1 Introduction:

 [1] Per a writ of summons sealed in this registry on May 18, 2016 the Plaintiff claimed against the Defendant the following reliefs:-

1. The recovery of the sum of GH¢911,411.70 from the Defendant being the cost of assorted steel products supplied by the Plaintiff to the Defendant between the period

8^th August 2014 and 6^th August 2015.

2. Interest on the said sum at the prevailing commercial lending rate from 6^th August 2015 to the date of final payment.

3. Any other relief as the Court may deem meet.

4. Costs including lawyer’s fees assessed at 20% of claim.

The claim of the Plaintiff was met with a statement of defence by the Defendant in which the Plaintiff’s claim was vehemently denied. The Court notes that the with the leave of the Court the Defendant filed an Amended Statement of Defence on June 18, 2018 at the time the trial had already started.

The Parties Case

[2] The Plaintiff pleaded that the Defendant is a Customer of the Plaintiff and sometime in August 2014 it expressed interest in buying a quantity of assorted steel products from the Plaintiff. The Plaintiff says by virtue of the relationship, it supplied several steel products to the Defendant on a thirty (30) day credit line arrangement. According to the Plaintiff between 8 August 2014 and 6 August 2015, it had supplied steel products to the Defendant to the tune of GH¢ 2,527,216.70 of which the Defendant had paid only GH¢ 1,615,805.00.

[3] The Plaintiff further pleaded that the debt due and owed by the Defendant to the Plaintiff as of 6 August 2015 was GH¢ 911,411.70. According to the Plaintiff in June and August 2015, the Defendant issued two National Investment Bank (NIB) cheques with face value of GH¢ 50, 000 and GH¢500,000.00 respectively in the name of the Plaintiff to pay the debts but when they were presented at the Bank both cheques were dishonoured. Plaintiff claims all efforts to retrieve the sum of GH¢ 911,411.70 has proved futile as the Defendant has evinced clear intention not to honour its contractual obligations to the Plaintiff.

[4] The Defendant in its Amended defence filed denied the Plaintiff’s claim and stated that it will put the Plaintiff to strict proof. According to the Defendant “by the VAT invoice and waybill delivered to the Company, out of the goods supplied worth GH¢ 909, 550 between 8^th August 2014 to 10^th December 2014, it has paid the sum of GH¢ 815, 805 leaving the balance of GH¢ 93, 745.

[5] The Defendant pleaded that it will produce all documentary evidence of payments made on account of goods supplied by the Plaintiff alongside the VAT invoice and Waybills at trial. It also pleaded that it issued undated cheques to the Plaintiff as security for the goods to be supplied before the business transaction even begun between the parties. The Defendant further averred that the undated cheques were two GH¢ 500,000 cheques and they were presented to the Plaintiff as security cheques under the following conditions

i. upon default of payment by the Defendant and

ii. with the knowledge and consent of the Defendant.

[6] The Defendant further averred that the cheques were not directly issued against the goods supplied but as security for repayment upon default. The Defendant further pleaded that the Plaintiff failed to inform the Defendant about the presentation of the cheques. According to the Defendant the Plaintiff’s representative it dealt with, one Mr. Tiwari informed it that he was not aware about the presentation of the cheques. The Defendant pleaded that at all material times it dealt only with Mr. Tiwari who held himself as the owner of the Company with partners in Dubai. The Defendant therefore disputes the amount endorsed on the writ of summons and claims by the Plaintiff and pleaded that the Plaintiff is not entitled to its claim.

Issues for Trial

[7] At the close of the pleadings the issues contained in the Applications for Directions filed by the Plaintiff and adopted by the court for trial were:-

1. Whether or not the Plaintiff supplied goods to the Defendant to the tune of GH¢2,527,216.70.

2. Whether or not the Defendant owes the Plaintiff the sum of GH¢911,411.70

3. Whether or not the Defendant issued two post-dated cheques in satisfaction of the debt with the Plaintiff.

4. Whether or not the Plaintiff is entitled to its claim

5. Any other issue (s) arising from the pleadings

The Evidence Received by Court:

[8] The Plaintiff gave evidence per its Head of Administration, Mr. P. K. Deb. He gave evidence in terms of the statement of claim to the effect that Plaintiff is a limited liability company registered under the laws of Ghana and deals in the importation and sale of steel, chemicals and glass products. According to Mr. Deb the Defendant which is a Customer of the Plaintiff sometime in August 2014 expressed interest in buying a quantity of assorted steel products from the Plaintiff. Mr. Deb further testified that by virtue of the relationship between the parties the Plaintiff supplied several steel products to the Defendant on a thirty (30) day credit line arrangement. The Plaintiff tendered as Exhibit “A”, a background information form filled out by the General Manager of the Defendant Company to the Plaintiff.

