"(i) The signature was that of an international public entity, or a state recognized by Ghana, or a public entity in a state recognized by Ghana;
(ii) the writing to which the signature was affixed was accompanied by a signed and sealed certificate of the genuineness and official position of the person who had signed it; and (iii) the certification and authorization was signed and delivered by a diplomatic agent of Ghana or a commonwealth country who has been assigned or accredited to that country, Ghana or a commonwealth country ..."
Concluding, counsel made reference to the statement of Apaloo JSC in Akrong v Bulley (1965) GLR 469 SC thus:
" I need hardly say that i reached this conclusion with no relish, especially as the Plaintiff made out an unimpeachable case of negligence against the defendants on the merits. But the question of capacity, like a plea of limitation is not concerned with the merits.
He then invited the court to dismiss the Plaintiff's case on grounds of lack of capacity and found solace in the statement of Atuguba JSC in Oppong v Attorney General ( 2000) SCGLR 275 at 280 as follows:
" Where a step by a party to proceedings before this court is fundamentally wrong, such error is not within the purview of the rule and cannot be waived. One cannot waive a nullity."
I must commend Counsel for the Defendant for his extensive research and industry on the issue of capacity. I am in agreement with his submissions, based on the authorities cited, that failure to endorse a writ with the capacity in which a person sues on behalf of another is a fatal error and indeed a nullity which cannot be waived. However, those arguments will not hold for the circumstances of this case. Why is it so? Generally, an agent can institute an action in his own name so long as it is within the scope of the agency and there is no need to endorse the writ of summons to reflect that the agent is suing on behalf of his principal. It is enough if it is disclosed in the accompanying statement of Claim that such an agency exists.
A case in point is Akosah v Owusu (1963) 2 GLR 277. This was a case of goods sold and delivered. The Plaintiff was the store keeper of C.T.L., Koforidua. On the question of the Plaintiff's capacity to institute that action, the supreme Court held as follows (holding 3):
" As an agent of C.T.L., the Plaintiff was entitled to sue in his own name as he had a beneficial interest in the performance of the contract for the sale of the goods to the Defendant."
With the above precedent, all that the plaintiff is required to prove is that it is an agent of C.D.P.D. of Togo in Ghana. PW1 is the managing Director of C.D.P.D. of Lome, Togo. He corroborated the evidence that Kodjo is the agent of C.D.P.D. in Ghana with WillCells and he did all the transactions on behalf of C.D.P.D. Indeed, PW1 signed the agreement on behalf of C.D.P.D. of Lome, Togo. The Defendant's representative also confirmed in his evidence that he received a letter from Adu Gyamfi & Co saying they are going to act on behalf of a company in Togo. He further said in evidence that a registered mail which he sent to C.D.P.D. of Lome for a confirmation of the representation made by Adu Gyamfi & Associates was returned to him but failed to tender the so called returned mail. Later, the witness said he received exhibit G (Letter from Adu Gyamfi & Associates who represent WillCells) but the company in Togo never replied to his letter. The Defendant's representative admitted signing exhibit A which has on it: ATTENTION KODJO. In cross-examination , he admitted that he has known Kodjo since the year 2012 and he even stayed in his house at a point but does not know the Kodjo whose name appear on exhibit A. When he was further pinned down, he provided the following answer to a question in cross-examination:
Q. I am suggesting to you that it was because Kodjo was the agent of the Company in Togo and their representative that you drew his attention to this agreement so that he could take action?
A. I agree but then, exhibit A is not a contract because the other party did not sign.
The Defendant's witness (DW1) denied knowledge of WillCells but admitted that Kambonse had an agreement with a gentleman called Kodjo. He identified the said Kodjo in court as the Plaintiff's representative.
In my view, there exist sufficient evidence on record, (both oral and documentary) which point to the irresistible conclusion that Afoutou Kodjo is an officer of WillCells (Gh) Ltd which is the agent of C.D.P.D. of Lome Togo in Ghana and that Afoutou Kodjo represented C.D.P.D. of Lome, Togo in all the transactions between Kambonse (Gh) Ltd and C.D.P.D. It is immaterial if the Defendant did not initially know that Kodjo whom the Defendant Company dealt with is an officer of WillCells.
