IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2014
LAWRENCE QUARCOO T/A LAWRENCE TRADING ENTERPRISE - (Plaintiff)
STRATEGIC ENERGIES LIMITED & ANOTHER- (Defendant)
DATE: 28TH JANUARY, 2014
SUIT NO: 2014RPC/P/104/12
JUDGES: ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
EUDORA OPPONG FOR THE PLAINTIFF
FRANKLIN ASAMOAH FOR THE DEFENDANT
The Plaintiff instituted the instant action jointly and severally against the Defendants for the reliefs set out below:
A declaration that upon a reconciliation of accounts between the Plaintiff and the Defendants, the
Plaintiff is indebted to the 1st Defendant Company in the sum of three thousand Ghana Cedis (GH¢3,000.00).
An order that the Plaintiff pays the sum of three thousand Ghana Cedis to the 1st Defendant
Company in full and final satisfaction of the Plaintiff’s indebtedness to 1st Defendant Company based on the contract.
An order for accounts.
An injunction to restrain the Defendants either by themselves or by their servants or agents or howsoever, from using unlawful means to detain the Plaintiff or Plaintiff’s petrol tanker.
A summary of the Plaintiff’s case is that he entered into a contract with the 2nd Defendant as agent of the 1st Defendant for the supply of Petroleum products on credit in January, 2011 but the contract was terminated in May, 2011. During the subsistence of the contract, various petroleum products worth GH¢296,061.53 were allegedly supplied to the Plaintiff. The Plaintiff claims he made payments amounting to the sum of GH¢292,145.00 to the 1st Defendant. He alleged that GH¢52,500.00 of this amount was paid personally to the 2nd Defendant but the rest of the money was paid into the 1st Defendant’s bank accounts with the Agricultural Development Bank and the UT Bank. It is the Plaintiff’s case that per his records, he owes the 1st Defendant the sum of GH¢3,000.00 and has since paid an amount of GH¢1,000.00 into its bank account. Irrespective of this payment, the 2nd Defendant is alleged to have used the police and other unlawful means to coerce the Plaintiff to pay an amount of GH¢28,000.00 and caused his Tanker to be detained.
An amended statement of defence was filed on behalf of the two defendants in which they stated an amount of GH¢296,056.53 as the value of the products supplied to the Plaintiff. The Defendants did not dispute the payments made by the Plaintiff on account of the 1st Defendant at the Bank. The 2nd Defendant however disagreed with the quantum of payments said to have been made to him personally. Both Defendants counterclaimed for the recovery of an amount of GH¢ 26,811.53 as the Plaintiff’s indebtedness and interest thereon.
All attempts to reconcile accounts prior to this trial proved futile. Three straightforward issues were set down for trial as follows:
1. Whether or not the amount owed by the Plaintiff to the Defendants is GH¢3,000.00 or GH¢26,000.00?
2. Whether or not the Plaintiff is entitled to his claim?
3. Whether or not the Defendants are entitled to their counterclaim?
At the trial, both parties gave evidence as to the value of products supplied and the payments made by the Plaintiff. The parties were ad idem as regards the value of the products supplied, which is a little over GH¢296,000.00 as well as the payments made by the Plaintiff to the 1st Defendant through the Bank, GH¢239,745.00.The only contention now relates to the payments allegedly received in cash by the 2nd Defendant.
Details of these cash payments are contained in paragraph 17 of the Plaintiff’s amended statement of claim and he gave evidence to support the assertions therein. He said in his evidence that on or about 26/01/2011, he and his wife paid an amount of GH¢9,000.00 to the 2nd Defendant towards the supply of petroleum products but the 2nd Defendant failed to issue a receipt to them. On 15/02/2011, the Plaintiff said the 2nd Defendant demanded payments from him to ensure continuous supply and under the pretext that the 1st Defendant company had directed him to build an office for which he needed money. Thus, in the presence of the Plaintiff’s wife, the 2nd Defendant collected an amount ofGH¢8,000.00. The Plaintiff further testified that he made a third payment of GH¢26,400.00 to the 2nd Defendant on 26/02/201 opposite an Engen Oil Company in Kumasi. One Mr. K.K. Asoah was said to be present when this money was paid to the 2nd Defendant. The 4th and 5th payments of GH¢9,000.00 and GH¢3,100.00 were made to the 2nd Defendant at Abrepo junction and in the Plaintiff’s house respectively, bringing the total cash payments to GH¢52,500.00.