[9] Mr. Deb further testified that between the period of 8^th August 2014 and 6^th August 2015, the Plaintiff supplied the Defendant steel products to the tune of GH¢2,527,216.70 of which the Defendant has paid only GH¢1,615,805.00. The witness tendered Exhibit “B” series being copies of invoices together with the waybills which according to the Plaintiff show the supply of the assorted steel products supplied.

[10] The Plaintiff’s further evidence is that the Defendant’s debt as of 6^th August 2015 was GH¢911,411.70. The witness tendered Exhibit “C” being detailed statement report of the Defendant’s account with the Plaintiff.

[11] Further, Mr. Deb testified that in June and August of 2015, the Defendant issued and dated two National Investment Bank (NIB) cheques with a face value of GH¢50,000 and GH¢500,000.00 respectively in the name of the Plaintiff to pay its debts owing as at the date indicted on the cheques but when the Plaintiff presented the cheques for payment they were dishonoured contrary to the firm assurances given by the Defendant. Copies of the cheques were tendered as Exhibit “D” at trial without objection.

[12] The Plaintiff’s evidence is that the Defendant has neglected to meet its obligation to pay its just debts even though Plaintiff has tried on several occasions and all subsequent efforts to retrieve the sum owed being GH¢911,411.70 from the Defendant.

[13] Reacting to the Defence filed, Mr. Deb told the Court the Plaintiff has always dealt with the Defendant in its own capacity as the Defendant’s supplier of assorted steel products and it always issued invoices and waybills for the supplies in its own name and not through any agent or third party as asserted by the Defendant. Based on all of the above Mr. Deb implored the Court to enter judgment in favour of the Plaintiff and grant the reliefs endorsed on the writ of summons.

The Defendants’ Case:

[14] The Defendant’s evidence was proffered by its Director, Prosper Komlatse. His evidence was in line with both the Amended Statement of Defence filed and the Amended Witness Statement as well. According to Mr. Komlatse based on the VAT invoice and waybill delivered to the Defendant Company, the Plaintiff supplied the Defendant goods worth GH¢909,550.00 between 8^th August 2014 and 10^th December 2014. He further testified that the Defendant Company has paid the sum of GH¢815,805.00 leaving a balance of GH¢93,745.00 to be paid by the Defendant Company.

[15] Mr. Komlatse tendered Exhibits 1, 2, 3 and 4 which according to him are documentary evidence of payments made on account of goods supplied by the Plaintiff to the Defendant Company alongside the VAT invoices and waybills.

[16] Mr. Komlatse further testified that the Defendant Company issued undated cheques to the Plaintiff Company as security for the goods supplied before the commencement of the transactions between the parties. According to the witness the cheques were issued as security for “default of payment by the Defendant” and same was “with the knowledge and consent of the Defendant”.

[17] According to the Defendant, therefore, the cheques were not directly issued against goods supplied. The Defendant’s witness also said the Plaintiff failed to inform the Defendant about the presentation of the undated cheques.

[18] Mr. Komlatse further testified that Defendant at all time dealt with the Plaintiff’s representative called Mr. Tiwari who at all material times held himself as the owner of the Plaintiff’s Company with partners in Dubai. According to Mr. Komlatse Mr. Tiwari confirmed to the Defendant that he knew nothing about the presentation of the cheques when the payments did not go through. Based on all of the above the Defendant’s witness prayed the Court to dismiss the suit because the Defendant does not owe the amount endorsed on the writ as claimed by the Plaintiff.

Legal Principles & Application:

[19] I proceed to evaluate the nature of the evidence adduced at the trial. I shall examine the burden of the parties in this suit and relate same to the facts presented in their respective pleadings and the evidence adduced at the trial, before I make the necessary findings while determining the factual and legal issues set down. The general position of the law on proof is aptly stated by Kpegah J. A. (as he then was) in the case of ZABRAMA VRS. SEGBEDZI (1991) 2 GLR 221 at 246 as follows:

“…a person who makes an averment or assertion, which is denied by his opponent, has a burden to establish that his averment or assertion is true. And he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of the burden”.

