IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2014
AZAR CHEMICAL INDUSTRIES LIMITED - (Plaintiff)
KWARTENG AMANING - (Defendant)
DATE: 16TH DECEMBER, 2014
SUIT NO: RPC/42/14
JUDGES: ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
LAWYERS: OSEI WUSU ANTWI FOR THE PLAINTIFF AKUA POKUAA KWARTENG FOR THE DEFENDANT
The Plaintiff’s action is for the recovery of the sum of GH¢44,483.62 being the outstanding balance of various products supplied to the Defendant since 15/07/2012. The Defendant denied the quantum of his indebtedness to the Plaintiff and after settlement had broken down, two issues were set down for trial, namely,
1. Whether or not the Defendant owes the Plaintiff the sum of GH¢44,483.62?
2. Whether or not the Plaintiff is entitled to interest on the said amount?
At the trial, evidence was adduced on behalf of the Plaintiff by its debt recovery officer by name Solomon Yacham. His testimony was straight to the point. He told the court that the Plaintiff had been supplying the Defendant with Azar paint products on a one month credit basis, calculated from the date of supply. Between February, 2012 and September, 2012, the Defendant failed to pay for products supplied to him.
In support of its case, the Plaintiff’s representative tendered in evidence invoices and a ledger account as exhibits A, A1 to A6, B and B1. Relying on exhibits B and B1, he gave the outstanding balances in respect of Azar Shield and other Azar products as GH¢39, 820.04 and GH ¢5,018.39 respectively. He stated that it is the sum of these figures which resulted in the amount endorsed on the writ of summons.
In cross-examination, counsel for the Defendant challenged the Plaintiff’s evidence that the credit sales was for one month only. The Defendant repeated this in his evidence-in chief. He tendered various invoices (exhibit 1 series) to buttress his point. He admitted in his evidence that before the Plaintiff stopped supplying him with products, his indebtedness exceeded GH¢50,000.00 and, because he was making payments, it had reduced at the time the Plaintiff instituted this action. After the commencement of this action, the Defendant said he has made payments totaling GH¢22,593.00. In support of these payments, he tendered cash deposit slips (exhibit 3 series) and a statement of account indicating the clearing of a Unibank cheque numbered 000217 on account number 09 70190 672618 which had been issued in favour of the Plaintiff.
Under cross-examination, the Defendant admitted that at the time the Plaintiff instituted this action, his indebtedness stood at GH¢ 44,483.62. The payments totaling GH¢22,593.00 was not challenged by the plaintiff in cross-examination. Thus, the Plaintiff is deemed to have admitted those payments.
The above admissions have simplified my task at this point. In determining the Defendant’s indebtedness, the court will deduct GH ¢ 22,593.00 from GH¢44,483.62. On the basis of the oral and documentary evidence before me, the Defendant’s current indebtedness to the Plaintiff is GH¢ 21,890.62
Having dealt with the quantum of the Defendant’s indebtedness, I will proceed to determine whether the Plaintiff is entitled to interest on the said amount.
Counsel for the Plaintiff in his written submissions to this court argued, that if the court accepts the Defendant’s argument that there was no time line for payment of the goods supplied to him, it will then imply that even when goods supplied are not sold out after one year, the Defendant was under no obligation to pay for them. In his view, such a position is contrary to normal business practice.
Conversely, Counsel for the Defendant argued, based on the exhibit 1 series, that at the commencement of the business transactions on or about the year 2003, no time line was indicated on the invoices issued to the Defendant and the Defendant was also not informed that there was any such time line within which to make payment. Thus, the Plaintiff could not have unilaterally imposed the 30-day credit line in the year 2012 without informing the Defendant. In her view, the instant debt is as a result of previous debit balances which had been carried forward over the years. Counsel made specific reference to exhibit B which shows that the balance brought forward as of 01/01/2010 was GH¢49, 475.87 in respect of AZAR Shield. Thus, she took the view that if outstanding balances had to be paid within 30 days from the date of supply, the debt could not have piled up to the amount stated on exhibit B, which confirms the Defendant’s stance that the Plaintiff did not give him any time line within which to make payments. Again, counsel referred to portions of the Defendant’s cross-examination and invited the court to find that the Defendant’s inability to dispose of the AZAR Shield was a genuine one which has resulted in his present indebtedness.