The GH¢6,000.00 payment was confirmed by PW1, Kwasi Brenya who told the court that he personally handed over that amount to the 2nd Defendant at a time when the 2nd Defendant said he had lost his daughter in Obuasi. The Plaintiff’s wife testified as PW2 and corroborated the payments of GH¢9,000.00 at Abrepo junction Total filling Station on or about 25th January and GH¢3100.00 in the Plaintiff’s house. PW3 who works for Mr. Asoah also testified that on or about 18th February, 2011 he came to Kumasi with his manager and witnessed the payment of money to the 2nd Defendant by the Plaintiff and Mr. Asoah. It is in his evidence that Mr. Asoah paid GH¢10,000.00 to the 2nd Defendant but he could not tell the actual amount paid by the Plaintiff. He demanded for a receipt from the 2nd Defendant but none was issued to him.
Out of these five payments, the 2nd Defendant acknowledged in his evidence that he received three payments of GH¢9,000.00 and GH¢ 3,100.00 in the Plaintiff’s house at Tabre and a total payment of GH¢ 16,400.00 made up of GH¢6,400.00 from the Plaintiff and GH¢10,000.00 from Mr. Asoah. During cross-examination, 2nd Defendant admitted that he failed to credit the Plaintiff’s account with an amount of GH¢7,500.00 from the monies he received received from him.
It must be noted from the evidence on record that Mr. K.K. Asoah did not have an account with the 1st Defendant Company when the transactions in issue took place. The GH¢10,000.00 payment he made to the 2nd Defendant was his first encounter with the Defendants and, per the evidence; an account was to be created for him after two or three transactions. Therefore, the GH¢10,000.00 payment was to be credited to the Plaintiff’s account with the 1st Defendant for the supplies to be made to DW1. No receipt was issued to DW1 and he explained to the court that he paid the money on 04/03/2011 which was a holiday. As a result, the 2nd Defendant could not have access to the company’s office to issue a receipt.
There seems to be issues with the credibility of DW1 pertaining to the transaction which occurred on 04/03/2011. A careful look at the 2011 calendar reveals that 04/03/2011 was a Friday. It was not a public holiday of any sort such that the 2nd Defendant could not have had access to the offices of the 1st Defendant to issue a receipt. DW1 is a retired educationist and a very intelligent person who ought to have known this fact. His evidence that the 2nd Defendant told him in the course of demanding for a receipt that the Plaintiff had paid GH¢ 6,400.00 is untenable. First, the evidence shows that the Plaintiff and DW1 met the 2nd Defendant some distance to an Engen Filling Station at the same time. It is immaterial whether the payments were made in a pickup vehicle or in the open. What is of essence is the fact that the Plaintiff and DW1 did make payments to the 2nd Defendant on a working day, in one transaction and in the presence of all three persons. These notwithstanding, it can be reasonably inferred from the evidence of DW1 that he did not know the amount paid by the Plaintiff until the 2nd Defendant mentioned it to him. How possible can this be if the three of them were present at the same time?
DW1 demonstrated during cross-examination that he has unresolved monetary issues with the Plaintiff as regards some petroleum supplies in the past where he was short changed. It is on record that the Plaintiff intended to call K.K. Asoah (DW1) as his witness since he was present when the money was paid. This could not happen because, according to the Plaintiff, Mr. K.K. Asoah told him he had been involved in a motor accident. Surprisingly, after the Plaintiff had been forced to close his case, the said K.K. Asoah resurfaced, as fit as a fiddle, to testify on behalf of the 2nd Defendant. From the foregoing, the court needs no prompting to make a finding that K.K. Asoah deliberately misled the Plaintiff and the court as to his state of health during the proceedings as well as the actual amount paid by the Plaintiff to the 2nd Defendant. It appears he got a golden opportunity to settle old scores. Clearly, there is the existence of bias and personal interest in his testimony against the Plaintiff. He has not been honest with the court as regards his narration of the events 04/03/2011, particularly, the amount paid by the Plaintiff to the 2nd Defendant. In short, he has failed the test of credibility within the meaning of section 80 of the Evidence Act, 1975, NRCD 323 and the court is entitled to take these factors into account.