[20] The general position of the law is that each party to the suit who alleges per their claim must adduce evidence on the facts and issues to be determined by the court to the prescribed standard set by statute Section 14 of the Evidence Act (NRCD 323) 1975 provides.

“Except as otherwise provided by law, unless and until it is shifted, a party has the burden of persuasion as to each fact the existence or non – existence of which is essential to the claim or defence he is asserting”

[21] The principle of law has received judicial blessing as the Supreme Court pronounced on it in the case of RE: ASHALLEY BOTWE LANDS, ADJETEY AGBOSU & OTHERS v. KOTEY & OTHERS [2003-2004] SCGLR 420. The Court held per Wood JSC (as she then was) at page 444 that:

“It is trite learning that by the statutory provisions of the Evidence Decree, 1975 (NRCD 323) the burden of producing evidence in any given case is not fixed, but shifts from a party to party at various stages of the trial, depending on the issues asserted and or denied.”

[22] Further, Brobbey JSC (as he then was) in the same case reiterated at page 465 that a defendant generally does not carry a burden of proof, because the Plaintiff who took the Defendant to Court has to prove what he claims is entitled to from the Defendant. However, if the court has to make a factual determination of an issue, and that determination depends on evaluation of facts and evidence, the Defendant must realize that the determination cannot be made on nothing. Consequently, in line with the tenets of Section 14 of NRCD 323, a Defendant who wishes to be successful in a matter is required to adduce facts and provide evidence on issues he desires to be held in his favour.

[23] The Supreme Court has also further explained in the case of OKUDZETO ABLAKWA (No. 2) vs. ATTORNEY GENERAL & ANOTHER [2012] 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…”

See also BANK OF WEST AFRICA LTD vs. ACKUN [1963] 1 GLR 176.

[24] This general position on the burden of proof and of persuasion has had judicial approval by the Supreme Court in the case of ABABIO VRS. AKWASI IV [1994 – 1995] GBR 774 where Aikins JSC expounded the position as follows:

“The general principle of law is that it is the duty of a Plaintiff to prove what he alleges. In other words, it is the party who raises in his pleadings an issue essential to the success of his case who assumes the burden of proving it. The burden only shifts to the defence to lead sufficient evidence to tip the scales in his favour when on a particular issue, the Plaintiff leads some evidence to prove his claim. If the Defendant succeeds in doing this he wins, if not, he loses on that particular issue”.

Findings of Fact & Evaluation of Evidence:

[25] From the pleadings filed by the parties and after having heard the testimony of the witnesses at trial and the exhibits filed, and, after having read the written submission filed by counsel, I make the following findings of fact having subjected all the evidence on record to critical evaluation and analysis. It is my finding that:

i) The parties herein indeed entered into an agreement for the Plaintiff to supply the Defendant with steel products on a credit line arrangement.

ii) The Plaintiff provided steel products to the Defendant between August 20014 and August 2015 which the Defendant and upon receipt was required to pay for same;

iii) The Plaintiff provided invoices and waybills to the Defendant for the goods supplied and not all of the invoices provided are paid for.

I now come to the main issues set down by the Court. – Whether or not the Plaintiff supplied goods to the Defendant to the tune of GH¢2,527,216.70 and Whether or not the Defendant owes the Plaintiff the sum of GH¢911,411.70. To my mind, the resolution of the above two issues shall dispose of the main controversy between the parties.

[26] I note that it is not disputed by the parties that they had an agreement and the Plaintiff was to provide the Defendant with steel products between August 2014 and August 2015. The bone of contention, therefore, is whether the Defendant is indebted to the Plaintiff in the amount of GH¢911,411.70. Whilst, the Plaintiff contends and maintains that the debt owed is GH¢911,411.70 the Defendant denies same and contends that he did not receive all the invoices and waybills as claimed by the Plaintiff.