These arguments are indeed a prelude to her submissions on whether or not interest is to be paid on the amount owed. As to be expected, counsel for the Defendant invited the court to find that the Plaintiff failed to lead sufficient evidence to support its claim of entitlement to interest. She cited and relied on the case of Heloo v Tetteh (1992) 2 GLR 112 (holdings 1 and 2) as follows:
“(1) the courts were empowered to award interest on a judgment debt in one of two situations, either (a) where the party indorsed his writ of summons with a claim for interest, pleaded the particulars of the said interest and led sufficient evidence in proof of his claim to that interest; or (b) where the court suo motu exercised its discretion under section 98 of the Courts Act, 1971 (Act 372). The exercise of that discretionary power was neither dependent on a claim for interest made by the plaintiff nor proof of any such interest. It was a discretion exercised entirely by the court when it was of the view that on the facts the ends of `justice would best be served by awarding interest on the judgment debt.
(2) The rationale for the award of interest on a judgment debt was that if the judgment debtor had paid the money at the appropriate commercial time, the creditor would have had the use of it. Accordingly, the interest was really meant as compensation for what the plaintiff had lost from the due date. Consequently, before a court could make any meaningful and valid award of interest either in exercise of its discretionary power under [p.114] section 98 of Act 372 or as a result of satisfactory proof of the interest, the court had to ascertain and find as a fact the date on which the debt became due since the interest would be computed from that date…”
Continuing, counsel stressed that apart from endorsing a claim for interest on the writ of summons, the Plaintiff failed to lead evidence as to why the court must award interest in its favour. She added that from the evidence led by the Plaintiff, even if the court decides to award interest, it will be a near impossible task to decide when interest begun to run. She premised that argument on exhibits 2 series and B1 which point to the fact that before the institution of the action, the Defendant was making payments.
In answer to the above submissions, the evidence on record shows that even though the Defendant made some meagre payments previously, the chunk of the payments, amounting to GH¢22,593.00 were made after the commencement of the instant action.
I agree with the argument made by Counsel for the Defendant that unlike the 2012 invoices, those issued between the years 2003 and 2006 did not have the 30 day payment period. From the Defendant’s own evidence, he has been transacting with the Plaintiff for about a decade. Business arrangements are not static. They are usually subject to changes in market conditions. Thus, the terms upon which goods were supplied to the Defendant at the onset of the business in the year 2003, could have changed over time. Indeed, the 2012 invoices are evidence of this fact. I do not think the Defendant had the free will to make payments for goods supplied depending on the sales to his customers. Under Section 22 of the Sale of Goods Act, 1962, Act 137, it is stated:
“Unless otherwise agreed the buyer must be ready and willing to pay the price in exchange for delivery of the goods”.
From the above, it can be reasonably inferred that payment must be concurrent with delivery. Thus, if no payment date was indicated on the invoices tendered by the Defendant, it was expected of him to make payment at the time of delivery, unless otherwise agreed. If payment was not made at the time of delivery, he ought to have paid off within a reasonable time. What amounts to a reasonable time is a question of fact to be decided on the circumstances of each case. On the facts of this case, payments have been outstanding since the year 2012. The Defendant’s assertion that he sold some of the products on credit and his debtors have refused to pay for the same is untenable. As a business man, the Defendant is solely responsible for his business decisions. Thus, if his bad business decisions have placed him in any disadvantageous position, that cannot be blamed on the Plaintiff – Seller. I do not think the Plaintiff caused him to accept delivery at gun point. He sold the products for profit. Why must he walk away from losses when they occur? As his own evidence shows, the initial problems he had with the AZAR Shield had resolved at least five years before the instant suit and he cannot capitalize on that as a justification for holding on to the Plaintiff’s money.