The 2nd Defendant’s version of the events of 04/03/2011 is equally not passable. Assuming 04/03/2011 was a holiday of some sort, what prevented him from waiting till the next working day so that the monies could be deposited in the 1st Defendant’s account at the Bank or for a receipt to be issued? Does it imply that the 2nd Defendant collected such a huge amount and kept it in his home until a later date? Why would 2nd Defendant assume such an unreasonable risk? Interestingly, 04/03/2011 was not a holiday! If he intended to issue a receipt to the Plaintiff and DW1, he could have done so. The conduct of the 2nd Defendant in collecting monies due the 1st Defendant in cash without issuing receipts is regrettable. This, coupled with his own admission in cross-examination that he failed to record the actual amounts received from the Plaintiff in the 1st Defendant’s books gives him out as a person who is all out to deceive unsuspecting customers and the court. As his own answers in cross-examination show, he misapplied an amount of GH¢ 7,500.00 paid by the Plaintiff in the blind side of the 1st Defendant Company. Thus, the said amount stood as a debit balance against the Plaintiff in the 1st Defendant’s books. His explanation that he used the said amount for administrative expenses and to purchase tires for fuel Tankers cannot be accepted as a good reason for making the wrong entries. His conduct out of court, as demonstrated by the evidence on record, point to the only irresistible conclusion that he misrepresented the true state of affairs of the transactions with the Plaintiff to the 1st Defendant Company. He even had the audacity to represent the 1st Defendant Company in court at a time when his employment had been terminated. Is he not a daring and an overconfident trickster? As the saying goes, birds of the same feather flock together. So shall it be with the 2nd Defendant and his witness, DW1 who are both not credible as regards the accounts of 04/03/2011. Between the two rival stories, I accept the Plaintiff’s version as the truth and find that the Plaintiff and DW1 paid GH¢16,400.00 and GH¢10,000.00 respectively to the 2nd Defendant on 04/03/2011 which was not a holiday.
Another cash payment which the 2nd Defendant has denied receipt is the GH¢6,000.00 said to have been paid by PW1. PW1 gave a vivid description of what transpired at the time he handed over an amount of GH¢6,000.00 to the 2nd Defendant in the presence of the Plaintiff. The 2nd Defendant could not deny the evidence of PW1 that at the time of handing over the cash, the 2nd Defendant said his daughter had died in Obuasi. Death is a serious matter and if that were not true, the 2nd Defendant would have readily denied this evidence. As characteristic of his undesirable business practice, the 2nd Defendant did not issue a receipt to PW1. I have had no course to doubt the credibility of PW1 and accept his evidence on the payment of GH¢6000.00 to the 2nd Defendant as the truth. Neither do I have the slightest doubt that the 2nd Defendant received at least one payment from the Plaintiff’s wife (PW2) in their Tabre residence.
The 1st Defendant Company has a place of business, be it temporary or permanent. It was absolutely wrong for the 2nd Defendant to have received cash payments from customers of the 1st Defendant in their homes, over the weekend and in unauthorised places. As a sound business practice, he would have saved himself from trouble if he had directed the Plaintiff to deposit all the monies in the 1st Defendant’s accounts at the Bank. As the evidence shows, no issues have arisen from the deposits made at the bank. Therefore, the Plaintiff must be able to satisfy the mind of the court through credible evidence that his assertions relating to the cash payments are true. In other words, he assumes the burden of proof on those facts.
As rightly submitted by counsel for the Plaintiff, “proof is no more than credible evidence of a fact in issue.” Kpegah JA ( as he then was) in the case of Zambrama v Segbedzi (1991) 2 GLR 221 CA emphasised that the party on whom the burden of proof rests does not discharge that burden “ unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred…”.
In all civil suits, the court is enjoined by section 12 of NRCD 323 to evaluate and weigh the evidence adduced by the parties on the balance of probabilities. This requires a careful analyses of the entire evidence on record as held by Ansah JSC in the case of Takoradi Flour Mills v Samir Faris ( 2005-2006) SCGLR 882 at 884 holding 5 as follows:
“ 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.”