[27] From the defence filed one issue that the Court had to resolve was whether the Plaintiff supplied the Defendants with goods to the tune of GH¢2,527,216.70? To my mind at the end of the evidence the Plaintiff failed to demonstrate that the amount endorsed on the writ indeed corresponded to the value of the goods supplied. I note that Mr. Edward Sam Crabbe in his written legal submission referred to the Plaintiff’s Exhibit “B” and the evidence heard at trial and submitted the issue should be resolved against the Plaintiff. The Court agrees with Counsel for the Defendant’s analysis on this point. This is what transpired when Mr. Deb the witness for the Plaintiff said when he was cross-examined on July 18, 2018.

“Q: Now, the total of the purchases of the steel products I have referred to this afternoon is GH¢909,550.00, do you agree to that?

A. No I do not agree. The total product supplied will amount to GH¢1,677,216.70 against this supply, the total amount we received is GH¢765,000 leaving a net outstanding of GH¢911,411.70. I want to highlight one more point and it is, cheques valuing GH¢850,000 issued by the Defendant were dishonoured by the bank.

Q. So, the amount you mentioned at paragraph 8 of your Witness Statement to be the total products supplied to Defendant in the sum of GH¢2,527,216.70 is incorrect.

A. There is some technical error which I can explain here. There is dud cheque of GH¢850,000 and if you add this amount of GH¢1,677,216.70 it will tally to GH¢2,527,216.70. For any payment we make a debit entry on the account and if the cheque is dud we have to make a contra entry on the credit side, so if you remove GH¢850,000 from that figure, it will tally to what I said.

Q. So, that the amount of GH¢850,000 you have referred to concerns dud cheques and not total steel products supplied to Defendant, correct?

A. Correct and all these adjustments that I told is not going to change the claim amount, the claim amount remains same, GH¢911,411.70.

Q. Your evidence in paragraph 8 of your Witness Statement that the Defendant has paid only GH¢1,615,805.00 is not correct.

A. Not correct because we have removed GH¢850,000 from GH¢1,615,805 so the total figure is GH¢765,805.

Q. Nowhere in your Witness Statement have you stated that an amount of GH¢850,000 should be deducted from the amounts you have mentioned in paragraph 8 of your Witness Statement, correct?

A. Correct because technical error was discovered later”.

[28] The answers provided in the above exchange were in sharp conflict with the Plaintiff’s pleadings and the witness statement filed in which the Plaintiff claimed at paragraph 8 that the steel products supplied were to the tune of GH¢2,527,216.70. But whereas the evidence of the Plaintiff on the total goods supplied was inconsistent with its pleadings, that of the Defendant to the effect that the goods supplied was not up to the tune claimed by the Plaintiff, was consistent with its pleadings.

[29] It is a settled rule of law that where there is a departure from pleadings at a trial by a party whereas the other’s evidence accorded with his pleadings, the latter’s is preferable. See: TAKYI v APPIAH (1982-83) 1 GLR 1 C/A.

[30] While on that subject, I ought to be quick to state that the Plaintiff’s witness’ admission on the error was genuine when he was cross-examined and Counsel for the Plaintiff also conceded same in his written legal submission. Counsel stated at paragraph 6.8 of the written submission that “In arriving at the total sales figure, the Plaintiff erroneously stated GH¢2,527,216.70 as the closing balance instead of GH¢1,677.216.70. The Plaintiff’s representative explained that the balance of GH¢2,527,216.70 included the sum of GH¢850,000.00 being the face value of 8 different cheques that had been paid by the Defendant and returned dud for insufficient funds. However, the said face values of the dud cheques were recorded on the ledger of the Plaintiff and that accounted for bloated closing balance of the total supply to the Defendant”. Based on all of the above it is clear that the Plaintiff concedes that the figure endorsed on the writ of summons was bloated. I therefore resolve the issue 1 set down against the Plaintiff.

[31] Throughout the trial, the one thorny issue that engaged the attention of Counsel for the Defendant was whether or not the Defendant owes the Plaintiff the sum of GH¢911,411.70. I note that Counsel for the Defendant in his written submission to the court made reference to the Exhibit “B” Series and submitted that “there are certain invoices and waybills that the Defendant has rejected on the grounds that the goods indicated in such invoices and waybills were not delivered to the Defendant”. Counsel also made much of the Plaintiff’s witness evidence that some of the goods and invoices were not delivered to the Defendant. This is clearly borne out from the answers given by the Plaintiff’s witness evidence under cross-examination again on July 18, 2018 as captured in the proceedings below:

“Q: Take a look at your Witness Statement, Exhibit “B” series, go with me to page 12, page 12 is a computer generated invoice dated 6^th August, 2015, correct?