Subsequently, they got to know when exhibit G was written to the Defendant Company. Exhibit G talks about the agreement which Afoutou Kodjo negotiated and paid monies on behalf of the Togolese Company and which the defendant is fully aware. Having notified the Defendant of the relationship between WillCells (Gh) Ltd and C.D.P.D. of Togo through exhibit G, there was absolutely no need for exhibit 1. I will add that Adu Gyamfi & Associates is a reputable Law Firm in Ghana and if the Defendant had any doubts about exhibit G, reasonable steps ought to have been taken to verify the contents thereof.
Exhibit 1 is a power of attorney which was executed in Togo. In Hussey v Eda (1992-93) 4 GBR 1703, the Supreme Court speaking through Hayfron Benjamin JSC made the following statement as regards Powers of Attorney (holding 5):
“A power of attorney was a formal document by which one person, usually called the principal or donor, divest to another, usually called the attorney or donee, authority to represent him or act in his stead on certain purposes spelt out in the document. If such a power was for use abroad, it ought to be authenticated by a notary public... The Power of Attorney made by the Plaintiff's siblings in the Republic of Togo required notorial authentication for its efficacy for use in Ghana."
In the instant case, exhibit 1 does not meet the requirement of authentication as argued by Counsel for the Defendant. However, i have found from the evidence on record that there was no need for such a power of attorney in the circumstances of this case and will thus disregard exhibit 1. I therefore hold that WillCells (Gh) Ltd, is properly before this court as agents of C.D.P.D. of Lome, Togo.
Without further ado, I move to consider the issue as to whether or not all the payments for the supply contract were made to the Defendant by the Plaintiff on behalf of C.D.P.D. of Lome in Ghana?
The Defendant and its witness have not denied that various payments were received from Afoutou Kodjo as regards the supply of Rosewood to C.D.P.D. of Lome, Togo. It has also been established through the evidence on record that Afoutou Kodjo is an officer of WillCells (Gh) Ltd, agents of C.D.P.D. of Lome, Togo. Obviously, a company acts through human beings as was held in Godka Group of Companies v PS International Ltd (2001/2002) SCGLR 918 at 922 (holding 5) thus:
... Section 137(1) of the Companies Act 1963 , Act 179 has codified an established rule that a company being an artificial person must act through human agents."
From the foregoing, I conclude that the payments made by Afoutou Kodjo to the Defendant herein were made by him as an officer of WillCells (Gh) Ltd, agents of C.D.P.D. of Lome, Togo.
This brings me to the issue as to whether or not the Defendant is indebted to Messrs C.D.P.D. of Lome, Togo to the amount claimed by the Plaintiff?
On this issue, the Plaintiff's representative ( Kodjo) led evidence to support the deposit payments made by the Plaintiff as agents of CDPD, Lome Togo. He emphasized that he made some payments in cash to officers of the Defendant and others were paid into the Dollar and Cedi accounts of the Defendant. In his evidence-in-chief, he tendered exhibit C (a receipt for USD13,500 ),issued to him by one Bakang Komanyare on behalf of the Defendant; exhibits D and E being Standard Chartered Bank cash deposit slips of USD24,000.00 and USD27,400.00. He also said USD100,000 and GH¢57,750.00 were paid on account for the benefit of the Defendant company. For the total payments made in cedis and dollars, Kodjo said the Defendant was to supply CDPD with 43 containers of Rosewood at USD4,500.00 per container but the Defendant eventually supplied only 16 containers. At this point, Kodjo said the defendant authorized its accountant to go into accounts with him. And after the reconciliation, the accountant (DW1) gave him a document (exhibit F). Relying on exhibit F, Kodjo indicated that the balance due to be refunded to Plaintiff, as agent of CDPD, Lome Togo is USD 91, 500.00 and GH¢ 57,750.00.
The above testimony did not go down well with Counsel for the Defendant who subjected Kodjo to a vigorous cross-examination. Counsel summed up the figures mentioned by Kodjo and suggested to him that the total payments made to Defendant is USD 114,900.00, which he denied. Counsel again suggested to Kodjo that Defendant was to supply CDPD with 30 containers of Rosewood out of which 16 had been supplied. As to be expected, Kodjo reacted by saying that the 30 containers was to be a month's supply per the agreement between the parties but the total payments made covered 43 containers.
The Managing Director of CDPD Lome Togo, Felix Etoh, testified as PW1. He confirmed that exhibit F which was prepared by an associate of Kambonse Ltd was sent to CDPD by its Ghanaian agent. So far as he is concerned, exhibit F is a true reflection of the money which Defendant is to refund to CDPD.