From the facts of this case, the evidential burden first rests on the Plaintiff and he is required to lead evidence to support the assertions made in his pleadings. See Continental Plastics v IMC Industries-Technik GMBH (2009) SCGLR 298 at 307. The Plaintiff has duly discharged this burden by giving credible evidence of five cash payments made to the 1st Defendant through the 2nd Defendant in addition to deposits into various bank accounts of the 1st defendant. In all, the total cash payments which the court accepts from the Plaintiff’s evidence amount to GH¢52,500.00. From the exhibits B series, the total deposits into the 1st Defendant’s accounts at ADB, UT and Prudential Banks amount to GH¢240,745.00. There is a notice of payment into court filed on 05/02/2013 in respect of an amount of GH¢3,000.00 paid by the Plaintiff to clear his indebtedness to the 1st Defendant. The grand total of the cash payments, the court and bank deposits is GH¢296, 245.00. From the exhibit ‘A’ series, the total value of products supplied to the Plaintiff is GH¢296,056.53.
On the part of the 2nd Defendant, whose representation of the 1st Defendant at this time is doubtful, no credible evidence on the cash payments has been given. The height of the 2nd Defendant’s dishonesty or deceitfulness is such that the court cannot accept his version of the cash payments received from the Plaintiff and DW1. It is true that the cash payments made by the Plaintiff on 04/03/2011 as well as other payments made by his wife to the 2nd Defendant have not been corroborated. Having studied the evidence critically, the court is of the view that their evidence needed no corroboration. In Takoradi Flour Mills v Samir Faris , referred to supra, the Supreme Court noted in holding (3) at page 883 that:
“A tribunal of fact can decide an issue on the evidence of only one party. A bare assertion on oath by a single witness might in the proper circumstances of a case be enough to form the basis of a judicial adjudication. The essential thing is that the witness is credible by the standards set in section 80(2) of the Evidence Decree, 1975…”
The court continued by stating that:
“ … When a party has named certain persons in his evidence -in-chief, the fact that he did not call all, or any of them even though they were available, per se, would not prove fatal to the case of the party. The adjudicator has the whole of the oral evidence of the party and the documents tendered in evidence, if any before him to consider for his decision.”
In the case before me, the fact the fact that DW1 chose to testify for the Defendant even though he had been mentioned as a witness for the Plaintiff does not in any way affect the Plaintiff’s case. I find that the Plaintiff and his witnesses are credible as far as the issue under consideration is concerned.
Therefore, I come to the conclusion that the Plaintiff has paid in excess of the petroleum products supplied to him by the 1st Defendant, the value of which is stated in the exhibit ‘A’ series. The overpayment is marginal and can be ignored. If the 2nd Defendant had paid all the monies he had received from the Plaintiff to the 1st Defendant, the 1st Defendant would not have invited the Plaintiff over his indebtedness. The Plaintiff would also not have sued the 1st Defendant.
At this juncture, the court declares that the Plaintiff has fully settled his indebtedness to Strategic Energies Limited for the supplies made to him in the exhibit ‘A’ series. If there is any amount outstanding against the Plaintiff in the books of the 1st Defendant in respect of the products supplied to the Plaintiff as per the exhibit ‘A’ series, the 2nd Defendant is to settle that debit balance, having received the requisite cash payments from the Plaintiff in the past.
The 2nd Defendant is restrained from making any unlawful monetary demands from the Plaintiff pertaining to the supplies indicated in the exhibit ‘A’ series. He is further restrained from using unlawful means to detain the Plaintiff or the Plaintiff’s Petrol Tanker over any unpaid balance in the books of the 1st Defendant Company.
I find no merit in the Defendants’ counterclaim and the same is hereby dismissed. Judgment entered in favour of the Plaintiff against the 2nd Defendant.
This suit and the entire trial could have been avoided had the 2nd Defendant been candid. It is his misconduct which has forced the Plaintiff to come to court. The Plaintiff has had to engage the services of a lawyer at a great cost. In view of these and bearing in mind the provisions of Order 74 rules 1 and 2 of C.I. 47, the court awards GH¢ 3,000.00 as costs in favour of the Plaintiff against the 2nd Defendant.
It is also ordered that the sum of GH¢3,000.00 paid into court as per the notice of payment filed on 05/02/2013 be released to the 1st Defendant Company forthwith.