A. Correct.

Q. I am putting it to you that Defendant on 6^th of August, 2015 never received steel products worth GH¢86,410.50.

A. That is not true, signed waybills with respect to all supply of GH¢1,600,000 have been delivered to the Defendant and also been produced the original copy and shown to Defendant’s earlier lawyer at the request of the Court.

Q. Behind the invoice referred to, is a waybill, page 13, correct?

Correct.

Q; I am putting it to you that Defendant did not receive this waybill and for that matter the goods described in it in his relationship with the Plaintiff.

A. Defendant never told us this story despite it is almost 1,100 days approximately so the Defendant is trying to avoid his liability to pay. Before we deliver goods, we discuss about the outstanding amount, the mode of payment and assurance from the buyer to pay, it is only after this assessment that the goods are supplied. At all material times, the Defendant knows what is the outstanding and in fact sometime in August 2015, we met the Defendant and the Defendant agreed to clear this outstanding of about GH¢1,100,000 at that time by paying GH¢50,000 every week but unfortunately, that did not materialise.

Q. Was this agreement in writing?

A. Yes, I have a copy of the minutes of the meeting that we sent to the Defendant. After that meeting the Defendant himself has paid two or three instalments, I am not sure.

Q. So, you can provide a copy of the minutes to the Court.

A. Yes of course.

Q. I am putting it to you that at all material times to this transaction, Defendant has been indebted to you in the sum of GH¢93,550.00 and not what you are claiming on the Writ of Summons.

A. That is not true.

Q. I am also putting it to you that Defendant never agreed that at that time he was indebted to you in sum of GH¢ٕ1,100,000.00 to be paid instalmentally by him.

A. That is not correct the Defendant did agree to pay the balance in instalment. The figure of GH¢1,100,000 that I referred to is rounded off, it is an approximation.

Q. I am putting it to you that Defendant never received the invoices and waybills attached to your Witness Statements particularly pages 14 to 17.

A. That is not correct.

Q. I am putting it to you that Defendant therefore is not indebted to you on the invoices and waybills you have attached to your Witness Statements which he did not receive.

A. That is not correct”.

[32] Clearly, the contention of the Defendant in the above exchange shows that there is a doubt as to whether or not all the steel products the Plaintiff contends it supplied to the Defendant were delivered and whether the Defendant was notified of such goods through invoices and waybills. In fact, the Defendant’s Counsel has submitted that the Exhibit “B Series” pages 12 to 17 were not delivered to the Defendant. According to Mr. Crabbe because the Defendant’s witness says they were not delivered to it the Plaintiff has the onus to prove that the assorted steel products contained in the said invoices and waybills were delivered to the Defendant.

[33] Mr. Sam Crabbe other grounds are that Exhibit B Series has several invoices and waybills signed by a representative of the Plaintiff and the driver of the hired vehicle in whose possession the goods were placed for delivery at the Defendant’s shop. According to Counsel because the Defendant says certain particular goods were not delivered to him no liability ought to be attached to him because the burden is placed on the Plaintiff to produce to Court the driver whose custody the goods were placed for delivery. Counsel submitted that based on the probabilities the said goods were not delivered by the drivers of the vehicles in whose possession the custody of the goods were placed. Counsel cited the Supreme Court decision in DANIELLI CONSTRUCTION LIMITED v. MABEY & JOHNSON LIMITED [2007-2008] SCGLR 60 and KWETEY v BOTCHWAY [1980] GLR 722 to support his submission.

[34] Juxtaposing the story of the Plaintiff against the Defendant, I have no difficulty in rejecting the above contention of the Defendant and Counsel’s submission that no liability should be attached to the Defendant because its witness says the goods were not delivered and he did not receive the invoices and waybills. In my opinion there is no air of reality to the Defendant’s position. I agree totally with the Plaintiff’s Counsel that the position is an afterthought. Indeed, in my opinion the Plaintiff’s witness’ testimony offered under oath was supported by a compelling body of confirmatory evidence, including the Exhibits “B” and “B Series” tendered without objection.