The Managing Director of the defendant Company who represented it in court challenged the figures in exhibit F. First, he said there are interlineations on the document which casts doubts on its authenticity. Second, he said prior to this suit, he communicated his disagreements over the figures to PW1 who promised to come to Ghana for a reconciliation but never showed up. Another reason given by the Defendant's MD as regards the debit balances in exhibit F is that CDPD failed to honour its part of the bargain by paying for T.I.D.D. According to him, the wood could not be conveyed without payment of T.I.D.D. Thus, he was compelled to pay the T.I.D.D. for three containers which has caused his company financial inconvenience. The Plaintiff's position is that per the agreement, CDPD was not required to pay for any T.I.D.D.
The Defendant Company called the accountant who prepared exhibit F as DW1 (Kwame Oppong). Oppong admitted having prepared exhibit F. He indicated that Kodjo was to come for a final reconciliation but this was not done during the period he worked for the Defendant Company. According to Oppong, most of the monies paid by Kodjo went to different individuals in Kambonse and some went directly into operations.
SUBMISSIONS BY COUNSEL FOR PLAINTIFF ON THE DEFENDANT'S INDEBTEDNESS
Counsel for the Plaintiff was very brief. His argument was that since the Defendant has not challenged the figures in exhibit F, Plaintiff is entitled to all the reliefs endorsed on the writ of summons.
SUBMISSIONS BY COUNSEL FOR DEFENDANT ON DEFENDANT'S INDEBTEDNESS.
Counsel urged the court to disregard exhibits A and B because the formal agreement was never executed by the parties. Thus, the Plaintiff cannot rely on any of these documents purporting to be an agreement between the parties. Next, he prevailed upon the court not to rely on exhibit F partly because of the interlineations and also the refusal of CDPD to come for a final reconciliation. In his view, the Plaintiff has failed to prove its claims on the strength of the evidence on record and it is therefore not entitled to the reliefs sought. He concluded his submissions by making reference to the statement of Anin Yeboah JSC in Asamoah v Marfo (2011)
SCGLR 832 at 841 thus:
"We think that just as a judge has no power to enter a judgment for an amount more than what was claimed, he equally has no such power to enter judgment for a lower figure not asked for in the proceedings on record if there was no admission in any manner or form for the lesser amount..."
I find the arguments by counsel for the Defendant quite intriguing and i admire the brevity of plaintiff's counsel's submissions on this issue. DW1 has confirmed the evidence of the Plaintiff that he prepared exhibit F. I have looked at exhibit F closely. DW1 signed it in his capacity as the Project Accountant of the Defendant Company. The document is headed " STATEMENT OF ACCOUNT FOR THE SUPPLY OF ROSEWOOD". It is addressed to CDPD of Lome Togo and for the attention of Etoh Felix. There is nothing on the face of exhibit F which shows that it is an interim or provisional statement of accounts for the supply of Rosewood and that a final statement of account was to be prepared at a latter date. The interlineations complained of by Defendant can be explained away by the evidence on record. The first item on exhibit F , when read together with the money received on behalf of Defendant by Bakang Komanyare in exhibit C, ought to have been typed as USD 13,500.00. However it was typed as USD 13,000.00 but was corrected with ink to reflect the USD 13,500.00. This correction, which i believe was done in good faith, affected the total monies paid to the Defendant i.e. USD 163,500 instead of the USD 163,000.00 which was typed on exhibit F. In the same manner, it raised the balance due by USD 500.00 i.e. from USD91, 000.00 to USD 91, 500.00.
The preparation of statements of accounts is done in the normal course of business of accountants. Oppong of Kambonse Ltd who prepared exhibit F cannot be said to have acted outside the scope of his duties as a Project accountant. Such official acts are therefore binding on the company. The denial by the Managing Director of the Defendant that he had no knowledge of exhibit F is of no consequence whatsoever. The Defendant Company held DW1 out as a qualified Accountant and CDPD through its agents dealt with him as such. DW1 owed a duty to be candid in the preparation of statements of accounts such as in exhibit F. If the monies indicated in exhibit F were not received by the Defendant Company, how did DW1 come by those figures? Did he conjure them? Was he made to prepare the statement at gun point? Answers to these questions cannot be found from the evidence adduced on behalf of the Defendant Company. Having prepared exhibit F in his official and professional capacity, CDPD was entitled to rely on it as a true reflection of the financial dealings as regards the supply of Rosewood. Thus, by the conduct and representation made by DW1 whilst acting as an officer of the Defendant Company in the preparation of exhibit F, and in the absence of evidence of fraud or collusion on his part, the Defendant is estopped from denying the contents thereof.