In the case before me, the Plaintiff endorsed its writ for recovery of money and interest thereon. All that the Plaintiff is required to show is that the Defendant actually owes the amount claimed, or any part thereof, and, that he had no justification for holding on to the money. The Plaintiff has demonstrated on the balance of probabilities that the Defendant had a period of 30 days within which to make payment and that had to be compromised at a point due to the Defendant’s habit of withholding payments on post dated cheques issued against goods already supplied. The evidence further shows that the Plaintiff found the Defendant’s mode of payment unacceptable and cut off supplies in September, 2012. Both parties admit that the amount endorsed on the writ of summons was a substantial part of the Defendant’s indebtedness after Plaintiff had stopped giving him supplies and that when the suit was filed, the Defendant made payments exceeding half the sum claimed.
The basis for the award of interest by a court came up in the case of Akoto v Gyamfi Addo (2005-2006) SCGLR 1018 where the Supreme Court categorically stated:
“The general principle for the award of interest to a party was that such a party had been unjustifiably kept out of the money due to him or her for the relevant period…”
This seems to be the general position even at Common Law. Denning MR expressed his view on the issue of interest in Harbutt’s Plasticin Ltd v Wayne Tank & Pump Co. Ltd (1970) 1 All ER 225. At page 336, his Lordship had this to say:
“ … The basis of an award of interest is that the defendant has kept the plaintiff out of his money; and the defendant has had the use of it himself so he ought to compensate the plaintiff accordingly.”
I am particularly persuaded by the statement of Lord Herschell LC in Chatham & Dover Railway Co.
v South Eastern Railway Co. (1893) AC 429 as follows:
“ … 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 its 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…”
The evidence before me shows that the Defendant has been indebted to the Plaintiff since 2012 or earlier but the Plaintiff based its claim on the debit balance as of 2012. Per exhibit A6, the last time supplies were made to the Defendant was 12/09/2012. Even though from the year 2012 the Defendant had a 30 day period within which to pay for supplies made to him, he was equally under an obligation to pay for previous supplies within a reasonable time from the date of supply. This is so because the goods were sold to him on credit and the Plaintiff did not demand payment at the point of delivery. In the circumstances of this case, I would say that a maximum of three months can be said to be reasonable for the pre-2012 supplies. The Defendant’s assertion that there was no time limit to the credit sale is less favourable on the balance of probabilities. Moreover, the Plaintiff’s representative has testified that due to the conduct of the Defendant, i.e. recalling post dated cheques when due, some of the supplies could not be paid for within the 30 days. This piece of evidence was not challenged by the Defendant. It is my considered opinion that the Defendant has unjustifiably kept the Plaintiff’s money. The balance which was carried forward from the year 2010 as in exhibit B ought to have been paid within a reasonable time and the supplies made in the year 2012 should have been paid for 30 days after the various dates of supply. Having observed the Defendant in court, he cannot be described as totally illiterate in the English language such that he would not have seen the 30 day credit line indicated on the 2012 invoices. That notwithstanding, he has made substantial payments when this action was commenced. That will be taken into account. Certainly, the Plaintiff is entitled to some interest on the amount endorsed on the writ of summons as well as the balance which is now outstanding.
Accordingly, I award interest on the sum of GH¢44,483.62 at the prevailing bank rate from October, 2012 ( one month after the last supplies) to the time the writ of summons was issued ,.i.e. 21/10/2013. I further award interest on the outstanding balance of GH¢21,890.62 from 22/10/2013 till date of final payment.
Judgment entered in favour of the Plaintiff in the sum of GH¢21, 890.62 together with the two levels of interest indicated above.
Counsel for the Plaintiff has waived cost and so there is no order as to cost.