[35] Although the Defendant contended that it did not receive the waybills and also did not receive the goods, on the facts and the evidence, I find that it is not true. It is worth emphasizing that the Defendant’s witness’ testimony on whether the bills were issued and sent to the Defendant was even inconsistent with the pleadings and rather confirms the Plaintiff’s story. Significantly, in response to questions posed in cross-examination by Plaintiff’s counsel the following exchange took place between Counsel and Mr. Komlatse, the Defendant’s witness testified on April 25, 2018 on behalf of the Defendant. His answers are worth reproducing here:

“Q: How long have you traded in the steel business?

A. I started in 1991.

Q. So you would describe yourself as an experienced business man in the steel business?

A. Yes, my Lord.

Q. The Defendant’s relationship with the Plaintiff started on 8^th August, 2014 when the Plaintiff supplied assorted steel products to you, is that so?

A. Yes, my Lord.

Q. The first supply made by the Plaintiff to you was the total of GH¢115,807.00.

A. That is correct, my Lord.

Q. After this first supply to you, there were several other supplies to you, not so?

A. Yes, my Lord.

Q. On each occasion of a supply to you, an invoice and a way bill was attached, is that not so?

A. Yes, my Lord but not always do I have the two documents, sometimes the waybill and another time invoice.

Q. These invoices or waybills we see always bore the name of the Plaintiff, is that correct?

A. Yes, my Lord. The VAT invoices are written with pen and the waybills are printed.

Q. So it is not in doubt that in your business relationship with the Plaintiff, all your supplies came from the Plaintiff and no one else.

A. That is not correct.

Q. Did you receive any other supply from a person other than the Plaintiff?

A. My Lord as I have already said, I have been in this business since 1991 and I met Plaintiff only in 2014, what it means is that, I have other business partners”.

[36] The evidence establishes that good were supplied to the Defendant and waybills and invoices were also submitted to the Defendant. In the above exchange the witness only problem was that in some instances he received only invoices without waybills and vice versa but not because he did not receive the goods at all.

[37] One other piece of the evidentiary puzzle which undermines the Defendant’s position is that at the Mandatory Case Management Conference held on June 12, 2017, the Defendant’s former Counsel Mr. Fosu Gyeabour who attended did not raise the issue of non-delivery of the goods and also non-receipt of the invoices and waybills. He was content and the Court made orders in respect of the documents. At trial all the exhibits were tendered without objection. Mr. Sam Crabbe who was later retained only applied to the Court to be granted leave to cross-examine the Plaintiff witness and not to call back up for determination of the Court the exhibits.

[38] Order 38 Rule 3B (1) of C.I. 87 provides that the witness statement is the written admissible evidence of a party or his witness in proof of a fact or set of facts in issue before the Court. In the opinion of the Court, as evidence the statement must comply with Section 60 of the Evidence Act, NRCD 323 and must also be within the personal knowledge of the witness or what the witness has personally perceived. Further, the statement must be based on the pleadings filed and must directly address the issues the Court is called upon to adjudicate and decide.

[39] Order 38 Rule 3C also provides that “a witness statement shall be verified by a statement of truth”. To my mind, the purpose is for the intended witness to verify that the statements and contained in the witness statement together with the exhibits filed are true to the best of the witness’ knowledge and belief. Because the witness statement if adopted becomes the evidence in chief together with all exhibits attached and referred to in the witness statement. (See 2000 White Book Vol. 1) which provides that where a witness intends to rely on an exhibit at trial he ought to refer to same in the witness statement and he must mark same accordingly. To that extent the C.I. 87 follows the generally accepted principle which is to ensure that trials are conducted in a transparent way and ambush litigation discouraged.

[40] In my respectful opinion, it is without doubt that the filing and service of witness statement enable each party to assess the strength and weakness of one own case and the opponents case as well. Further, the rule requires that a pretrial checklist is filed and a Case Management Conference (CMC) held. At the CMC the Court ensures that all orders are complied with and also that there are no outstanding issue(s) such as exhibits attached and intended to be relied upon at trial are dealt with. At the CMC Counsel are required to know their case and then raise any issue which ought to be dealt with before trial. The purpose of this process is to ensure that trials are conducted speedily and without interruption.

[41] To my mind, based on all the proceedings in this matter the Defendant’s position is disingenuous and an afterthought. It needs stressing that the posture of the Defendant is affront to the basic tenets of agreement between parties.