In the testimony of the Managing Director of the Defendant Company, he said :
“ I signed the agreement with the company in Togo but they did not sign the contract. The document I signed is not exhibit B. I signed exhibit A. I never received exhibit B. In the timber industry, there is a certain rule that you do not have to necessarily sign a contract but you can operate within the rules of the Timber Association."
Surprisingly, he did not bring the rules of the Timber Association to the notice of this court either orally or through documentary evidence. For a written contract to be binding and enforceable, it must be signed by the parties thereto. We are confronted with two documents in this case. Exhibit A has only the signature and stamp of the Managing Director of the Defendant Company. Exhibit B has the signature of the MD of Plaintiff in ink but that of the Defendant's MD is different. The Plaintiff and PW1 have explained that exhibit A was signed by the Defendant's MD and it was sent electronically to the Plaintiff's MD in Togo. When he received it as in exhibit B, he also signed his portion. This explains why the signature of the Defendant's MD appears like a photocopy.
Due to the persistent request by Counsel for the Defendant to settle the matter out of court, the Defendant's MD's disputed signature could not be sent for Forensic analysis. The absence of an expert opinion does not preclude the court from forming its own opinion on the disputed hand writing as the authorities suggest. Two cases readily come to mind.
The first is Quartey v King (1969) CC 122, CA where it was held that handwriting can be proved by: (i) comparison with another specimen signature of the same person on another document; (ii) by calling the writer of the document or signature; or (iii) by calling a witness who saw the document written or signed. See also Conney v Bentum Williams (1984-86) GLR 301, CA.
The second is Osei v The Republic (1976) 2 GLR 383, CA. Here, the court expressed its view on disputed handwritings as follows:
“In jury trials a jury was not permitted to draw its own unaided conclusions from a comparison of handwriting because the guidance of an expert was a crucial requisite. However, when the opinion was that of the court itself judges might form their own opinion on disputed handwriting.”
In the instant case, i have closely looked at the signature on exhibit A which the Defendant's MD admits. I have compared it to what he disputes on exhibit B. The two signatures are strikingly similar. I conclude that Kwasi Obeng Amoo signed both exhibits A and B. His contention that someone might have scanned his signature on exhibit B will not hold. I therefore find that exhibit B is the agreement which binds the parties thereto. There is no mention of T.I.D.D. in exhibit A. The Defendant has also not satisfied the court on the balance of probabilities that it paid for T.I.D.D. on three containers at the rate of GHS 550 per container and they are entitled to be reimbursed. If those payments were in fact made, what prevented DW1 from capturing them in exhibit F when he prepared the statement of accounts? It is not surprising that the Defendant has not counterclaimed for this amount.
Has the Plaintiff been able to prove its case against the Defendant? I will consider the case of Takoradi Flour Mills v Samir Faris (2005-2006) SCGLR 882. At page 884 the court held as follows (holding 5):
“ It is sufficient to state that this being a civil suit, the rules of evidence require that the plaintiff produces sufficient evidence to make out his claim on a preponderance of probabilities, as defined in section 12(2) of the Evidence Decree, 1975 ( NRCD 323). In assessing the balance of probabilities, all the evidence, be it that of the plaintiff or the defendant must be considered and the party in whose favour the balance tilts is the person whose case is the more probable of the rival versions and is deserving of a favourable verdict.”
On the totality of the evidence on record, the Plaintiff has established that the Defendant Company was to supply 30 containers of Rosewood to CDPD of Lome Togo per month; monies covering 43 containers at USD 4,500.00 per container were paid to the Defendant's bank account and in cash to its accredited officers in Ghana at various times; the Defendant supplied 16 containers out of the 43 to Plaintiff; the parties reconciled their accounts and arrived at USD 91,500.00 and GH¢57,750 as the refund due to be paid to CDPD and no supplies of Rose wood were made after the reconciliation of accounts in 2012. The Plaintiff has proved its case on the balance of probabilities and is deserving of a favourable verdict.