[42] Demeanour as a measure of credibility can often be misleading and should not, standing alone, be determinative. However examining the Plaintiff’s testimony in the light of its internal consistency and its consonance with the other evidence heard and before the Court and with the probabilities inherent in the circumstances, it is my judgment that the Defendant’s evidence led is not worthy of any credit on the key parts relevant to its defence and I do not believe the witness. For instance Mr. Komlatse denied that any meeting took place between him and the Plaintiff officials. However, the Court Exhibit CE1 tendered in the Course of the trial undermined his denial because the email confirmed the meeting, the venue those who were present and what was agreed to by the parties.

[43] On the issue of delivery of the goods I further note that the Defendant’s position is that the driver who is retained to deliver the goods is the agent of the Plaintiff and not the Defendant. The Plaintiff’s witness was resolute on the point that it was not the business of the Plaintiff to deliver the goods but the Defendant retains a driver for delivery. Again, having heard the evidence I prefer the Plaintiff’s position to that of the Defendant. One question for which the Court begs for answer is that though the Defendant denies that it did not receive some of the goods and invoices and therefore cannot be liable, it does not explain if the goods and invoices received were delivered through a different medium than the one of which it complains. Based on the evidence heard, I am of the respectful view that the trade practice between the parties was for the Plaintiff to deliver the goods from its warehouse and the Defendant had the responsibility to convey to its place of work. As Counsel for the Plaintiff pointed out in his written submission to the Court the Defendant’s own Exhibit 1 shows that the drivers who delivered the goods were hired by the Defendant and not the Plaintiff. That further undermines the Defendant’s position taken.

[44] One other matter worth commenting is the Defendant’s position that it dealt with one Mr. Tiwari throughout the business arrangements and therefore he should have been called by the Plaintiff as a witness. Again, in the opinion of the Court the Defendant and Counsel are wrong. Indeed, if the Defendant believed that Mr. Tiwari was a material witness it should have called him as its witness. As the Plaintiff’s witness testified, the Plaintiff is a Company and therefore its business transactions are documented. To that extent, it did not require a former employee’s testimony to make its case if the person was not material. Based on Exhibit “A’ and the Defendant’s own Exhibit 1, the contract was between the Plaintiff as Zenon Impex and Industrious Bees and not Mr. Tiwari and Industrious Bees. On this issue as well I am of the respectful view that the Defendant’s position is an afterthought as it desires to take refuge under the fact that Mr. Tiwari is no longer in the employment of the Plaintiff.

[45] Finally, on the issue of the dishonoured cheques, I note that Defendant’s Counsel contend that they were only provided as security for default but the Plaintiff holds a different view. The Plaintiff’s Counsel in his submission further stated that the Defendant deliberately removed pages from its bank statement to avoid detection particularly in Exhibits 2, 3 and 4. In effect Counsel submits that the Defendant concealed evidence from the Court. The Court’s position is that whilst in some instances it may have been crucial to the determination of the germane issues, in this case it is not and therefore the Court shall avoid making definite pronouncement of same.

[46] In the light of the evidence on record and the above analysis it is obvious that the Plaintiff has been able to prove its claim in terms of Sections 11 and 14 of the Evidence Act, 1975 (NRCD 323) against the Defendant. Overall, I am satisfied that the case of the Plaintiff is more probable than that of the Defendant and is therefore entitled to judgment on the reliefs [A] and [B] endorsed on the writ of summons. I therefore resolve the second issue set down above in favour of the Plaintiff.

[47] In summary, I enter judgment for the Plaintiff in respect of the reliefs endorsed on the writ, that is:

a) Recovery of the sum of Eighty Nine Thousand, Six Hundred and Forty Six Ghana Cedis and Three pesewas (GH GH¢911,411.70) being outstanding amount owed to the Plaintiff by the Defendant for the steel goods supplied to it;

b) Interest on the amount in relief (1) at the prevailing commercial bank rate from 5^th August 2015 to the date of final payment;

[48] Further, taking into consideration the conduct of the Defendant and the numerous adjournments and the fact that Plaintiff had to come to Court for its legitimate debt and relying on the authority of the Court of Appeal case of GATCO CHEMPHARAM v. PHARMADEX (Ghana) LIMITED [1999-2000] 2 GLR @262 I shall award the Plaintiffs cost GH,000. 00.

Cost of GH¢10,000 to the Plaintiff. Accordingly ordered.