I conclude that C.D.P.D of Lome Togo is entitled to a refund of USD 91,500.00 and GH¢ 57,750. Since the action has been brought by the agents of C.D.P.D. Lome Togo in Ghana, it is my considered opinion that the Plaintiff is entitled to the said amounts as endorsed on its writ of summons. Full payments by the Defendant to WillCells (Ghana) Ltd as agents of C.D.P.D. Lome Togo, fully discharges the Defendant of any further liabilities to C.D.P.D. of Lome Togo under the Rosewood Supply Agreement.
The Plaintiff has asked for interest on the refund due and payable to them at the prevailing Bank rate from June 2012 till date of final payment. From the evidence on record, the Defendant Company has had the use of the money received from CDPD of Lome Togo and in respect of which no supplies were made. The Defendant's explanation for failing to supply the Remaining containers of Rosewood due to the refusal of CDPD to pay T.I.D.D. does not justify the retention of these monies. The Plaintiff is therefore entitled to interest. I will refer 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.
As regards the GH¢57,750.00, 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. The same rate will not apply to the USD 91,500.00.
The General principle is that when a court orders money to be paid in a foreign currency, interest on that money is to be levied in the same foreign currency. This principle was applied in GPHA v Issofou (1993-94) 1 GLR 24. This was a case involving the importation of rice which was lost in transit. Damages were awarded against the GPHA in US dollars, the currency in which the plaintiff alleged that he ordered the rice. On the question of interest, the Supreme Court held that interest rates payable at the Ghana rates of interest (in terms of LI 1295) (now C.I. 52), were inapplicable to transactions dealt with in foreign currency. In conclusion, the court stated:
“Where the judgment debt, money or damages was to be paid in a foreign currency then the rules governing monetary transactions in that foreign currency in the foreign country would prevail unless expressly provided for and agreed upon by the contracting parties.”
Again, the Supreme Court, in National Investment Bank Ltd v Silver Peak Ltd (2003-2004) SCGLR 1008 stated:
“From the narration of the facts of the instant case, the obligation of the appellant was calculated in dollars, but the learned trial judge also made reference to the cedi equivalent of that dollar amount. That reference to the cedi equivalent does not justify his next step in applying the cedi interest rate to an obligation he had calculated in dollars. Thus, the fact that a foreign currency debt is discharged through the payment of the cedi equivalent by a Ghana resident, as such resident is obligated by law to do, does not change the nature of the underlying foreign currency debt and the fact that the appropriate interest rate which should attach to it is the usual interest rate commercially applicable to that currency. The mere fact of the payment in Cedis should not change the applicable interest rate.”
At page 1013 of the report, the court continued:
“It makes commercial sense for a dollar debt to attract a dollar interest rate because that interest rate (influenced by a rate set by the Federal Reserve Board) reflects the macroeconomic conditions of the United States, which determine the dollar-dominated debts world-wide. Similarly, it makes commercial sense for a cedi debt to attract a cedi interest rate since that rate reflects Ghanaian macroeconomic conditions (including, for instance, the rate of depreciation of the cedi against the leading foreign currencies and high interest rates). Thus, if a cedi interest rate is applied to a dollar obligation, the oblige( that is the creditor) will be over compensate because the cedi interest rate, which necessarily reflects the high inflation in Ghana, will be applied to a dollar obligation which has not been subjected to that high inflation.”
The Supreme Court brought a closure to these foreign interest rates in NTHC v Antwi (CM/J7/3/09) (see also editorial note in (2009) SCGLR 121. The Supreme Court granted an application for review and vacated its previous order in these terms: “that interest on the purchase price of the property, the subject-matter of the suit, be paid by the respondent (applicant herein) up to the date of payment at the applicable Bank of Ghana dollar rate as at the date of such payment.”
From the foregoing, the Defendant is to pay interest on the sum of USD91,500.00 or its cedis equivalent at the Bank of Ghana Dollar lending rate.
Accordingly, judgment is entered for the Plaintiff against the Defendant for GH¢57,750.00 together with interest at the Prevailing Bank rate and USD91,500.00 plus interest at the Bank of Ghana Dollar lending rate. The interests are to run from June, 2012 till date of final payment.
Having taken into consideration the provisions of Order 74 of C.I. 47 on the award of costs, and the oral submissions made by both counsel, I hereby award GH¢20,000.00 as cost against the Defendant.